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Tuesday March 26_ 1996 by linzhengnd

VIEWS: 21 PAGES: 341

									3–26–96                                Tuesday
Vol. 61   No. 59                       March 26, 1996
Pages 13043–13382




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II                             Federal Register / Vol. 61, No. 59 / Tuesday, March 26, 1996

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                                                                                                                                                       2
                                                                                                                          III

Contents                                                        Federal Register
                                                                Vol. 61, No. 59

                                                                Tuesday, March 26, 1996



Agency for International Development                            Regattas and marine parades:
NOTICES                                                           Harborwalk Boat Race, 13119–13120
Agency information collection activities:                         Miami Super Boat Race, 13122–13123
 Proposed collection; comment request, 13213                      River Race Augusta, 13120–13122
                                                                NOTICES
Agricultural Marketing Service                                  Meetings:
RULES                                                            Navigation Safety Advisory Council and National Boating
Fruits, vegetables, and specialty crops; import regulations:          Safety Advisory Council, 13225–13226
  Avocados, grapefruit, kiwifruit, etc., 13051–13061
Sheep promotion, research, and information program:             Commerce Department
  Referendum results, 13061                                     See Census Bureau
                                                                See International Trade Administration
Agriculture Department                                          See National Oceanic and Atmospheric Administration
See Agricultural Marketing Service                              See Patent and Trademark Office
See Forest Service
See Rural Utilities Service                                     Commodity Futures Trading Commission
                                                                NOTICES
Antitrust Division                                              Meetings; Sunshine Act, 13157
NOTICES
Agency information collection activities:                       Consumer Product Safety Commission
 Proposed collection; comment request, 13215–13216              RULES
                                                                Hazardous substances:
Appalachian Regional Commission
RULES
                                                                 Multiple-tube mine and shell fireworks devices; injury
Conflict of interests; correction, 13051                              risk, 13084–13097

Army Department                                                 Customs Service
NOTICES                                                         NOTICES
Meetings:                                                       Information dissemination:
 Science Board, 13158                                             CD–ROM and Internet formats; microfiche elimination;
                                                                      comment request, 13228–13229
Bonneville Power Administration
NOTICES                                                         Defense Department
Floodplain and wetlands protection; environmental review        See Army Department
    determinations; availability, etc.:                         See Navy Department
  Columbia River Basin, OR; hydroelectric projects, 13160–      RULES
      13161                                                     Acquisition regulations:
                                                                 Naval vessel components, 13106–13108
Census Bureau                                                   NOTICES
NOTICES                                                         Meetings:
Agency information collection activities:                        Science Board task forces, 13157–13158
 Proposed collection; comment request, 13152
                                                                Education Department
Coast Guard                                                     PROPOSED RULES
RULES                                                           Elementary and secondary education:
Drawbridge operations:                                            Elementary and Secondary Education Act;
  Florida, 13098                                                      implementation, 13324–13329
Merchant marine officers and seamen:                            NOTICES
  Tankermen and persons in charge of dangerous liquids          Grants and cooperative agreements; availability, etc.:
       and liquefied gases transfers; qualifications; comment     Elementary and secondary education—
       period reopening, 13098–13100                                Even start statewide family literacy initiative, 13358–
Ports and waterways safety:                                             13373
  Lower Mississippi River; safety zone, 13100                     Special education and rehabilitative services—
PROPOSED RULES                                                      Education of individuals with disabilities; personnel
Boating safety:                                                         training, 13376–13377, 13380–13381
  Boats and associated equipment—
     Houseboats and other displacement type recreational        Employment and Training Administration
          vessels; propeller injury prevention aboard rental    NOTICES
          boats, 13123–13125                                    Adjustment assistance:
International Conventions on Standards of Training,              American Olean Tile Co., Inc., 13219–13220
     Certification and Watchkeeping for Seafarers (STCW          Christian Fashions, 13220
     78):                                                        Eastland Woolen Mill, Inc., et al., 13220
  Licensing, documentation, and manning, 13284–13320             Major League, Inc., 13220
IV                  Federal Register / Vol. 61, No. 59 / Tuesday, March 26, 1996 / Contents


  McAllen Separation Co., 13220                          Federal Communications Commission
  TRW, Inc., 13220–13221                                 PROPOSED RULES
                                                         Personal communications services:
                                                           Broadband D, E, and F blocks; license awards, 13133–
Energy Department                                              13144
See Bonneville Power Administration                      NOTICES
See Federal Energy Regulatory Commission                 Applications, hearings, determinations, etc.:
See Hearings and Appeals Office, Energy Department        Cen-Ten Productions, Inc., 13192
NOTICES                                                   Oakhill-Jackson Economic Development Corp., 13192–
Committees; establishment, renewal, termination, etc.:         13193
  Secretary of Energy Advisory Board, 13159               Rainy River Community College, 13193
Meetings:
  Metal Casting Industrial Advisory Board, 13159–13160   Federal Emergency Management Agency
                                                         NOTICES
                                                         Agency information collection activities:
Environmental Protection Agency
                                                           Proposed collection; comment request, 13193–13194
RULES
                                                         Disaster and emergency areas:
Air quality implementation plans; approval and
                                                           New Jersey, 13194
    promulgation; various States:
                                                           New York, 13194
  Delaware, 13101
                                                           Oregon, 13194
Clean Air Act:
                                                           Texas, 13194–13195
  State operating permits programs—
                                                           Vermont, 13195
    Tennessee, 13101–13103
Hazardous waste:                                         Federal Energy Regulatory Commission
  Identification and listing—                            NOTICES
    Solid waste; definition, 13103–13106                 Electric rate and corporate regulation filings:
PROPOSED RULES
                                                           Arizona Public Service Co. et al., 13162–13164
Air programs:                                              Washington Water Power Co. et al., 13164–13166
  National emission standards for hazardous air          Environmental statements; availability, etc.:
      pollutants—                                          Consolidated Hydro Maine, Inc., 13166
    Owners or operators who construct, reconstruct, or   Natural gas certificate filings:
         modify major sources; control technology          Koch Gateway Pipeline Co. et al., 13166–13168
         requirements, 13125–13129                         Williston Basin Interstate Pipeline Co. et al., 13168–
Hazardous waste:                                                13170
  Identification and listing—                            Applications, hearings, determinations, etc.:
    Solid waste; definition, 13129–13131                   AEP Resources Gippsland Power, L.L.C., 13161
Superfund program:                                         Boundary Gas, Inc., 13161
  National oil and hazardous substances contingency        Indeck Pepperell Power Associates, Inc., 13161–13162
      plan—                                                Natural Gas Pipeline Co. of America, 13162
    National priorities list update, 13131–13133           Southern Company Services, Inc., 13162
NOTICES
Agency information collection activities:                Federal Highway Administration
  Proposed collection; comment request, 13172–13191      RULES
Superfund; response and remedial actions, proposed       Motor carrier safety standards:
    settlements, etc.:                                    Driver qualifications—
  Foote Mineral Superfund Site, PA, 13191–13192             Vision and diabetes temporary waiver grantees; limited
Toxic and hazardous substances control:                          exemptions, 13338–13347
  Chemical testing—
    Data receipt, 13192                                  Federal Maritime Commission
                                                         NOTICES
Executive Office of the President                        Freight forwarder licenses:
See Management and Budget Office                           International Logistics Corp. et al., 13195
See Presidential Documents
                                                         Federal Reserve System
                                                         RULES
Federal Aviation Administration                          Equal opportunity rules; complaint processing
RULES                                                      Correction, 13079
Airworthiness directives:                                NOTICES
  AlliedSignal Inc., 13079–13083                         Banks and bank holding companies:
  Fokker, 13083–13084                                      Change in bank control, 13195–13196
PROPOSED RULES                                             Formations, acquisitions, and mergers, 13196
Airworthiness directives:                                Meetings; Sunshine Act, 13196
  AlliedSignal, Inc., 13111–13115
  CFM International, 13110–13111                         Federal Trade Commission
Class E airspace, 13115–13117                            NOTICES
NOTICES                                                  Interlocking directorates:
Meetings:                                                  Clayton Act Section 8 jurisdictional thresholds, 13196–
 Aviation Security Advisory Committee, 13226                    13197
                    Federal Register / Vol. 61, No. 59 / Tuesday, March 26, 1996 / Contents                             V


Prohibited trade practices:                                   NOTICES
  Cancer Treatment Centers of America, Inc., et al., 13197–   Agency information collection activities:
      13199                                                    Proposed collection; comment request, 13216
  Johnson & Collins Research, Inc., et al., 13199–13202
  NW Ayer, Inc., 13202–13205                                  Interior Department
                                                              See Land Management Bureau
Financial Management Service                                  See National Park Service
See Fiscal Service                                            See Reclamation Bureau
                                                              See Surface Mining Reclamation and Enforcement Office
Fiscal Service
NOTICES
                                                              International Development Cooperation Agency
Surety companies acceptable on Federal bonds:
                                                              See Agency for International Development
  Carolina Casualty Insurance Co., 13229

Food and Drug Administration                                  International Trade Administration
RULES                                                         NOTICES
Food for human consumption:                                   Export trade certificates of review, 13152–13153
  Bottled water—
    Quality standards, 13258–13270                            International Trade Commission
PROPOSED RULES                                                NOTICES
Food for human consumption:                                   Import investigations:
  Food labeling—                                                Beryllium metal and high-beryllium alloys from—
    Nutrient content claims and health clams; special             Kazakhstan, 13213–13214
        requirements; correction, 13117                         Customs rules of origin; international harmonization,
                                                                    13214–13215
Forest Service
NOTICES                                                       Justice Department
Agency information collection activities:                     See Antitrust Division
 Proposed collection; comment request, 13151                  See Immigration and Naturalization Service
                                                              See Justice Statistics Bureau
Health and Human Services Department
                                                              See Prisons Bureau
See Food and Drug Administration
See Health Care Financing Administration
See National Institutes of Health                             Justice Statistics Bureau
                                                              NOTICES
Health Care Financing Administration                          Agency information collection activities:
NOTICES                                                         Proposed collection; comment request, 13216–13217
Agency information collection activities:                     Grants and cooperative agreements; availability, etc.:
 Submission for OMB review; comment request, 13205              Criminal justice information policy program, 13217–
                                                                    13219
Hearings and Appeals Office, Energy Department
NOTICES                                                       Labor Department
Special refund procedures; implementation, 13170–13172        See Employment and Training Administration
                                                              See Occupational Safety and Health Administration
Housing and Urban Development Department
RULES
                                                              Land Management Bureau
Board of Contract Appeals:                                    NOTICES
  Federal Acquisition Streamlining Act—                       Agency information collection activities:
    Monetary amount increase, 13280–13281                      Proposed collection; comment request, 13208–13211
Environmental criteria and standards:                         Meetings:
  Federal regulatory review, 13332–13335                       Resource advisory councils—
Public and Indian housing:                                       Eastern Washington, 13211
  Eviction; lease and grievance procedures, 13272–13273
Real Estate Settlement Procedures Act:
                                                              Management and Budget Office
  Unnecessary or illustrative regulations; streamlining;
                                                              NOTICES
      Federal regulatory review, 13232–13255
NOTICES
                                                              Budget rescissions and deferrals, 13350–13356
Grants and cooperative agreements; availability, etc.:
  Public and Indian housing—                                  National Archives and Records Administration
    Public housing lease and grievance procedures; notice     NOTICES
        of due process determinations, 13276–13277            Agency records schedules; availability, 13221–13222

Immigration and Naturalization Service                        National Highway Traffic Safety Administration
RULES                                                         RULES
Immigration:                                                  Motor vehicle safety standard:
  Immigrant petitions—                                         Child restraint systems—
    Battered or abused spouses and children; classification      Rear-facing infant; interaction between child restraints
        as immediate relative of U.S. citizen or preference           and air bags; cutoff devices; correction, 13108–
        immigrant; self-petitioning, 13061–13079                      13109
VI                  Federal Register / Vol. 61, No. 59 / Tuesday, March 26, 1996 / Contents


National Institutes of Health                               Pension Benefit Guaranty Corporation
NOTICES                                                     PROPOSED RULES
Agency information collection activities:                   Single-employer plans:
 Proposed collection; comment request, 13205–13206            Reportable Events Negotiated Rulemaking Advisory
Meetings:                                                         Committee—
 National Cancer Institute, 13206                               Meeting, 13117
 National Center for Research Resources, 13206
 National Institute of Allergy and Infectious Diseases,     Personnel Management Office
      13206–13207                                           NOTICES
 National Institute of Mental Health, 13207                 Agency information collection activities:
 Research Grants Division special emphasis panels,           Proposed collection; comment request, 13223
      13207–13208
                                                            Presidential Documents
National Labor Relations Board                              EXECUTIVE ORDERS
NOTICES                                                     Committees; establishment, renewal, termination, etc.:
Meetings; Sunshine Act, 13222                                 Mental Retardation, President’s Committee on;
                                                                  continuation (EO 12994), 13047–13049
National Oceanic and Atmospheric Administration             Government agencies and employees:
RULES                                                         Inspectors General; administrative allegations against (EO
Fishery conservation and management:                              12993), 13043–13045
  Bering Sea and Aleutian Islands groundfish, 13109
PROPOSED RULES                                              Prisons Bureau
Fishery conservation and management:                        RULES
  Northern anchovy, 13148–13149                             Inmate control, custody, care, etc.:
  Salmon fisheries off coast of Alaska, 13149–13150           Medical services—
NOTICES                                                        Plastic surgery, 13322
Marine mammals:
 California sea lions impacting winter steelhead;           Public Health Service
      intentional lethal taking, 13153–13155                See Food and Drug Administration
Meetings:                                                   See National Institutes of Health
 North Pacific Fishery Management Council, 13155
 Pacific Fishery Management Council, 13155–13156            Reclamation Bureau
 Western Pacific Fishery Management Council, 13156          NOTICES
                                                            Environmental statements; availability, etc.:
National Park Service                                         Tongue River Basin Project, MT, 13212–13213
NOTICES
National Register of Historic Places:                       Research and Special Programs Administration
 Pending nominations, 13211–13212                           PROPOSED RULES
                                                            Pipeline safety:
National Transportation Safety Board                          Hazardous liquid transportation—
NOTICES                                                         Areas unusually sensitive to environmental damage;
Meetings; Sunshine Act, 13222–13223                                  workshop, 13144–13146
                                                            NOTICES
Navy Department                                             Meetings:
NOTICES                                                      Risk management and pipeline industry; public
Environmental statements; availability, etc.:                     conference, 13226–13227
  Base realignment and closure—
    Naval Weapons Industrial Reserve Plant, NY, 13158–      Rural Utilities Service
        13159                                               NOTICES
                                                            Environmental statements; availability, etc.:
Nuclear Regulatory Commission                                 Kodiak Electric Association, Inc., 13151–13152
NOTICES
Meetings; Sunshine Act, 13222                               Securities and Exchange Commission
                                                            NOTICES
Occupational Safety and Health Administration               Applications, hearings, determinations, etc.:
NOTICES                                                      Principal Mutual Life Insurance Co. et al., 13223–13225
Meetings:                                                    Transworld Telecommunications, Inc., 13225
 Occupational Safety and Health National Advisory
      Committee, 13221                                      Surface Mining Reclamation and Enforcement Office
                                                            PROPOSED RULES
Office of Management and Budget                             Permanent program and abandoned mine land reclamation
See Management and Budget Office                                plan submissions:
                                                              New Mexico, 13117–13119
Patent and Trademark Office
NOTICES                                                     Surface Transportation Board
Agency information collection activities:                   PROPOSED RULES
 Proposed collection; comment request; correction, 13156–   Contracts and exemptions:
     13157                                                    Boxcar traffic, 13146–13147
                    Federal Register / Vol. 61, No. 59 / Tuesday, March 26, 1996 / Contents                    VII


Tariffs and schedules:                                   Part VI
  Railroad contracts, 13147–13148                        Department of Housing and Urban Development, 13280–
NOTICES                                                      13281
Rail carriers:
  Cost recovery procedures—                              Part VII
     Adjustment factor, 13227                            Department of Transportation; Coast Guard, 13284–13320
Railroad operation, acquisition, construction, etc.:
  Economic Development Rail Corp. et al., 13227–13228    Part VIII
  Pioneer Railcorp, 13228                                Department of Justice; Bureau of Prisons, 13322
Thrift Supervision Office                                Part IX
NOTICES
                                                         Department of Education, 13324–13329
Applications, hearings, determinations, etc.:
 Citizens Savings Bank, F.S.B., 13229
                                                         Part X
 First Federal Bank of Arkansas, FA, 13229
                                                         Department of Housing and Urban Development, 13332–
Transportation Department                                    13335
See Coast Guard
See Federal Aviation Administration                      Part XI
See Federal Highway Administration                       Department of Transportation; Federal Highway
See National Highway Traffic Safety Administration           Administration, 13338–13347
See Research and Special Programs Administration
See Surface Transportation Board                         Part XII
                                                         Office of Management and Budget, 13350–13356
Treasury Department
See Customs Service                                      Part XIII
See Fiscal Service                                       Department of Education, 13358–13373
See Thrift Supervision Office
                                                         Part XIV
                                                         Department of Education, 13376–13377
Separate Parts In This Issue
                                                         Part XV
Part II                                                  Department of Education, 13380–13381
Department of Housing and Urban Development, 13232–
    13255
                                                         Reader Aids
Part III
                                                         Additional information, including a list of public laws,
Department of Health and Human Services; Food and Drug
                                                         telephone numbers, reminders, and finding aids, appears in
    Administration, 13258–13270
                                                         the Reader Aids section at the end of this issue.
Part IV
Department of Housing and Urban Development, 13272–
    13273                                                Electronic Bulletin Board
                                                         Free Electronic Bulletin Board service for Public Law
Part V                                                   numbers, Federal Register finding aids, and a list of
Department of Housing and Urban Development, 13276–      documents on public inspection is available on 202–275–
    13277                                                1538 or 275–0920.
VIII                             Federal Register / Vol. 61, No. 59 / Tuesday, March 26, 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.

3 CFR                                          46 CFR
Executive Orders:                              12.....................................13098
11776 (Superseded by                           13.....................................13098
  EO 12994)....................13047           15.....................................13098
12805 (See EO                                  30.....................................13098
                                               31.....................................13098
  12993) ..........................13043       35.....................................13098
12993...............................13043      78.....................................13098
12994...............................13047      90.....................................13098
5 CFR                                          97.....................................13098
1900.................................13051     98.....................................13098
7 CFR                                          105...................................13098
944...................................13051    151...................................13098
980...................................13051    153...................................13098
999...................................13051    154...................................13098
1280.................................13061     Proposed Rules:
                                               10.....................................13284
8 CFR                                          12.....................................13284
103...................................13061    15.....................................13284
204...................................13061
205...................................13061    47 CFR
216...................................13061    Proposed Rules:
12 CFR                                         20.....................................13133
268...................................13079    24.....................................13133
14 CFR                                         48 CFR
39 (3 documents) ...........13079,             225...................................13106
                          13081, 13083         252...................................13106
Proposed Rules:                                49 CFR
39 (3 documents) ...........13110,             391...................................13338
                           13111, 13113        571...................................13108
71.....................................13115   Proposed Rules:
16 CFR                                         195...................................13144
1500.................................13084     1039.................................13146
1507.................................13084     1313.................................13147
21 CFR                                         50 CFR
165...................................13258    675...................................13109
Proposed Rules:                                Proposed Rules:
101...................................13117    662...................................13148
24 CFR                                         674...................................13149
10.....................................13272
20.....................................13280
51.....................................13332
966...................................13272
3500.................................13232
28 CFR
549...................................13322
29 CFR
2615.................................13117
30 CFR
Proposed Rules:
931...................................13117
33 CFR
117...................................13098
154...................................13098
155...................................13098
165...................................13100
Proposed Rules:
100 (3 documents) .........13119,
                          13120, 13122
183...................................13123
34 CFR
Proposed Rules:
299...................................13324
40 CFR
52.....................................13101
70.....................................13101
261...................................13103
Proposed Rules:
63.....................................13125
261...................................13129
300...................................13131
                                                                                                 13043

Federal Register          Presidential Documents
Vol. 61, No. 59

Tuesday, March 26, 1996



Title 3—                  Executive Order 12993 of March 21, 1996

The President             Administrative Allegations Against Inspectors General


                          Certain executive branch agencies are authorized to conduct investigations
                          of allegations of wrongdoing by employees of the Federal Government. For
                          certain administrative allegations against Inspectors General (‘‘IGs’’) and,
                          as explained below, against certain staff members of the Offices of Inspectors
                          General (‘‘OIGs’’), it is desirable to authorize an independent investigative
                          mechanism.
                          The Chairperson of the President’s Council on Integrity and Efficiency
                          (‘‘PCIE’’) and the Executive Council on Integrity and Efficiency (‘‘ECIE’’),
                          in consultation with members of the Councils, has established an Integrity
                          Committee pursuant to the authority granted by Executive Order No. 12805.
                          By the authority vested in me as President by the Constitution and the
                          laws of the United States of America, and in order to ensure that administra-
                          tive allegations against IGs and certain staff members of the OIGs are appro-
                          priately and expeditiously investigated and resolved, it is hereby ordered
                          as follows:
                          Section 1. The Integrity Committee. (a) To the extent permitted by law,
                          and in accordance with this order, the Integrity Committee shall receive,
                          review, and refer for investigation allegations of wrongdoing against IGs
                          and certain staff members of the OIGs.
                            (b) The Integrity Committee shall consist of at least the following members:
                              (1) The official of the Federal Bureau of Investigation (‘‘FBI’’) serving
                          on the PCIE, as designated by the Director of the FBI. The FBI member
                          shall serve as Chair of the Integrity Committee.
                              (2) The Special Counsel of the Office of Special Counsel;
                              (3) The Director of the Office of Government Ethics;
                              (4) Three or more IGs, representing both the PCIE and the ECIE, ap-
                          pointed by the Chairperson of the PCIE/ECIE.
                             (c) The Chief of the Public Integrity Section of the Criminal Division
                          of the Department of Justice, or his designee, shall serve as an advisor
                          to the Integrity Committee with respect to its responsibilities and functions
                          in accordance with this order.
                          Sec. 2. Referral of Allegations. (a) The Integrity Committee shall review
                          all allegations of wrongdoing it receives against an IG who is a member
                          of the PCIE or ECIE, or against a staff member of an OIG acting with
                          the knowledge of the IG or when the allegation against the staff person
                          is related to an allegation against the IG, except that where an allegation
                          concerns a member of the Integrity Committee, that member shall recuse
                          himself from consideration of the matter.
                             (b) An IG shall refer any administrative allegation against a senior staff
                          member to the Integrity Committee when:
                              (1) review of the substance of the allegation cannot be assigned to
                          an agency of the executive branch with appropriate jurisdiction over the
                          matter; and
                               (2) the IG determines that an objective internal investigation of the
                          allegation, or the appearance thereof, is not feasible.
13044   Federal Register / Vol. 61, No. 59 / Tuesday, March 26, 1996 / Presidential Documents

                                 (c) The Integrity Committee shall determine if there is a substantial likeli-
                              hood that the allegation, referred to it under paragraphs (a) or (b) of this
                              section, discloses a violation of any law, rule or regulation, or gross mis-
                              management, gross waste of funds or abuse of authority and shall refer
                              the allegation to the agency of the executive branch with appropriate jurisdic-
                              tion over the matter. However, if a potentially meritorious administrative
                              allegation cannot be referred to an agency of the executive branch with
                              appropriate jurisdiction over the matter, the Integrity Committee shall certify
                              the matter to its Chair, who shall cause a thorough and timely investigation
                              of the allegation to be conducted in accordance with this order.
                                 (d) If the Integrity Committee determines that an allegation does not warrant
                              further action, it shall close the matter without referral for investigation
                              and notify the Chairperson of the PCIE/ECIE of its determination.
                              Sec. 3. Authority to Investigate. (a) The Director of the FBI, through his
                              designee serving as Chairperson of the Integrity Committee, is authorized
                              and directed to consider and, where appropriate, to investigate administrative
                              allegations against the IGs and, in limited cases as described in sections
                              2(a) and 2(b) above, against other staff members of the OIGs, when such
                              allegations cannot be assigned to another agency of the executive branch
                              and are referred by the Integrity Committee pursuant to section 2(c) of
                              this order.
                                 (b) At the request of the Director of the FBI, through his designee serving
                              as Chairperson, heads of agencies and entities represented in the PCIE and
                              ECIE may, to the extent permitted by law, provide resources necessary
                              to the Integrity Committee. Employees from those agencies and entities
                              will be detailed to the Integrity Committee, subject to the control and direc-
                              tion of the Chairperson, to conduct an investigation pursuant to section
                              2(c): Provided, that such agencies or entities shall be reimbursed by the
                              agency or entity employing the subject of the investigation. Reimbursement
                              for any costs associated with the detail shall be consistent with applicable
                              law, including but not limited to the Economy Act (31 U.S.C. 1535 and
                              1536), and subject to the availability of funds.
                                (c) Nothing in the above delegation shall augment, diminish, or otherwise
                              modify any existing responsibilities and authorities of any other executive
                              branch agency.
                              Sec. 4. Results of Investigation. (a) The report containing the results of
                              the investigation conducted under the supervision of the Chair of the Integrity
                              Committee shall be provided to the members of the Integrity Committee
                              for consideration.
                                (b) With respect to those matters where the Integrity Committee has referred
                              an administrative allegation to an agency of the executive branch with
                              appropriate jurisdiction over the matter, the head of that agency shall provide
                              a report to the Integrity Committee concerning the scope and results of
                              the inquiry.
                                (c) The Integrity Committee shall assess the report received under (a)
                              or (b) of this section and determine whether the results require forwarding
                              of the report, with Integrity Committee recommendations, to the Chairperson
                              of the PCIE/ECIE for resolution. If the Integrity Committee determines that
                              the report requires no further referral or recommendations, it shall so notify
                              the Chairperson of the PCIE/ECIE.
                                (d) Where the Chairperson of the PCIE/ECIE determines that dissemination
                              of the report to the head of the subject’s employing agency or entity is
                              appropriate, the head of the agency or entity shall certify to the Chairperson
                              of the PCIE/ECIE within sixty 60 days that he has personally reviewed
                              the report, what action, if any, has been or is to be taken, and when
                              any action taken will be completed. The PCIE/ECIE Chairperson may grant
                              the head of the entity or agency a 30-day extension when circumstances
                              necessitate such extension.
                                (e) The Chairperson of the PCIE/ECIE shall report to the Integrity Committee
                              the final disposition of the matter, including what action, if any, has been
               Federal Register / Vol. 61, No. 59 / Tuesday, March 26, 1996 / Presidential Documents       13045

                                     or is to be taken by the head of the subject’s employing agency or entity.
                                     When the Integrity Committee receives notice of the final disposition, it
                                     shall advise the subject of the investigation that the matter referred to
                                     the Integrity Committee for review has been closed.
                                     Sec. 5. Procedures. (a) The Integrity Committee, in conjunction with the
                                     Chairperson of the PCIE/ECIE, shall establish the policies and procedures
                                     necessary to ensure consistency in conducting investigations and reporting
                                     activities under this order.
                                        (b) Such policies and procedures shall specify the circumstances under
                                     which the Integrity Committee, upon review of a complaint containing allega-
                                     tions of wrongdoing, may determine that an allegation is without merit
                                     and therefore the investigation is unwarranted. A determination by the Integ-
                                     rity Committee that an investigation is unwarranted shall be considered
                                     the Integrity Committee’s final disposition of the complaint.
                                        (c) The policies and procedures may be expanded to encompass other
                                     issues related to the handling of allegations against IGs and others covered
                                     by this order.
                                     Sec. 6. Records Maintenance. All records created and received pursuant
                                     to this order are records of the Integrity Committee and shall be maintained
                                     by the FBI.
                                     Sec. 7. Judicial Review. This order is intended only to improve the internal
                                     management of the executive branch and is not intended to create any
                                     right or benefit, substantive or procedural, enforceable at law by a party
                                     against the United States, its agencies, its officers, or any person.



                                                          œ–
                                     THE WHITE HOUSE,
                                     March 21, 1996.
[FR Doc. 96–7460
Filed 3–25–96; 8:45 am]
Billing code 3195–01–P
Federal Register / Vol. 61, No. 59 / Tuesday, March 26, 1996 / Presidential Documents         13047

                      Presidential Documents



                      Executive Order 12994 of March 21, 1996

                      Continuing the President’s Committee on Mental Retardation
                      and Broadening Its Membership and Responsibilities

                      The President’s Committee on Mental Retardation, established by Executive
                      Order No. 11280 on May 11, 1966, as superseded by Executive Order No.
                      11776 on March 28, 1974, has organized national planning, stimulated devel-
                      opment of plans, policies and programs, and advanced the concept of commu-
                      nity participation in the field of mental retardation.
                      National goals have been established to:
                        (1) promote full participation of people with mental retardation in their
                      communities;
                        (2) provide all necessary supports to people with mental retardation and
                      their families for such participation;
                        (3) reduce the occurrence and severity of mental retardation by one-half
                      by the year 2010;
                        (4) assure the full citizenship rights of all people with mental retardation,
                      including those rights secured by such landmark statutes as the Americans
                      with Disabilities Act of 1990, Public Law 101-336 (42 U.S.C. 12101 et
                      seq.);
                         (5) recognize the right of all people with mental retardation to self-deter-
                      mination and autonomy, to be treated in a nondiscriminatory manner, and
                      to exercise meaningful choice, with whatever supports are necessary to
                      effectuate these rights;
                        (6) recognize the right of all people with mental retardation to enjoy
                      a quality of life that promotes independence, self-determination, and partici-
                      pation as productive members of society; and
                        (7) promote the widest possible dissemination of information on models,
                      programs, and services in the field of mental retardation.
                      The achievement of these goals will require the most effective possible
                      use of public and private resources.
                      NOW, THEREFORE, by the authority vested in me as President by the
                      Constitution and the laws of the United States of America, including the
                      Federal Advisory Committee Act, as amended (5 U.S.C. App. 2), it is hereby
                      ordered as follows:
                      Section 1. Committee Continued and Responsibilities Expanded. The Presi-
                      dent’s Committee on Mental Retardation (the ‘‘Committee’’), with expanded
                      membership and expanded responsibilities, is hereby continued in operation.
                      Sec. 2. Composition of Committee. (a) The Committee shall be composed
                      of the following members:
                           (1) The Secretary of Health and Human Services;
                          (2) The Secretary of Education;
                          (3) The Attorney General;
                          (4) The Secretary of Labor;
                          (5) The Secretary of Housing and Urban Development;
                         (6) The Chief Executive Officer of the Corporation for National and
                      Community Service (formerly ACTION);
13048   Federal Register / Vol. 61, No. 59 / Tuesday, March 26, 1996 / Presidential Documents

                                  (7) The Commissioner of Social Security;
                                  (8) The Chair of the Equal Employment Opportunity Commission;
                                  (9) The Chairperson of the National Council on Disability;
                                   (10) No more than 21 other members who shall be appointed to the
                              Committee by the President. These citizen members shall consist of individ-
                              uals who represent a broad spectrum of perspectives, experience, and exper-
                              tise on mental retardation, and shall include self-advocates with mental
                              retardation and members of families with a child or adult with mental
                              retardation, and persons employed in either the public or the private sector.
                              Except as the President may from time to time otherwise direct, appointees
                              under this paragraph shall have two-year terms, except that an appointment
                              made to fill a vacancy occurring before the expiration of a term shall be
                              made for the balance of the unexpired term.
                                (b) The President shall designate the Chair of the Committee from the
                              21 citizen members. The Chair shall advise and counsel the Committee
                              and represent the Committee on appropriate occasions.
                              Sec. 3. Functions of the Committee. (a) The Committee shall provide such
                              advice and assistance in the area of mental retardation as the President
                              or Secretary of Health and Human Services may request, and particularly
                              shall advise with respect to the following areas:
                                  (1) evaluating and monitoring the national efforts to establish appropriate
                              policies and supports for people with mental retardation;
                                   (2) providing suggestions for improvement in the delivery of mental
                              retardation services, including preventive services, the promulgation of effec-
                              tive and humane policies, and the provision of necessary supports;
                                   (3) identifying the extent to which various Federal and State programs
                              achieve the national goals in mental retardation described in the preamble
                              to this order and have a positive impact on the lives of people with mental
                              retardation;
                                  (4) facilitating liaison among Federal, State, and local governments, foun-
                              dations, nonprofit organizations, other private organizations, and citizens
                              concerning mental retardation;
                                   (5) developing and disseminating such information as will tend to reduce
                              the incidence and severity of mental retardation; and
                                   (6) promoting the concept of community participation and development
                              of community supports for citizens with mental retardation.
                                 (b) The Committee shall make an annual report, through the Secretary
                              of Health and Human Services, to the President concerning mental retarda-
                              tion. Such additional reports may be made as the President may require
                              or as the Committee may deem appropriate.
                              Sec. 4. Cooperation by Other Agencies. To assist the Committee in providing
                              advice to the President, Federal departments and agencies requested to do
                              so by the Committee shall designate liaison officers to the Committee. Such
                              officers shall, on request by the Committee, and to the extent permitted
                              by law, provide the Committee with information on department and agency
                              programs that do contribute to or could contribute to achievement of the
                              President’s goals in the field of mental retardation.
                              Sec. 5. Administration. (a) The Department of Health and Human Services
                              shall, to the extent permitted by law, provide the Committee with necessary
                              staff, administrative services, and facilities and funding.
                                (b) Each member of the Committee, except any member who receives
                              other compensation from the United States Government, may receive com-
                              pensation for each day he or she is engaged in the work of the Committee,
                              as authorized by law (5 U.S.C. 3109), and may also receive travel expenses,
                              including per diem in lieu of subsistence, as authorized by law (5 U.S.C.
                              5701-5707), for persons employed intermittently in the Government service.
               Federal Register / Vol. 61, No. 59 / Tuesday, March 26, 1996 / Presidential Documents      13049

                                     Committee members with disabilities may be compensated for attendant
                                     expenses, consistent with Government procedures and practices.
                                       (c) The Secretary of Health and Human Services shall perform such other
                                     functions with respect to the Committee as may be required by the provisions
                                     of the Federal Advisory Committee Act, as amended (5 U.S.C. App. 2),
                                     except that of reporting to the Congress.
                                     Sec. 6. Construction. Nothing in this order shall be construed as subjecting
                                     any Federal agency, or any function vested by law in, or assigned pursuant
                                     to law to, any Federal agency, to the authority of the Committee or as
                                     abrogating or restricting any such function in any manner.
                                     Sec. 7. Superseded Authority. Executive Order No. 11776 is hereby super-
                                     seded.




                                                         œ–
                                     THE WHITE HOUSE,
                                     March 21, 1996.
[FR Doc. 96–7461
Filed 3–25–96; 8:45 am]
Billing code 3195–01–P
                                                                                                                             13051

Rules and Regulations                                                                       Federal Register
                                                                                            Vol. 61, No. 59

                                                                                            Tuesday, March 26, 1996



This section of the FEDERAL REGISTER            to ARC Federal employees concerns           DEPARTMENT OF AGRICULTURE
contains regulatory documents having general    matters of agency organization, practice
applicability and legal effect, most of which   and procedure. Further, it is in the        Agricultural Marketing Service
are keyed to and codified in the Code of        public interest that the citation be
Federal Regulations, which is published under                                               7 CFR Parts 944, 980 and 999
50 titles pursuant to 44 U.S.C. 1510.           corrected as soon as possible.
                                                                                            [Docket Nos. FV93–944–3FIR, FV93–980–
                                                Executive Order 12866                       1FIR and FV93–999–1FIR]
The Code of Federal Regulations is sold by
the Superintendent of Documents. Prices of         In promulgating this final regulation,
new books are listed in the first FEDERAL                                                   Exemptions From Import Regulations
                                                the Appalachian Regional Commission         for Specified Fruit, Vegetable and
REGISTER issue of each week.
                                                has adhered to the regulatory               Specialty Crop Commodities
                                                philosophy and the applicable
APPALACHIAN REGIONAL                            principles of regulation set forth in       AGENCY:  Agricultural Marketing Service,
COMMISSION                                      section 1 of Executive Order 12866,         USDA.
                                                Regulatory Planning and Review. This        ACTION: Final rule.
5 CFR Part 1900                                 final rule has not been reviewed by the
                                                Office of Management and Budget under       SUMMARY:    This rule finalizes, with
Repeal of Employee Responsibilities             that Executive order, since it deals with   modifications, two interim final rules
and Conduct Regulations for                     agency organization, management, and        which exempt imported fresh fruit,
Appalachian Regional Commission                 personnel matters and is not in any         vegetable and specialty crop
Federal Employees (Federal Staff);              event deemed ‘‘significant’’ thereunder.    commodities from grade, size, quality,
Correction                                                                                  and maturity requirements if those
                                                Regulatory Flexibility Act                  commodities are to be used in certain
AGENCY:  Appalachian Regional
                                                                                            specified outlets. The exemptions
Commission.                                       The Appalachian Regional                  correspond to exemptions in effect for
ACTION: Final rule; correction.                 Commission has determined under the         the same commodities regulated under
                                                Regulatory Flexibility Act (5 U.S.C.        Federal marketing orders. This rule also
SUMMARY: The Appalachian Regional               chapter 6) that this regulation will not
Commission is correcting one erroneous                                                      finalizes, with modifications, safeguard
                                                have a significant impact on small          procedures which were added to import
citation in its employee responsibilities       business entities because it affects only
and conduct regulation published on                                                         regulations to assure that imported fresh
                                                ARC Federal employees.                      commodities are utilized only in such
December 7, 1995.
EFFECTIVE DATE: This final rule is              Paperwork Reduction Act                     specified exempt outlets. This rule also
effective March 26, 1996.                                                                   deletes import requirements for Tokay
                                                  The Appalachian Regional                  grapes. This rule is implemented in
FOR FURTHER INFORMATION CONTACT:
                                                Commission has determined that the          accordance with section 8e of the
Guy Paul Land, Counsel to the Federal
                                                Paperwork Reduction Act (44 U.S.C.          Agricultural Marketing Agreement Act
Co-Chairman, Appalachian Regional
                                                chapter 35) does not apply because this     of 1937 to make the import regulations
Commission, 1666 Connecticut Avenue
                                                regulation does not contain any             more consistent with applicable
NW., Washington, D.C. 20235, 202–884–
                                                information collection requirements that    domestic marketing order exemptions
7660.
                                                require the approval of the Office of       and with the North American Free
SUPPLEMENTARY INFORMATION: The
                                                Management and Budget.                      Trade Agreement (NAFTA). Exempt
Appalachian Regional Commission is                                                          uses include, but are not limited to,
correcting one erroneous citation to the        List of Subjects in 5 CFR Part 1900         processing, livestock feed, and donation
Office of Government Ethics (OGE)                                                           to charity.
executive branchwide standards of                 Conflict of interest, Government
                                                employees.                                  EFFECTIVE DATE: May 28, 1996.
ethical conduct regulation which
appeared in the ARC’s revision to 5 CFR                                                     FOR FURTHER INFORMATION CONTACT:
                                                  Approved: February 29, 1996.
Part 1900, published in the Federal                                                         Barbara Schulke or Bill Addington,
                                                Jesse L. White, Jr.,
Register of Thursday, December 7, 1995,                                                     telephone (202) 720–4607 and (202)
on page 62702. The OGE executive                Federal Co-Chairman, Appalachian Regional   720–2412 respectively, Marketing Order
                                                Commission.                                 Administration Branch, Fruit and
branchwide standards of ethical
conduct regulation was erroneously                For the reasons set forth in the          Vegetable Division, AMS, USDA, P.O.
cited as codified at CFR Part 3635. This        preamble, the final rule published on       Box 96456, room 2523–S, Washington,
final rule corrects that citation to read       December 7, 1995 (60 FR 62702) is           DC 20090–6456, Fax (202) 720–5698.
5 CFR Part 2635.                                corrected as follows:                       SUPPLEMENTARY INFORMATION: This rule
                                                                                            is issued under section 8e of the
Administrative Procedure Act                    § 1900.100   [Corrected]                    Agricultural Marketing Agreement Act
   Pursuant to 5 U.S.C 553(b), the                On page 62702, in the third column,       of 1937, as amended (7 U.S.C. 601–674)
Appalachian Regional Commission                 in § 1900.100, ‘‘5 CFR part 3635’’ is       (Act), which provides that whenever
finds good cause exists for waiving the         corrected to read ‘‘5 CFR part 2635’’.      certain specified commodities,
general notice of proposed rulemaking                                                       including avocados, grapefruit,
as to this final rule. The notice is being      [FR Doc. 96–6607 Filed 3–25–96; 8:45 am]    kiwifruit, limes, olives, oranges, table
waived because this rulemaking relating         BILLING CODE 6130–01–M                      grapes, potatoes, onions, tomatoes, dates
13052       Federal Register / Vol. 61, No. 59 / Tuesday, March 26, 1996 / Rules and Regulations

and walnuts, are regulated under a          would not preempt any State or local         published in the Federal Register (58
Federal marketing order, imports of         laws, regulations, or policies, unless       FR 69182 and 69186, December 30,
those commodities must meet the same        they present an irreconcilable conflict      1993) with an effective date of January
or comparable grade, size, quality, and     with this rule. There are no                 1, 1994. The two rules amended 7 CFR
maturity requirements as those in effect    administrative procedures which must         parts 944, 980 and 999 and provided a
for the domestically produced               be exhausted prior to any judicial           two-month comment period which
commodities.                                challenge to the provisions of this rule.    ended February 28, 1994. A minor
   The Act further provides that when         In accordance with section 8e,             correction to part 944 was issued on
two or more marketing orders for the        imported commodities destined for            January 31, 1994 (59 FR 4245). At the
same commodity produced in different        processing must be given the same or         request of industry members, the
areas are in effect, the imported           comparable treatment as that afforded        Department reopened the comment
commodity must meet the same grade,         domestic commodities destined for            period for one additional month (59 FR
size, quality, and maturity requirements    processing. The Federal marketing            11529, March 11, 1994) for both interim
as the commodity produced in the area       orders covering avocados, grapefruit,        final rules. The reopened comment
with which the imported commodity is        kiwifruit, limes, olives, oranges, table     period closed April 11, 1994.
in most direct competition.                 grapes, potatoes, onions and tomatoes           Thirty five comments were received.
   Some marketing orders provide            provide exemptions from established          Thirty four comments opposed various
exemptions for commodities sold at          quality and size requirements if the         aspects of the two interim final rules
roadside stands, shipped directly to        commodity is to be used in certain           and one comment favored the interim
consumers, or exported. However, such       processing outlets. This final rule          final rules. The primary concern of most
exemptions are not issued for               provides similar exemptions for              commenters was the use of exemptions
commodities offered for importation         imported products destined for               by processors. Thirty comments were
because such outlets are not applicable     processing.                                  from members of, or on behalf of, the
to import regulations.                        Marketing Order No. 926 regulating         potato, onion and tomato industries in
   The Department of Agriculture            Tokay Grapes Grown in San Joaquin            the United States. The one favorable
(Department) is issuing this rule in        County, California, has been terminated      comment was received from the
conformance with Executive Order            by the Department at the request of the      Canadian Produce Marketing
12866.                                      order’s Industry Committee. Thus, the        Association.
   Pursuant to the requirements set forth                                                   Several commenters questioned the
                                            import requirements for Tokay grapes
in the Regulatory Flexibility Act (RFA),                                                 Department’s commitment to the
                                            established under section 8e of the Act
the Administrator of the Agricultural                                                    safeguard program. They claimed that
                                            are also terminated. This final rule
Marketing Service (AMS) has                                                              there is no plan to monitor exempt
                                            removes all references to Tokay grapes
considered the economic impact of this                                                   shipments and that the AMS lacks
                                            that appeared in the interim final rule
action on small entities.                                                                personnel to enforce compliance of the
   The purpose of the RFA is to fit         (58 FR 69182).
                                              This rule finalizes exemptions for         program.
regulatory actions to the scale of                                                          The AMS is responsible for
business subject to such actions in order   imported commodities to be utilized in
                                                                                         administering Federal fruit, vegetable,
that small businesses will not be unduly    other exempt outlets. These exemptions
                                                                                         and specialty crop marketing order
or disproportionately burdened.             are consistent with section 8e of the Act
                                                                                         programs and the corresponding import
Marketing orders issued pursuant to the     which requires imported commodities
                                                                                         regulations. A number of different
Act, and rules issued thereunder, are       to meet the same or comparable
                                                                                         resources are being utilized to
unique in that they are brought about       requirements established under the           implement and monitor the safeguard
through group action of essentially         domestic marketing orders for the            program, including the Fruit and
small entities acting on their own          commodities. This rule finalizes, with       Vegetable Division’s (Division)
behalf. Thus, both statutes have small      modifications, amendments to the             Marketing Order Administration Branch
entity orientation and compatibility.       following 7 CFR sections:                    (MOAB) (which monitors exempt
Import regulations issued under the Act     944.28 Avocado import grade regulation,      entries), the inspection services of Fresh
are based on those established under        944.31 Avocado import maturity regulation,   Products Branch and Processed
Federal marketing orders.                   944.106 Grapefruit import regulation,        Products Branch and the AMS
   The following are updated estimates      944.209 Lime import regulation,              Compliance Staff. The Department’s
                                            944.312 Orange import regulation,
of the number of importers who may be                                                    Animal and Plant Health Inspection
                                            944.401 Olive regulation,
affected by this final rule: avocados—      944.503 Table grape import regulation,       Service (APHIS), and the U.S. Customs
147, grapefruit—96, kiwifruit—110,          944.550 Kiwifruit import regulation,         Service (Customs Service) also must
limes—147, olives—15, oranges—96,           980.1 Import regulations; Irish potatoes,    review and clear all agricultural
table grapes—80, potatoes—74,               980.117 Import regulations; onions,          shipments prior to entry into the United
onions—148, tomatoes—142, dates—            980.212 Import regulations; tomatoes,        States. This rule does not supersede the
164, and walnuts—6. Small agricultural      999.1 Regulation governing the importation   Federal Plant Quarantine Act of 1912,
service firms, which include importers          of dates, and                            the Federal Food, Drug, and Cosmetic
and processors of these commodities,        999.100 Regulation governing imports of      Act, or any other applicable laws or
                                                walnuts.
have been defined by the Small                                                           food and sanitary regulations of city,
Business Administration (13 CFR                Safeguard provisions, added by the        county, state or Federal agencies.
121.601) as those having annual receipts    interim final rules as §§ 944.350,              Every attempt is made to keep
of less than $5 million. The majority of    980.501, and 999.500, are modified in        importers, known processors, and other
these importers may be classified as        this final rule to provide that imported     exempt receivers aware of these rules
small entities.                             commodities not meeting grade, size,         and the safeguard procedures. The
   This final rule has been reviewed        quality, and maturity requirements can       interim final rules, exemption forms and
under Executive Order 12778, Civil          be utilized in specified exempt outlets.     updated import summary sheets for the
Justice Reform. This rule is not intended      The two interim final rules were          affected commodities have been sent to
to have retroactive effect. This rule       issued on December 23, 1993, and             all known importers and processors.
            Federal Register / Vol. 61, No. 59 / Tuesday, March 26, 1996 / Rules and Regulations                            13053

Additional exemption forms are sent          per violation, against importers and         in fresh market channels and there
immediately upon request.                    exempt receivers who violate the import      would be no proof of such illegal
   A compliance plan has been                regulations, including safeguard             activity. The Department agrees that a
developed utilizing follow-up telephone      procedures.                                  more timely notification of the release of
calls and spot compliance checks of             Further, using Customs Service            exempt lots into the United States will
exempt outlets. Division personnel           regulatory authorities (19 CFR part 113),    enhance the Department’s ability to
currently make telephone calls to            the AMS can also request the Customs         enforce the safeguard procedures and
importers and customs brokers who            Service to demand redelivery of a lot        ensure compliance with the import
initiate the FV–6 ‘‘Importer’s Exempt        imported as exempt under section 8e if       regulations. The time period should be
Commodity Form’’ (FV–6 or FV–6               certification of exempt use has not been     short enough to enable the Department,
forms) and calls to exempt receivers         received by the AMS. Failure to              when conducting on-site inspection of
who must certify receipt and disposition     redeliver the lot is punishable by a         receivers’ facilities, to determine
of the exempt shipments. The FV–6 was        penalty of three times the value of the      ultimate disposition of exempt lots. The
established under the interim final rule     shipment. The AMS is developing a            Department believes that a two-day
as an integral part of the safeguard         computerized data base to identify           reporting period will be sufficient for
reporting procedures. This final rule        exempt shipments for which the               mailing reports of entry and exempt
modifies the FV–6 (below).                   reporting process has not been               disposition. Thus, this final rule
   Experience over the last year indicates   completed within specified time frames.      establishes that original copies of FV–6
that the notification process outlined in    This rule does not supersede or replace      forms must be submitted by importers,
the interim final rules (58 FR pages         Customs Service entry procedures.            customs brokers, and exempt receivers,
69182 and 69186, December 30, 1993)             A few commenters, evidently               and such copies must be postmarked no
should be modified to ensure that the        referring to the $1,000 fine cited on the    later than two days after importation or
Department is aware of all shipments         exemption form, stated that $1,000 is        receipt of the commodity shipment
entered as exempt under 8e provisions.       not a sufficient deterrent to prevent        being reported. FV–6 forms must be
Under a Memorandum of                        some from violating the safeguard            mailed to the Marketing Order
Understanding between the AMS and            procedures. However, the $1,000 fine is      Administration Branch, USDA, AMS,
the Customs Service, AMS will be             for making false statements on the form.     P.O. Box 96456, room 2523–S,
provided import data on all entries of 8e    False representation to any Federal          Washington, D.C. 20090–6456
commodities. The MOAB has worked             agency on any matter within its              (telephone (202) 720–4607. FV–6 forms
with the fresh and processed products        jurisdiction, knowing it to be false, is a   submitted by fax must be followed by a
inspection offices and the Customs           criminal offense and a violation of 18       mailed, original copy of the FV–6. Fax
Service to coordinate efforts for an         U.S.C. 1001 which provides for a fine or     transmissions may be sent to the MOAB
effective 8e compliance program. In          imprisonment or both.                        at (202) 720–5698.
addition, MOAB maintains an extensive           The Department is fully committed to         One commenter suggested that the
and comprehensive list of importers,         enforcing the import regulations.            Act should be changed to allow for
customs brokers and receivers for               Most of the commenters questioned         regulation of processors. Amendment of
mailing and field audits. Division           whether the safeguard procedures             the Act would require Congressional
representatives attend regional and          would prevent substandard product            action. In any event, the Food and Drug
national importers and customs brokers       from entering fresh marketing channels.      Administration of the Department of
meetings to educate importers and            With modifications implemented in this       Health and Human Services is
Customs Service officials on the             final rule, the Department believes that     responsible for regulating the
requirements of the Act. MOAB enters         the enhanced safeguard procedures            wholesomeness of processed peanut
and reconciles data from the FV–6            represent practicable, aggressive, and       products.
forms, Customs Service data, and the         effective procedures for monitoring             One commenter claimed that the
inspection service offices, and the          exempt shipments. In addition, the           Department has reversed its long-
PIERS report (Port, Import/Export            management staffs of many marketing          standing position that section 8e
Reporting Service) to identify lots which    orders follow similar procedures in          requirements cannot be applied to pack
enter ports under the exemption rule.        monitoring and enforcing special             and container requirements. However,
   Some commenters asked what                purpose shipment provisions relating to      section 8e of the Act states that
penalties would be applied to those who      their respective commodities.                imported commodities must meet the
violate the safeguard procedures. The           A few commenters suggested that the       grade, size, quality and maturity
compliance plan provides for on-the-         marketing order committees should be         requirements established under
spot inspections and checks of               allowed to assist the Department with        respective marketing orders. Because
processors and other exempt outlet           enforcement activities. The Department       section 8e does not authorize pack and
receivers to gather evidence of              is responsible for enforcing import          container requirements, those
violations. Pursuant to section 8e of the    regulations and cannot delegate that         requirements cannot be applied to
Act, the Department can bring legal          compliance activity to committee             imported commodities. The Department
action against those who violate import      managers. However, the Department            has not changed its position on this
regulations. Penalties may be assessed       encourages managers to notify the AMS        issue.
under section 608a(5). Upon conviction,      of suspected violations of safeguard            Some commenters claimed that the
penalties as prescribed in 608c(14)(A)       procedures or improper dispositions.         exemptions for processing make it easier
also may be imposed. Section (14)(A)            A few commenters contended that the       for imported culls to be used in local
provides for fines from $50 to $5,000        reporting deadlines (15 days at the port     processing markets than domestic culls
per violation, per day, for those            of entry and 15 days after receipt by the    and that this would have a negative
convicted of violating regulations,          exempt receiver) are too long for the        impact on economically depressed
including import regulations. In             Department to effectively monitor the        production areas that utilize
addition, section 608c(14)(B) provides       disposition of lots. They stated that        domestically produced culls in
for administrative adjudication to issue     during the 15-day reporting period an        processing. However, the objective of
civil penalties of up to $1,000 per day,     exempt lot could easily be disposed of       this rule is that section 8e import
13054       Federal Register / Vol. 61, No. 59 / Tuesday, March 26, 1996 / Rules and Regulations

regulations and the exemption                and to the Department that the               person should not act as the agent of the
provisions of domestic marketing orders      processor agrees to dispose of exempt        importer.
be the same or comparable. An importer       shipments only in approved processing           On the basis of comments received,
who properly files FV–6 forms when           operations. Commenters suggested that        review of ongoing safeguard procedures,
using imported culls in processing           such lists be used to approve or reject      and review of the exemption form, the
outlets does not violate the import          exempt shipments at the port of entry,       Department clarifies and modifies some
regulation.                                  depending on whether the processor is        requirements and procedures specified
   A few commenters stated that import       on the approved list. Commenters             on the FV–6 form. These clarifications
barriers still exist in some countries and   suggested that the approval be granted       and modifications are intended to
that the import exemption rule gives         either by the Customs Service, the           eliminate confusion when completing
unfair advantage to foreign producers.       respective marketing order committee         the exemption form, improve the
However, the efficacy of this rule in the    manager, or the Department. However,         functioning of the safeguard process,
United States is not dependent on the        the Customs Service cannot be expected       and improve the compliance capability
absence of trade barriers in other           to maintain a list of approved processors    of the Department.
countries. The exemption form may be         and to refer to it every time an exempt         This final rule establishes that the
used for exempt commodities imported         shipment is presented for importation.       FV–6, Importer’s Exempt Commodity
from any country. The interim final          Oversight of import regulations cannot       Form will be sequentially numbered.
rules were issued to be consistent with      be delegated to marketing order              Sequentially numbered forms will
section 8e of the Act, and thus, may be      managers. In response to comments,           enable the Department to better monitor
applied to the specified commodities         however, MOAB has obtained                   use of the form by importers and brokers
imported from any country.                   approved-processor lists for some            and enhance compliance efforts by the
   One commenter, referring to Section       commodity committees and is referring        Department. The new forms will be
A of Annex 703.2 of the NAFTA, stated        to the lists as part of MOAB’s               mailed to all known importers, customs
that the Department ‘‘went beyond the        compliance procedures when reviewing         brokers and inspection service offices
specific requirements of the NAFTA by        FV–6 forms.                                  serving major ports of entry. Use of the
applying the rule to Canada.’’ The                                                        new forms must begin no later than 60
                                                Some commenters cited phytosanitary
Department did not intend to imply that                                                   days after publication of this final rule
                                             concerns in opposing the import
Section A of Annex 703.2 applies to                                                       in the Federal Register. During
                                             exemptions. The commenters believe
Mexico, Canada and other countries.                                                       unforeseen or emergency situations, a
                                             that exempt shipments would enter the
Implementation of the NAFTA caused                                                        special, sequentially numbered FV–6
                                             United States and not be subject to
the Department to review all 8e                                                           form can be faxed to an importer or
                                             APHIS regulations or inspection.
provisions applicable to fruits and                                                       customs broker for one-time use.
                                             However, exempt shipments, including
vegetables. After such review it became                                                   Additional copies of the new FV–6 form
                                             culls removed from reconditioned fresh
apparent that the regulations concerning                                                  and single use copies are available on
                                             shipments, continue to be subject to
the 8e commodities covered in this                                                        request by calling (202) 720–6585 or
regulation needed to be amended to be        APHIS inspection and certification.          sending a fax to (202) 720–5698.
consistent with marketing order                 Several commenters complained that           Under initial instructions, the white
regulations and requirements, as well as     the rulemaking procedure used by the         copy (#1) was to be retained by the
the NAFTA. Therefore, pursuant to            Department to issue the two interim          Customs Service office at the port of
Section 8e of the Act and the provisions     final rules was abbreviated and did not      entry upon entry. Under this final rule,
of the NAFTA, the Department amended         provide for adequate industry input.         the importer or customs broker must
its regulations relating to these            The interim final rules were issued          present the FV–6 to the Customs Service
commodities.                                 under informal rulemaking procedures         at the port of entry with Section I
   One commenter suggested that new          used by the Department to implement          completed. The importer or customs
food technologies now tend to blur the       regulations, and there was good cause        broker then retains the white Copy 1 of
distinction between fresh and ‘‘fresh        not to postpone the effective date of the    the FV–6 as a record of the exempt
processed’’ activities. To assist the        rule. More than three months were            entry. Further distribution of the form
importer or customs broker, specific         provided for comment on the two              remains unchanged—the yellow Copy 2
processes that qualify for exemption are     interim final rules. The lengthy             is forwarded to the AMS and the pink
added to the regulatory text (e.g.           comment period allowed interested            Copy 3 is forwarded to the exempt
canning, freezing, dehydrating, etc.) as     persons time to comment on the interim       outlet receiver with the exempt
appropriate for individual commodities.      final rules and also provided the            shipment.
The listing of qualified processes for       Department with more opportunity to             The FV–6 is used when an entire lot
each commodity should assist importers       monitor and evaluate the safeguard           (in bags or bulk) is imported exempt
and customs brokers in determining           procedures in operation.                     from quality requirements and shipped
whether the process designated on the           Finally, customs brokers complained       directly to an exempt outlet. An
exemption form is considered to be an        that they have no control over the           importer or customs broker usually
exempt process. The entries may be           ultimate disposition of exempt lots and,     arranges or facilitates the business
updated by future rulemaking, as             thus, should not be expected to certify      transaction between a foreign producer
necessary.                                   as to the ultimate disposition of the lot.   (seller) and the domestic processor or
   Several commenters suggested that         However, certification by either the         other exempt entity. In these instances,
the Department establish a ‘‘pre-            importer or customs broker is needed to      the importer or customs broker is
approved processor’’ list for each           provide some validity to the safeguard       responsible for initiating the FV–6 form
commodity covered in parts 944, 980          procedure. Importers and customs             and the exempt user is the buyer.
and 999. According to the comments, a        brokers are responsible for seeking out         An 8e commodity imported for fresh
pre-approved processor list would            and representing clients who will act in     market use must be inspected and
contain the names of processor               accordance with law. If a customs            certified as meeting fresh market quality
companies that have certified to the         broker cannot, in good faith, certify as     requirements. Prior to issuance of the
respective marketing order committee         to the eventual exempt usage, then that      two interim final rules in this
            Federal Register / Vol. 61, No. 59 / Tuesday, March 26, 1996 / Rules and Regulations                           13055

rulemaking procedure, if an imported 8e         An exempt receiver may reject a          Discussions regarding fruit crop import
commodity shipment failed to meet            shipment, send it to an alternate exempt    regulations under 7 CFR part 944
applicable quality requirements, the         outlet, destroy it, return it to the        follow.
importer had three options: (1) Export;      importer, or export it. It is the
                                                                                         Avocados
(2) destroy the lot under inspection         responsibility of the importer to notify
supervision; or (3) recondition the lot      the MOAB of any such action and final          The avocado import grade regulation
and return or destroy the culls. This rule   disposition of the shipment. In such        (7 CFR 944.28) is based on those in
provides another option for the              cases, a second exemption form must be      effect for avocados grown in Florida
importer. The FV–6 may be used to ship       completed in full and filed with the        under Marketing Order No. 915
a failing lot, or the culls from a           MOAB. The second FV–6 should be             throughout the year. Under Marketing
reconditioned lot, to an exempt outlet.      initiated by the exempt receiver and        Order No. 915 any person may handle
   The ‘‘Date and Place of Inspection’’      certified by a representative of the        avocados without regard to established
entry (Item 2 on the FV–6 form) is to be     alternate exempt outlet or disposition      grade, size, quality, or maturity
completed only when a lot imported for       outlet. If the shipment is exported, a      requirements provided that such
fresh market use is inspected and all or     copy of the Customs Service export          avocados are handled for (1)
a portion of the lot is subsequently sent    document should be included with the        consumption by charitable institutions;
to an exempt outlet. Item 2 would            second FV–6.                                (2) distribution by relief agencies; (3)
include the fresh inspection certificate        Under ‘‘Total Quantity Imported’’        commercial processing into products;
number of the inspection performed on        (currently item 7), the importer or         (4) seed; or (5) individual shipments of
the lot. Some importers and customs          customs broker must enter, in pounds,       up to 55 pounds. Prior to issuance of the
brokers have not completed item 2 with       the quantity of product being imported      interim final rule, the only exemption
this information or provided a copy of       as exempt. Other terms of measurement       allowed under the avocado import
the inspection certificate when using        common in some countries or                 regulation was for individual shipments
the FV–6 form to import a lot failing        commodity industries, such as               of up to 55 pounds. This rule finalizes
fresh market quality requirements. In        kilograms, basket, container, or bulk,      the addition of charitable institutions,
addition to filing an FV–6 form, the         must be converted to pounds. This will      distribution by relief agencies, seed, and
importer should also file a copy of the      provide the receiving exempt outlet         commercial processing into products to
inspection certificate applicable to the     with a common, measurable term on           the list of exemptions allowed under the
exempt lot.                                  which to determine that all of the          avocado import regulation. Commercial
   One FV–6 may be used for multiple         product has been delivered. The             processing includes canning, freezing,
deliveries to the same exempt outlet, if     conversion to pounds will also assist the   dehydrating, drying, the addition of
the deliveries are made at the same          Department in its compliance efforts.       chemical substances, or fermentation.
time. In such instances, item 4, ‘‘Vehicle   The weight entered should be only the          The Department suspended § 944.31
Identification,’’ on the FV–6 must           quantity imported as exempt. In             Avocado import maturity regulation on
contain the license tag numbers or other     instances where the exempt commodity        May 15, 1991 (56 FR 23009). The
identification for each vehicle              is the culled sublot of a larger fresh      suspension was in place at the time of
delivering the exempt shipments. Also,       market lot, the weight entered should be    issuance of the import exemption
item 7, ‘‘Total Quantity Imported,’’ must    only the weight of the exempt sublot.       interim final rule (58 FR 69182,
show the total weight of all loads              Under ‘‘Intended Use’’ (currently item   December 23, 1993). Subsequently, the
delivered from the imported lot to the       9) the importer or customs broker           Department issued a proposed rule on
exempt outlet. The receiver who signs        should enter the type of processing use     April 4, 1994 (59 FR 15661) to lift the
Section II of the exemption form for the     or other exempt use for which the           suspension. Because the avocado import
exempt outlet certifies as to the receipt    exempt product is intended. The type of     maturity regulation was not in effect
of all loads listed on the FV–6, the total   processing should be entered on the line    when the exemption interim final rule
volume received, and that the                after the word ‘‘Type’’ in item 9. This     was issued, exemptions under § 944.31
disposition is consistent with exempt        change is made at the request of            were not included in the exemption
usage.                                       commenters and is a modification from       interim final rule. However, a final rule
   If a shipment is entered as exempt        the interim final rules which did not       removing the temporary suspension of
and shipped to two or more exempt            require designation of the type of          avocado import maturity regulation was
outlets, an FV–6 must be completed for       processing or other exempt use. This        issued on June 16, 1994 (59 FR 30866).
each exempt shipment and outlet. Each        modification of the form will help the      Because the exemptions for imported
receiver who signs section II of the         Department monitor exempt shipments.        avocados under § 944.31 maturity
exemption form for an exempt outlet is          The Customs Service Entry Number         regulations also apply to § 944.28 grade
certifying receipt of the shipment at that   (currently item 10a) and the                regulations, this rule finalizes the
exempt outlet. In such cases, the            Harmonized Tariff Code Number               addition of charitable institutions,
combined volume of exempt shipments          (currently item 10b) must be entered on     distribution by relief agencies, seed, and
to each outlet must equal the total          each exemption form. These data enable      commercial processing into products to
volume reported on the exemption form.       the Department to obtain a baseline of      the list of exemptions allowed under the
   The quality of product shipped            exempt shipments released by the            avocado import maturity regulation.
exempt is a business decision between        Customs Service and, thus, are essential
the exporter, importer and processor or      to the Department’s monitoring and          Grapefruit
other exempt receiver. If an importer or     compliance responsibilities.                  The grapefruit import regulation (7
processor receives exempt product               After consideration of comments          CFR 944.106) is based on those in effect
below needed quality specifications, the     received and evaluation of safeguard        for grapefruit grown in Florida under
importer or processor could discontinue      procedures, the Department finalizes the    Marketing Order No. 905 throughout the
use of the exemption form and require        two interim final rules and makes minor     year. Under Marketing Order No. 905,
that further shipments be inspected          modifications and additions to              any person may handle grapefruit
against applicable import grade, size,       individual commodity import                 without regard to established grade,
quality, or maturity requirements.           regulations for consistency and clarity.    size, quality, or maturity requirements
13056        Federal Register / Vol. 61, No. 59 / Tuesday, March 26, 1996 / Rules and Regulations

provided that such grapefruit are             final rule, the only exemption allowed        olives and the Department offices
handled for (1) consumption by                under the orange import regulation was        contacted prior to importation. The
charitable institutions; (2) distribution     that for individual shipments of up to        interim final rule published December
by relief agencies; (3) commercial            ten 7⁄10 bushels (400 pounds). In             30, 1993 (58 FR 69186) inadvertently
processing into canned or frozen              addition, Marketing Order No. 906             omitted the procedures and offices
products or into a beverage base; (4)         requires handlers to certify to the           specified in the latter portion of
animal feed; or (5) individual shipments      order’s committee that receiving              paragraph (c). This rule replaces,
of up to 15 standard packed cartons (12       processors have no facilities,                without change, the procedures to be
bushels). Prior to issuance of the interim    equipment, or outlet to repack or sell        followed and updates the office
final rule, the only exemption allowed        fruit in fresh form (§ 906.123(b)(7)). This   addresses and numbers to be contacted
under the grapefruit import regulation        final rule adds a corresponding proviso       prior to importation.
was that for individual shipments of up       to the orange import regulation that
                                                                                            Table Grapes
to 15 standard packed cartons (12             oranges, imported as exempt under this
bushels). This rule finalizes the addition    regulation, cannot be shipped to                The table grape import regulation (7
of charitable institutions, distribution by   processors who have facilities,               CFR 944.506) is based on those in effect
relief agencies, commercial processing        equipment, or outlets to repack or sell       for table grapes grown in southeastern
into canned or frozen products or into        fruit in fresh form. This rule finalizes      California under Marketing Order No.
a beverage base, and animal feed to the       the addition of charitable institutions,      925 from April 20 through August 15.
list of exemptions allowed under the          distribution by relief agencies, and          Under Marketing Order No. 925 any
grapefruit import regulation.                 commercial processing into products to        person may handle table grapes without
                                              the list of exemptions allowed under the      regard to established grade, size, quality,
Limes                                                                                       or maturity requirements provided that
                                              orange import regulation.
   The lime import regulation (7 CFR             The minimum grade requirement for          such table grapes are handled for
944.209) is based on those in effect for      oranges under the orange import               processing into products. Currently, no
limes grown in Florida under Marketing        regulation (7 CFR 944.312) was                imported shipments of table grapes are
Order No. 911 throughout the year.            suspended effective October 24, 1991          exempt from the import regulations.
Under Marketing Order No. 911 any             (56 FR 55983) but was not addressed in        This rule finalizes the addition of
person may handle limes without regard        the interim final rule because the            processing into products as an
to established grade, size, quality, or       minimum grade requirement was not             exemption allowed under the table
maturity requirements provided that           directly affected by the exemptions.          grape import regulation.
such limes are handled for (1)                That minimum grade requirement was            Kiwifruit
consumption by charitable institutions;       reinstated on May 12, 1994 (59 FR
(2) distribution by relief agencies; (3)      25791), at the same U.S. No. 2 grade that       The kiwifruit import regulation (7
commercial processing into products; or       was effective for imported oranges prior      CFR 944.550) is based on those in effect
(4) individual shipments of up to 55          to suspension in 1991. The                    for kiwifruit grown in California under
pounds. Prior to issuance of the interim      reinstatement rule also amended the           Marketing Order No. 920 throughout the
final rule, the only exemption allowed        definition of the term ‘‘oranges’’ and        year. Under Marketing Order No. 920
under the lime import regulation was          changed the minimum quantity                  any person may handle kiwifruit
that for individual shipments of up to        exemption from ‘‘ten 7/10 bushels,’’          without regard to established grade,
250 pounds. This rule finalizes the           which is the equivalent of 420 pounds,        size, quality, or maturity requirements
addition of charitable institutions,          to 400 pounds. This final rule reflects       provided that such kiwifruit is handled
distribution by relief agencies, and          the changes established in the                for (1) Consumption by charitable
commercial processing into products to        reinstatement action.                         institutions; (2) distribution by relief
the list of exemptions allowed under the                                                    agencies; (3) commercial processing into
lime import regulation. Commercial            Olives                                        products; or (4) individual shipments of
processing includes canning, freezing,           The olive import regulation (7 CFR         up to 200 pounds. Prior to issuance of
dehydrating, drying, the addition of          944.401) is based on those in effect for      the interim final rule, the only
chemical substances, or fermentation.         olives grown in California under              exemption allowed under the kiwifruit
Limes imported for conversion into            Marketing Order No. 932 throughout the        import regulation was that for
juice without further processing or           year. Under Marketing Order No. 932           individual shipments of up to 200
preservative treatment are deemed fresh       any person may handle olives without          pounds. This rule finalizes the addition
limes and may not be imported exempt          regard to established grade, size, quality,   of charitable institutions, distribution by
from inspection requirements.                 or maturity requirements provided that        relief agencies, and commercial
                                              such olives are handled for processing        processing into products to the list of
Oranges                                       into oil or donated to charitable             exemptions allowed under the kiwifruit
  The orange import regulation (7 CFR         institutions. Although there is no            import regulation. For the purposes of
944.312) is based on those in effect for      minimum quantity exemption for olives         this section, commercial processing into
oranges grown in Texas under                  regulated under Marketing Order No.           products means that the kiwifruit is
Marketing Order No. 906 throughout the        932, an exemption is allowed under the        physically altered in form or chemical
year. Under Marketing Order No. 906           olive import regulation for individual        composition through freezing, canning,
any person may handle oranges without         shipments up to 100 pounds. This rule         dehydrating, pulping, juicing, or heating
regard to established grade, size, quality,   finalizes the addition of processing into     of the product. The act of slicing, dicing,
or maturity requirements provided that        oil and donations to charitable               or peeling shall not be considered
such oranges are handled for (1)              institutions to the list of exemptions        commercial processing into products.
consumption by charitable institutions;       allowed under the olive import                  This rule also makes minor
(2) distribution by relief agencies; (3)      regulation.                                   modifications to the section titles of
commercial processing into products; or          This rule also replaces the original       some fruit crop import regulations. In
(4) individual shipments of up to 400         text in paragraph (c) of § 944.401            the past, the Department issued
pounds. Prior to issuance of the interim      concerning procedures for importing           separate, annual import regulations that
            Federal Register / Vol. 61, No. 59 / Tuesday, March 26, 1996 / Rules and Regulations                              13057

were sequentially numbered. However,         onions exempt from established grade,         greenhouse tomatoes. This rule finalizes
the import regulations are now issued        size, quality, and maturity requirements,     the addition of exemptions, subject to
on a continuing basis and are amended        provided that such onions are used for        certain safeguard provisions, for
only as necessary. The section number        (1) processing, (2) livestock feed, (3)       tomatoes used for processing (canning
for each import regulation remains the       charity and relief, (4) plantings, or (5)     and pickling), charity and relief. The
same and, thus, the numerical                limited quantity shipments ranging from       safeguard provisions are specified in
designations at the end of the titles are    110 to 2,000 pounds, depending on the         § 980.501.
no longer needed. Also, to be consistent     individual marketing order. Pearl               The following specialty crop import
with Federal Register guidelines, the        onions not exceeding a maximum size           regulations are covered under 7 CFR
titles are changed by removing the           may be imported exempt from all but           part 999.
capitalization of some words. These          size requirements. Inspection is              Dates
changes have no material effect on the       required to determine that such onions
import regulations.                          do not exceed maximum size                      The import regulation for dates (7
   The following vegetable crop import       requirements. Processing includes             CFR 999.1) is based on the marketing
regulations are covered under 7 CFR          canning, freezing, dehydration,               order in effect for dates produced or
part 980.                                    extraction (juice) and pickling in brine.     packed in Riverside County, California
                                             Processing does not include fresh chop,       (MO 987). Under that order, any person
Potatoes                                                                                   may handle dates exempt from
                                             fresh cut, convenience food or other pre-
   The import grade regulation for           packaged salad operations. Prior to           established grade requirements, if such
potatoes (7 CFR 980.1) is based on           issuance of the interim final rule, the       dates are donated to ‘‘needy persons,
marketing orders in effect for potatoes      onion import regulation provided              prisoners, or Native Americans on
grown in five different potato               exemptions for processed onions               reservations.’’ Prior to issuance of the
production areas in Idaho and Oregon         (dehydrated, canned, frozen and pickled       interim final rule, the date import
(MO 945), Washington (MO 946),               in brine), green onions, onion sets           regulation provided exemptions for: (1)
Oregon-California (MO 947), Colorado         (plantings), braided red onions, and for      processing (preparing and preserving
(MO 948), and the Southeastern United        minimum quantity shipments of 110             dates into confection, coating to alter
States (MO 953). Under one or more of        pounds. This rule finalizes the addition      color, chopping, slicing or other
these orders, any person may handle          of year-round exemptions, subject to          processing which alters the form), (2)
potatoes exempt from established grade,      certain safeguard provisions, for onions      denatured dates unfit for human
size, quality, and maturity requirements,    used for livestock feed, charity or relief,   consumption, and (3) minimum
provided that such potatoes are used for     processing, and pearl onions. Marketing       quantity shipments which in the
(1) Processing, (2) livestock feed, (3)      Order 958 exempts pearl onions which          aggregate do not exceed 70 pounds. This
charity or relief, (4) certified seed, (5)   are smaller sized onions produced using       rule finalizes the addition of
export, or (6) limited quantity              specific cultural practices and are not       exemptions, subject to certain safeguard
shipments ranging from 500 to 1,000          larger than 13⁄4 inches in diameter.          provisions, for dates donated to charity,
pounds, depending on the individual          Because of the maximum size                   prisoners, and Native Americans on
order. Processing includes canning,          limitation, pearl onions imported             reservations. The safeguard provisions
freezing, dehydration, chips,                exempt pursuant to these regulations          are specified in § 999.500.
shoestrings, starch and flour. Processing    must be inspected against the 13⁄4 inch
does not include potatoes that are only                                                    Walnuts
                                             diameter maximum size requirement
peeled, or cooled, sliced, diced, or         prior to being released by the Customs           The import grade regulation for
treated to prevent oxidation. The            Service. For clarity and consistency, this    walnuts (7 CFR 999.100) is based on the
Department has determined that fresh         finalization also adds the size limit of      marketing order in effect for walnuts
use food service product, such as fresh      pearl onions to the definition in             grown in California (MO 984). Under
use potato salad, is not processing.         paragraph (h), and other types of exempt      that order, any person may handle
Potatoes made into canned product,           onions to the definition for processing       walnuts exempt from established grade
such as canned potato salad, would be        in paragraph (i). The safeguard               and size requirements, if such walnuts
considered processing and thus, can be       provisions are specified in § 980.501.        are: (1) Green (immature), (2) used by
imported as exempt. Prior to issuance of                                                   charitable institutions, relief agencies or
the interim final rule, the potato import    Tomatoes                                      government agencies for school lunch
regulation provided exemptions only for         The import grade regulation for            programs, or diverted for animal feed, or
certified seed and minimum quantity          tomatoes (7 CFR 980.212) is based on          oil manufacture, or other
shipments of 500 pounds. This rule           the marketing order in effect for             noncompetitive outlets. Prior to
finalizes the addition of year-round         tomatoes grown in Florida (MO 966).           issuance of the interim final rule, the
exemptions, subject to certain safeguard     Under that order, any person may              walnut import regulation provided
provisions, for potatoes used for: (1)       handle tomatoes exempt from                   exemptions from grade and size
canning, freezing, or other processing,      established grade, size, and maturity         requirements for minimum quantity
(2) livestock feed, and (3) charity or       requirements, provided that such              shipments of 60 pounds shelled or 115
relief. The safeguard provisions are         tomatoes are used for (1) processing, (2)     pounds inshell. This rule finalizes the
specified in § 980.501.                      charity, (3) relief, (4) export, (5)          addition of exemptions, subject to
                                             experimental purposes, (6) pear shaped        certain safeguard provisions, for green
Onions                                       (elongated), cherry, green house or           walnuts, and walnuts for charity, relief,
  The import grade regulation for            hydroponic tomatoes, or (7) limited           school lunch programs, animal feed or
onions (7 CFR 980.117) is based on           quantity shipments of 50 pounds per           oil. The safeguard provisions are
marketing orders in effect for onions        day. Prior to issuance of the interim         specified in § 999.500.
grown in two different onion production      final rule, the tomato import regulation
areas in Idaho and Oregon (MO 958),          provided exemptions for experimental          Raisins
and Texas (MO 959). Under one or both        purposes, shipments of 60 pounds, and           Exemptions for raisin imports
of these orders, any person may handle       pear shaped, cherry, hydroponic, and          specified under current import
13058        Federal Register / Vol. 61, No. 59 / Tuesday, March 26, 1996 / Rules and Regulations

regulations for raisins (7 CFR part           Administration Branch, USDA, AMS,           relax the import requirements, with
999.300) are consistent with exemptions       P.O. Box 96456, room 2523–S,                modification as hereinafter set forth, to
under the raisin marketing order and are      Washington, D.C. 20090–6456                 comply with the terms of NAFTA and
not affected by this final rule.              (telephone (202)–720–4607, fax (202)–       to effectuate the declared policy of the
                                              720–5698).                                  Act.
Filberts                                         The exempt form must be mailed
  Exemptions for filbert imports              within two days of importation and two      List of Subjects
specified under current import                days of receipt at an exempt outlet.        7 CFR Part 944
regulations for filberts (7 CFR part          Original copies of the FV–6 must be           Avocados, Food grades and standards,
999.400) are consistent with exemptions       submitted. Information required on the
                                                                                          Grapefruit, Grapes, Imports, Kiwifruit,
under the filbert/hazelnut marketing          Importer’s Exempt Commodity Form
                                                                                          Limes, Olives, Oranges
order and are not affected by this final      includes: (1) the commodity and the
rule.                                         variety (if known) being imported, (2)      7 CFR Part 980
                                              the date and place of inspection if used      Food grades and standards, Imports,
Dried Prunes
                                              to enter failing product or culls as        Marketing agreements, Onions, Potatoes,
   Exemptions for dried prune imports         exempt, (include a copy of the              Tomatoes
specified under current import                inspection certificate), (3) identifying
regulations for prunes (7 CFR part            marks or numbers on the containers, (4)     7 CFR Part 999
999.200) are consistent with exemptions       identifying numbers on the railroad car,      Dates, Filberts, Food grades and
under the dried prune marketing order         truck or other transportation vehicle       standards, Imports, Nuts, Prunes,
and are not affected by this final rule.      transporting product to the receiver, (5)   Raisins, Reporting and recordkeeping
   The respective marketing order             the name and address of the importer,       requirements, Walnuts.
committees have developed methods to          (6) the place and date of entry, (7) the      Accordingly, the two interim final
monitor the marketing of the                  quantity imported (in pounds), (8) the      rules amending 7 CFR parts 944, 980
domestically produced exempt                  name and address of the intended            and 999 which were published at 58 FR
commodities from handlers to points of        receiver (processor, feeder, charity, or    69182 and 69186 on December 30, 1993,
final disposition. Safeguard procedures       other exempt receiver), (9) intended use    are adopted as a final rule with the
in the form of reporting requirements         of the exempt commodity, (10) the U.S.      following changes:
and committee management oversight            Customs Service entry number and
ensure that domestically produced             harmonized tariff code number, and (11)     PART 944—FRUITS; IMPORT
commodities are used in the intended          such other information as may be            REGULATIONS
exempt outlets.                               necessary to ensure compliance with
   Safeguards in domestic marketing           this regulation.                              1. The authority citation for 7 CFR
orders include two different procedures.         The reporting burden on both             part 944 continues to read as follows:
A ‘‘certificate of privilege’’ is issued by   importers and receiving entities is             Authority: 7 U.S.C. 601–674.
a committee upon application by a             minimal and consistent with safeguard         2. In § 944.31, paragraphs (f) and (g)
handler. The handler notifies the             procedures imposed on the handling of       are revised to read as follows:
appropriate marketing order committee         domestically-produced exempt
of the handler’s intent to ship that          commodities. In accordance with the         § 944.31 Avocado import maturity
commodity to a processor, livestock           Paperwork Reduction Act of 1980 (44         regulation.
feeder, charity, or other exempted            U.S.C. Chapter 35), the information and     *      *    *      *    *
outlet. A ‘‘special purpose shipment          collection requirements that are               (f) Any lot or portion thereof which
report’’ is forwarded by a handler to the     contained in this rule have been            fails to meet the import requirements,
receiver. The receiver sends the form to      previously approved by the Office of        and is not being imported for purposes
the responsible committee, providing          Management and Budget (OMB) and             of consumption by charitable
information about the shipment                have been assigned OMB No. 0581–            institutions, distribution by relief
necessary to determine compliance.            0167.                                       agencies, seed, or commercial
   Because of the ease with which                This rule finalizes increases in the     processing into products; prior to or
imported commodities can enter fresh          reporting burden on approximately 448       after reconditioning may be exported or
market channels of trade, this rule           importers of avocados, grapefruit, limes,   disposed of under the supervision of the
modifies and finalizes a process to           oranges, olives, table grapes, and          Federal or Federal-State Inspection
monitor exempt, imported commodities          kiwifruit and 534 importers of potatoes,    Service with the costs of certifying the
from the port of entry to the point of        onions, tomatoes, dates and walnuts         disposal of such lot borne by the
final disposition.                            who complete the exemption form. The        importer.
   To provide consistency and ease the        estimated time for importers to                (g) The maturity requirements of this
reporting burden on importers that deal       complete the form is 10 minutes. The        section shall not be applicable to
in several commodities, this rule             estimated time for receivers to sign the    avocados imported for consumption by
finalizes a single set of safeguard           certification is 5 minutes.                 charitable institutions, distribution by
procedures and a standardized form that          In accordance with section 8e of the     relief agencies, seed, or commercial
can be used for imported avocados,            Act, the United States Trade                processing into products, but such
grapefruit, limes, oranges, olives, table     Representative has concurred with the       avocados shall be subject to the
grapes, kiwifruit, potatoes, onions,          issuance of this final rule.                safeguard provisions contained in
tomatoes, dates and walnuts. The                 Based on the above, the Administrator    § 944.350.
procedure is added in §§ 944.350,             of the AMS has determined that this
980.501 and 999.500, and is referenced        final rule will not have a significant      § 944.209    [Amended]
in individual commodity import                economic impact on a substantial              3. In § 944.209, the last sentence in
regulations.                                  number of small entities.                   paragraph (c), the word ‘‘handled’’ is
   Exemption forms may be obtained               This final rule reflects the             removed and the word ‘‘imported’’ is
from the Marketing Order                      Department’s appraisal of the need to       added in its place.
              Federal Register / Vol. 61, No. 59 / Tuesday, March 26, 1996 / Rules and Regulations                                   13059

  4. In § 944.312, paragraphs (c) and (h)         exempt under this provision shall be          olives, inspection and certification shall
are revised to read as follows:                   reported on an ‘‘Importer’s Exempt            be completed prior to importation. Any
                                                  Commodity Form’’ and such form,               lot of olives which fails to meet the
§ 944.312   Orange import regulation.             accompanied by a copy of the                  import requirements and is not being
*      *     *    *      *                        applicable inspection certificate, shall      imported for purposes of contribution to
   (c) The term importation means                 be mailed to the Marketing Order              a charitable organization or processing
release from custody of the United                Administration Branch.                        into oil may be exported or disposed of
States Customs Service. The term                     (b) Each person who receives an            under the supervision of the Processed
processing means the manufacture of               exempt commodity for the purposes             Products Branch, Fruit and Vegetable
any orange product which has been                 specified in paragraph (a) of this section    Division, AMS, USDA, with the cost of
converted into sectioned fruit or into            shall also receive a copy of the same
                                                                                                certifying the disposal borne by the
fresh juice, or preserved by any                  numbered Importer’s Exempt
commercial process, including canning,                                                          importer. Such inspection and
                                                  Commodity Form filed by the importer
freezing, dehydrating, drying, and the            or customs broker and shall certify, by       certification services will be available,
addition of chemical substances, or by            completing and signing Section II of the      upon application, in accordance with
fermentation.                                     form and mailing the form to the              the applicable regulations governing the
                                                  Marketing Order Administration Branch         inspection and certification of Processed
*      *     *    *      *
   (h) The grade, size, quality, and              within two days of receipt of the exempt      Fruits and Vegetables, Processed
maturity requirements of this section             lot, that such lot has been received and      Products Thereof, and Certain Other
shall not be applicable to oranges                will be utilized in the exempt outlet.        Processed Food Products (part 52 of this
imported for consumption by charitable               (c) It is the responsibility of the        title). Application for inspection of
institutions, distribution by relief              importer to notify the Marketing Order        canned ripe olives shall be made not
agencies, or processing into products,            Administration Branch of any lot of           less than 10 days prior to the time when
but shall be subject to the safeguard             exempt commodity rejected by a                the olives will be imported. Since
provisions contained in § 944.350,                receiver, shipped to an alternative           inspectors are not located in the
Provided that: oranges, imported as               exempt receiver, exported, or otherwise       immediate vicinity of some of the small
exempt under this regulation, cannot be           destroyed. In such cases, a second            ports of entry, importers of canned ripe
shipped to processors who have                    ‘‘Importer’s Exempt Commodity Form’’          olives shall make arrangements for
facilities, equipment, or outlets to              must be filed by the importer providing       inspection through the following office
repack or sell fruit in fresh form.               sufficient information to determine           at least 10 days prior to the time when
*      *     *    *      *                        ultimate disposition of the exempt lot        the olives will be imported: Processed
   5. Section 944.350 is revised to read          and such disposition shall be so              Products Branch, USDA, AMS, F&V
as follows:                                       certified by the final receiver.              Division, P.O. Box 96456, Room 0726–
                                                     (d) All FV–6 forms and other               S, Washington, DC 20090–6456,
§ 944.350 Safeguard procedures for                correspondence regarding entry of 8e          telephone (202) 720–5021, fax (202)
avocados, grapefruit, kiwifruit, limes, olives,   commodities must be mailed to the             690–1527. Application for inspection of
oranges, and table grapes exempt from             Marketing Order Administration                processed bulk olives shall be made not
grade, size, quality, and maturity                Branch, USDA, AMS, P.O. Box 96456,
requirements.                                                                                   less than 3 days prior to use in the
                                                  room 2523–S, Washington, D.C. 20090–          production of canned ripe olives. Such
   (a) Each person who imports:                   6456, telephone (202)–720–4607. FV–6          application shall be made through one
   (1) Avocados, grapefruit, kiwifruit,           forms submitted by fax must be
limes, olives, and oranges for                                                                  of the following offices: Regional
                                                  followed by a mailed, original copy of        Director, Eastern Regional Office, 800
consumption by charitable institutions            the FV–6 form. Fax transmissions may
or distribution by relief agencies;                                                             Roosevelt Road, Building A, suite 380
                                                  be sent to the MOAB at (202) 720–5698.        Glen Ellyn, IL 60137, telephone (708)
   (2) Avocados, grapefruit, kiwifruit,              6. In § 944.401, paragraph (c) is
limes, oranges, and table grapes for                                                            790–6937/8/9, fax (708) 469–5162; or
                                                  revised to read as follows:
processing;                                                                                     Regional Director, Western Regional
   (3) Olives for processing into oil;            § 944.401   Olive import regulation.          Office, 2202 Monterey Street, suite 102–
   (4) Grapefruit for animal feed; or             *     *     *     *     *                     C, Fresno, CA 93721, telephone (209)
   (5) Avocados for seed shall obtain an            (c) The Processed Products Branch,          487–5891, fax (209) 487–5900.
‘‘Importer’s Exempt Commodity Form’’              Fruit and Vegetable Division,                 *      *     *    *     *
(FV–6 form) from the Marketing Order              Agricultural Marketing Service, U.S.
                                                                                                   7. In § 944.550, paragraph (d) is
Administration Branch, Fruit and                  Department of Agriculture, is hereby
                                                                                                revised to read as follows:
Vegetable Division, AMS, USDA, and                designated as the governmental
shall show the completed ‘‘Importer’s             inspection service for the purpose of         § 944.550   Kiwifruit import regulation.
Exempt Commodity Form’’ to the U.S.               certifying the grade and size of
                                                                                                *      *    *     *     *
Customs Service Regional Director or              processed olives from imported bulk
District Director, as applicable, at the          lots for use in canned ripe olives and           (d) Any lot or portion thereof which
port at which the customs entry is filed.         the grade and size of imported canned         fails to meet the import requirements
One copy shall be mailed to the                   ripe olives. Inspection by said               and is not being imported for purposes
Marketing Order Administration                    inspection service with appropriate           of consumption by charitable
Branch, Fruit and Vegetable Division,             evidence thereof in the form of an            institutions, distribution by relief
AMS, USDA with a postmark no later                official inspection certificate, issued by    agencies, or commercial processing into
than two days after the date of                   the service and applicable to the             products may be reconditioned or
importation and a third copy shall                particular lot of olives, is required. With   exported. Any failed lot which is not
accompany the lot to the exempt outlet            respect to imported bulk olives,              reconditioned or exported shall be
specified on the form. Any lot offered            inspection and certification shall be         disposed of under supervision of the
for inspection and, all or a portion              completed prior to use as packaged ripe       Federal or Federal-State Inspection
thereof, subsequently imported as                 olives. With respect to canned ripe           Service with the costs of certifying the
13060          Federal Register / Vol. 61, No. 59 / Tuesday, March 26, 1996 / Rules and Regulations

disposal of said lot borne by the               § 980.501 Safeguard procedures for           Marketing Order Administration
importer.                                       potatoes, onions, and tomatoes exempt        Branch, USDA, AMS, P.O. Box 96456,
                                                from grade, size, quality, and maturity      room 2523–S, Washington, D.C. 20090–
*    *     *      *    *                        requirements.                                6456, telephone (202) 720–4607. FV–6
PART 980—VEGETABLES; IMPORT                        (a) Each person who imports:              forms submitted by fax must be
REGULATIONS                                        (1) Potatoes, onions or tomatoes for      followed by a mailed, original copy of
                                                consumption by charitable institutions       the FV–6. Fax transmissions may be
  1. The authority citation for 7 CFR           or distribution by relief agencies;          sent to the MOAB at (202) 720–5698.
part 980 continues to read as follows:             (2) Potatoes, onions, or tomatoes for
    Authority: 7 U.S.C. 601–674.
                                                processing;                                  PART 999—SPECIALTY CROPS;
                                                   (3) Potatoes or onions for livestock      IMPORT REGULATIONS
  2. In § 980.1, paragraph (i) is revised       feed; or
to read as follows:                                (4) Pearl onions, shall obtain an           1. The authority citation for 7 CFR
                                                ‘‘Importer’s Exempt Commodity Form’’         part 999 continues to read as follows:
§ 980.1   Import regulations; Irish potatoes.   (FV–6) from the Marketing Order                Authority: 7 U.S.C. 601–674.
*     *      *    *     *                       Administration Branch, Fruit and
  (i) Exemptions. The grade, size,              Vegetable Division, AMS, USDA, and             2. Section 999.500 is revised to read
quality and maturity requirements of            shall show the completed ‘‘Importer’s        as follows:
this section shall not be applicable to         Exempt Commodity Form’’ to the U.S.          § 999.500 Safeguard procedures for
potatoes imported for canning, freezing,        Customs Service Regional Director or         walnuts and certain dates exempt from
other processing, livestock feed, charity,      District Director, as applicable, at the     grade, size, quality, and maturity
or relief, but such potatoes shall be           port at which the customs entry is filed.    requirements.
subject to the safeguard provisions             One copy shall be mailed to the                (a) Each person who imports:
contained in § 980.501. Processing              Marketing Order Administration                 (1) Dates which are donated to needy
includes canning, freezing, dehydration,        Branch, Fruit and Vegetable Division,        persons, prisoners or Native Americans
chips, shoestrings, starch and flour.           AMS, USDA with a postmark no later           on reservations; or
Processing does not include potatoes            than two days after the date of                (2) Walnuts which are: green walnuts
that are only peeled, or cooled, sliced,        importation and a third copy shall           (so immature that they cannot be used
diced, or treated to prevent oxidation, or      accompany the lot to the exempt outlet       for drying and sale as dried walnuts);
made into fresh potato salad.                   specified on the form. Any lot offered       walnuts used in non-competitive outlets
  3. In § 980.117, paragraph (i) is             for inspection and, all or a portion         such as use by charitable institutions,
revised to read as follows:                     thereof, subsequently imported as            relief agencies, governmental agencies
                                                exempt under this provision shall be         for school lunch programs, and
§ 980.117    Import regulations; onions.                                                     diversion to animal feed or oil
                                                reported on an ‘‘Importer’s Exempt
*      *     *    *     *                       Commodity Form’’ and such form,              manufacture shall obtain an ‘‘Importer’s
   (i) Exemptions. The grade, size,             accompanied by a copy of the                 Exempt Commodity Form’’ (FV–6) from
quality and maturity requirements of            applicable inspection certificate, shall     the Marketing Order Administration
this section shall not be applicable to         be mailed to the Marketing Order             Branch, Fruit and Vegetable Division,
onions imported for processing,                 Administration Branch.                       AMS, USDA, and shall show the
livestock feed, charity, or relief, and            (b) Each person who receives an           completed ‘‘Importer’s Exempt
pearl onions not larger than 13⁄4 inches        exempt commodity for the purposes            Commodity Form’’ to the U.S. Customs
in diameter, onion sets (plantings),            specified in paragraph (a) of this section   Service Regional Director or District
braided red onions, and minimum                 shall also receive a copy of the same        Director, as applicable, at the port at
quantity shipments of 110 pounds, but           numbered Importer’s Exempt                   which the customs entry is filed. One
such onions shall be subject to the             Commodity Form filed by the importer         copy shall be mailed to the Marketing
safeguard provisions in § 980.501.              or customs broker and shall certify, by      Order Administration Branch, Fruit and
Processing includes canning, freezing,          completing and signing Section II of the     Vegetable Division, AMS, USDA, with a
dehydration, extraction (juice) and             form and mailing the form to the             postmark not later than two days after
pickling in brine. Processing does not          Marketing Order Administration Branch        the date of importation and a third copy
include fresh chop, fresh cut,                  within two days of receipt of the exempt     shall accompany the lot to the exempt
convenience food or other pre-packaged          lot, that such lot has been received and     outlet specified on the form. Any lot
salad operations. Pearl onions must be          will be utilized in the exempt outlet.       offered for inspection and, all or a
inspected for size prior to entry into the         (c) It is the responsibility of the       portion thereof, imported as exempt
United States.                                  importer to notify the Marketing Order       under this provision shall be reported
   4. In § 980.212, paragraph (i) is            Administration Branch of any lot of          on an ‘‘Importer’s Exempt Commodity
revised to read as follows:                     exempt commodity rejected by a               Form’’ and such form, accompanied by
                                                receiver, shipped to an alternative          a copy of the applicable inspection
§ 980.212    Import regulations; tomatoes.      exempt receiver, returned to the country     certificate, shall be mailed to the
*     *     *      *    *                       of origin, or otherwise disposed of. In      Marketing Order Administration
  (i) Exemptions. The grade, size,              such cases, a second ‘‘Importer’s            Branch.
quality and maturity requirements of            Exempt Commodity Form’’ must be                (b) Each person who receives an
this section shall not apply to tomatoes        filed by the importer providing              exempt commodity for the purposes
for charity, relief, canning or pickling,       sufficient information to determine          specified in paragraph (a) of this section
but such tomatoes shall be subject to the       ultimate disposition of the exempt lot       shall also receive a copy of the same
safeguard provisions contained in               and such disposition shall be so             numbered Importer’s Exempt
§ 980.501. Processing includes canning          certified by the final receiver.             Commodity Form filed by the importer
and pickling.                                      (d) All FV–6 forms and other              or customs broker and shall certify, by
  5. Section 980.501 is revised to read         correspondence regarding entry of 8e         completing and signing Section II of the
as follows:                                     commodities must be mailed to the            form and mailing the form to the
              Federal Register / Vol. 61, No. 59 / Tuesday, March 26, 1996 / Rules and Regulations                              13061

Marketing Order Administration Branch            determine if an Order would become          DEPARTMENT OF JUSTICE
within two days of receipt of the exempt         effective.
lot, that such lot has been received and                                                     Immigration and Naturalization Service
                                                    Of the 19,801 valid ballots cast,
will be utilized in the exempt outlet.           10,707 (54.1 percent) favored and 9,094
   (c) It is the responsibility of the                                                       8 CFR Parts 103, 204, 205 and 216
                                                 (45.9 percent) opposed the
importer to notify the Marketing Order
                                                 implementation of the Order.
Administration Branch of any lot of                                                          [INS No. 1705–95]
                                                 Additionally, of those persons who cast
exempt commodity rejected by a
receiver, shipped to an alternative              valid ballots in the referendum, those
                                                                                             RIN 1115–AE04
exempt receiver, exported, or otherwise          who favored the Order account for 40
disposed of. In such cases, a second             percent of the total production voted,      Petition to Classify Alien as Immediate
‘‘Importer’s Exempt Commodity Form’’             and those opposed account for 60            Relative of a United States Citizen or
must be filed by the importer providing          percent of the total production voted.      as a Preference Immigrant; Self-
sufficient information to determine              The Order could have been approved by       Petitioning for Certain Battered or
ultimate disposition of the exempt lot           either a majority of the producers,         Abused Spouses and Children
and such disposition shall be so                 feeders, and importers voting in the
certified by the final receiver.                 referendum or by those voting in the        AGENCY:  Immigration and Naturalization
   (d) All FV–6 forms and other                  referendum who accounted for at least       Service, Justice.
correspondence regarding entry of 8e             two-thirds of the production                ACTION: Interim rule with request for
commodities must be mailed to the                represented.                                comments.
Marketing Order Administration                      Therefore, based on the referendum
Branch, USDA, AMS, P.O. Box 96456,                                                           SUMMARY:    This interim rule amends the
                                                 results, the Secretary of Agriculture has   Immigration and Naturalization Service
room 2523–S, Washington, D.C. 20090–             determined that the required majority of
6456, telephone (202) 720–4607. FV–6                                                         (‘‘the Service’’) regulations to allow a
                                                 eligible producers, feeders, and            spouse or child to seek immigrant
forms submitted by fax must be
                                                 importers who voted absentee or in          classification if he or she has been
followed by a mailed, original copy of
                                                 person in the February 6, 1996, national    battered by, or subjected to extreme
the FV–6. Fax transmissions may be
sent to the MOAB at (202) 720–5698.              referendum voted to implement the           cruelty committed by, the citizen or
                                                 Order. As a result, a promotion,            lawful permanent resident spouse or
  Dated: February 23, 1996.                      research, education, and information        parent. It also permits a spouse to seek
Sharon Bomer Lauritsen,                          program will be funded by a mandatory       classification if his or her child has been
Deputy Director, Fruit and Vegetable Division.   assessment on domestic sheep                battered by, or subjected to extreme
[FR Doc. 96–7192 Filed 3–25–96; 8:45 am]         producers, lamb feeders, and exporters      cruelty committed by, the citizen or
BILLING CODE 3410–02–P                           of live sheep and greasy wool of 1 cent     lawful permanent resident spouse. A
                                                 per pound on live sheep sold and 2          qualified spouse or child who is living
                                                 cents per pound on greasy wool sold.        in the United States but is not a
7 CFR Part 1280                                  Importers will be assessed (1) 1 cent per   permanent resident may use the
                                                 pound on live sheep; (2) the equivalent     procedures established by this rule to
[No. LS–96–002]                                                                              self-petition for immigrant
                                                 of 1 cent per pound of live sheep for
                                                 sheep products; and (3) 2 cents per         classification. The self-petition may be
Sheep Promotion, Research, and                                                               filed without the abuser’s knowledge or
Information Program                              pound of degreased wool or the
                                                 equivalent of degreased wool for wool       consent, and may include the children
AGENCY: Agricultural Marketing Service;                                                      of a self-petitioning spouse. A person
                                                 and wool products. Imported raw wool
USDA.                                                                                        who is granted immigrant classification
                                                 will be exempt from assessments. Each
ACTION: Notice of Referendum Results
                                                                                             under this provision may become
                                                 person who processes or causes to be        eligible for lawful permanent resident
                                                 processed sheep or sheep products of        status. A lawful permanent resident of
SUMMARY: The Agricultural Marketing
                                                 that person’s own production and            the United States has legal permission
Service (AMS) is announcing that sheep
producers, sheep feeders, and importers          markets the processed products, will be     to live and work in this country, and
of sheep and sheep products voting in            assessed the equivalent of 1 cent per       may later qualify for U.S. citizenship
a national referendum on February 6,             pound of live sheep sold or 2 cents per     through naturalization.
1996, have approved the Sheep and                pound of greasy wool sold. All
                                                                                             DATES: This interim rule is effective
Wool Promotion, Research, Education,             assessments may be adjusted in              March 26, 1996. Written comments
and Information Order (Order).                   accordance with applicable provisions       must be received on or before May 28,
FOR FURTHER INFORMATION CONTACT:
                                                 of the Act. The date when assessments       1996.
Ralph L. Tapp, Chief, Marketing                  will begin will be announced at a later
                                                                                             ADDRESSES: Please submit written
Programs Branch, Livestock and Seed              date.
                                                                                             comments, in triplicate, to the Director,
Division, AMS, USDA, Room 2606–S;                  Dated: March 20, 1996.                    Policy Directives and Instructions
P.O. Box 96456; Washington, D.C.                 Lon Hatamiya,                               Branch, Immigration and Naturalization
20090–6456.                                      Administrator.                              Service, 425 I Street NW., Room 5307,
SUPPLEMENTARY INFORMATION: Pursuant              [FR Doc. 96–7191 Filed 3–25–96; 8:45 am]    Washington, DC 20536, Attn: Public
to the Sheep Promotion, Research, and                                                        Comment Clerk. To ensure proper
                                                 BILLING CODE 3410–02–P
Information Act of 1994, 7 U.S.C. 7101                                                       handling, please reference the INS
et seq. (Act), the Department of                                                             number 1705–95 on your
Agriculture conducted a referendum on                                                        correspondence. Comments are
February 6, 1996, among eligible sheep                                                       available for public inspection at this
producers, sheep feeders, and importers                                                      location by calling (202) 514–3048 to
of sheep and sheep products to                                                               arrange an appointment.
13062        Federal Register / Vol. 61, No. 59 / Tuesday, March 26, 1996 / Rules and Regulations

FOR FURTHER INFORMATION CONTACT:              the ability of an abusive citizen or         201(b)(2)(A)(i) or 203(a)(2)(A) of the Act
Rita A. Arthur, Senior Adjudications          lawful permanent resident to use the         based on that relationship; (3) is
Officer, Adjudications Division,              immigration laws to further violence         residing in the United States; (4) has
Immigration and Naturalization Service,       against a spouse or child in the United      resided in the United States with the
425 I Street NW., Room 3214,                  States. Although the title of this portion   citizen or lawful permanent resident
Washington, DC 20536, telephone (202)         of the Crime Bill reflects the fact that     parent; (5) has been battered by, or has
514–5014.                                     many abuse victims are women, abused         been the subject of extreme cruelty
                                              spouses and children of either sex may       perpetrated by, the citizen or lawful
SUPPLEMENTARY INFORMATION:
                                              benefit from these provisions. Section       permanent resident parent while
Background                                    40701 of the Crime Bill allows a             residing with that parent; (6) is a person
   The Immigration and Nationality Act        qualified spouse or child to self-petition   of good moral character; and (7) is a
(‘‘the Act’’) allows certain relatives of a   for immigrant classification based on        person whose deportation would result
citizen or lawful permanent resident of       the relationship to the abusive citizen or   in extreme hardship to himself or
the United States to be classified for        lawful permanent resident of the United      herself.
immigration. These relatives are not          States, without the abuser’s
automatically entitled to immigrate; the                                                   Spouse of a Citizen or Lawful
                                              participation or consent. This section
Service must approve a visa petition                                                       Permanent Resident
                                              also permits an eligible abused spouse
filed by the citizen or lawful permanent      to include his or her children in the           The Crime Bill’s changes to section
resident for the family member, and the       petition, if the children have not           204(a)(1) of the Act, which allow a self-
relative must qualify for immigrant visa      petitioned separately. Section 40702 of      petition to be filed, describe the spousal
issuance abroad or adjustment of status       the Crime Bill, which will be the subject    relationship between the self-petitioner
in the United States.                         of a separate rulemaking, provides           and the abuser in the present tense.
   Citizens and lawful permanent              guidelines for the acceptance and            They characterize a self-petitioning
residents may choose whether and              evaluation of credible evidence of abuse     spouse as a person who is the spouse of
when to petition for a relative. Most         submitted with certain requests for          a citizen or lawful permanent resident
citizens and lawful permanent residents       removal of conditions on residency           of the United States, and include no
seek permission to bring their family         under section 216 of the Act. Section        provisions for filing a self-petition based
members to the United States as soon as       40703 of the Crime Bill, which will also     on a former spousal relationship. This
possible. They file for all their qualified   be addressed separately, allows certain      rule, therefore, requires the self-
relatives, except family members who          abused spouses and children who have         petitioning spouse to be legally married
do not want to live in the United States      been continuously physically present in      to the abuser when the petition is filed.
and those with whom they do not care          the United States for the past 3 years to    It specifies that a spousal self-petition
to be reunited.                               apply for suspension of deportation.         must be denied if the petitioner’s
   Some abusive citizens or lawful                                                         marriage to the abuser legally ended by
permanent residents, however, misuse          Basic Self-Petitioning Eligibility           annulment, death, or divorce before that
their control over the petitioning            Requirements                                 time. The rule also stipulates that the
process. Instead of helping close family         A spouse who is self-petitioning          abuser be a citizen or lawful permanent
members to legally immigrate, they use        under section 40701 of the Crime Bill        resident of the United States when the
this discretionary power to perpetuate        must show that he or she: (1) is the         self-petition is filed.
domestic abuse of their spouses and           spouse of a citizen or lawful permanent         Although it does not allow a self-
minor children who have been living           resident of the United States; (2) is        petition to be filed based on a former
with them in the United States. Abusers       eligible for immigrant classification        spousal relationship, section 40701 of
generally refuse to file relative petitions   under section 201(b)(2)(A)(i) or             the Crime Bill directs the Service not to
for their closest family members because      203(a)(2)(A) of the Act based on that        revoke the approval of a self-petition
they find it easier to control relatives      relationship; (3) is residing in the         solely because the marriage has legally
who do not have lawful immigration            United States; (4) has resided in the        ended. This statutory provision protects
status. These family members are less         United States with the citizen or lawful     the self-petitioner against an abuser’s
likely to report the abuse or leave the       permanent resident spouse; (5) has been      attempt to regain control over the
abusive environment because they fear         battered by, or has been the subject of      petitioning process through legal
deportation or believe that only citizens     extreme cruelty perpetrated by, the          termination of the marriage. It also
and authorized immigrants can obtain          citizen or lawful permanent resident         allows a qualified self-petitioner to
legal and social services. An abuser may      during the marriage; or is the parent of     make decisions concerning the abusive
also coerce family members’ compliance        a child who has been battered by, or has     relationship without regard to
in other areas by threatening                 been the subject of extreme cruelty          immigration considerations. This rule
deportation or by promising to file a         perpetrated by, the citizen or lawful        reflects the legislative provision
relative petition in the future.              permanent resident during the marriage;      safeguarding the self-petitioner’s control
                                              (6) is a person of good moral character;     over the immigration classification
Crime Bill                                    (7) is a person whose deportation would      process.
  The plight of these domestic abuse          result in extreme hardship to himself,          While section 40701 of the Crime Bill
victims, who are unable to leave the          herself, or his or her child; and (8)        requires the marriage to be legally valid
United States for financial, social,          entered into the marriage to the citizen     at the time of filing and specifies that its
cultural, or other reasons, was               or lawful permanent resident in good         termination after approval will not be
addressed by the Violent Crime Control        faith.                                       the sole basis for revocation, it does not
and Law Enforcement Act of 1994 (‘‘the           A child who is self-petitioning under     address the effect of a legal termination
Crime Bill’’), Public Law 103–322, dated      section 40701 of the Crime Bill must         occurring between the filing and the
September 13, 1994. Title IV of the           show that he or she: (1) is the child of     approval of the self-petition. In the
Crime Bill, The Violence Against              a citizen or lawful permanent resident       absence of explicit legislative
Women Act of 1994 (‘‘the VAWA’’),             of the United States; (2) is eligible for    guidelines, the Service has determined
contains several provisions that limit        immigrant classification under section       that protections for spouses whose self-
             Federal Register / Vol. 61, No. 59 / Tuesday, March 26, 1996 / Rules and Regulations                               13063

petitions have been approved should be        for classification as an immediate             and the abuser in the present tense,
extended to cover the entire period after     relative after the abuser naturalizes,         these amendments to the Act clearly
the self-petition is filed. This rule,        provided he or she continues to meet           show that the required relationship
therefore, allows an otherwise                the self-petitioning requirements.             must exist when the petition is filed.
approvable self-petition to be granted           This rule requires a self-petitioning          The term ‘‘child’’ is defined in section
despite the legal termination of the          spouse to provide documentary                  101(b)(1) of the Act as including certain
marriage through annulment, divorce, or       evidence of his or her legal relationship      children born in or out of wedlock, and
death while the self-petition was             to the abuser and evidence of the              certain legitimated, adopted, and
pending before the Service. It provides       abuser’s immigration or citizenship            stepchildren. This definition also
that the legal termination of the             status. Self-petitioners are encouraged to     requires a child to be unmarried and
marriage after the self-petition has been     submit primary evidence whenever               less than 21 years of age. The rule,
properly filed with the Service will have     possible, although the Service will            therefore, requires a self-petitioning
not effect on the Service’s decision          consider any relevant credible evidence.       child to be unmarried, less than 21 years
concerning the self-petition.                 The Service’s regulations at 8 CFR 204.1       of age, and to otherwise qualify as the
   The rule further provides, however,        and 204.2 provide detailed information         abuser’s ‘‘child’’ when the self-petition
that a pending spousal self-petition will     concerning primary and secondary               is filed and when it is approved. It also
be denied or an approved spousal self-        supporting documentation of a spousal          requires the self-petitioning child’s
petition will be revoked if the self-         relationship to a citizen or lawful            abusive parent to be a U.S. citizen or
petitioner chooses to remarry before          permanent resident.                            lawful permanent resident when the
becoming a lawful permanent resident.            Primary evidence of a marital               self-petition is filed and when it is
By remarrying, the self-petitioner has        relationship is a marriage certificate         approved.
established a new spousal relationship        issued by civil authorities and proof of          This rule specifies that an approved
and has shown that he or she no longer        the termination of all prior marriages, if     self-petition for a child of a United
needs the protections of section 40701        any, of both the self-petitioner and the       States citizen, however, will be
of the Crime Bill to equalize the balance     abuser. Primary evidence of the abuser’s       automatically converted to an approved
of power in the relationship with the         U.S. citizenship or lawful permanent           petition for classification as the
abuser. If the new husband or wife is a       residence is: (1) a birth certificate issued   unmarried or married adult son or
citizen or lawful permanent resident of       by a civil authority establishing the          daughter of a United States citizen when
the United States, he or she may file for     abuser’s birth in the United States; (2)       the self-petitioner reaches 21 years of
the former self-petitioner’s classification   the abuser’s unexpired full-validity           age or marries. Similarly, an approved
as an immigrant. The self-petitioner also     United States passports; (3) a statement       self-petition for a child of a lawful
would not be precluded from filing a          issued by a U.S. consular officer              permanent resident of the United States
self-petition based on the new family         certifying the abuser to be a U.S. citizen     will be automatically converted to an
relationship if the new spouse is an          and the bearer of a currently valid U.S.       approved petition for classification as
abusive citizen or lawful permanent           passport; (4) the abuser’s Certificate of      the unmarried adult son or daughter of
resident of the United States. A self-        Naturalization or Certificate of               a lawful permanent resident when the
petition filed on the basis of a new          Citizenship; (5) a Department of State         unmarried self-petitioner reaches 21
marriage will be assigned a priority date     Form FS–240, Report of Birth Abroad of         years of age. The approval of a self-
based on the date it was properly filed       a Citizen of the United States, relating       petition for the child of an abusive
with the Service or based on the date a       to the abuser; or (6) the abuser’s Form        lawful permanent resident must be
visa petition filed by the current abusive    I–151 or Form I–551 Alien Registration         automatically revoked, however, when
spouse was properly filed with the            Receipt Card, or other proof given by the      the son or daughter marries. There is no
Service. This rule does not allow a           Service as evidence of lawful permanent        immigration category for a married son
priority date to be transferred from a        residence.                                     or daughter of a lawful permanent
self-petition or visa petition based on a        If primary or secondary evidence of         resident. An automatically converted
prior marriage.                               an abuser’s immigration or citizenship         self-petition will retain the self-
   It also provides that changes in the       status is not available, this rule provides    petition’s original priority date.
abuser’s citizenship or lawful                that the Service will attempt to                  Under the provisions of this rule, a
permanent resident status will not affect     electronically verify the abuser’s status      self-petitioning child must be the child
the validity of an approved self-petition.    from information contained in Service          of the abusive citizen or lawful
This provision eliminates the possibility     computerized records. Other Service            permanent resident but need not be the
that an abuser could recapture control        records may also be reviewed at the            child of a self-petitioning spouse. A self-
over the immigration classification           discretion of the adjudicating officer. If     petition may be approved although the
process by changing his or her own            the Service is unable to identify a record     child’s other parent is unable or
immigration status. An approved self-         as relating to the abuser or the record        unwilling to self-petition. The rule also
petition will not be revoked solely           does not establish the abuser’s                does not require the self-petitioning
because the abuser subsequently               immigration or citizenship status, the         child to be in the abuser’s legal custody.
abandons lawful permanent resident            self-petition will be adjudicated based        Termination of the abuser’s parental
status, renounces United States               on the information submitted by the            rights or a change in legal custody does
Citizenship, is deported, or otherwise        self-petitioner.                               not alter the self-petitioning
changes immigration status. Similarly, a                                                     relationship, provided the self-
self-petition approved on the basis of a      Child of a Citizen or Lawful Permanent         petitioner meets the definition of
relationship to a lawful permanent            Resident                                       ‘‘child’’ contained in section 101(b)(1) of
resident will not be automatically              Section 40701 of the Crime Bill              the Act when the self-petition is
upgraded to a petition for immediate          describes a self-petitioning child as a        approved, or met that definition at the
relative classification if the abuser         person who is the child of a citizen or        time of approval.
becomes a naturalized citizen of the          lawful permanent resident of the United           As discussed previously under
United States. A spouse would not be          States. By again characterizing the            ‘‘Spouse of a citizen or lawful
precluded from filing a new self-petition     relationship between the self-petitioner       permanent resident,’’ changes in the
13064        Federal Register / Vol. 61, No. 59 / Tuesday, March 26, 1996 / Rules and Regulations

abuser’s citizenship or lawful                 reached 18 years of age, and evidence of       marriage fraud. This rule reflects these
permanent resident status will not affect      legal termination of all prior marriages       statutory requirements.
the validity of an approved self-petition.     of either parent, if any; (6) an adopted          A petition must be denied under the
This regulatory provision eliminates the       child and an abusive adoptive parent is        provisions of section 204(c) of the Act
possibility that an abuser could               an adoption decree showing that the            if there is substantial and probative
recapture control over the abused              adoption took place before the child           evidence that the self-petitioner has ever
child’s immigration classification by          reached 16 years of age, and evidence          attempted or conspired to enter into a
changing his or her own immigration            that the child has been residing with          marriage for the purpose of evading the
status. An approved self-petition for a        and in the legal custody of the abusive        immigration laws. The self-petitioner
child will not be revoked solely because       adoptive parent for at least 2 years.          does not need to have received a benefit
the abuser subsequently abandons                  Primary evidence of the abuser’s U.S.       through the attempt or conspiracy. He or
lawful permanent resident status,              citizenship or lawful permanent                she also need not have been convicted
renounces United States citizenship, is        residence is: (1) a birth certificate issued   of, or even prosecuted for, the attempt
deported, or otherwise changes                 by a civil authority establishing the          or conspiracy. Evidence of the attempt
immigration status. Similarly, a self-         abuser’s birth in the United States; (2)       or conspiracy, however, must be
petition approved on the basis of a            the abuser’s unexpired full-validity           contained in the self-petitioner’s
parent-child relationship to a lawful          United States passport; (3) a statement        immigration file.
permanent resident will not be                 issued by a U.S. consular officer                 Section 204(g) of the Act may also
automatically upgraded to a petition for       certifying the abuser to be a U.S. citizen     apply to a self-petition. It prohibits the
immediate relative classification if the       and the bearer of a currently valid U.S.       approval of a self-petition if the
abuser becomes a naturalized citizen of        passport; (4) the abuser’s Certificate of      marriage creating the relationship to the
the United States. The abused child            Naturalization or Certificate of               citizen or permanent resident took place
would not be precluded from filing a           Citizenship; (5) a Department of State         while the self-petitioner was in
new self-petition for classification as an     Form FS–240, Report of Birth Abroad of         deportation, exclusion, or related
immediate relative after the abuser            a Citizen of the United States, relating       proceedings, unless the self-petitioner
naturalizes, provided the child                to the abuser; and (6) the abuser’s Form       provides clear and convincing evidence
continues to meet the self-petitioning         I–151 or Form I–551 Alien Registration         that the marriage was not entered into
requirements.                                  Receipt Card, or other proof given by the      for the purpose of obtaining
   This rule requires a self-petitioning       Service as evidence of lawful permanent        immigration benefits. This limitation
child to provide documentary evidence
                                               residence.                                     will not apply if the self-petitioner has
of his or her relationship to the abuser
                                                  If primary or secondary evidence of         lived outside the United States for at
and evidence of the abuser’s
                                               an abuser’s immigration or citizenship         least 2 years after the marriage. The
immigration or citizenship status. Self-
                                               status is not available, this rule provides    ‘‘clear and convincing’’ standard places
petitioners are encouraged to submit
                                               that the Service will attempt to               a heavier burden on the petitioner than
primary evidence whenever possible,
although the Service will consider any         electronically verify the abuser’s status      the ‘‘preponderance of evidence’’
relevant credible evidence. The                from information contained in Service          criteria generally applicable to visa
Service’s regulations at 8 CFR 204.1 and       computerized records. Other Service            petitions and self-petitions. Although
204.2 provide detailed information             records may also be reviewed at the            there may be no proof that the marriage
concerning primary or secondary                discretion of the adjudicating officer. If     was fraudulent, a self-petition subject to
supporting documentation of a parent-          the Service is unable to identify a record     this restriction must be denied if the
child relationship to a citizen or lawful      as relating to the abuser or the record        petitioner does not provide ‘‘clear and
permanent resident.                            does not establish the abuser’s                convincing’’ evidence that the marriage
   Primary evidence of the relationship        immigration or citizenship status, the         was entered into in good faith.
between: (1) a child and an abusive            self-petition will be adjudicated based           The provisions of section 204(a)(2) of
biological mother is the child’s birth         on the information submitted by the            the Act, which were amended by
certificate issued by civil authorities; (2)   self-petitioner.                               section 40701(b) of the Crime Bill to
a child born in wedlock and an abusive                                                        encompass certain self-petitions, may
                                               Eligible for Immigrant Classification
biological father is the child’s birth                                                        also preclude the approval of a self-
certificate issued by civil authorities,          Section 40701 of the Crime Bill             petition. A self-petition must be denied
the marriage certificate of the child’s        requires a self-petitioning spouse or          if the lawful permanent resident abuser
parents, and evidence of legal                 child to be eligible for classification as     acquired permanent residence within
termination of all prior marriages, if         an immediate relative under section            the past 5 years based on a marriage to
any; (3) a legitimated child and an            201(b)(2)(A)(i) of the Act or for              a citizen or lawful permanent resident,
abusive biological father is the child’s       preference classification under section        unless the petition is supported by clear
birth certificate issued by civil              203(a)(2)(A) of the Act. Eligibility as an     and convincing evidence that the prior
authorities, and evidence of the child’s       immediate relative or for preference           marriage was not entered into for the
legitimation; (4) a child born out of          classification requires more than a mere       purpose of evading any provision of the
wedlock and an abusive biological              showing of a legal relationship to a           immigration laws. This restriction will
father is the child’s birth certificate        citizen or lawful permanent resident of        not apply if the earlier marriage ended
issued by civil authorities showing the        the United States; other conditions must       because of the death of the spouse. As
father’s name, and evidence that a bona        also be met. Section 40701 of the Crime        explained in the previous paragraph, the
fide parent-child relationship has been        Bill amended the Act to ensure that self-      ‘‘clear and convincing’’ standard
established between the child and the          petitioners would be subject to certain        imposes a heavier burden of proof on
parent; (5) a stepchild and a stepparent       provisions of the Immigration Marriage         the self-petitioner. Although there may
is the child’s birth certificate issued by     Fraud Amendments of 1986 (IMFA),               be no proof that the marriage was
civil authorities, the marriage certificate    Public Law 99–639, November 10, 1986,          fraudulent, a self-petition subject to this
of the child’s parent and the stepparent       which were enacted by Congress to              restriction must be denied if the
showing marriage before the stepchild          detect and deter immigration-related           petitioner does not provide ‘‘clear and
             Federal Register / Vol. 61, No. 59 / Tuesday, March 26, 1996 / Rules and Regulations                                13065

convincing’’ evidence that the earlier        place of abode or principal dwelling         show that the abuse took place during
marriage was bona fide.                       place elsewhere. This rule, however,         the marriage to the abuser. A self-
   Before determining that a self-petition    does not require the self-petitioner to      petitioning child must show that he or
must be denied under section 204(c),          have lived in the United States or with      she was abused while residing with the
204(g), or 204(a)(2) of the Act, the          the abuser in the United States for any      abuser. Battery or extreme cruelty that
Service will allow a self-petitioner the      specific length of time. It also does not    happened at other times is not
opportunity to provide additional             mandate continuous physical presence         qualifying abuse. There is no limit on
evidence or arguments concerning the          in the United States. A qualified self-      the time that may have elapsed since the
case. A denial under section 204(g) or        petitioner may have moved to the             last incident of qualifying abuse
204(a)(2) of the Act is without prejudice     United States only recently, made any        occurred.
to the filing of a new self-petition when     number of trips abroad, or resided with         The qualifying abuse also must have
the spouse or child is able to comply         the abuser in the United States for only     been committed by the abusive citizen
with these requirements.                      a short time.
   The Service has previously                                                              or lawful permanent resident spouse or
                                                 Evidence of residency with the abuser
determined that a variety of evidence                                                      parent. Battery or extreme cruelty by
                                              in the United States may take many
may be used to establish a good-faith                                                      any other person is not qualifying abuse,
                                              forms. Employment records, utility
marriage, and a self-petitioner should                                                     unless it can be shown that the citizen
                                              receipts, school records, hospital or
submit the best evidence available.                                                        or lawful permanent resident willfully
                                              medical records, birth certificates of
Evidence of good faith at the time of                                                      condoned or participated in the abusive
                                              children born to the spouses in the
marriage may include, but is not limited      United States, deeds, mortgages, rental      act(s).
to, proof that one spouse has been listed     records, insurance policies, or similar         Only abuse perpetrated against the
as the other’s spouse on insurance            documents have been accepted as              self-petitioning spouse, the self-
policies, property leases, income tax         evidence of residency. This rule allows      petitioning child, or the self-petitioning
forms, or bank accounts; and testimony        the submission of one or more                spouse’s child will be considered
or other evidence regarding courtship,        documents showing the self-petitioner        qualifying. Acts ostensibly aimed at
wedding ceremony, shared residence            and the abuser residing together. It also    some other person or thing may be
and experiences. Matter of Laureano, 19       allows the submission of two or more         considered qualifying only if it can be
I&N Dec. 1 (BIA 1983). Other types of         documents that, when considered              established that these acts were
readily available evidence might              together, establish that the self-           deliberately used to perpetrate extreme
include the birth certificates of children    petitioner and the abuser were residing      cruelty against the self-petitioner or the
born to the relationship; police,             at the same location concurrently. A         self-petitioning spouse’s child. Battery
medical, or court documents providing         self-petitioner may also submit              or extreme cruelty committed solely
information about the relationship; and       affidavits to establish residency with the   against a third party and in no way
affidavits of persons with personal           abuser. Self-petitioners who file            directed at or used against the spouse or
knowledge of the relationship. Self-          affidavits are encouraged to provide the     child is not qualifying abuse.
petitioners who submit affidavits are         affidavits of more than one person.             The qualifying abuse also must have
encouraged to submit affidavits from          Other types of evidence may also be          been sufficiently aggravated to have
more than one person. Other types of          submitted; the Service will consider any     reached the level of battery or extreme
evidence may also be submitted; the           relevant credible evidence.                  cruelty. Service regulations at 8 CFR
Service will consider any relevant                                                         216.5(e)(3)(i) currently define the phrase
                                              Battery or Extreme Cruelty
credible evidence.                                                                         ‘‘was battered by or was the subject of
                                                 Section 40701 of the Crime Bill
Residence in the United States and            requires a self-petitioning spouse to        extreme cruelty.’’ This definition was
Residence With the Abuser                     have been battered by, or been the           initially developed to facilitate the filing
  Section 40701 of the Crime Bill             subject of extreme cruelty perpetrated       and adjudication of requests to waive
requires the self-petitioner to be residing   by, the citizen or lawful permanent          certain requirements for removal of
in the United States and to have resided      resident spouse; or to be the parent of      conditions on residency. These waivers
in the United States with the abuser. A       a child who was battered by, or who          are based on the applicant’s claim of
self-petition will not be approved if the     was the subject of extreme cruelty           battery or extreme cruelty perpetrated
self-petitioner is not living in the United   perpetrated by, the citizen or lawful        by the citizen or lawful permanent
States or has never lived with the abuser     permanent resident during the marriage.      resident spouse or parent. Since the
in the United States. Under the               It requires a self-petitioning child to      regulatory definition has proven to be
provisions of this rule, however, the         have been battered by, or to have been       flexible and sufficiently broad to
self-petitioner is not required to be         the subject of extreme cruelty               encompass all types of domestic battery
residing with the abuser when the             perpetrated by, the citizen or lawful        and extreme cruelty, this rule adopts an
petition is filed. The rule also does not     permanent resident parent while the          identical definition for evaluating
limit the time that may have elapsed          child was residing with that parent.         claims of battering or extreme cruelty
since the self-petitioner last resided        This rule reflects the statutory             under section 40701 of the Crime Bill.
with the abuser.                              requirements by specifying that only         The definition reads as follows:
  ‘‘Residence’’ is defined in section         certain types of abuse will qualify a           For the purpose of this chapter, the phrase
101(a)(33) of the Act as a person’s           spouse or child to self-petition.            ‘‘was battered by or was the subject of
general place of abode. It is also            ‘‘Qualifying abuse’’ under this rule is      extreme cruelty’’ includes, but is not limited
described as a person’s principal, actual     abuse that meets the criteria of section     to, being the victim of any act or threatened
dwelling place in fact, without regard to                                                  act of violence, including any forceful
                                              40701 of the Crime Bill concerning           detention, which results or threatens to result
intent. A self-petitioner cannot meet the     when, by whom, to whom, and to what          in physical or mental injury. Psychological or
residency requirements by merely              degree the domestic abuse occurred.          sexual abuse or exploitation, including rape,
visiting the United States or visiting the       The qualifying abuse must have taken      molestation, incest (if the victim is a minor),
abuser’s home in the United States            place during the statutorily specified       or forced prostitution shall be considered
while continuing to maintain a general        time. A spousal self-petitioner must         acts of violence.
13066        Federal Register / Vol. 61, No. 59 / Tuesday, March 26, 1996 / Rules and Regulations

   The acts mentioned in this                 affidavits of more than one person. The       that constitute a crime involving moral
definition—rape, molestation, incest if       Service is not precluded from deciding,       turpitude other than a purely political
the victim is a minor, and forced             however, that the self-petitioner’s           offense, except for certain petty offenses
prostitution—will be regarded by the          unsupported affidavit is credible and         or offenses committed while the person
Service as acts of violence whenever          that it provides relevant evidence of         was less than 18 years of age as
they occur. Many other abusive actions,       sufficient weight to meet the self-           described in section 212(a)(2)(A)(ii) of
however, may also be qualifying acts of       petitioner’s burden of proof.                 the Act; (6) has committed two or more
violence under this rule. Acts that, in                                                     offenses for which the applicant was
                                              Good Moral Character
and of themselves, may not initially                                                        convicted and the aggregate sentence
appear violent may be part of an overall         Section 40701 of the Crime Bill            actually imposed was 5 years or more,
pattern of violence. It is not possible to    requires all self-petitioners to be persons   provided that, if an offense was
cite all perpetrations that could be acts     of good moral character, but does not         committed outside the United States, it
of violence under certain circumstances.      specify the period for which good moral       was not a purely political offense; (7)
The Service does not wish to mislead a        character must be established. This rule      has violated laws relating to a controlled
potentially qualified self-petitioner by      requires self-petitioning spouses and         substance, except for simple possession
establishing a partial list that may be       self-petitioning children who are 14          of 30 grams or less of marijuana; (8)
subject to misinterpretation. This rule,      years of age or older to provide evidence     earns his or her income principally from
therefore, does not itemize abusive acts      showing that they have been persons of        illegal gambling activities or has been
other than those few particularly             good moral character for the 3 years          convicted of two or more gambling
egregious examples mentioned in the           immediately preceding the date the self-      offenses; (9) has given false testimony
definition of the phrase ‘‘was battered       petition is filed. It does not preclude the   for the purpose of obtaining
by or was the subject of extreme              Service from choosing to examine the          immigration benefits; (10) has been
cruelty.’’                                    self-petitioner’s conduct and acts prior      confined as a result of conviction to a
   This rule requires a self-petitioner to    to that period, however, if there is          penal institution for an aggregate period
provide evidence of qualifying abuse. If      reason to believe that the self-petitioner    of 180 days or more; or (11) has been
the self-petition is based on a claim that    may not have been a person of good            convicted of an aggravated felony.
the self-petitioning spouse’s child was       moral character in the past. The rule
                                                                                               The Service must conclude that a
battered or subjected to extreme cruelty      provides that self-petitioning children
                                                                                            person who has been convicted of an
committed by the citizen or lawful            who are less than 14 years of age are not
                                              required to submit evidence of good           offense falling within section 101(f) of
permanent resident spouse, this rule
                                              moral character when filing the self-         the Act lacks good moral character. The
requires the self-petition to be
                                              petition. A self-petitioner who is less       Service may only look to the judicial
accompanied by evidence of the abuse
                                              than 14 years of age will be presumed         records to determine whether the person
and evidence of the relationship
                                              to be a person of good moral character.       has been convicted of the crime, and
between the self-petitioner and the
                                              This presumption does not preclude the        may not look behind the conviction to
abused child. Available relevant
                                              Service from requesting evidence of           reach an independent determination
evidence will vary, and self-petitioners
                                              good moral character, however, if there       concerning guilt or innocence. Pablo v.
are encouraged to provide the best
                                              is reason to believe that the self-           INS, 72 F.3d 110, 113 (9th Cir. 1995);
available evidence of qualifying abuse.
                                              petitioning child may lack good moral         Gouveia v. INS, 980 F.2d 814, 817 (1st
A self-petitioner is not precluded from
submitting documentary proof of non-          character. The rule provides that a self-     Cir. 1992); and Matter of Roberts, Int.
qualifying abuse with the self-petition;      petition filed by a person of any age may     Dec. 3148 (BIA 1991).
however, that evidence can only be used       be denied or revoked if evidence                 Extenuating circumstances may be
to establish a pattern of abuse and           establishing that the person lacks good       taken into account, however, if the
violence and to bolster claims that           moral character is contained in the           person has not been convicted of the
qualifying abuse also occurred.               Service file.                                 offense in a court of law but admits to
   The rule provides that evidence of            It also provides that the Service will     the commission of an act or acts that
abuse may include, but is not limited to,     evaluate claims of good moral character       could show a lack of good moral
reports and affidavits from police,           on a case-by-case basis, taking into          character. The Board of Immigration
judges and other court officials, medical     account the provisions of section 101(f)      Appeals (BIA) has ruled that a person
personnel, school officials, clergy, social   of the Act and the standards of the           who admitted to having engaged in
workers, and other social service agency      average citizen in the community.             prostitution under duress but had no
personnel. Persons who have obtained          Section 101(f) of the Act lists the classes   prostitution convictions was not
an order of protection against the abuser     of persons who cannot be found to be          excludable as a prostitute under section
or taken other legal steps to end the         persons of good moral character, and          212(a)(12) of the Act (currently section
abuse are strongly encouraged to submit       specifies that persons not within any of      212(a)(2)(D) of the Act) because she was
copies of the relating legal documents.       those classes may also be found to be         involuntarily reduced to such a state of
Evidence that the abuse victim sought         lacking good moral character. The             mind that she was actually prevented
safe-haven in a battered women’s shelter      Service cannot find a person to be of         from exercising free will through the use
or similar refuge may be relevant, as         good moral character under section            of wrongful, oppressive threats, or
may a combination of documents such           101(f) if he or she: (1) is or was a          unlawful means. Matter of M–, 7 I&N
as a photograph of the visibly injured        habitual drunkard; (2) is or was engaged      Dec. 251 (BIA 1956). A person who was
self-petitioner supported by affidavits.      in prostitution during the past 10 years      subjected to abuse in the form of forced
This rule also provides that other forms      as described in section 212(a)(2)(D) of       prostitution or who can establish that he
of credible evidence will be accepted,        the Act; (3) is or was involved in the        or she was forced to engage in other
although the Service will determine           smuggling of a person or persons into         behavior that could render the person
whether documents appear credible and         the United States as described in section     excludable, therefore, would not be
the weight to be given to them.               212(a)(6)(E) of the Act; (4) is or was a      precluded from being found to be a
   Self-petitioners who can provide only      practicing polygamist; (5) has been           person of good moral character if the
affidavits are encouraged to submit the       convicted or admits committing acts           person has not been convicted for the
             Federal Register / Vol. 61, No. 59 / Tuesday, March 26, 1996 / Rules and Regulations                            13067

commission of the offense or offenses in     here deportation would cause extreme         country; (4) person’s inability to obtain
a court of law.                              hardship. Hardship to persons other          adequate employment in the foreign
  This rule also provides that a person      than the self-petitioner or the child of a   country; (5) person’s and the person’s
will be found to lack good moral             self-petitioning spouse, such as             child’s length of residence in the United
character, unless he or she establishes      extended family members, cannot be the       States; (6) existence of other family
extenuating circumstances, if he or she:     basis for a self-petition under this rule.   members who will be legally residing in
(1) willfully failed or refused to support      The phrase ‘‘extreme hardship’’ is not    the United States; (7) irreparable harm
dependents; or (2) committed unlawful        defined in the Act, and sections 40701       that may arise as a result of disruption
acts that adversely reflect upon his or      and 40703 of the Crime Bill provide no       of education opportunities; and (8)
her moral character, or was convicted or     additional guidelines for the                adverse psychological impact of
imprisoned for such acts, although the       interpretation of this requirement. The
                                                                                          deportation.
acts do not require an automatic finding     phrase ‘‘extreme hardship’’ has acquired
of lack of good moral character.             a settled judicial and administrative           In some self-petitioning cases, the
  Under this rule, primary evidence of       meaning, however, largely in the             circumstances surrounding domestic
good moral character is the self-            context of suspension of deportation         abuse and the consequences of the
petitioner’s affidavit. The affidavit        cases under section 244 of the Act.          abuse may cause the extreme hardship.
should be accompanied by a local police         It has been found that the personal       These self-petitioners may wish to cite
clearance or a state-issued criminal         deprivation contemplated in a situation      and provide evidence relating to some
background check from each locality or       characterized by ‘‘extreme hardship’’        or all of the following areas, in addition
state in the United States in which the      within the meaning of section 244 of the     to any other basis for believing that
self-petitioner resided for six or more      Act is not a definable term of fixed and     deportation would cause extreme
months during the 3-year period              inflexible content or meaning; it            hardship: (1) the nature and extent of
immediately preceding the filing of the      necessarily depends upon the facts and       the physical and psychological
self-petition. Self-petitioners who lived    circumstances peculiar to each case.         consequences of the battering or
outside the United States during this        Matter of Hwang, 10 I&N Dec. 448 (BIA        extreme cruelty; (2) the impact of the
time should submit a police clearance,       1964). The hardship requirement              loss of access to the U.S. courts and
criminal background check, or similar        encompasses more than the mere               criminal justice system (including, not
report issued by the appropriate             economic deprivation that might result
                                                                                          limited to, the ability to obtain and
authority in each foreign country in         from an alien’s deportation for the
                                                                                          enforce: orders of protection; criminal
which he or she resided for six or more      United States. Davidson v. INS, 558
months during the 3-year period              F.2d 1361 (9th Cir. 1977); and Matter of     investigations and prosecutions; and
immediately preceding the filing of the      Sipus, 14 I&N Dec. 229 (BIA 1972). It        family law proceedings or court orders
self-petition. If police clearances,         has also been found that the loss of a job   regarding child support, maintenance,
criminal background checks, or similar       and the concomitant financial loss           child custody and visitation); (3) the
reports are not available for some or all    incurred is not synonymous with              self-petitioner’s and/or the self-
locations, the self-petitioner may           extreme hardship. Lee v. INS, 550 F.2d       petitioner’s child’s need for social,
include an explanation and submit            554 (9th Cir. 1977). Similarly,              medical, mental health, or other
other evidence with his or her affidavit.    readjustment to life in the native           supportive services which would not be
The Service will consider other credible     country after having spent a number of       available or reasonably accessible in the
evidence of good moral character, such       years in the United States is not the type   foreign country; (4) the existence of
as affidavits from responsible persons       of hardship that has been characterized      laws, social practices, or customs in the
who can knowledgeably attest to the          as extreme, since most aliens who have       foreign country that would penalize or
self-petitioner’s good moral character.      spent time abroad suffer this kind of        ostracize the self-petitioner or the self-
  The Service of the Department of           hardship. Matter of Uy, 11 I&N Dec. 159      petitioner’s child for having been the
State will conduct additional record         (BIA 1965).                                  victim of abuse, for leaving the abusive
checks before issuing an immigrant visa         ‘‘Extreme hardship’’ must be              situation, or for actions taken to stop the
or granting a self-petitioner’s              evaluated on a case-by-case basis after a    abuse; (5) the abuser’s ability to travel
application for adjustment of status. If     review of all the circumstances in the       to the foreign country and the ability
the results of these record checks           case. This rule, therefore, does not         and willingness of foreign authorities to
disclose that the self-petitioner is no      include a list of ‘‘factors’’ that would     protect the self-petitioner and/or the
longer a person of good moral character      automatically establish an applicant’s       self-petitioner’s child from future abuse;
or that he or she has not been a period      claim to extreme hardship. Each self-        and (6) the likelihood that the abuser’s
of good moral character in the past, a       petitioner is encouraged to cite and         family, friends, or others acting on
pending self-petition will be denied or      document all the reasons that he or she      behalf of the abuser in the foreign
the approval of a self-petition will be      believes that deportation would cause        country would physically or
revoked.                                     extreme hardship.                            psychologically harm the self-petitioner
                                                Some precedent suspension of
Extreme Hardship                                                                          and/or the self-petitioner’s child.
                                             deportation cases have discussed the
  Section 40701 of the Crime Bill also       reasons why a particular applicant was          The Service will develop and provide
requires a self-petitioning spouse to        found to have established that his or her    further interpretive guidance concerning
show that his or her deportation would       deportation would cause extreme              the extreme hardship determination in
cause extreme hardship to himself,           hardship. These reasons include the: (1)     self-petitioning cases to the Service
herself, or his or her child. It similarly   age of the person; (2) age and number        officers who will adjudicate these self-
requires a self-petitioning child to show    of the person’s children and their ability   petitions. This guidance is expected to
that his or her deportation would cause      to speak the native language and adjust      be in the form of implementing
extreme hardship to himself or herself.      to life in another country; (3) serious      directives, training courses, the field
The self-petitioner has the burden of        illness of the person or his or her child    handbook currently under development
proof; a self-petition must be denied if     which necessitates medical attention         by the Service, and other policy and
the petitioner does not show that his or     not adequately available in the foreign      procedural directives.
13068       Federal Register / Vol. 61, No. 59 / Tuesday, March 26, 1996 / Rules and Regulations

Good Faith Marriage                          policies, property leases, income tax         not be issued an immigrant visa or
   Section 40701 of the Crime Bill           forms, or bank accounts; and testimony        granted adjustment of status as a
requires a self-petitioning spouse to        or other evidence regarding courtship,        derivative child.
show that he or she entered into the         wedding ceremony, shared residence              Since derivative status is based solely
marriage to the abusive citizen or lawful    and experiences. Matter of Laureano,          on the relationship to the principal self-
                                             supra. Other types of readily available       petitioner, the rule also provides that
permanent resident in good faith. This
                                             evidence might include the birth              the derivative child can be granted
rule provides, therefore, that a self-
                                             certificates of children born to the          lawful permanent residence only if the
petition cannot be approved if the self-
                                             abuser and the spouse; police, medical,       child is accompanying or following-to-
petitioner married the abuser solely to
                                             or court documents providing                  join the self-petitioner. No derivative
obtain immigration benefits. A self-
                                             information about the relationship; and       benefit can be granted if the principal
petitioning spouse who is not subject to
                                             affidavits of persons with personal           self-petitioner does not become a lawful
the limitations imposed by IMFA need
                                             knowledge of the relationship.                permanent resident.
only provide a ‘‘preponderance’’ of                                                          This rule does not require the
evidence showing that he or she married      Derivative Child Included in the Self-        submission of documentary evidence of
in good faith. Persons who are subject       Petition                                      the derivative relationship with the self-
to the IMFA restrictions may be                 Section 40701 of the Crime Bill allows     petition. Such documents must be
required to meet a heavier burden of         any child of a self-petitioning spouse to     submitted, however, when the child
proof to establish that a marriage was       be derivatively included in the self-         applies for an immigrant visa abroad or
entered into in good faith, as discussed     petition, if the child has not been           adjustment of status to that of a lawful
previously in the section entitled           classified as an immigrant based on his       permanent resident of the United States
‘‘Eligibility for Immigrant                  or her own self-petition. This rule           based on the derivative relationship.
Classification.’’                            allows a derivative child who has been        Primary evidence of a parent-child
   The Act does not define a ‘‘good-         included in a parent’s petition to later      relationship has been previously
faith’’ marriage or provide guidelines for   file a self-petition, provided the child      discussed under ‘‘Child of a Citizen or
evaluating the bona fides of a marriage;     meets the self-petitioning requirements.      Lawful Permanent Resident.’’ The
however, persons applying for                It also allows a child who has been           Service’s regulations at 8 CFR 204.1 and
immigration benefits based on a              classified as an immigrant based on a         204.2 provide additional information
marriage are generally required to           petition filed by the abuser or another       concerning primary or secondary
establish that they entered into the         relative to be derivatively included in a     supporting documentation of a parent-
marriage in good faith, and a significant    parent’s self-petition; including the         child relationship. Other types of
body of case law has developed               child in the self-petition will not affect    evidence not specifically discussed in
concerning the interpretation of this        the validity of the petition submitted by     this rule or the Service regulations may
requirement. It has long been held that      the abuser or another relative.               also be submitted; the Service will
a marriage that is entered into for the         No separate petition is necessary for      consider any relevant credible evidence.
primary purpose of circumventing the         derivative classification, and the child is
immigration laws, referred to as a           not required to have been the victim of       Evidence in General
fraudulent or sham marriage, cannot be       abuse. The derivative child also does            In accordance with the provisions of
recognized as enabling a spouse to           not need to have lived in the United          section 40701 of the Crime Bill, this rule
obtain immigration benefits. Lutwak v.       States or to otherwise satisfy the criteria   provides that the Service will consider
United States, 344 U.S. 604 (1953) and       for filing a self-petition. He or she,        all credible evidence submitted with the
Matter of Phillis, 15 I&N Dec. 385 (BIA      however, must meet the requirements           application before reaching a decision.
1975). A spousal petition will not be        for immigrant visa issuance abroad or         It also states that the Service will
denied, however, solely because the          adjustment of status in the United            determine what evidence is credible and
spouses are not living together and the      States. An eligible child, including a        what weight to give to this evidence.
marriage is no longer viable. Matter of      child born after the self-petition was           Generally, more weight will be given
McKee, 17 I&N Dec. 332 (BIA 1980). The       approved, may be added to a self-             to primary evidence and evidence
key factor in determining whether a          petitioning spouse’s petition when the        provided in court documents, medical
person entered into a marriage in good       self-petitioner applies for an immigrant      reports, police reports, and other official
faith is whether he or she intended to       visa abroad or adjustment of status in        documents. Self-petitioners, therefore,
establish a life together with the spouse    the United States. A new petition will        are strongly encouraged to submit this
at the time of the marriage. The person’s    not be required.                              type of evidence whenever possible.
conduct after marriage is relevant only         This rule further specifies that a         Self-petitioners who submit affidavits
to the extent that it bears upon his or      derivative child need not be the child of     are urged, but not required, to provide
her subjective state of mind at the time     the abuser, but must qualify as the self-     affidavits from more than one person.
of the marriage. Separation from the         petitioning spouse’s child under the          Other forms of documentary evidence
other spouse, even shortly after the         definition of ‘‘child’’ contained in          may also be submitted, including
marriage took place, does not prove, by      section 101(b)(1) of the Act. The             evidence that has not been discussed in
itself, that a marriage was not entered      statutory definition includes certain         this rule or identified in the Service
into in good faith. Bark v. INS, 511 F.2d    children born in or out of wedlock, and       regulations.
1200 (9th Cir. 1975).                        certain legitimated, adopted, and                The Service’s regulations at 8 CFR
   This rule allows the submission of a      stepchildren. It also requires a child to     103.2 and 204.1(f) provide detailed
variety of evidence to show a good-faith     be unmarried and less than 21 years old.      information about the requirements
marriage. The self-petitioner should         This rule requires a derivative child to      applicable to supporting
submit the best evidence available.          continue to be a ‘‘child’’ until he or she    documentation. An ordinary legible
Evidence of good faith at the time of        becomes a lawful permanent resident           photocopy of any supporting document
marriage may include, but is not limited     based on the derivative classification. A     may be submitted with a petition,
to, proof that one spouse has been listed    derivative son or daughter who is             although the Service reserves the right
as the other’s spouse on insurance           married or more than 21 years old will        to require presentation of the original
            Federal Register / Vol. 61, No. 59 / Tuesday, March 26, 1996 / Rules and Regulations                               13069

document. An original document               beneficiary of a visa petition filed by the    these limitations are encouraged to file
requested by the Service will be             abuser to accord the self-petitioner           the self-petition and establish the
returned to the petitioner when it is no     immigrant classification as his or her         earliest possible priority date, since the
longer needed. Original documents            spouse or child, however, will be              available immigrant visa numbers are
submitted by the petitioner but not          allowed to transfer the visa petition          allocated to qualified immigrant visa
requested by the Service will remain a       priority date to the self-petition. The        applicants and qualified adjustment of
part of the record. Each foreign language    earlier priority date may be assigned          status applicants strictly in priority date
document must be accompanied by an           without regard to the current validity of      order.
English translation that has been            the visa petition. The burden of proof to         Under the provisions of the Crime
certified by a competent translator.         establish the filing of the visa petition      Bill, any self-petitioner who qualifies for
                                             lies with the self-petitioner, although        immigrant classification as the spouse
Proper Filing and Priority Dates                                                            or child of an abusive citizen of the
                                             the Service will attempt to verify a
   This rule requires self-petitioners to    claimed filing through a search of the         Untied States is regarded as an
complete Form I–360, Petition for            Service’s computerized records or other        immediate relative of a U.S. citizen
Amerasian, Widow(er) or Special              records deemed appropriate by the              under section 201(b) of the Act and is
Immigrant. As directed in 8 CFR              adjudicating officer.                          not subject to direct numerical
103.2(a)(2), the person filing the self-                                                    limitations. A qualified derivative child
petition must sign the Form I–360. A         Decision                                       of a self-petitioning spouse of an
parent or guardian, however, may sign          If the preliminary decision on a             abusive citizen of the United States is
the petition for a child who is less than    properly filed self-petition is adverse to     also considered to be an immediate
14 years of age. Any self-petitioner may     the self-petitioner, the self-petitioner       relative under section 201(b) of the Act
be represented by an attorney or             will be provided with written notice of        and is also exempted from these
accredited representative as described       this fact and offered an opportunity to        limitations. These self-petitioners may
in 8 CFR 103.2(a)(3), if he or she so        present additional information or              apply for immigrant visa issuance
chooses.                                     arguments before a final decision is           abroad or adjustment of status to that of
   Each self-petition must be                rendered. If the preliminary decision is       a lawful permanent resident of the
accompanied by the fee required by 8         based on derogatory information of             United States without regard to
CFR 103.7(b)(1). A self-petitioner who is    which the self-petitioner is unaware, the      numerical limitations.
unable to pay the prescribed fee may         self-petitioner will also be offered an           A self-petitioner who is the spouse or
request a fee waiver under the               opportunity to rebut the derogatory            child of an abusive permanent resident
provisions of 8 CFR 103.7(c). The self-      information in accordance with the             of the United States, however, is subject
petition should also be accompanied by       provisions of 8 CFR 103.2(b)(16).              to immigrant visa number limitations, as
the documentary evidence specified in          Each self-petitioner will be sent a          are the qualified derivative children of
this rule.                                   written notice of the final decision on        spouses of abusive permanent residents.
   Under the provisions of this rule, a      his or her self-petition. If the petition is   These self-petitioners and their
self-petition filed concurrently with a      denied, he or she will be informed in          derivative children are not eligible to
Form I–485, Application to Register          writing of the basis for the denial and        apply for immigrant visa issuance or
Permanent Residence or Adjust Status,        of the right to appeal. This rule allows       adjustment of status until their
may be filed at the office having            an adverse decision on a self-petition to      immigrant visa numbers have become
jurisdiction over the adjustment of          be appealed to the Associate                   immediately available. Visa numbers for
status application. Other self-petitions     Commissioner for Examinations in               these self-petitioners and their
should be filed at the INS Service Center    accordance with the provisions of 8 CFR        derivative children are considered
having jurisdiction over the self-           103.3.                                         immediately available only when the
petitioner’s place of residence as                                                          Department of State Bureau of Consular
described in the instructions to Form I–     Eligibility for Immigrant Visa Issuance
                                                                                            Affairs Visa Office Bulletin shows the
360. Since section 40701 of the Crime        or Adjustment of Status                        priority date for the applicant’s country
Bill requires all self-petitioners to be        Approval of a self-petition does not        of birth under the family-sponsored 2A
residing in the United States when the       guarantee immediate eligibility for            second preference classification as
self-petition is filed, a self-petition      immigrant visa issuance or adjustment          ‘‘current’’ or lists a date that is earlier
cannot be filed at a United States           of status to that of a lawful permanent        than the self-petitioner’s priority date.
consulate or embassy abroad. A self-         resident of the United States. The                In addition to meeting requirements
petition also cannot be filed at a Service   beneficiary of an approved self-petition       concerning visa number availability, a
office overseas. Consular officials and      must meet several additional                   self-petitioner who is applying for an
Service officers overseas have not been      requirements before he or she will be          immigrant visa at a U.S. consulate or
delegated the authority to approve a         found eligible for lawful permanent            embassy abroad must prove that he or
self-petition.                               residence in the United States.                she is not included in any of the classes
   In accordance with standard                  Neither the Act nor this rule limits the    of persons who, by law, cannot be
procedures, a self-petition received in a    overall number of self-petitions that          admitted to the United States, or that
Service office will be stamped to show       may be accepted and approved by the            any basis for inadmissibility has been
the time and date of actual receipt. It      Service. Some persons who are the              waived. A person seeking immigrant
will be regarded as properly filed on        beneficiaries of approved self-petitions,      visa issuance abroad may also be subject
that date, provided it is properly signed    however, will be forced to delay filing        to the provisions of section 212(o) of the
and executed, the required fee is            their applications for immigrant visa          Act. This provision requires a person
attached or a fee waiver is granted, and     issuance or adjustment of status because       who was not in lawful nonimmigrant
it otherwise complies with the               sections 201 and 202 of the Act place          status on the day he or she last left the
provisions of 8 CFR 103.2. This rule         certain limits on the number of qualified      United States to remain outside the
provides that the priority date will be      persons who may be granted lawful              country for at least 90 days before
the date the self-petition is properly       permanent residence during any single          obtaining an immigrant visa. An
filed. A self-petitioner who has been the    year. Self-petitioners who are subject to      immigrant may lawfully travel to the
13070       Federal Register / Vol. 61, No. 59 / Tuesday, March 26, 1996 / Rules and Regulations

United States immediately after the visa    status filing fee. Additional information      persons who obtain residency through
is issued. A qualified immigrant visa       concerning adjustment of status under          marriage. A spouse or child may be
holder becomes a lawful permanent           Public Law 103–317 may be obtained by          subject to these restrictions if he or she
resident upon admission to the United       requesting Supplement A to Form I–485          becomes a lawful permanent resident
States.                                     from a local Service office.                   based on a relationship created by a
   A self-petitioner who is seeking            Certain restrictions on adjustment of       marriage entered into less than 2 years
immigrant visa issuance abroad will be      status have not been waived by section         before residency is granted. The
contacted by the Department of State’s      40701 of the Crime Bill and cannot be          conditions on residency under section
National Visa Center (NVC) when that        waived under Public Law 103–317.               216 of the Act may be removed only
office has received the approved self-      These restrictions include those               upon fulfillment of certain
petition from the Service and an            imposed by section 245(d) of the Act,          requirements. A conditional resident
immigrant visa number is available.         which prohibit the adjustment of status        who does not file a joint petition with
Immigrant visa applicants should follow     of a person who is a conditional               the citizen or permanent resident
the instructions provided by NVC and        resident under section 216 or 216A of          spouse during the 90 days prior to the
the U.S. consulate or embassy               the Act. The adjustment of status of a         second anniversary of the date
processing their requests. Persons          person last admitted to the United             residency was granted may have
wishing further information about           States as a K–1 finance(e) is also barred,     residency status terminated. Section 216
immigrant visa issuance abroad should       unless the person is seeking adjustment        of the Act also provides three waivers of
contact the Department of State or a        as a result of the marriage to the United      the joint petitioning requirement. One
United States embassy or consulate          States citizen who filed the finance(e)        waiver exempts a conditional resident
abroad.                                     petition. Section 245(d) of the Act            from filing a joint petition if he or she
   The Act also allows certain persons      similarly prohibits the adjustment of          has been battered by, or subjected to
who are physically present in the           status of a person who was last admitted       extreme cruelty committed by, the
United States to adjust status to that of   as the K–2 child of a finance(e) parent,       citizen or lawful permanent resident; or
a lawful permanent resident of the          unless the person is seeking adjustment        if his or her child has been battered by,
United States. Like immigrant visa          as a result of his or her parent’s marriage    or subjected to extreme cruelty
applicants, adjustment of status            to the citizen who filed the finance(e)        committed by, the citizen or lawful
applicants must prove that they are         petition. A self-petitioner who last           permanent resident. The Service has
eligible for immigrant classification.      entered in K–1 or K–2 nonimmigrant             determined that no useful purpose
Each applicant must also be exempt          status would be subject to these               would be served by imposing the
from immigrant visa number limitations      restrictions, as would his or her              conditional residency requirements of
or show that an immigrant visa number       derivative children who last entered in        section 216 of the Act on any self-
is immediately available for him or her.    K–2 nonimmigrant status, unless the            petitioner; all self-petitioners would
An applicant must further prove that he     abuser is also the citizen who had filed       necessarily be eligible for waivers of the
or she is not included in any of the        the finance(e) petition. The statutory         joint petitioning requirement. This rule
classes of persons who, by law, cannot      language of section 245(d) of the Act          provides, therefore, that the conditional
be admitted to the United States, or that   does not preclude a conditional                residence requirements of section 216 of
any basis for inadmissibility has been      resident, a person who last entered the        the Act will not apply to a person who
waived. Persons seeking adjustment of       United States with a finance(e) visa, or       obtains lawful permanent resident
status must also meet the applicable        a person who last entered the country as       status based on an approved self-
requirements of section 245 of the Act.     a dependent child of a finance(e) from         petition, regardless of the date of the
A qualified adjustment applicant            filing a self-petition and seeking             marriage.
becomes a lawful permanent resident         immigrant visa issuance abroad.
upon approval of the adjustment of             An application for adjustment of            Employment Authorization
status application.                         status may be filed concurrently with            Section 40701 of the Crime Bill does
   Section 40701 of the Crime Bill does     the self-petition, if the self-petitioner is   not direct the Service to provide
not provide adjustment of status            exempt from immigrant visa number              employment authorization based solely
benefits. Self-petitioners, however, may    limitations or if an immigrant visa            on the filing or approval of a self-
benefit from certain other provisions of    number would be immediately available          petition. A self-petitioner, however, may
the Act. One such provision is a            if the self-petition was approved. Other       be eligible to apply for employment
recently enacted law that temporarily       self-petitioners who wish to adjust            authorization under the existing
allows many previously ineligible           status in the United States may file the       provisions of 8 CFR 274a.12. Qualified
persons to seek adjustment of status in     self-petition separately and submit the        applicants who wish to request
the United States. This law, section        adjustment of status application when          employment authorization should
506(b) of the Department of Commerce,       their immigrant visa numbers become            complete and file Form I–765,
Justice, State, the Judiciary and Related   available. Self-petitioners who would          Application for Employment
Agencies Appropriations Act, 1995,          like more information about the                Authorization, according to the
Public Law 103–317, was enacted             requirements for adjustment of status in       instructions provided with the form. A
August 26, 1994. It lifts certain           the United States may request Form I–          self-petitioner who substantiates that he
restrictions on adjustment of status        485 from the service office serving their      or she is unable to pay the Form I–765
under section 245 of the Act on             local area.                                    application fee may be granted a fee
applications granted before October 1,                                                     waiver in accordance with the
1997. Persons seeking the adjustment of     Conditions on Residency Under Section          provisions of 8 CFR 103.7(c).
status benefits of Public Law 103–317       216 of the Act                                   Many self-petitioners will qualify for
may be subject to a financial penalty,        Section 216 of the Act was enacted as        employment authorization under 8 CFR
since the law requires most persons         part of IMFA to detect and deter               274a.12(c)(9). This provision allows a
seeking adjustment of status under this     immigration-related marriage fraud. It         person who has properly filed an
provision to pay an additional sum in       imposes conditions on the lawful               adjustment of status application under
excess of the standard adjustment of        permanent resident status of certain           section 245 of the Act to request
             Federal Register / Vol. 61, No. 59 / Tuesday, March 26, 1996 / Rules and Regulations                             13071

employment authorization while the            United States, may also request                  The Service’s implementation of this
adjustment application is pending             employment authorization under 8 CFR          rule as an interim rule, with provision
before the Service.                           274a.12(c)(14) if the person shows an         for post-promulgation public comment,
   Most other self-petitioners will be        economic need to work. There is no            is based on the ‘‘good cause’’ exceptions
eligible to request voluntary departure       application process or fee for placement      found at 5 U.S.C. 553 (b)(3)(B) and
prior to or after a deportation hearing for   in deferred action status, although a         (d)(3). Methodist Hospital of
the reasons set forth in 8 CFR 242.5(a)(2)    person requesting employment                  Sacramento, et al., v. Shalala, 38 F.3d
(v), (vi), or (viii), and may qualify for     authorization on the basis of deferred        1225 (D.C. Cir. 1994). The reasons and
employment authorization based on the         action placement will be required to file     necessity for immediate implementation
grant of voluntary departure. Voluntary       Form I–765 and to pay the Form I–765          of this interim rule are as follows: The
departure may be granted under 8 CFR          application fee or to establish eligibility   changes to the Act made by section
242.5(a)(2)(v) to a person who lost his or    for a fee waiver.                             40701 of the Crime Bill became effective
her nonimmigrant student or exchange            Furthermore, a self-petitioner would        on January 1, 1995. Immediate
visitor status (F–1, F–2, J–1, or J–2         not be precluded from requesting the          implementation of this rule will allow a
nonimmigrant classification) solely           employment authorization benefits of          qualified spouse or child of an abusive
because a private bill had been               any other provision of 8 CFR 274a.12          citizen or lawful permanent resident to
introduced in his or her behalf. It may       under which he or she may qualify.            immediately self-petition for immigrant
be granted under 8 CFR 242.5(a)(2)(vi)                                                      classification. Prompt implementation
                                              Other Regulatory Changes
to a person who is admissible to the                                                        will also allow a spouse or child who is
United States as an immigrant, and: (1)          In addition to making regulatory           filing based on the relationship to an
who is an immediate relative of a U.S.        changes necessary to implement the            abusive lawful permanent resident of
citizen; or (2) is otherwise exempt from      provisions of section 40701 of the Crime      the United States to establish a more
the numerical limitation on immigrant         Bill, this rule makes necessary               favorable place on the immigrant visa
visa issuance; or (3) has a priority date     grammatical and format changes to             number waiting list. Qualified self-
for an immigrant visa not more than 60        ensure consistency and clarity. It also       petitioners are all residing in this
days later than the date shown in the         makes technical changes by: (1)               country and are persons of good moral
latest Visa Office Bulletin and has           amending 8 CFR 103.1(f)(3)(iii) to            character. They have been prevented
applied for an immigrant visa at a            update regulatory and statutory               from obtaining immigrant classification
United States Consulate which has             references; (2) amending 8 CFR                in the past solely because their abusive
accepted jurisdiction over the case; or       103.1(f)(3)(iii) to eliminate provisions      spouse or parent withdrew or refused to
(4) who is the beneficiary of an              concerning the appeal of a denial of a        file the necessary immigrant visa
employment-based petition with a              petition for a Replenishment                  petition for them.
priority date earlier than August 9,          Agricultural Worker (RAW) under part
1978, and who meets certain other             210a of the Act, since that program           Regulatory Flexibility Act
requirements outlined in 8 CFR                expired at the end of fiscal year 1993          The Commissioner of the Immigration
242.5(a)(2)(vi) (D) or (E). Also, voluntary   without allowing any such petitions to        and Naturalization Service, in
departure may be granted under 8 CFR          be filed; (3) revising the headings of 8      accordance with the Regulatory
242.5(a)(2)(viii) to a person in whose        CFR 204.1 and 8 CFR 204.2 to more             Flexibility Act (5 U.S.C. 605(b)), has
case the district director has determined     accurately reflect the contents of the        reviewed this regulation and, by
there are compelling factors warranting       sections; (4) correcting a typographical      approving it, certifies that the rule will
a grant of voluntary departure. A person      error by replacing ‘‘Form I–30’’ with         not have a significant economic impact
who has been granted voluntary                ‘‘Form I–130’’ in 8 CFR 204.1(a); (5)         on a substantial number of small entities
departure for the reasons set forth in 8      removing 8 CFR 204.2(d), which                because of the following factors. By
CFR 242.5(a)(2) (v), (vi), or (viii) may be   discussed a program created by section        permitting certain spouses and children
granted permission under 8 CFR                112 of the Immigration Act of 1990 to         to self-petition for immigrant
274a.12(c)(12) to be employed for the         provide additional visa numbers to            classification, the rule will allow some
period of time prior to the date set for      spouses and children of legalized aliens      individuals residing in the United States
voluntary departure, if the person shows      that ended September 30, 1994; and (6)        to be classified as immigrants based on
an economic need to work. Extensions          amending 8 CFR 205.1 to reflect the           the relationship to an abusive citizen or
of voluntary departure and employment         requirements of 8 CFR 103.2(a)(7)(ii),        lawful permanent resident spouse or
authorization may also be requested.          which provides an automatic revocation        child. It will not affect small entities.
Requests for voluntary departure under        of an approved petition when the
8 CFR 242.5(a)(2)(v), (vi), or (viii) may     remitter fails to pay the filing fee and      Executive Order 12866
be made to the local Service office           associated service charge after the check        This rule is not considered by the
having jurisdiction over the applicant’s      or other financial instrument used to         Department of Justice, Immigration and
place of residence. There is no               pay the filing fee is returned as not         Naturalization Service to be a
application form or fee for requesting        payable.                                      ‘‘significant regulatory action’’ under
voluntary departure for these reasons,                                                      Executive Order 12866, section 3(f),
                                              Family Well-Being
although a person requesting                                                                Regulatory Planning and Review, and
employment authorization on the basis            This regulation will enhance family        the Office of Management and Budget
of the voluntary departure grant will be      well-being by allowing qualified family       has waived its review process under
required to file Form I–765 and to pay        members of citizens and lawful                section 6(a)(3)(A).
the Form I–765 application fee or to          permanent residents to self-petition for
establish eligibility for a fee waiver.       immigrant classification if they are          Executive Order 12612
   A person who has been placed in            living in this country. These family            The regulations adopted herein will
deferred action status, an act of             members were formerly precluded from          not have substantial direct effects on the
administrative convenience to the             obtaining this benefit because the abuser     States, on the relationship between the
Government that assigns a lower               refused to file the necessary relative visa   National Government and the States, or
priority to the alien’s removal from the      petition.                                     on the distribution of power and
13072         Federal Register / Vol. 61, No. 59 / Tuesday, March 26, 1996 / Rules and Regulations

responsibilities among the various                  e. Revising the reference in paragraph       Act is unable to present primary or
levels of government. Therefore, in              (f)(3)(iii)(Y) to ‘‘§ 204.1(b)(3) of this       secondary evidence of the abuser’s
accordance with Executive Order 12612,           chapter’’ to read ‘‘8 CFR 204.3’’;              status, the Service will attempt to
it is determined that this rule does not            f. Revising the reference in paragraph       electronically verify the abuser’s
have sufficient Federalism implications          (f)(3)(iii)(FF) to ‘‘as permanent resident      citizenship or immigration status from
to warrant the preparation of a                  under § 245.6 of this chapter’’ to read         information contained in Service
Federalism Assessment.                           ‘‘of certain Cuban and Haitian nationals        computerized records. Other Service
                                                 under section 202 of the Immigration            records may also be reviewed at the
Paperwork Reduction Act
                                                 Reform and Control Act of 1986’’; and           discretion of the adjudicating officer. If
  The information collection                        g. Removing paragraph (f)(3)(iii)(GG).       the Service is unable to identify a record
requirements contained in this rule have            3. Section 103.1 is amended by               as relating to the abuser, or the record
been cleared by the Office of                    adding a new paragraph (f)(3)(iii)(GG),         does not establish the abuser’s
Management and Budget under the                  to read as follows:                             immigration or citizenship status, the
provisions of the Paperwork Reduction                                                            self-petition will be adjudicated based
Act.                                             § 103.1   Delegations of authority.
                                                                                                 on the information submitted by the
                                                 *      *    *     *     *                       self-petitioner.
List of Subjects                                   (f) * * *
                                                                                                 *     *     *     *     *
8 CFR Part 103                                     (3) * * *
                                                   (iii) * * *                                   PART 204—IMMIGRANT PETITIONS
  Administrative practice and
                                                   (GG) A self-petition filed by a spouse
procedure, Authority delegations
                                                 or child based on the relationship to an          6. The authority citation for part 204
(Government agencies), Fees, Forms,
                                                 abusive citizen or lawful permanent             continues to read as follows:
Freedom of information, Privacy,
                                                 resident of the United States for                 Authority: 8 U.S.C. 1101, 1103, 1151, 1153,
Reporting and recordkeeping
                                                 classification under section                    1154, 1182, 1186a, 1255; 8 CFR part 2.
requirements, Surety bonds.
                                                 201(b)(2)(A)(i) of the Act or section
8 CFR Part 204                                   203(a)(2)(A) of the Act;                          7. Section 204.1 is amended by
                                                                                                 revising the section heading, and by
  Administrative practice and                    *      *    *     *     *
                                                   4. Section 103.2 is amended by                revising paragraph (a), to read as
procedures, Aliens, Employment,
                                                 adding a new paragraph (b)(2)(iii), to          follows:
Immigration, Petitions.
                                                 read as follows:                                § 204.1 General information about
8 CFR Part 205
                                                                                                 immediate relative and family-sponsored
  Administrative practice and                    § 103.2 Applications, petitions, and other      petitions.
                                                 documents.
procedures, Aliens, Immigration,                                                                    (a) Types of petitions. Petitions may
Petitions.                                       *       *    *     *     *
                                                    (b) * * *                                    be filed for an alien’s classification as an
8 CFR Part 216                                      (2) * * *                                    immediate relative under section 201(b)
                                                    (iii) Evidence provided with a self-         of the Act or as a preference immigrant
  Administrative practice and
                                                 petition filed by a spouse or child of          under section 203(a) of the Act based on
procedures, Aliens, Nonimmigrants,
                                                 abusive citizen or resident. The Service        a qualifying relationship to a citizen or
Passports and visas.
                                                 will consider any credible evidence             lawful permanent resident of the United
  Accordingly, chapter I of title 8 of the                                                       States, as follows:
Code of Federal Regulations is amended           relevant to a self-petition filed by a
                                                 qualified spouse or child of an abusive            (1) A citizen or lawful permanent
as follows:                                                                                      resident of the United States petitioning
                                                 citizen or lawful permanent resident
PART 103—POWERS AND DUTIES OF                    under section 204(a)(1)(A)(iii),                under section 204(a)(1)(A)(i) or
SERVICE OFFICERS; AVAILABILITY                   204(a)(1)(A)(iv), 204(a)(1)(B)(ii), or          204(a)(1)(B)(i) of the Act for a qualifying
OF SERVICE RECORDS                               204(a)(1)(B)(iii) of the Act. The self-         relative’s classification as an immediate
                                                 petitioner may, but is not required to,         relative under section 201(b) of the Act
  1. The authority citation for part 103         demonstrate that preferred primary or           or as a preference immigrant under
continues to read as follows:                    secondary evidence is unavailable. The          section 203(a) of the Act must file a
  Authority: 5 U.S.C. 552, 552a; 8 U.S.C.        determination of what evidence is               Form I–130, Petition for Alien Relative.
1101, 1103, 1201, 1252 note, 1252b, 1304,        credible and the weight to be given that        These petitions are described in § 204.2;
1356; 31 U.S.C. 9701; E.O. 12356, 47 FR          evidence shall be within the sole                  (2) A widow or widower of a United
1487, 15557, 3 CFR, 1982 Comp., p. 166; 8                                                        States citizen self-petitioning under
CFR part 2.
                                                 discretion of the Service.
                                                 *       *    *     *     *                      section 204(a)(1)(A)(ii) of the Act as an
§ 103.1   [Amended]                                 5. Section 103.2 is amended by               immediate relative under section 201(b)
   2. Section 103.1 is amended by:               revising the heading of paragraph (b)(17)       of the Act must file a Form I–360,
   a. Revising the reference in paragraph        and by adding three new sentences at            Petition for Amerasian, Widow, or
(f)(3)(iii)(C) to ‘‘§ 245.2 (a)(4) and (e) of    the end of paragraph (b)(17), to read as        Special Immigrant. These petitions are
this chapter’’ to read ‘‘section 103 of the      follows:                                        described in § 204.2;
Act of October 28, 1977’’;                                                                          (3) A spouse or child of an abusive
   b. Revising the reference in paragraph        § 103.2 Applications, petitions, and other      citizen or lawful permanent resident of
(f)(3)(iii)(K) to ‘‘§ 223.1 of this chapter’’    documents.                                      the United States self-petitioning under
to read ‘‘8 CFR part 223’’;                      *     *     *      *    *                       section 204(a)(1)(A)(iii), 204(a)(1)(A)(iv),
   c. Revising the reference in paragraph          (b) * * *                                     204(a)(1)(B)(ii), or 204(a)(1)(B)(iii) of the
(f)(3)(iii)(L) to ‘‘§ 223a.4 of this chapter’’     (17) Verifying claimed citizenship or         Act for classification as an immediate
to read ‘‘8 CFR part 223’’;                      permanent resident status. * * * If a           relative under section 201(b) of the Act
   d. Revising the reference in paragraph        self-petitioner filing under section            or as a preference immigrant under
(f)(3)(iii)(X) to ‘‘§ 204.1(b) of this           204(a)(1)(A)(iii), 204(a)(1)(A)(iv),            section 203(a) of the Act must file a
chapter’’ to read ‘‘8 CFR 204.3’’;               204(a)(1)(B)(ii), or 204(a)(1)(B)(iii) of the   Form I–360, Petition for Amerasian,
             Federal Register / Vol. 61, No. 59 / Tuesday, March 26, 1996 / Rules and Regulations                                  13073

Widow, or Special Immigrant. These              petitioner’s place of residence in the          records may also be reviewed at the
petitions are described in § 204.2;             United States.                                  discretion of the adjudicating officer. If
  (4) A citizen of the United States            *     *     *    *      *                       the Service is unable to identify a record
seeking advanced processing of an                 10. Section 204.1 is amended by               as relating to the abuser or the record
orphan petition must file Form I–600A,          adding two new sentences at the end of          does not establish the abuser’s
Application for Advanced Processing of          paragraph (e)(3), to read as follows:           immigration or citizenship status, the
Orphan Petition. A citizen of the United                                                        self-petition will be adjudicated based
States petitioning under section                § 204.1 General information about               on the information submitted by the
204(a)(1)(A)(i) of the Act for                  immediate relative and family-sponsored         self-petitioner.
classification of an orphan described in        petitions.
                                                                                                *     *     *     *     *
section 101(b)(1)(F) of the Act as an           *     *     *      *    *                         13. Section 204.2 is amended by:
immediate relative under section 201(b)           (e) * * *                                       a. Revising the section heading;
of the Act must file Form I–600, Petition         (3) * * * A consular official may not           b. Removing paragraph (d);
to Classify Orphan as an Immediate              accept or approve a self-petition filed by        c. Redesignating paragraph (c) as
Relative. These applications and                the spouse or child of an abusive citizen       paragraph (d); and by
petitions are described in § 204.3; and         or lawful permanent resident of the               d. Adding a new paragraph (c), to read
  (5) Any person filing a petition under        United States under section                     as follows:
section 204(f) of the Act as, or on behalf      204(a)(1)(A)(iii), 204(a)(1)(A)(iv),
of, an Amerasian for classification as an       204(a)(1)(B)(ii), or 204(a)(1)(B)(iii) of the   § 204.2 Petitions for relatives, widows and
immediate relative under section 201(b)         Act. These self-petitions must be filed         widowers, and abused spouses and
                                                with the Service office in the United           children.
of the Act or as a preference immigrant
under section 203(a)(1) or 203(a)(3) of         States having jurisdiction over the self-       *       *    *      *     *
the Act must file a Form I–360, Petition        petitioner’s place of residence in the             (c) Self-petition by spouse of abusive
for Amerasian, Widow, or Special                United States.                                  citizen or lawful permanent resident. (1)
Immigrant. These petitions are                  *     *     *      *    *                       Eligibility. (i) Basic eligibility
described in § 204.4.                             11. Section 204.1 is amended by               requirements. A spouse may file a self-
                                                adding three new sentences at the end           petition under section 204(a)(1)(A)(iii)
*     *     *     *     *
                                                of paragraph (f)(1), to read as follows:        or 204(a)(1)(B)(ii) of the Act for his or
  9. Section 204.1 is amended by
                                                                                                her classification as an immediate
revising paragraph (e)(1), to read as
                                                § 204.1 General information about               relative or as a preference immigrant if
follows:                                        immediate relative and family-sponsored         he or she:
§ 204.1 General information about               petitions.                                         (A) Is the spouse of a citizen or lawful
immediate relative and family-sponsored         *     *     *      *    *                       permanent resident of the United States;
petitions.                                        (f) * * *                                        (B) Is eligible for immigrant
*     *     *     *     *                         (1) * * * The Service will consider           classification under section
  (e) * * *                                     any credible evidence relevant to a self-       201(b)(2)(A)(i) or 203(a)(2)(A) of the Act
  (1) Petitioner or self-petitioner             petition filed by a qualified spouse or         based on that relationship;
residing in the United States. The              child of an abusive citizen or lawful              (C) Is residing in the United States;
petition or self-petition must be filed         permanent resident under section                   (D) Has resided in the United States
with the Service office having                  204(a)(1)(A)(iii), 204(a)(1)(A)(iv),            with the citizen or lawful permanent
jurisdiction over the place where the           204(a)(1)(B)(ii), or 204(a)(1)(B)(iii) of the   resident spouse;
petitioner or self-petitioner is residing.      Act. The self-petitioner may, but is not           (E) Has been battered by, or has been
When the petition or self-petition is           required to, demonstrate that preferred         the subject of extreme cruelty
accompanied by an application for               primary or secondary evidence is                perpetrated by, the citizen or lawful
adjustment of status, the petition or self-     unavailable. The determination of what          permanent resident during the marriage;
petition may be filed with the Service          evidence is credible and the weight to          or is that parent of a child who has been
office having jurisdiction over the             be given that evidence shall be within          battered by, or has been the subject of
beneficiary’s or self-petitioner’s place of     the sole discretion of the Service.             extreme cruelty perpetrated by, the
residence.                                      *     *     *      *    *                       citizen or lawful permanent resident
*     *     *     *     *                         12. Section 204.1 is amended by               during the marriage;
  9. Section 204.1 is amended by                adding a new paragraph (g)(3), to read             (F) Is a person of good moral
adding two new sentences at the end of          as follows:                                     character;
paragraph (e)(2), to read as follows:                                                              (G) Is a person whose deportation
                                                § 204.1 General information about               would result in extreme hardship to
§ 204.1 General information about               immediate relative and family-sponsored         himself, herself, or his or her child; and
immediate relative and family-sponsored         petitions.                                         (H) Entered into the marriage to the
petitions.                                      *      *     *     *      *                     citizen or lawful permanent resident in
*     *     *      *    *                          (g) * * *                                    good faith.
  (e) * * *                                        (3) Evidence submitted with a self-             (ii) Legal status of the marriage. The
  (2) * * * An overseas Service officer         petition. If a self-petitioner filing under     self-petitioning spouse must be legally
may not accept or approve a self-               section 204(a)(1)(A)(iii), 204(a)(1)(A)(iv),    married to the abuser when the petition
petition filed by the spouse or child of        204(a)(1)(B)(ii), or 204(a)(1)(B)(iii) of the   is properly filed with the Service. A
an abusive citizen or lawful permanent          Act is unable to present primary or             spousal self-petition must be denied if
resident of the United States under             secondary evidence of the abuser’s              the marriage to the abuser legally ended
section 204(a)(1)(A)(iii), 204(a)(1)(A)(iv),    status, the Service will attempt to             through annulment, death, or divorce
204(a)(1)(B)(ii), or 204(a)(1)(B)(iii) of the   electronically verify the abuser’s              before that time. After the self-petition
Act. These self-petitions must be filed         citizenship or immigration status from          has been properly filed, the legal
with the Service office in the United           information contained in Service                termination of the marriage will have no
States having jurisdiction over the self-       computerized records. Other Service             effect on the decision made on the self-
13074        Federal Register / Vol. 61, No. 59 / Tuesday, March 26, 1996 / Rules and Regulations

petition. The self-petitioner’s               convicted of an offense or offenses but         (2) Evidence for a spousal self-
remarriage, however, will be a basis for      admits to the commission of an act or         petition. (i) General. Self-petitioners are
the denial of a pending self-petition.        acts that could show a lack of good           encouraged to submit primary evidence
   (iii) Citizenship or immigration status    moral character under section 101(f) of       whenever possible. The Service will
of the abuser. The abusive spouse must        the Act. A person who was subjected to        consider, however, any credible
be a citizen of the United States or a        abuse in the form of forced prostitution      evidence relevant to the petition. The
lawful permanent resident of the United       or who can establish that he or she was       determination of what evidence is
States when the petition is filed and         forced to engage in other behavior that       credible and the weight to be given that
when it is approved. Changes in the           could render the person excludable            evidence shall be within the sole
abuser’s citizenship or lawful                under section 212(a) of the Act would         discretion of the Service.
permanent resident status after the           not be precluded from being found to be         (ii) Relationship. A self-petition filed
approval will have no effect on the self-     a person of good moral character,             by a spouse must be accompanied by
petition. A self-petition approved on the     provided the person has not been              evidence of citizenship of the United
basis of a relationship to an abusive         convicted for the commission of the           States citizen or proof of the
lawful permanent resident spouse will         offense or offenses in a court of law. A      immigration status of the lawful
not be automatically upgraded to              self-petitioner will also be found to lack    permanent resident abuser. It must also
immediate relative status. The self-          good moral character, unless he or she        be accompanied by evidence of the
petitioner would not be precluded,            establishes extenuating circumstances,        relationship. Primary evidence of a
however, from filing a new self-petition      if he or she willfully failed or refused to   marital relationship is a marriage
for immediate relative classification         support dependents; or committed              certificate issued by civil authorities,
after the abuser’s naturalization,            unlawful acts that adversely reflect          and proof of the termination of all prior
provided the self-petitioner continues to     upon his or her moral character, or was       marriages, if any, of both the self-
meet the self-petitioning requirements.       convicted or imprisoned for such acts,        petitioner and the abuser. If the self-
   (iv) Eligibility for immigrant             although the acts do not require an           petition is based on a claim that the self-
classification. A self-petitioner is          automatic finding of lack of good moral       petitioner’s child was battered or
required to comply with the provisions        character. A self-petitioner’s claim of       subjected to extreme cruelty committed
of section 204(c) of the Act, section         good moral character will be evaluated        by the citizen or lawful permanent
204(g) of the Act, and section 204(a)(2)      on a case-by-case basis, taking into          resident spouse, the self-petition should
of the Act.                                   account the provisions of section 101(f)      also be accompanied by the child’s birth
   (v) Residence. A self-petition will not    of the Act and the standards of the           certificate or other evidence showing
be approved if the self-petitioner is not     average citizen in the community. If the      the relationship between the self-
residing in the United States when the        results of record checks conducted prior      petitioner and the abused child.
self-petition is filed. The self-petitioner   to the issuance of an immigrant visa or         (iii) Residence. One or more
is not required to be living with the         approval of an application for                documents may be submitted showing
abuser when the petition is filed, but he     adjustment of status disclose that the        that the self-petitioner and the abuser
or she must have resided with the             self-petitioner is no longer a person of      have resided together in the United
abuser in the United States in the past.      good moral character or that he or she        States. One or more documents may also
   (vi) Battery or extreme cruelty. For the   has not been a person of good moral           be submitted showing that the self-
purpose of this chapter, the phrase ‘‘was     character in the past, a pending self-        petitioner is residing in the United
battered by or was the subject of             petition will be denied or the approval       States when the self-petition is filed.
extreme cruelty’’ includes, but is not        of a self-petition will be revoked.           Employment records, utility receipts,
limited to, being the victim of any act          (viii) Extreme hardship. The Service       school records, hospital or medical
or threatened act of violence, including      will consider all credible evidence of        records, birth certificates of children
any forceful detention, which results or      extreme hardship submitted with a self-       born in the United States, deeds,
threatens to result in physical or mental     petition, including evidence of hardship      mortgages, rental records, insurance
injury. Psychological or sexual abuse or      arising from circumstances surrounding        policies, affidavits or any other type of
exploitation, including rape,                 the abuse. The extreme hardship claim         relevant credible evidence of residency
molestation, incest (if the victim is a       will be evaluated on a case-by-case basis     may be submitted.
minor), or forced prostitution shall be       after a review of the evidence in the           (iv) Abuse. Evidence of abuse may
considered acts of violence. Other            case. Self-petitioners are encouraged to      include, but is not limited to, reports
abusive actions may also be acts of           cite and document all applicable factors,     and affidavits from police, judges and
violence under certain circumstances,         since there is no guarantee that a            other court officials, medical personnel,
including acts that, in and of                particular reason or reasons will result      school officials, clergy, social workers,
themselves, may not initially appear          in a finding that deportation would           and other social service agency
violent but that are a part of an overall     cause extreme hardship. Hardship to           personnel. Persons who have obtained
pattern of violence. The qualifying           persons other than the self-petitioner or     an order of protection against the abuser
abuse must have been committed by the         the self-petitioner’s child cannot be         or have taken other legal steps to end
citizen or lawful permanent resident          considered in determining whether a           the abuse are strongly encouraged to
spouse, must have been perpetrated            self-petitioning spouse’s deportation         submit copies of the relating legal
against the self-petitioner or the self-      would cause extreme hardship.                 documents. Evidence that the abuse
petitioner’s child, and must have taken          (ix) Good faith marriage. A spousal        victim sought safe-haven in a battered
place during the self-petitioner’s            self-petition cannot be approved if the       women’s shelter or similar refuge may
marriage to the abuser.                       self-petitioner entered into the marriage     be relevant, as may a combination of
   (vii) Good moral character. A self-        to the abuser for the primary purpose of      documents such as a photograph of the
petitioner will be found to lack good         circumventing the immigration laws. A         visibly injured self-petitioner supported
moral character if he or she is a person      self-petition will not be denied,             by affidavits. Other forms of credible
described in section 101(f) of the Act.       however, solely because the spouses are       relevant evidence will also be
Extenuating circumstances may be taken        not living together and the marriage is       considered. Documentary proof of non-
into account if the person has not been       no longer viable.                             qualifying abuses may only be used to
             Federal Register / Vol. 61, No. 59 / Tuesday, March 26, 1996 / Rules and Regulations                              13075

establish a pattern of abuse and violence        (ii) Notice of intent to deny. If the         (A) Is the child of a citizen or lawful
and to support a claim that qualifying        preliminary decision on a properly filed      permanent resident of the United States;
abuse also occurred.                          self-petition is adverse to the self-            (B) Is eligible for immigrant
   (v) Good moral character. Primary          petitioner, the self-petitioner will be       classification under section
evidence of the self-petitioner’s good        provided with written notice of this fact     201(b)(2)(A)(i) or 203(a)(2)(A) of the Act
moral character is the self-petitioner’s      and offered an opportunity to present         based on that relationship;
affidavit. The affidavit should be            additional information or arguments              (C) Is residing in the United States;
accompanied by a local police clearance       before a final decision is rendered. If the      (D) Has resided in the United States
or a state-issued criminal background         adverse preliminary decision is based         with the citizen or lawful permanent
check from each locality or state in the      on derogatory information of which the        resident parent;
United States in which the self-              self-petitioner is unaware, the self-            (E) Has been battered by, or has been
petitioner has resided for six or more        petitioner will also be offered an            the subject of extreme cruelty
months during the 3-year period               opportunity to rebut the derogatory           perpetrated by, the citizen or lawful
immediately preceding the filing of the       information in accordance with the            permanent resident parent while
self-petition. Self-petitioners who lived     provisions of 8 CFR 103.2(b)(16).             residing with that parent;
outside the United States during this                                                          (F) Is a person of good moral
                                                 (iii) Petition denied. If the self-
time should submit a police clearance,                                                      character; and
                                              petition is denied, the self-petitioner
criminal background check, or similar                                                          (G) Is a person whose deportation
                                              will be notified in writing of the reasons
report issued by the appropriate                                                            would result in extreme hardship to
                                              for the denial and of the right to appeal
authority in each foreign country in                                                        himself or herself.
                                              the decision.                                    (ii) Parent-child relationship to the
which he or she resided for six or more          (4) Derivative beneficiaries. A child
months during the 3-year period                                                             abuser. The self-petitioning child must
                                              accompanying or following-to-join the         be unmarried, less than 21 years of age,
immediately preceding the filing of the       self-petitioning spouse may be accorded
self-petition. If police clearances,                                                        and otherwise qualify as the abuser’s
                                              the same preference and priority date as      child under the definition of child
criminal background checks, or similar
                                              the self-petitioner without the necessity     contained in section 101(b)(1) of the Act
reports are not available for some or all
                                              of a separate petition, if the child has      when the petition is filed and when it
locations, the self-petitioner may
                                              not been classified as an immigrant           is approved. Termination of the abuser’s
include an explanation and submit
                                              based on his or her own self-petition. A      parental rights or a change in legal
other evidence with his or her affidavit.
                                              derivative child who had been included        custody does not alter the self-
The Service will consider other credible
                                              in a parent’s self-petition may later file    petitioning relationship provided the
evidence of good moral character, such
                                              a self-petition, provided the child meets     child meets the requirements of section
as affidavits from responsible persons
                                              the self-petitioning requirements. A          101(b)(1) of the Act.
who can knowledgeably attest to the
self-petitioner’s good moral character.       child who has been classified as an              (iii) Citizenship or immigration status
   (vi) Extreme hardship. Evidence of         immigrant based on a petition filed by        of the abuser. The abusive parent must
extreme hardship may include                  the abuser or another relative may also       be a citizen of the United States or a
affidavits, birth certificates of children,   be derivatively included in a parent’s        lawful permanent resident of the United
medical reports, protection orders and        self-petition. The derivative child must      States when the petition is filed and
other court documents, police reports,        be unmarried, less than 21 years old,         when it is approved. Changes in the
and other relevant credible evidence.         and otherwise qualify as the self-            abuser’s citizenship or lawful
   (vii) Good faith marriage. Evidence of     petitioner’s child under section              permanent resident status after the
good faith at the time of marriage may        101(b)(1)(F) of the Act until he or she       approval will have no effect on the self-
include, but is not limited to, proof that    becomes a lawful permanent resident           petition. A self-petition approved on the
one spouse has been listed as the other’s     based on the derivative classification.       basis of a relationship to an abusive
spouse on insurance policies, property           (5) Name change. If the self-              lawful permanent resident will not be
leases, income tax forms, or bank             petitioner’s current name is different        automatically upgraded to immediate
accounts; and testimony or other              than the name shown on the documents,         relative status. The self-petitioning child
evidence regarding courtship, wedding         evidence of the name change (such as          would not be precluded, however, from
ceremony, shared residence and                the petitioner’s marriage certificate,        filing a new self-petition for immediate
experiences. Other types of readily           legal document showing name change,           relative classification after the abuser’s
available evidence might include the          or other similar evidence) must               naturalization, provided the self-
birth certificates of children born to the    accompany the self-petition.                  petitioning child continues to meet the
abuser and the spouse; police, medical,       *       *     *    *     *                    self-petitioning requirements.
or court documents providing                     14. Section 204.2 is amended by               (iv) Eligibility for immigrant
information about the relationship; and       redesignating paragraphs (e), (f), (g), and   classification. A self-petitioner is
affidavits of persons with personal           (h), as paragraphs (f), (g), (h), and (i),    required to comply with the provisions
knowledge of the relationship. All            respectively; and by adding a new             of section 204(c) of the Act, section
credible relevant evidence will be            paragraph (e), to read as follows:            204(g) of the Act, and section 204(a)(2)
considered.                                                                                 of the Act.
   (3) Decision on and disposition of the     § 204.2 Petitions for relatives, widows and      (v) Residence. A self-petition will not
petition. (i) Petition approved. If the       widowers, and abused spouses and              be approved if the self-petitioner is not
self-petitioning spouse will apply for        children.                                     residing in the United States when the
adjustment of status under section 245        *      *     *      *    *                    self-petition is filed. The self-petitioner
of the Act, the approved petition will be        (e) Self-petition by child of abusive      is not required to be living with the
retained by the Service. If the self-         citizen or lawful permanent resident. (1)     abuser when the petition is filed, but he
petitioner will apply for an immigrant        Eligibility. (i) A child may file a self-     or she must have resided with the
visa abroad, the approved self-petition       petition under section 204(a)(1)(A)(iv)       abuser in the United States in the past.
will be forwarded to the Department of        or 204(a)(1)(B)(iii) of the Act if he or         (vi) Battery or extreme cruelty. For the
State’s National Visa Center.                 she:                                          purpose of this chapter, the phrase ‘‘was
13076        Federal Register / Vol. 61, No. 59 / Tuesday, March 26, 1996 / Rules and Regulations

battered by or was the subject of             petition will be denied or the approval        parent and the stepparent showing
extreme cruelty’’ includes, but is not        of a self-petition will be revoked.            marriage before the stepchild reached 18
limited to, being the victim of any act          (viii) Extreme hardship. The Service        years of age, and evidence of legal
or threatened act of violence, including      will consider all credible evidence of         termination of all prior marriages of
any forceful detention, which results or      extreme hardship submitted with a self-        either parent, if any; and
threatens to result in physical or mental     petition, including evidence of hardship          (F) An adopted self-petitioning child
injury. Psychological or sexual abuse or      arising from circumstances surrounding         and an abusive adoptive parent is an
exploitation, including rape,                 the abuse. The extreme hardship claim          adoption decree showing that the
molestation, incest (if the victim is a       will be evaluated on a case-by-case basis      adoption took place before the child
minor), or forced prostitution shall be       after a review of the evidence in the          reached 16 years of age, and evidence
considered acts of violence. Other            case. Self-petitioners are encouraged to       that the child has been residing with
abusive actions may also be acts of           cite and document all applicable factors,      and in the legal custody of the abusive
violence under certain circumstances,         since there is no guarantee that a             adoptive parent for at least 2 years.
including acts that, in and of                particular reason or reasons will result          (iii) Residence. One or more
themselves, may not initially appear          in a finding that deportation would            documents may be submitted showing
violent but are a part of an overall          cause extreme hardship. Hardship to            that the self-petitioner and the abuser
pattern of violence. The qualifying           persons other than the self-petitioner         have resided together in the United
abuse must have been committed by the         cannot be considered in determining            States. One or more documents may also
citizen or lawful permanent resident          whether a self-petitioning child’s             be submitted showing that the self-
parent, must have been perpetrated            deportation would cause extreme                petitioner is residing in the United
against the self-petitioner, and must         hardship.                                      States when the self-petition is filed.
have taken place while the self-                 (2) Evidence for a child’s self-petition.   Employment records, school records,
petitioner was residing with the abuser.      (i) General. Self-petitioners are              hospital or medical records, rental
                                              encouraged to submit primary evidence          records, insurance policies, affidavits or
   (vii) Good moral character. A self-                                                       any other type of relevant credible
                                              whenever possible. The Service will
petitioner will be found to lack good                                                        evidence of residency may be
                                              consider, however, any credible
moral character if he or she is a person                                                     submitted.
                                              evidence relevant to the petition. The
described in section 101(f) of the Act.                                                         (iv) Abuse. Evidence of abuse may
                                              determination of what evidence is
Extenuating circumstances may be taken                                                       include, but is not limited to, reports
                                              credible and the weight to be given that
into account if the person has not been                                                      and affidavits from police, judges and
                                              evidence shall be within the sole
convicted of an offense or offenses but                                                      other court officials, medical personnel,
                                              discretion of the Service.
admits to the commission of an act or            (ii) Relationship. A self-petition filed    school officials, clergy, social workers,
acts that could show a lack of good           by a child must be accompanied by              and other social service agency
moral character under section 101(f) of       evidence of citizenship of the United          personnel. Persons who have obtained
the Act. A person who was subjected to        States citizen or proof of the                 an order of protection against the abuser
abuse in the form of forced prostitution      immigration status of the lawful               or taken other legal steps to end the
or who can establish that he or she was       permanent resident abuser. It must also        abuse are strongly encouraged to submit
forced to engage in other behavior that       be accompanied by evidence of the              copies of the relating legal documents.
could render the person excludable            relationship. Primary evidence of the          Evidence that the abuse victim sought
under section 212(a) of the Act would         relationship between:                          safe-haven in a battered women’s shelter
not be precluded from being found to be          (A) The self-petitioning child and an       or similar refuge may be relevant, as
a person of good moral character,             abusive biological mother is the self-         may a combination of documents such
provided the person has not been              petitioner’s birth certificate issued by       as a photograph of the visibly injured
convicted for the commission of the           civil authorities;                             self-petitioner supported by affidavits.
offense or offenses in a court of law. A         (B) A self-petitioning child who was        Other types of credible relevant
self-petitioner will also be found to lack    born in wedlock and an abusive                 evidence will also be considered.
good moral character, unless he or she        biological father is the child’s birth         Documentary proof of non-qualifying
establishes extenuating circumstances,        certificate issued by civil authorities,       abuse may only be used to establish a
if he or she willfully failed or refused to   the marriage certificate of the child’s        pattern of abuse and violence and to
support dependents; or committed              parents, and evidence of legal                 support a claim that qualifying abuse
unlawful acts that adversely reflect          termination of all prior marriages, if         also occurred.
upon his or her moral character, or was       any;                                              (v) Good moral character. Primary
convicted or imprisoned for such acts,           (C) A legitimated self-petitioning          evidence of the self-petitioner’s good
although the acts do not require an           child and an abusive biological father is      moral character is the self-petitioner’s
automatic finding of lack of good moral       the child’s birth certificate issued by        affidavit. The affidavit should be
character. A self-petitioner’s claim of       civil authorities, and evidence of the         accompanied by a local police clearance
good moral character will be evaluated        child’s legitimation;                          or a state-issued criminal background
on a case-by-case basis, taking into             (D) A self-petitioning child who was        check from each locality or state in the
account the provisions of section 101(f)      born out of wedlock and an abusive             United States in which the self-
of the Act and the standards of the           biological father is the child’s birth         petitioner has resided for six or more
average citizen in the community. If the      certificate issued by civil authorities        months during the 3-year period
results of record checks conducted prior      showing the father’s name, and                 immediately preceding the filing of the
to the issuance of an immigrant visa or       evidence that a bona fide parent-child         self-petition. Self-petitioners who lived
approval of an application for                relationship has been established              outside the United States during this
adjustment of status disclose that the        between the child and the parent;              time should submit a police clearance,
self-petitioner is no longer a person of         (E) A self-petitioning stepchild and an     criminal background check, or similar
good moral character or that he or she        abusive stepparent is the child’s birth        report issued by the appropriate
has not been a person of good moral           certificate issued by civil authorities,       authority in the foreign country in
character in the past, a pending self-        the marriage certificate of the child’s        which he or she resided for six or more
             Federal Register / Vol. 61, No. 59 / Tuesday, March 26, 1996 / Rules and Regulations                                    13077

months during the 3-year period                change, or other similar evidence) must           204(a)(1)(B)(iii) of the Act based on the
immediately preceding the filing of the        accompany the self-petition.                      relationship to an abusive lawful
self-petition. If police clearances,           *    *     *     *    *                           permanent resident of the United States
criminal background checks, or similar                                                           for classification under section 203(a)(2)
reports are not available for some or all      § 204.2   [Amended]                               of the Act will not be affected by the
locations, the self-petitioner may                15. Section 204.2 is amended in                abuser’s naturalization and will not be
include an explanation and submit              newly designated paragraph (g)(2)(iv) by          automatically converted to a petition for
other evidence with his or her affidavit.      revising the reference to ‘‘paragraphs            immediate relative classification.
The Service will consider other credible       (f)(2)(ii) and (f)(2)(iii) of this section’’ to
evidence of good moral character, such         read ‘‘paragraphs (g)(2)(ii) and (g)(2)(iii)      PART 205—REVOCATION OF
as affidavits from responsible persons         of this section’’.                                APPROVAL OF PETITIONS
who can knowledgeably attest to the               16. Section 204.2 is amended by
                                               adding five new sentences at the end of             18. The authority citation for part 205
self-petitioner’s good moral character. A                                                        continues to read as follows:
child who is less than 14 years of age         the newly redesignated paragraph (h)(2),
is presumed to be a person of good             to read as follows:                                 Authority: 8 U.S.C. 1101, 1103, 1151, 1153,
                                                                                                 1154, 1155, 1182, and 1186a.
moral character and is not required to         § 204.2 Petitions for relatives, widows and
submit affidavits of good moral                widowers, and abused spouses and                    19. Section 205.1 is revised to read as
character, police clearances, criminal         children.                                         follows:
background checks, or other evidence of        *      *    *      *    *                         § 205.1   Automatic revocation.
good moral character.                             (h) * * *
                                                                                                    (a) Reasons for automatic revocation.
   (vi) Extreme hardship. Evidence of             (2) * * * A self-petition filed under
                                                                                                 The approval of a petition or self-
extreme hardship may include                   section 204(a)(1)(A)(iii), 204(a)(1)(A)(iv),
                                               204(a)(1)(B)(ii), 204(a)(1)(B)(iii) of the        petition made under section 204 of the
affidavits, medical reports, protection                                                          Act and in accordance with part 204 of
orders and other court documents,              Act based on the relationship to an
                                               abusive citizen or lawful permanent               this chapter is revoked as of the date of
police reports, and other relevant                                                               approval:
credible evidence.                             resident of the United States will not be
                                                                                                    (1) If the Secretary of State shall
   (3) Decision on and disposition of the      regarded as a reaffirmation or
                                                                                                 terminate the registration of the
petition. (i) Petition approved. If the        reinstatement of a petition previously
                                                                                                 beneficiary pursuant to the provisions of
self-petitioning child will apply for          filed by the abuser. A self-petitioner
                                               who has been the beneficiary of a visa            section 203(e) of the Act before October
adjustment of status under section 245                                                           1, 1991, or section 203(g) of the Act on
of the Act, the approved petition will be      petition filed by the abuser to accord the
                                               self-petitioner immigrant classification          or after October 1, 1994;
retained by the Service. If the self-                                                               (2) If the filing fee and associated
petitioner will apply for an immigrant         as his or her spouse or child, however,
                                                                                                 service charge are not paid within 14
visa abroad, the approved self-petition        will be allowed to transfer the visa
                                                                                                 days of the notification to the remitter
will be forwarded to the Department of         petition’s priority date to the self-
                                               petition. The visa petition’s priority date       that his or her check or other financial
State’s National Visa Center.                                                                    instrument used to pay the filing fee has
                                               may be assigned to the self-petition
   (ii) Notice of intent to deny. If the       without regard to the current validity of         been returned as not payable; or
preliminary decision on a properly filed                                                            (3) If any of the following
                                               the visa petition. The burden of proof to
self-petition is adverse to the self-                                                            circumstances occur before the
                                               establish the existence of and the filing
petitioner, the self-petitioner will be                                                          beneficiary’s or self-petitioner’s journey
                                               date of the visa petition lies with the
provided with written notice of this fact      self-petitioner, although the Service will        to the United States commences or, if
and offered an opportunity to present          attempt to verify a claimed filing                the beneficiary or self-petitioner is an
additional information or arguments            through a search of the Service’s                 applicant for adjustment of status to that
before a final decision is rendered. If the    computerized records or other records             of a permanent resident, before the
adverse preliminary decision is based          deemed appropriate by the adjudicating            decision on his or her adjustment
on derogatory information of which the         officer. A new self-petition filed under          application becomes final:
self-petitioner is unaware, the self-          section 204(a)(1)(A)(iii), 204(a)(1)(A)(iv),         (i) Immediate relative and family-
petitioner will also be offered an             204(a)(1)(B)(ii), or 204(a)(1)(B)(iii) of the     sponsored petitions, other than
opportunity to rebut the derogatory            Act will not be regarded as a                     Amerasian petitions. (A) Upon written
information in accordance with the             reaffirmation or reinstatement of the             notice of withdrawal filed by the
provisions of 8 CFR 103.2(b)(16).              original self-petition unless the prior           petitioner or self-petitioner with any
   (iii) Petition denied. If the self-         and the subsequent self-petitions are             officer of the Service who is authorized
petition is denied, the self-petitioner        based on the relationship to the same             to grant or deny petitions.
                                               abusive citizen or lawful permanent                  (B) Upon the death of the beneficiary
will be notified in writing of the reasons
                                               resident of the United States.                    or the self-petitioner.
for the denial and of the right to appeal
                                                                                                    (C) Upon the death of the petitioner,
the decision.                                  *      *    *      *    *                         unless the Attorney General in his or
   (4) Derivative beneficiaries. A child of       17. Section 204.2 is amended by                her discretion determines that for
a self-petitioning child is not eligible for   adding a new sentence at the end of the           humanitarian reasons revocation would
derivative classification and must have        newly redesignated paragraph (i)(3), to           be inappropriate.
a petition filed on his or her behalf if       read as follows:                                     (D) Upon the legal termination of the
seeking immigrant classification.              § 204.2 Petitions for relatives, widows and       marriage when a citizen or lawful
   (5) Name change. If the self-               widowers, and abused spouses and                  permanent resident of the United States
petitioner’s current name is different         children.                                         has petitioned to accord his or her
than the name shown on the documents,          *     *     *    *      *                         spouse immediate relative or family-
evidence of the name change (such as             (i) * * *                                       sponsored preference immigrant
the petitioner’s marriage certificate,           (3) * * * A self-petition filed under           classification under section 201(b) or
legal document showing the name                section 204(a)(1)(B)(ii) or                       section 203(a)(2) of the Act. The
13078        Federal Register / Vol. 61, No. 59 / Tuesday, March 26, 1996 / Rules and Regulations

approval of a spousal self-petition based      withdrawal filed by the petitioner with      203(b)(1)(B), 203(b)(1)(C), 203(b)(2), or
on the relationship to an abusive citizen      the officer who approved the petition.       203(b)(3) of the Act.
or lawful permanent resident of the               (B) Upon the death of the beneficiary.      (iv) Special immigrant juvenile
United States filed under section                 (C) Upon the death or bankruptcy of       petitions. Unless the beneficiary met all
204(a)(1)(A)(iii) or 204(a)(1)(B)(ii) of the   the sponsor who executed Form I–361,         of the eligibility requirements as of
Act, however, will not be revoked solely       Affidavit of Financial Support and           November 29, 1990, and the petition
because of the termination of the              Intent to Petition for Legal Custody for     requirements as of November 29, 1990,
marriage to the abuser.                        Pub. L. 97–359 Amerasian. In that event,     and the petition for classification as a
   (E) Upon the remarriage of the spouse       a new petition may be filed in the           special immigrant juvenile was filed
of an abusive citizen or lawful                beneficiary’s behalf with the                before June 1, 1994, or unless the
permanent resident of the United States        documentary evidence relating to             change in circumstances resulted from
when the spouse has self-petitioned            sponsorship and, in the case of a            the beneficiary’s adoption or placement
under section 204(a)(1)(A)(iii) or             beneficiary under 18 years of age,           in a guardianship situation:
204(a)(1)(B)(ii) of the Act for immediate      placement. If the new petition is              (A) Upon the beneficiary reaching the
relative classification under section          approved, it will be given the priority      age of 21;
201(b) of the Act or for preference            date of the previously approved                (B) Upon the marriage of the
classification under section 203(a)(2) of      petition.                                    beneficiary;
the Act.                                          (D) Upon the death or substitution of       (C) Upon the termination of the
   (F) Upon a child reaching the age of        the petitioner if other than the             beneficiary’s dependency upon the
21, when he or she has been accorded           beneficiary or sponsor. However, if the      juvenile court;
immediate relative status under section        petitioner dies or no longer desires or is     (D) Upon the termination of the
201(b) of the Act. A petition filed on         able to proceed with the petition, and       beneficiary’s eligibility for long-term
behalf of a child under section                another person 18 years of age or older,     foster care; or
204(a)(1)(A)(i) of the Act or a self-          an emancipated minor, or a corporation         (E) Upon the determination in
petition filed by a child of an abusive        incorporated in the United States            administrative or judicial proceedings
United States citizen under section            desires to be substituted for the            that it is in the beneficiary’s best interest
204(a)(1)(A)(iv) of the Act, however,          deceased or original petitioner, a written   to be returned to the country of
will remain valid for the duration of the      request may be submitted to the Service      nationality or last habitual residence of
relationship to accord preference status       or American consular office where the        the beneficiary or of his or her parent or
under section 203(a)(1) of the Act if the      petition is located to reinstate the         parents.
beneficiary remains unmarried, or to           petition and restore the original priority     (b) Notice. When it shall appear to the
accord preference status under section         date.                                        director that the approval of a petition
203(a)(3) of the Act if he or she marries.        (E) Upon the beneficiary’s reaching       has been automatically revoked, he or
   (G) Upon the marriage of a child,           the age of 21 when the beneficiary has       she shall cause a notice of such
when he or she has been accorded               been accorded classification under           revocation to be sent promptly to the
immediate relative status under section        section 201(b) of the Act. Provided that     consular office having jurisdiction over
201(b) of the Act. A petition filed on         all requirements of section 204(f) of the    the visa application and a copy of such
behalf of the child under section              Act continue to be met, however, the         notice to be mailed to the petitioner’s
204(a)(1)(A)(i) of the Act or a self-          petition is to be considered valid for       last known address.
petition filed by a child of an abusive        purposes of according the beneficiary          20. Section 205.2 is amended by
United States citizen under section            preference classification under section      revising paragraph (b) and adding new
204(a)(1)(A)(iv) of the Act, however,          203(a)(1) of the Act if the beneficiary      paragraphs (c) and (d), to read as
will remain valid for the duration of the      remains unmarried or under section           follows:
relationship to accord preference status       203(a)(3) if the beneficiary marries.
under section 203(a)(3) of the Act if he          (F) Upon the beneficiary’s marriage       § 205.2   Revocation on notice.
or she marries.                                when the beneficiary has been accorded       *     *     *     *     *
   (H) Upon the marriage of a person           classification under section 201(b) or         (b) Notice of intent. Revocation of the
accorded preference status as a son or         section 203(a)(1) of the Act. Provided       approval of a petition of self-petition
daughter of a United States citizen            that all requirements of section 204(f) of   under paragraph (a) of this section will
under section 203(a)(1) of the Act. A          the Act continue to be met, however, the     be made only on notice to the petitioner
petition filed on behalf of the son or         petition is to be considered valid for       or self-petitioner. The petitioner or self-
daughter, however, will remain valid for       purposes of according the beneficiary        petitioner must be given the opportunity
the duration of the relationship to            preference classification under section      to offer evidence in support of the
accord preference status under section         203(a)(3) of the Act.                        petition or self-petition and in
203(a)(3) of the Act.                             (iii) Petitions under section 203(b),     opposition to the grounds alleged for
   (I) Upon the marriage of a person           other than special immigrant juvenile        revocation of the approval.
accorded status as a son or daughter of        petitions. (A) Upon invalidation               (c) Notification of revocation. If, upon
a lawful permanent resident alien under        pursuant to 20 CFR Part 656 of the labor     reconsideration, the approval previously
section 203(a)(2) of the Act.                  certification in support of the petition.    granted is revoked, the director shall
   (J) Upon legal termination of the              (B) Upon the death of the petitioner      provide the petitioner or the self-
petitioner’s status as an alien admitted       or beneficiary.                              petitioner with a written notification of
for lawful permanent residence in the             (C) Upon written notice of withdrawal     the decision that explains the specific
United States unless the petitioner            filed by the petitioner, in employment-      reasons for the revocation. The director
became a United States citizen. The            based preference cases, with any officer     shall notify the consular officer having
provisions of 8 CFR 204.2(i)(3) shall          of the Service who is authorized to grant    jurisdiction over the visa application, if
apply if the petitioner became a United        or deny petitions.                           applicable, of the revocation of an
States citizen.                                   (D) Upon termination of the               approval.
   (ii) Petition for Pub. L. 97–359            employer’s business in an employment-          (d) Appeals. The petitioner or self-
Amerasian. (A) Upon formal notice of           based preference case under section          petitioner may appeal the decision to
              Federal Register / Vol. 61, No. 59 / Tuesday, March 26, 1996 / Rules and Regulations                              13079

revoke the approval within 15 days after        EFFECTIVE DATE:    March 26, 1996.            DEPARTMENT OF TRANSPORTATION
the service of notice of the revocation.
                                                FOR FURTHER INFORMATION CONTACT:    J.        Federal Aviation Administration
The appeal must be filed as provided in
                                                Mills Williams, Senior Attorney (202/
part 3 of this chapter, unless the
Associate Commissioner for                      452–3701), Legal Division, Board of           14 CFR Part 39
Examinations exercises appellate                Governors of the Federal Reserve
                                                System, 20th and C Streets, NW.,              [Docket No. 95–ANE–21; Amendment 39–
jurisdiction over the revocation under                                                        9547; AD 96–06–10]
part 103 of this chapter. Appeals filed         Washington, DC, 20551. For users of
with the Associate Commissioner for             Telecommunications Device for the Deaf        Airworthiness Directives; AlliedSignal,
Examinations must meet the                      (TDD) only, please contact Dorothea           Inc. LTS101 Series Turboshaft Engines
requirements of part 103 of this chapter.       Thompson (202/452–3544).                      Installed on Eurocopter France Model
                                                SUPPLEMENTARY INFORMATION:                    AS–350D and SA–366G1 Helicopters
PART 216—CONDITIONAL BASIS OF
LAWFUL PERMANENT RESIDENCE                      Background                                    AGENCY:  Federal Aviation
STATUS                                                                                        Administration, DOT.
                                                  The final rule that is the subject of
                                                                                              ACTION: Final rule.
  21. The authority citation for part 216       these corrections, revised an interim
continues to read as follows:                   rule that was subject to public comment.      SUMMARY:   This amendment adopts a
  Authority: 8 U.S.C. 1101, 1103, 1154, 1184,   Need for Correction                           new airworthiness directive (AD),
1186a, 1186b, and 8 CFR part 2.                                                               applicable to AlliedSignal, Inc.
  22. Section 216.1 is amended by                 As published, the final rule contained      (formerly Textron Lycoming) LTS101
adding a new sentence at the end of the         three technical, non-substantive errors       series turboshaft engines installed on
section, to read as follows:                    that may prove to be misleading and are       Eurocopter France (formerly
                                                in need of clarification.                     Aerospatiale) Model AS–350D and SA–
§ 216.1 Definition of conditional                                                             366G1 helicopters, that requires
permanent resident.                             List of Subjects in 12 CFR Part 268
                                                                                              incorporation of design modifications to
  * * * The conditions of section 216             Administrative practice and                 the power turbine (PT) rotor. This
of the Act shall not apply to lawful            procedure, Age, Civil rights, Equal           amendment is prompted by reports of
permanent resident status based on a            employment opportunity, Federal               PT disk failures after No. 3 bearing
self-petitioning relationship under             buildings and facilities, Federal Reserve     failures. The actions specified by this
section 204(a)(1)(A)(iii), 204(a)(1)(A)(iv),    System, Government employees,                 AD are intended to prevent an
204(a)(1)(b)(ii), or 204(a)(1)(B)(iii) of the   Individuals with disabilities, Religious      uncontained engine failure due to a PT
Act or based on eligibility as the              discrimination, Sex discrimination,           disk failure.
derivative child of a self-petitioning          Wages.                                        DATES: Effective May 28, 1996.
spouse under section 204(a)(1)(A)(iii) or                                                        The incorporation by reference of
204(a)(1)(B)(ii) of the Act, regardless of        Accordingly, 12 CFR Part 268 is             certain publications listed in the
the date on which the marriage to the           corrected by making the following             regulations is approved by the Director
abusive citizen or lawful permanent             correcting amendments:                        of the Federal Register as of May 28,
resident occurred.                                                                            1996.
                                                PART 268—RULES REGARDING
  Dated: March 1, 1996.                         EQUAL OPPORTUNITY                             ADDRESSES: The service information
Doris Meissner,                                                                               referenced in this AD may be obtained
Commissioner, Immigration and                     1. The authority citation for Part 268      from AlliedSignal Engines, 550 Main
Naturalization Service.                         continues to read as follows:                 Street, Stratford, CT 06497. This
[FR Doc. 96–7219 Filed 3–25–96; 8:45 am]
                                                  Authority: 12 U.S.C. 244 and 248 (i), (k)
                                                                                              information may be examined at the
BILLING CODE 4410–10–M
                                                and (l).                                      Federal Aviation Administration (FAA),
                                                                                              New England Region, Office of the
                                                § 268.301   [Corrected]                       Assistant Chief Counsel, 12 New
FEDERAL RESERVE SYSTEM                                                                        England Executive Park, Burlington,
                                                   2. In § 268.301, paragraph (c)(3), the
                                                                                              MA; or at the Office of the Federal
12 CFR Part 268                                 cite ‘‘§ 268.209(a)(8)’’ is revised to read
                                                                                              Register, 800 North Capitol Street, NW.,
                                                ‘‘§ 268.209(b)(8)’’.
[Docket No. R–0797]                                                                           suite 700, Washington, DC.
                                                § 268.305   [Corrected]                       FOR FURTHER INFORMATION CONTACT:
Rules Regarding Equal Opportunity;                                                            Eugene Triozzi, Aerospace Engineer,
                                                   3. In § 268.305, paragraph (c)(1), the
Correction                                                                                    Engine Certification Office, FAA, Engine
                                                cite ‘‘§ 268.202(e)(3)’’ is revised to read
                                                ‘‘§ 268.202(f)(3)’’.                          and Propeller Directorate, 12 New
AGENCY:  Board of Governors of the
                                                                                              England Executive Park, Burlington, MA
Federal Reserve System.
                                                § 268.506   [Corrected]                       01803–5299; telephone (617) 238–7148,
ACTION: Final rule; correcting
                                                                                              fax (617) 238–7199.
amendments.                                       4. In § 268.506, remove the cite ‘‘(29
                                                                                              SUPPLEMENTARY INFORMATION: A
                                                U.S.C. 225)’’ at the end of the first
SUMMARY: This document contains                                                               proposal to amend part 39 of the Federal
                                                sentence.
technical corrections to the final rule                                                       Aviation Regulations (14 CFR part 39) to
that was published April 6, 1994 (59 FR           By order of the Board of Governors of the   include an airworthiness directive (AD)
16096). The rule sets forth the                 Federal Reserve System under delegated        that is applicable to AlliedSignal, Inc.
                                                authority, March 20, 1996.
requirements, policies and procedures                                                         (formerly Textron Lycoming) LTS101
with regard to discrimination in                William W. Wiles,                             series turboshaft engines installed on
employment, and in agency programs              Secretary of the Board.                       Eurocopter France (formerly
and activities, at the Board of Governors       [FR Doc. 96–7174 Filed 3–25–96; 8:45 am]      Aerospatiale) Model AS–350D and SA–
of the Federal Reserve System.                  BILLING CODE 6210–01–P                        366G1 helicopters was published in the
13080        Federal Register / Vol. 61, No. 59 / Tuesday, March 26, 1996 / Rules and Regulations

Federal Register on June 30, 1995 (60         $44,400 per engine. Based on these           Federal Aviation Regulations (14 CFR
FR 21053). That action proposed to            figures, the cost impact to install the      part 39) as follows:
require incorporation of a modified           improved power turbine rotor assembly
power turbine (PT) rotor retention            and the power turbine retention system       PART 39—AIRWORTHINESS
system at the next shop visit after the       required by this AD on U.S. operators is     DIRECTIVES
effective date of this AD, but not later      estimated to be $900,000. The FAA              1. The authority citation for part 39
than April 30, 1996, in accordance with       estimates that 60 engines installed on       continues to read as follows:
Textron Lycoming Service Bulletin (SB)        aircraft of U.S. registry have previously
No. LTS101A–72–50–0134, Revision 1,           installed the improved power turbine           Authority: 49 U.S.C. 106(g), 40113, 44701.
dated June 17, 1991, and SB No.               rotor assembly and the power turbine         § 39.13   [Amended]
LTS101B–72–50–0128, Revision 1,               retention system, in addition to the 20        2. Section 39.13 is amended by
dated June 17, 1991.                          engines in the paragraph above.              adding the following new airworthiness
   Interested persons have been afforded      Therefore, a total of 80 engines will be     directive:
an opportunity to participate in the          affected by the requirement to enable
making of this amendment. Due                 the pneumatic portion of the PT              96–06–10 AlliedSignal, Inc.: Amendment
consideration has been given to the one       retention system by installing the tee-           39–9547. Docket 95–ANE–21.
comment received.                             fitting and pressurization line. The FAA       Applicability: AlliedSignal, Inc. (formerly
   The commenter states that the                                                           Textron Lycoming) Models LTS101–600A–2
                                              estimates that it will take approximately
instructions for installation of the PT                                                    and –600A–3 turboshaft engines installed on
                                              2.5 work hours per engine to                 Eurocopter France (formerly Aerospatiale)
retention system should be revised to         accomplish the required action.              Model AS–350D helicopters; and LTS101–
require installation of two parts,            Required parts will cost approximately       750B–2 turboshaft engines installed on
inadvertently omitted but necessary to        $385 per engine. Based on these figures,     Eurocopter France Model SA–366G1
enable the pneumatic portion of the PT        the total cost impact of installing the      helicopters.
retention system. These parts consist of      tee-fitting and pressurization line            Note: This airworthiness directive (AD)
a tee-fitting to replace an existing elbow    required by the AD on U.S. operators is      applies to each engine identified in the
fitting in the main fuel control, and a       estimated to be $42,800. Therefore, the      preceding applicability provision, regardless
pressurization line. The FAA concurs,         revised total cost impact of this AD on      of whether it has been modified, altered, or
and has revised the accomplishment                                                         repaired in the area subject to the
                                              all U.S. operators is estimated to be        requirements of this AD. For engines that
instructions of the final rule to refer to    $942,800.                                    have been modified, altered, or repaired so
later revisions of the applicable SB’s,          The regulations adopted herein will       that the performance of the requirements of
which reflect installation of these           not have substantial direct effects on the   this AD is affected, the owner/operator must
additional parts. Consequently, the FAA       States, on the relationship between the      use the authority provided in paragraph (c)
has extended the compliance timetable         national government and the States, or       to request approval from the Federal Aviation
for the final rule in order to provide        on the distribution of power and             Administration (FAA). This approval may
sufficient opportunity for installation of    responsibilities among the various           address either no action, if the current
the parts, and to ensure parts                                                             configuration eliminates the unsafe
                                              levels of government. Therefore, in          condition, or different actions necessary to
availability. The FAA has determined          accordance with Executive Order 12612,       address the unsafe condition described in
that installation of the additional parts     it is determined that this final rule does   this AD. Such a request should include an
will not have a substantial additional        not have sufficient federalism               assessment of the effect of the changed
impact on accomplishment of the               implications to warrant the preparation      configuration on the unsafe condition
requirements of this AD.                      of a Federalism Assessment.                  addressed by this AD. In no case does the
   Since publication of the NPRM, the            For the reasons discussed above, I        presence of any modification, alteration, or
manufacturer has issued the following         certify that this action (1) is not a        repair remove any engine from the
revisions to the SB’s, which are                                                           applicability of this AD.
                                              ‘‘significant regulatory action’’ under
referenced in this final rule:                Executive Order 12866; (2) is not a            Compliance: Required as indicated, unless
AlliedSignal Engines SB No. LTS101A–                                                       accomplished previously.
                                              ‘‘significant rule’’ under DOT                 To prevent an uncontained engine failure
72–50–0134, Revision 2, dated August          Regulatory Policies and Procedures (44       due to power turbine (PT) disk failure,
15, 1995; AlliedSignal Engines SB No.         FR 11034, February 26, 1979); and (3)        accomplish the following at the next shop
LTS101B–72–50–0128, Revision 2,               will not have a significant economic         visit after the effective date of this
dated August 15, 1995; and AlliedSignal       impact, positive or negative, on a           airworthiness directive (AD) when the PT
Engines SB No. LTS101A–73–20–0166,            substantial number of small entities         rotor is removed, but not later than July 1,
Revision 2, dated August 1, 1995.             under the criteria of the Regulatory         1996:
   After careful review of the available                                                     (a) For LTS101–600A–2 and –600A–3
                                              Flexibility Act. A final evaluation has
data, including the comment noted                                                          turboshaft engines installed on Eurocopter
                                              been prepared for this action and it is      France (formerly Aerospatiale) Model AS–
above, the FAA has determined that air        contained in the Rules Docket. A copy        350D helicopters, incorporate improved PT
safety and the public interest require the    of it may be obtained from the Rules         rotor retention system modifications in
adoption of the rule with the changes         Docket at the location provided under        accordance with Section II., Accomplishment
described previously.                         the caption ADDRESSES.                       Instructions, Paragraphs A. through AT. of
   The FAA estimates that 20 engines                                                       AlliedSignal Engines Service Bulletin (SB)
installed on aircraft of U.S. registry will   List of Subjects in 14 CFR Part 39           No. LTS101A–72–50–0134, Revision 2, dated
be affected by the requirement to install       Air Transportation, Aircraft, Aviation     August 15, 1995, and concurrently replace
the improved power turbine rotor              safety, Incorporation by reference,          elbow fitting in fuel control governor orifice
assembly and the power turbine                                                             cover Py port with tee-fitting assembly, P/N
                                              Safety.
retention system required by this AD,                                                      2543854, in accordance with Section II.,
                                              Adoption of the Amendment                    Accomplishment Instructions, Paragraphs C.
that it will take approximately 10 work                                                    (5) through C. (7) of AlliedSignal Engines SB
hours per engine to accomplish the              Accordingly, pursuant to the               No. LTS101A–73–20–166, Revision 2, dated
required actions, and that the average        authority delegated to me by the             August 1, 1995.
labor rate is $60 per work hour.              Administrator, the Federal Aviation            (b) For LTS101–750B–2 turboshaft engines
Required parts will cost approximately        Administration amends part 39 of the         installed on Eurocopter France Model SA–
                    Federal Register / Vol. 61, No. 59 / Tuesday, March 26, 1996 / Rules and Regulations                                                                      13081

366G1 helicopters, incorporate improved PT                           Certification Office. The request should be                           (e) Special flight permits may be issued in
rotor retention system modifications in                              forwarded through an appropriate FAA                               accordance with sections 21.197 and 21.199
accordance with Section II., Accomplishment                          Principal Maintenance Inspector, who may                           of the Federal Aviation Regulations (14 CFR
Instructions, of AlliedSignal Engines SB No.                         add comments and then send it to the                               21.197 and 21.199) to operate the aircraft to
LTS101B–72–50–0128, Revision 2, dated                                Manager, Engine Certification Office.                              a location where the requirements of this AD
August 15, 1995.                                                        Note: Information concerning the existence                      can be accomplished.
  (c) An alternative method of compliance or                         of approved alternative methods of                                    (f) The modification of the PT rotor
adjustment of the compliance time that                               compliance with this airworthiness directive,
                                                                                                                                        retention system shall be done in accordance
provides an acceptable level of safety may be                        if any, may be obtained from the Engine
used if approved by the Manager, Engine                              Certification Office.                                              with the following AlliedSignal Engines SB’s:

                                                        Document No.                                                                      Pages         Revision            Date

LTS101A72–50–0134 ...................................................................................................................          1–11                2   Aug. 15, 1995.
   Total pages: 11.
LTS101B72–50–0128 ...................................................................................................................          1–11                2   Aug. 15, 1995.
   Total pages: 11.
LTS101A73–20–0166 ...................................................................................................................          1–6                 2   Aug. 1, 1995.
   Total pages: 11.



This incorporation by reference was                                  engine compressor components and an                                A72–7522, dated February 17, 1995, that
approved by the Director of the Federal                              inflight engine shutdown.                                          describe main shouldered shaft
Register in accordance with 5 U.S.C. 552(a)                                                                                             (tieshaft) cyclic life limits; and Service
                                                                     DATES: Effective May 28, 1996.
and 1 CFR part 51. Copies may be obtained                                                                                               Bulletins (SB’s) No. TPE331–72–7130,
from AlliedSignal Engines, 550 Main Street,                             The incorporation by reference of
Stratford, CT 06497. Copies may be inspected                         certain publications listed in the                                 dated June 17, 1994, No. TPE331–72–
at the FAA, New England Region, Office of                            regulations is approved by the Director                            7131, dated June 17, 1994, and No.
the Assistant Chief Counsel, 12 New England                          of the Federal Register as of May 28,                              TPE331–72–7523, dated February 17,
Executive Park, Burlington, MA; or at the                            1996.                                                              1995, that describe forward coupling
Office of the Federal Register, 800 North                            ADDRESSES: The service information                                 shaft (stub shaft) cyclic life limits.
Capitol Street NW., suite 700, Washington,
                                                                     referenced in this AD may be obtained                                 Interested persons have been afforded
DC.                                                                                                                                     an opportunity to participate in the
   (e) This amendment becomes effective on                           from AlliedSignal Aerospace, Data
                                                                     Distribution, M/S 64–03/2101–201, P.O.                             making of this amendment. No
May 28, 1996.                                                                                                                           comments were received on the
   Issued in Burlington, Massachusetts, on                           Box 29003, Phoenix, AZ 85038–9003;
                                                                     telephone (602) 365–2493, fax (602)                                proposal or the FAA’s determination of
March 11, 1996.                                                                                                                         the cost to the public. The FAA has
James C. Jones,                                                      365–5577. This information may be
                                                                     examined at the Federal Aviation                                   determined that air safety and the
Acting Manager, Engine and Propeller                                                                                                    public interest require the adoption of
Directorate, Aircraft Certification Service.                         Administration (FAA), New England
                                                                     Region, Office of the Assistant Chief                              the rule as proposed.
[FR Doc. 96–7141 Filed 3–25–96; 8:45 am]                                                                                                   There are approximately 200 engines
                                                                     Counsel, 12 New England Executive
BILLING CODE 4910–13–U                                                                                                                  of the affected design in the worldwide
                                                                     Park, Burlington, MA; or at the Office of
                                                                                                                                        fleet. The FAA estimates that 150
                                                                     the Federal Register, 800 North Capitol
                                                                                                                                        engines installed on aircraft of U.S.
14 CFR Part 39                                                       Street, NW., suite 700, Washington, DC.
                                                                                                                                        registry will be affected by this AD, that
                                                                     FOR FURTHER INFORMATION CONTACT:                                   it will take approximately 80 work
[Docket No. 95–ANE–09; Amendment 39–                                 Joseph Costa, Aerospace Engineer, Los                              hours per engine to accomplish the
9548; AD 96–06–11]                                                   Angeles Aircraft Certification Office,                             required actions, and that the average
                                                                     FAA, Transport Airplane Directorate,                               labor rate is $60 per work hour.
Airworthiness Directives; AlliedSignal                               3960 Paramount Blvd., Lakewood, CA
Inc. TPE331 Series Turboprop Engines                                                                                                    Required parts will cost approximately
                                                                     90712–4137; telephone (310) 627–5246;                              $22,000 per engine for engines where
AGENCY:  Federal Aviation                                            fax (310) 627–5210.                                                tieshafts and stub shafts are not
Administration, DOT.                                                 SUPPLEMENTARY INFORMATION: A                                       serviceable. Based on these figures, the
ACTION: Final rule.                                                  proposal to amend part 39 of the Federal                           total cost impact of the AD on U.S.
                                                                     Aviation Regulations (14 CFR part 39) to                           operators is estimated to be $4,020,000.
SUMMARY: This amendment adopts a                                     include an airworthiness directive (AD)                               The regulations adopted herein will
new airworthiness directive (AD),                                    that is applicable to AlliedSignal Inc.                            not have substantial direct effects on the
applicable to certain AlliedSignal Inc.                              (formerly Garrett Engine Division)                                 States, on the relationship between the
(formerly Garrett Engine Division)                                   Models TPE331–14A, –14B, –14F, and                                 national government and the States, or
TPE331 series turboprop engines, that                                –15AW turboprop engines was                                        on the distribution of power and
establishes cyclic retirement lives for                              published in the Federal Register on                               responsibilities among the various
certain compressor components. This                                  June 19, 1995 (60 FR 31932). That action                           levels of government. Therefore, in
amendment is prompted by                                             proposed to establish cyclic retirement                            accordance with Executive Order 12612,
manufacturer’s engine testing and                                    lives for main shouldered shafts                                   it is determined that this final rule does
analysis that indicate that if these                                 (tieshafts) and forward coupling shafts                            not have sufficient federalism
compressor components continue in                                    (stub shafts) in accordance with the                               implications to warrant the preparation
service without an established                                       following AlliedSignal Engines service                             of a Federalism Assessment.
retirement life, accumulative cyclic                                 documents: Alert Service Bulletins                                    For the reasons discussed above, I
effects may result in a fatigue failure.                             (ASB’s): No. TPE331–A72–7128, dated                                certify that this action (1) is not a
The actions specified by this AD are                                 June 10, 1994, No. TPE331–A72–7129,                                ‘‘significant regulatory action’’ under
intended to prevent fatigue failure of                               dated June 10, 1994, and No. TPE331–                               Executive Order 12866; (2) is not a
13082              Federal Register / Vol. 61, No. 59 / Tuesday, March 26, 1996 / Rules and Regulations

‘‘significant rule’’ under DOT                                    of whether it has been modified, altered, or                      (b) For forward coupling shafts (stub
Regulatory Policies and Procedures (44                            repaired in the area subject to the                            shafts), P/N 3104281–2, initiate a life limited
FR 11034, February 26, 1979); and (3)                             requirements of this AD. For engines that                      part log card, identify the P/N, serialize the
                                                                  have been modified, altered, or repaired so                    forward coupling shaft (stub shaft), at the
will not have a significant economic
                                                                  that the performance of the requirements of                    next major periodic inspection or complete
impact, positive or negative, on a                                this AD is affected, the owner/operator must
substantial number of small entities                                                                                             disassembly of the compressor module after
                                                                  use the authority provided in paragraph (c)                    the effective date of this AD, whichever
under the criteria of the Regulatory                              to request approval from the Federal Aviation                  occurs first, in accordance with the following
Flexibility Act. A final evaluation has                           Administration (FAA). This approval may
                                                                                                                                 AlliedSignal Inc. Service Bulletins (SB’s):
been prepared for this action and it is                           address either no action, if the current
                                                                                                                                    (1) For forward coupling shafts (stub
contained in the Rules Docket. A copy                             configuration eliminates the unsafe
                                                                  condition, or different actions necessary to                   shafts) installed in TPE331–14A and –14B
of it may be obtained from the Rules                                                                                             engines, in accordance with SB No. TPE331–
                                                                  address the unsafe condition described in
Docket at the location provided under                                                                                            72–7130, dated June 17, 1994.
                                                                  this AD. Such a request should include an
the caption ADDRESSES.                                            assessment of the effect of the changed                           (2) For forward coupling shafts (stub
                                                                  configuration on the unsafe condition                          shafts) installed in TPE331–14F engines, in
List of Subjects in 14 CFR Part 39
                                                                  addressed by this AD. In no case does the                      accordance with SB No. TPE331–72–7131,
  Air transportation, Aircraft, Aviation                          presence of any modification, alteration, or                   dated June 17, 1994.
safety, Incorporation by reference,                               repair remove any engine from the                                 (3) For forward coupling shafts (stub
Safety.                                                           applicability of this AD.                                      shafts) installed in TPE331–15AW engines,
                                                                     Compliance: Required as indicated, unless                   in accordance with SB No. TPE331–72–7523,
Adoption of the Amendment                                                                                                        dated February 17, 1995.
                                                                  accomplished previously.
  Accordingly, pursuant to the                                       To prevent fatigue failure of engine                           (4) Remove from service forward coupling
authority delegated to me by the                                  compressor components and an inflight                          shafts (stub shafts) prior to accumulating
Administrator, the Federal Aviation                               engine shutdown, accomplish the following:                     20,000 CIS.
Administration amends part 39 of the                                 (a) For main shouldered shafts (tieshafts),                    Note: For guidance on the destruction or
Federal Aviation Regulations (14 CFR                              Part Number (P/N) 3105102–1, initiate a life                   marking of parts no longer serviceable for
                                                                  limited part log card and remove from service                  aviation use, see Advisory Circular 21–38,
part 39) as follows:                                              in accordance with the following schedule                      dated July 5, 1994.
                                                                  and the following AlliedSignal Inc. Alert
PART 39—AIRWORTHINESS                                             Service Bulletins (ASB’s):                                        (c) An alternative method of compliance or
DIRECTIVES                                                           (1) Determine cycles in service (CIS) for the               adjustment of the compliance time that
                                                                  main shouldered shafts (tieshafts) as follows:                 provides an acceptable level of safety may be
  1. The authority citation for part 39                                                                                          used if approved by the Manager, Los
                                                                     (i) For main shouldered shafts (tieshafts)
continues to read as follows:                                     installed in TPE331–14A and –14B engines,                      Angeles Aircraft Certification Office. The
  Authority: 49 USC 106(g), 40113, 44701.                         in accordance with ASB No. TPE331–A72–                         request should be forwarded through an
                                                                  7128, dated June 10, 1994.                                     appropriate FAA Principal Maintenance
§ 39.13     [Amended]                                                (ii) For main shouldered shafts (tieshafts)                 Inspector, who may add comments and then
  2. Section 39.13 is amended by                                  installed in TPE331–14F engines, in                            send it to the Manager, Los Angeles Aircraft
adding the following new airworthiness                            accordance with ASB No. TPE331–A72–                            Certification Office.
directive:                                                        7129, dated June 10, 1994.                                        Note: Information concerning the existence
                                                                     (iii) For main shouldered shafts (tieshafts)                of approved alternative methods of
96–06–11 AlliedSignal Inc.: Amendment                             installed in TPE331–15AW engines, in
     39–9548. Docket 95–ANE–09.                                                                                                  compliance with this airworthiness directive,
                                                                  accordance with ASB No. TPE331–A72–                            if any, may be obtained from the Los Angeles
  Applicability: AlliedSignal Inc. (formerly                      7522, dated February 17, 1995.
Garrett Engine Division) Models TPE331–                                                                                          Aircraft Certification Office.
                                                                     (2) For main shouldered shafts (tieshafts)
14A, –14B, –14F, and –15AW turboprop                              with greater than 5,600 CIS on the effective                      (d) Special flight permits may be issued in
engines, installed on but not limited to the                      date of this airworthiness directive (AD), or                  accordance with sections 21.197 and 21.199
following aircraft: Piper Model PA–42–1000                        if operating hours or cycles are unknown,                      of the Federal Aviation Regulations (14 CFR
and Grumman Model TS–2A (modified in                              remove from service within 400 CIS after the                   21.197 and 21.199) to operate the aircraft to
accordance with Supplemental Type                                 effective date of this AD.                                     a location where the requirements of this AD
Certificate SA4837NM).                                               (3) For main shouldered shafts (tieshafts)                  can be accomplished.
  Note: This airworthiness directive (AD)                         with 5,600 or less CIS on the effective date                      (e) The actions required by this AD shall
applies to each engine identified in the                          of this AD, remove from service prior to                       be done in accordance with the following
preceding applicability provision, regardless                     accumulating 6,000 CIS.                                        AlliedSignal Engines service documents:

                                                 Document No.                                                            Pages                 Revision                      Date

ASB No. TPE331–A72–7128 ............................................................................................         1–4      Original ......................   June 10, 1994.
   Total Pages: 4.
ASB No. TPE331–A72–7129 ............................................................................................         1–4      Original ......................   June 10, 1994.
   Total Pages: 4.
ASB No. TPE331–A72–7522 ............................................................................................         1–2      Original ......................   Feb. 17, 1995.
   Total Pages: 2.
SB No. TPE331–72–7130 ................................................................................................       1–6      Original ......................   June 17, 1994.
   Total Pages: 6.
SB No. TPE331–72–7131 ................................................................................................       1–6      Original ......................   June 17, 1994.
   Total Pages: 6.
SB No. TPE331–72–7523 ................................................................................................       1–6      Original ......................   Feb. 17, 1995.
   Total pages: 6.



This incorporation by reference was                               552(a) and 1 CFR part 51. Copies may                           2101–201, P.O. Box 29003, Phoenix, AZ
approved by the Director of the Federal                           be obtained from AlliedSignal                                  85038–9003; telephone (602) 365–2493,
Register in accordance with 5 U.S.C.                              Aerospace, Data Distribution, M/S 6403/                        fax (602) 365–5577. Copies may be
              Federal Register / Vol. 61, No. 59 / Tuesday, March 26, 1996 / Rules and Regulations                               13083

inspected at the FAA, New England              Standardization Branch, ANM–113,             ‘‘significant regulatory action’’ under
Region, Office of the Assistant Chief          FAA, Transport Airplane Directorate,         Executive Order 12866; (2) is not a
Counsel, 12 New England Executive              1601 Lind Avenue, SW., Renton,               ‘‘significant rule’’ under DOT
Park, Burlington, MA; or at the Office of      Washington 98055–4056; telephone             Regulatory Policies and Procedures (44
the Federal Register, 800 North Capitol        (206) 227–2141; fax (206) 227–1149.          FR 11034, February 26, 1979); and (3)
Street NW., suite 700, Washington, DC.         SUPPLEMENTARY INFORMATION: A                 will not have a significant economic
  (f) This amendment becomes effective         proposal to amend part 39 of the Federal     impact, positive or negative, on a
on May 28, 1996.                               Aviation Regulations (14 CFR part 39) to     substantial number of small entities
  Issued in Burlington, Massachusetts, on      include an airworthiness directive (AD)      under the criteria of the Regulatory
March 12, 1996.                                that is applicable to certain Fokker         Flexibility Act. A final evaluation has
James C. Jones,                                Model F28 Mark 0100 series airplanes         been prepared for this action and it is
Acting Manager, Engine and Propeller           was published in the Federal Register        contained in the Rules Docket. A copy
Directorate, Aircraft Certification Service.   on December 11, 1995 (60 FR 63468).          of it may be obtained from the Rules
[FR Doc. 96–7135 Filed 3–25–96; 8:45 am]       That action proposed to require              Docket at the location provided under
                                               repetitive inspections to verify the         the caption ADDRESSES.
BILLING CODE 4910–13–P
                                               correct operation of the MLG downlock
                                                                                            List of Subjects in 14 CFR Part 39
                                               actuators; and replacement of any
14 CFR Part 39                                 discrepant unit with a serviceable unit.       Air transportation, Aircraft, Aviation
                                               For airplanes on which no discrepant         safety, Incorporation by reference,
[Docket No. 95–NM–99–AD; Amendment             unit is found, the AD also will require      Safety.
39–9551; AD 96–07–02]                          recording the accomplishment of each
                                                                                            Adoption of the Amendment
                                               inspection on the unit nameplate. In
Airworthiness Directives; Fokker                                                              Accordingly, pursuant to the
                                               addition, the AD will require eventual
Model F28 Mark 0100 Series Airplanes                                                        authority delegated to me by the
                                               replacement of the MLG downlock
AGENCY:  Federal Aviation                      actuators with improved units.               Administrator, the Federal Aviation
Administration, DOT.                              Interested persons have been afforded     Administration amends part 39 of the
ACTION: Final rule.                            an opportunity to participate in the         Federal Aviation Regulations (14 CFR
                                               making of this amendment. Due                part 39) as follows:
SUMMARY: This amendment adopts a               consideration has been given to the
new airworthiness directive (AD),              single comment received.                     PART 39—AIRWORTHINESS
applicable to certain Fokker Model F28            The commenter supports the                DIRECTIVES
Mark 0100 series airplanes, that requires      proposed rule.
                                                  After careful review of the available       1. The authority citation for part 39
inspections to verify the correct                                                           continues to read as follows:
operation of the main landing gear             data, including the comment noted
(MLG) downlock actuators, and                  above, the FAA has determined that air         Authority: 49 U.S.C. 106(g), 40113, 44701.
replacement of any discrepant unit with        safety and the public interest require the
                                                                                            § 39.13   [Amended]
a serviceable unit. This amendment also        adoption of the rule as proposed.
                                                  The FAA estimates that 119 airplanes        2. Section 39.13 is amended by
will require eventual replacement of the
                                               of U.S. registry will be affected by this    adding the following new airworthiness
MLG downlock actuators with improved
                                               AD, that it will take approximately 21       directive:
units. This amendment is prompted by
reports of improper operation of the           work hours per airplane to accomplish        96–07–02 Fokker: Amendment 39–9551.
MLG downlock actuator due to                   the required actions, and that the                Docket 95–NM–99–AD.
jamming. The actions specified by this         average labor rate is $60 per work hour.        Applicability: Model F28 Mark 0100 series
AD are intended to prevent such                Required parts will be supplied by the       airplanes equipped with Dowty Aerospace
jamming of the downlock actuator,              vendor at no cost to operators. Based on     Hydraulics main landing gear (MLG)
                                               these figures, the cost impact of the AD     downlock actuators having part number (P/
which could result in failure of the MLG                                                    N) 201218001, 201218002, 201218003, or
downlock system, and a potential gear-         on U.S. operators is estimated to be
                                               $149,940, or $1,260 per airplane.            201218004, all serial numbers; certificated in
up landing.                                                                                 any category.
                                                  The cost impact figure discussed
DATES: Effective April 25, 1996.                                                               Note 1: This AD applies to each airplane
                                               above is based on assumptions that no
   The incorporation by reference of                                                        identified in the preceding applicability
                                               operator has yet accomplished any of
certain publications listed in the                                                          provision, regardless of whether it has been
                                               the requirements of this AD action, and      modified, altered, or repaired in the area
regulations is approved by the Director
                                               that no operator would accomplish            subject to the requirements of this AD. For
of the Federal Register as of April 25,
                                               those actions in the future if this AD       airplanes that have been modified, altered, or
1996.
                                               were not adopted.                            repaired so that the performance of the
ADDRESSES: The service information                The regulations adopted herein will       requirements of this AD is affected, the
referenced in this AD may be obtained          not have substantial direct effects on the   owner/operator must request approval for an
from Fokker Aircraft USA, Inc., 1199           States, on the relationship between the      alternative method of compliance in
North Fairfax Street, Alexandria,              national government and the States, or       accordance with paragraph (d) of this AD.
Virginia 22314. This information may be        on the distribution of power and             The request should include an assessment of
examined at the Federal Aviation               responsibilities among the various           the effect of the modification, alteration, or
Administration (FAA), Transport                                                             repair on the unsafe condition addressed by
                                               levels of government. Therefore, in          this AD; and, if the unsafe condition has not
Airplane Directorate, Rules Docket,            accordance with Executive Order 12612,       been eliminated, the request should include
1601 Lind Avenue, SW., Renton,                 it is determined that this final rule does   specific proposed actions to address it.
Washington; or at the Office of the            not have sufficient federalism                  Compliance: Required as indicated, unless
Federal Register, 800 North Capitol            implications to warrant the preparation      accomplished previously.
Street, NW., suite 700, Washington, DC.        of a Federalism Assessment.                     To prevent jamming of the MLG downlock
FOR FURTHER INFORMATION CONTACT: Tim              For the reasons discussed above, I        actuator and a potential gear-up landing,
Dulin, Aerospace Engineer,                     certify that this action (1) is not a        accomplish the following:
13084         Federal Register / Vol. 61, No. 59 / Tuesday, March 26, 1996 / Rules and Regulations

  (a) Within 2 months after the effective date   of the Federal Aviation Regulations (14 CFR         Adversely affected persons have until
of this AD, and thereafter at intervals not to   21.197 and 21.199) to operate the airplane to    April 25, 1996 to file objections to this
exceed 1,250 landings: Perform an inspection     a location where the requirements of this AD     rule, stating grounds therefor and
to verify correct operation of the MLG           can be accomplished.                             requesting a public hearing on those
downlock actuator having P/N 201218001,             (f) The actions shall be done in accordance
201218002, 201218003, or 201218004, all          with Fokker Service Bulletin SBF100–32–
                                                                                                  objections. Objections and requests for
serial numbers, in accordance with Fokker        072, dated March 30, 1993; Fokker Service        hearings must be mailed to the Office of
Service Bulletin SBF100–32–072, dated            Bulletin SBF100–32–074, dated July 21,           the Secretary, Consumer Product Safety
March 30, 1993, and Dowty Aerospace              1993; Dowty Aerospace Hydraulics Service         Commission, Washington, D.C. 20207,
Hydraulics Service Bulletin F100–32–505,         Bulletin F100–32–505, Revision 1, dated          or delivered to the Office of the
Revision 1, dated April 16, 1993.                April 16, 1993; or Dowty Aerospace               Secretary, Room 502, 4330 East-West
  (1) If the MLG downlock actuator operates      Hydraulics Service Bulletin F100–32–506,         Highway, Bethesda, Maryland 20814
as specified in the inspection procedure         dated June 9, 1993, as applicable. This          telephone (301) 504–6800.
contained in the Accomplishment                  incorporation by reference was approved by
Instructions of Dowty Aerospace Hydraulics       the Director of the Federal Register in          FOR FURTHER INFORMATION CONTACT:
Service Bulletin F100–32–505, Revision 1,        accordance with 5 U.S.C. 552(a) and 1 CFR        Samuel B. Hall, Office of Compliance,
dated April 16, 1993, prior to further flight,   part 51. Copies may be obtained from Fokker      Consumer Product Safety Commission,
record the accomplishment of the inspection      Aircraft USA, Inc., 1199 North Fairfax Street,   Washington, DC 20207–0001; telephone
on the unit nameplate in accordance with the     Alexandria, Virginia 22314. Copies may be        (301) 504–0400, ext. 1371.
Dowty Aerospace Hydraulics service               inspected at the FAA, Transport Airplane
bulletin. Following accomplishment of each       Directorate, 1601 Lind Avenue, SW., Renton,      SUPPLEMENTARY INFORMATION:
subsequent inspection required by this AD,       Washington; or at the Office of the Federal
record the accomplishment of the inspection
                                                                                                  A. Background
                                                 Register, 800 North Capitol Street, NW., suite
in accordance with the requirement of this       700, Washington, DC.                                Multiple-tube mine and shell
paragraph.                                          (g) This amendment becomes effective on       fireworks devices (also called ‘‘display
  (2) If any MLG downlock actuator does not      April 25, 1996.                                  racks’’ and referred to in this notice as
operate as specified in the inspection                                                            ‘‘multiple-tube devices’’) are non-
                                                    Issued in Renton, Washington, on March
procedure contained in the Accomplishment
Instructions of Dowty Aerospace Hydraulics
                                                 19, 1996.                                        reloadable devices that fire multiple
Service Bulletin F100–32–505, Revision 1,        James V. Devany,                                 aerial shells, comets, or other effects
dated April 16, 1993, prior to further flight,   Acting Manager, Transport Airplane               into the air to produce visual and
replace the downlock actuator with a             Directorate, Aircraft Certification Service.     audible effects. These devices consist of
serviceable unit, in accordance with Chapter     [FR Doc. 96–7133 Filed 3–25–96; 8:45 am]         several vertical tubes with a common
32–32–05 of the Aircraft Maintenance                                                              fuse, either with or without a horizontal
                                                 BILLING CODE 4910–13–P
Manual. Thereafter, perform repetitive                                                            base. They are classified by the
inspections of the replacement unit in                                                            Department of Transportation (‘‘DOT’’)
accordance with paragraph (a) of this AD
                                                                                                  as 1.4G explosive devices (formerly
until the replacement required by paragraph      CONSUMER PRODUCT SAFETY
(b) of this AD is accomplished.                                                                   Class C common fireworks devices)
                                                 COMMISSION
  (b) Within 9 months after the effective date                                                    which are suitable for use by
of this AD, replace any MLG downlock             16 CFR Part 1500 and Part 1507                   consumers.
actuator having P/N 201218001, 201218002,                                                            The devices are designed to fire
201218003, or 201218004, any serial number,      Large Multiple-Tube Fireworks                    sequentially. This creates the danger
with an improved unit having P/N                 Devices; Final Rule                              that the device’s reaction to one shot
201218005, 201218006, 201218007, or                                                               may cause it to tip over. Subsequent
201218008, respectively; in accordance with      AGENCY:  Consumer Product Safety                 shots may then fire horizontally or at an
Fokker Service Bulletin SBF100–32–074,           Commission.
dated July 21, 1993, and Dowty Aerospace
                                                                                                  angle and hit the operator or spectators.
Hydraulics Service Bulletin F100–32–506,         ACTION: Final rule.                              The Commission is aware of two deaths
dated June 9, 1993. Accomplishment of this                                                        to spectators involving multiple-tube
replacement constitutes terminating action
                                                 SUMMARY:    The Commission is amending           devices that occurred in this manner.
for the repetitive inspections required by       its fireworks regulations under the              Both of these incidents involved devices
paragraph (a) of this AD.                        Federal Hazardous Substances Act. This           with tubes larger than 1.5 inches in
  (c) As of the effective date of this AD, no    final rule will require that large               diameter.
person shall install on any airplane a MLG       multiple-tube fireworks devices that                The Commission regulates fireworks
downlock actuator having P/N 201218001,          have any tube with an inner diameter of          devices under the Federal Hazardous
201218002, 201218003, or 201218004, any          1.5 inches (3.8 cm) or greater pass a
serial number.                                                                                    Substances Act (‘‘FHSA’’). 15 U.S.C.
                                                 performance test for stability. Under the        1261–1278. Under its current
  (d) An alternative method of compliance or
adjustment of the compliance time that
                                                 test, these devices may not tip over             regulations, the Commission has
provides an acceptable level of safety may be    when inclined at an angle of 60 degrees          declared certain fireworks devices to be
used if approved by the Manager,                 from the horizontal. This requirement is         ‘‘banned hazardous substances.’’ 16 CFR
Standardization Branch, ANM–113, FAA,            intended to reduce the risk of injury            1500.17(a) (3), (8) and (9). Other
Transport Airplane Directorate. Operators        posed when these fireworks devices tip           fireworks devices must meet specific
shall submit their requests through an           over during firing. If they tip over,            requirements to avoid being classified as
appropriate FAA Principal Maintenance            subsequent tubes may discharge in the
Inspector, who may add comments and then
                                                                                                  banned hazardous substances. 16 CFR
                                                 direction of spectators or others in the         Part 1507. Commission regulations also
send it to the Manager, Standardization          vicinity.
Branch, ANM–113.                                                                                  prescribe specific warnings required on
                                                 DATES: The rule will take effect on              various legal fireworks devices, 16 CFR
  Note 2: Information concerning the
existence of approved alternative methods of     March 26, 1997, and will apply to                1500.14(b)(7), and designate the size
compliance with this AD, if any, may be          multiple-tube fireworks devices in               and location of these warnings. 16 CFR
obtained from the Standardization Branch,        which any tube has an inner diameter             1500.121.
ANM–113.                                         of 1.5 inches or greater and that first             On July 1, 1994, the Commission
  (e) Special flight permits may be issued in    enter interstate commerce or are                 issued an advance notice of proposed
accordance with sections 21.197 and 21.199       imported on or after that date.                  rulemaking (‘‘ANPR’’) discussing the
                Federal Register / Vol. 61, No. 59 / Tuesday, March 26, 1996 / Rules and Regulations                                              13085

hazard presented by multiple-tube                         household use which, notwithstanding         specifies with particularity the
devices of all sizes, but noted that more                 the precautionary labeling that is or may    provision(s) of the regulation to which
severe incidents have occurred with                       be required by the FHSA, presents such       the objection is directed; (4) each
large devices. 59 FR 33928. The ANPR                      a hazard that keeping the substance out      objection on which a hearing is
used 1 inch (2.54 cm) as the cutoff                       of interstate commerce is the only           requested specifically requests a
between small and large devices. The                      adequate way to protect the public           hearing; and (5) each objection for
ANPR explained that the Commission                        health and safety. Id. at 1261(q)(1)(B). A   which a hearing is requested includes a
was considering the following                             proceeding to classify a substance as a      detailed description of the basis for the
regulatory alternatives: (1) ban all                      banned hazardous substance under             objection and the factual information or
multiple-tube devices; (2) ban multiple-                  section 2(q)(1) of the FHSA is governed      analysis in support thereof (failure to
tube devices with an inside tube                          by sections 3(f)–(i) of the FHSA, and by     include this information constitutes a
diameter of greater than 1 inch; (3)                      sections 701(e)–(g) of the Federal Food,     waiver of the right to a hearing on that
require additional labeling on all                        Drug, and Cosmetic Act (‘‘FDCA’’), 21        objection). 16 CFR 1502.6.
multiple-tube devices; (4) establish                      U.S.C. 371(e)–(g). See 15 U.S.C.               The Commission will publish a notice
performance or design criteria to modify                  1261(q)(2).                                  in the Federal Register specifying any
these devices; (5) pursue individual                         The July 1, 1994, ANPR was the            parts of the regulation that have been
product recalls; and (6) take no                          required first step to declare the           stayed by the filing of proper objections
mandatory action, but encourage                           specified multiple-tube devices to be        or, if no objections have been filed,
development of a voluntary standard.                      banned hazardous substances under            stating that fact. Id. at § 1502.7. As soon
   On July 5, 1995, the Commission                        section 2(q)(1). See 15 U.S.C. 1262(f).      as practicable, the Commission will
issued a notice of proposed rulemaking                    The proposed rule, published on July 5,      review any objections and hearing
(‘‘NPR’’) in which it proposed a                          1995, continued the regulatory process       requests that have been filed to
performance standard for multiple-tube                    in accordance with 15 U.S.C. 1262(h).        determine whether the regulation
devices with any tube inner diameter of                   To fulfill additional statutory              should be modified or revoked, and
1.5 inches or more. 60 FR 34922. The                      requirements, this notice includes the       whether a hearing is justified. Id. at
Commission found that 1.5 inches is a                     text of the final rule and a final           § 1502.8.
more appropriate measure to distinguish                   regulatory analysis. Id. at 1262(i)(1). As
between large and small devices than is                   required by the FHSA, the Commission         D. The Product
1 inch, and decided not to propose any                    also makes findings here that: (1)              As explained in the proposed rule,
further regulatory requirements for                       compliance with any relevant voluntary       this rulemaking only applies to
smaller devices.1 The proposed                            standard is unlikely to adequately           multiple-tube devices that have any
performance standard provided that all                    reduce the risk of injury, or substantial    tube equal to or greater than 1.5 inches
large multiple-tube devices have a                        compliance by the industry with the          in inner diameter (referred to below as
minimum tip angle greater than 60                         voluntary standard is unlikely; (2) the      ‘‘large devices’’). Large devices were
degrees. With this notice, the                            expected benefits of the regulation bear     first introduced by domestic
Commission issues the performance                         a reasonable relationship to its expected    manufacturers around 1986. Generally,
standard as a final rule.                                 costs; and (3) the regulation imposes the    they consist of three or more tubes
                                                          least burdensome requirement that            grouped together, sometimes on a
B. Statutory Authority
                                                          would adequately reduce the risk of          wooden base, and fused in a series to
   This proceeding is conducted under                     injury. Id. at 1262(i)(2).                   fire sequentially. Bases, where used,
the FHSA. 15 U.S.C. 1261–1278.                                                                         come in a variety of sizes. The devices
Fireworks are ‘‘hazardous substances’’                    C. Filing Objections Under Section
                                                          701(e) of the FDCA                           fire aerial shells, comets, or other effects
within the meaning of section 2(f)(1)(A)                                                               from the tubes, producing visual and
of the FHSA because they are flammable                       The procedures established under          audible effects. These devices are among
or combustible substances, or generate                    section 701(e) of the FDCA also govern       the largest fireworks available to
pressure through decomposition, heat,                     this rulemaking. 15 U.S.C. 1261(q)(2).       consumers. [13] 2
or other means, and ‘‘may cause                           These procedures provide that once the          The tubes may be individually labeled
substantial personal injury or                            Commission issues a final rule, persons      or have a single label surrounding them.
substantial illness during or as a                        who would be adversely affected by the       Commission regulations require that all
proximate result of any customary or                      rule have 30 days in which to file           multiple-tube devices display the
reasonably foreseeable handling or use                    objections with the Commission stating       following conspicuous label:
* * *.’’ 15 U.S.C. 1261(f)(1)(A).                         the grounds therefor, and to request a
   Under section 2(q)(1)(B) of the FHSA,                  public hearing on those objections. 21       Warning (or Caution) Emits Showers of
the Commission may classify as a                                                                       Sparks (or Shoots Flaming Balls, if More
                                                          U.S.C. 371(e). If objections are filed, a    Descriptive)
‘‘banned hazardous substance’’ any                        hearing to receive evidence concerning
hazardous substance intended for                          the objections would be held. The            Use only under [close] adult supervision.3
                                                                                                       For outdoor use only.
                                                          presiding officer would then issue an        Place on a hard smooth surface (or place
   1 The Commission concluded that additional
                                                          order, based upon substantial evidence.        upright on level ground, if more
work would be needed to develop a standard that
adequately addressed the tip-over hazard with
                                                          Id. The Commission’s procedural rules          descriptive).
small (less than 1.5 inch diameter) multiple-tube         at 16 CFR Part 1502 would apply to           Do not hold in hand.
devices. For example, the Commission would need           such a hearing.                              Light fuse and get away.
to test small devices to determine if the 60-degree          Any objections and requests for a
tip angle is the proper criterion for this size device.                                                16 CFR 1500.14(b)(7)(ix).
Further, smaller devices are likely to produce less
                                                          hearing must be filed with the                  The National Fireworks Association
force on impact, and may be less likely to cause          Commission’s Office of the Secretary.        (‘‘NFA’’) reports that retail sales of large
fatal injuries. Because not many small devices are        They will be accepted for filing if they     multiple-tube devices are between $24
marketed and the known incidents involve large            meet the following conditions: (1) they
devices, a performance standard for small multiple-
tube devices may not be necessary. Accordingly, the
                                                          are submitted within the 30-day period          2 Numbers in brackets refer to documents listed

Commission decided to apply the stability criterion       specified; (2) each objection is             at the end of this notice.
only to large devices.                                    separately numbered; (3) each objection         3 The word ‘‘close’’ is optional.
13086                 Federal Register / Vol. 61, No. 59 / Tuesday, March 26, 1996 / Rules and Regulations

and $36 million annually, with an                                             that extended about one foot over the                                         a dynamic stability test that could
estimated 400,000 to 700,000 units sold                                       end of a boat dock. He placed a 2x4                                           provide a reliable performance standard
per year. Prices range from $30 to $130                                       block of wood under the end of the                                            for multiple-tube devices. The staff’s
per unit, with most devices in the $50                                        board so that the device would shoot                                          objective was to develop a test that
to $60 range. The NFA also reports that                                       out over the lake. After lighting the                                         could reliably distinguish between large
domestic devices account for about 75                                         device, he walked toward the shore and                                        multiple-tube devices that are
percent of the market by dollar volume                                        noticed that the device had tipped over                                       dangerously unstable and those that do
and somewhat less by unit sales.                                              after the third shot. The fourth shell                                        not present an unreasonable tip-over
Imported devices are manufactured                                             discharged horizontally and struck his                                        risk. The staff attempted to identify a
primarily in China, and go through                                            mother in the temple and eye. She died                                        test surface that would simulate grass
several wholesalers before reaching the                                       the next morning. [2, Tab A]                                                  (the surface believed to be commonly
retail vendor. [13] Some devices have                                            CPSC’s compliance testing indicates                                        used for fireworks displays), and that
tubes that are imported from China and                                        that the tip-over risk evidenced by these                                     would produce consistent results in
then are inserted into larger tubes and                                       two incidents continues to exist. In                                          repeated tests.
assembled with bases in the United                                            fiscal year 1994, all 24 samples of                                              To accomplish this goal, the
States. CPSC considers such devices to                                        imported devices tested for the                                               Commission had to identify a surface on
be imported.                                                                  Commission’s routine compliance                                               which the devices would consistently
                                                                              program, and 1 of 8 samples of domestic                                       tip over or remain upright in a manner
E. Risk of Injury                                                             devices, tipped over while functioning.                                       corresponding to how the devices
   The devices fire sequentially, and                                         In fiscal year 1995, 22 of 27 imported                                        perform on grass. If the tip-over rate was
under some conditions the force from                                          samples and 1 of 5 domestic samples                                           substantially greater on the test surface
one shot can tip the device over, causing                                     tipped over. [19]                                                             than on grass, the standard might be too
it to fall into a horizontal position. A                                                                                                                    stringent, causing unnecessary changes
                                                                              F. Commission Tests to Develop a
subsequent shot can discharge as the                                                                                                                        to reasonably safe products. If the tip-
                                                                              Standard
device is falling or when it is horizontal.                                                                                                                 over rate was substantially lower on the
When this occurs, there is a risk that                                        1. Testing Prior to the ANPR                                                  test surface than on grass, the standard
one of the projectiles may strike the                                            After the first fatality, several                                          might not adequately protect
operator of the device or spectators and                                      domestic manufacturers of large                                               consumers.
cause serious injury, or even death.                                          multiple-tube devices began developing                                           As explained in detail in the Federal
   The Commission is aware of two                                             a test for the potential of these devices                                     Register notice that published the
deaths involving large multiple-tube                                          to tip over while functioning. The test                                       proposed rule, the staff’s testing did not
devices. In both incidents, the device                                        used a 2-inch (5 cm) thick block of                                           yield sufficiently reliable results to
tipped over while functioning. A                                              medium-density (2 pounds per cubic                                            propose a dynamic standard. 60 FR
projectile then fired horizontally from                                       foot or 0.032g/cm3) polyurethane                                              34922, 34924. The staff tested devices
the device and struck the victim. In each                                     upholstery foam to simulate uneven                                            on several types of foam. First it tested
case, the victim was a spectator.                                             surfaces. When placed on this surface,                                        with 2-inch thick foams of three
   The first fatality occurred in July of                                     if a device tipped over while                                                 different densities. This thickness was
1991. A 3-year-old boy was standing                                           functioning, it was deemed too unstable.                                      chosen, in part, because the AFSL
between his father’s legs approximately                                          The American Fireworks Standards                                           standard specifies 2-inch thick medium-
40 feet from an area where fireworks                                          Laboratory (‘‘AFSL’’) then began work to                                      density foam. However, the tip-over
were being set off at a family reunion.                                       revise its standard for these devices to                                      rates with all three densities of two-inch
The device had been placed on concrete                                        incorporate such a dynamic stability                                          thick foam in this initial test were
blocks. The device tipped over after the                                      test. AFSL issued an interim revised                                          significantly greater than with grass (39
third shot, and the fourth shell fired                                        voluntary standard in January 1993 and                                        to 50 tip-overs out of 50 devices on foam
horizontally in the direction of the boy,                                     adopted it without changes on                                                 compared with 4 out of 50 on grass).
striking him in the left ear. He died the                                     September 5, 1995. The Commission                                             The staff then tested three high-density
next morning. [2, Tab A]                                                      also collected samples of large multiple-                                     foams of smaller thicknesses (0.75, 1.0,
   The second fatality occurred in July of                                    tube devices and tested them for tip-                                         and 1.5 inches), hoping to better match
1992. The victim, a 65-year-old                                               over using the industry’s dynamic                                             the tip-over rates on grass. [6, 8]
grandmother, was sitting at the end of                                        stability test. [1 and 14]                                                    However, none of the these three foams
a picnic table watching a family                                                                                                                            agreed consistently with grass for all
fireworks display approximately 40 feet                                       2. CPSC’s Dynamic Stability Testing                                           three devices tested. The results of this
away. Her son placed a large multiple-                                           After issuing the ANPR, the                                                phase of testing are summarized in
tube device on a piece of wafer board                                         Commission staff attempted to develop                                         Table 1.

   TABLE 1.—PHASE I—INCIDENCE AND PERCENTAGE OF TIP-OVER WITH LARGE MULTIPLE-TUBE DEVICES ON GRASS OR
                               HIGH DENSITY POLYURETHANE UPHOLSTERY FOAM
                                                                                                                                                                                Polyurethane foam
                                                                          Device                                                                                    Grass    0.75     1.0 inch   1.5 inch
                                                                                                                                                                             inch

1 ...............................................................................................................................................................     4/50     4/50    14/50*       40/50*
                                                                                                                                                                       8%       8%       28%          80%
2a ..............................................................................................................................................................    32/50    9/50*     25/50       43/50*
                                                                                                                                                                      64%      18%       50%          86%
3a ..............................................................................................................................................................    27/50    2/50*     3/50*        7/50*
                     Federal Register / Vol. 61, No. 59 / Tuesday, March 26, 1996 / Rules and Regulations                                               13087

   TABLE 1.—PHASE I—INCIDENCE AND PERCENTAGE OF TIP-OVER WITH LARGE MULTIPLE-TUBE DEVICES ON GRASS OR
                         HIGH DENSITY POLYURETHANE UPHOLSTERY FOAM—Continued
                                                                                                                                      Polyurethane foam
                                                            Device                                                   Grass         0.75     1.0 inch     1.5 inch
                                                                                                                                   inch

                                                                                                                         54%          4%          6%         14%
   * Significantly different from grass, P<0.05.
   a Device modified to increase tip-over rate.




   Of the three foams, 1-inch foam                           grass. [6, 8] These tests showed a highly       TABLE 3.—STATIC TIP-OVER RESIST-
appeared to offer the best overall                           significant ‘‘interaction’’ between the           ANCE AND DYNAMIC TIP-OVER RATE
relationship to grass, even though it                        device and test surface, so that one              OF LARGE MULTIPLE-TUBE DEVICES
produced inconsistent results. [6, 8]                        could not accurately predict, based on a
Therefore, the staff continued testing                       device’s performance on foam, how the                                Tip-over rate on
with this foam.                                              device would behave on grass. An                Minimum tip               grass
   In phase II of the Commission’s                                                                            angle (de-                                 Device
                                                             accurate test is needed to avoid                   grees)                        Inci-
testing, six additional devices were                         unwarranted market disruption and,                                  Percent     dence
tested on grass and on 1.0-inch thick                        more importantly, because a tip-over
high density foam. The results were                          can lead to a fatality.                         35, 42 b ......         54        27/50           3a
then combined with the results from                                                                          37 ..............       64        32/50           2a
phase I. Once again, however, there was                      3. The Tip-Angle Test                           37 ..............       20        10/50            6
not consistent agreement between the                                                                         37 ..............        8         4/50            1
tip-over rates on foam and on grass (see                        Since the Commission’s testing on            40 ..............       60        30/50           4a
                                                             foam did not yield a reliable dynamic           61 ..............        0         0/90            5
Table 2).                                                                                                    64 ..............        0         0/50            7
                                                             test, the staff looked to the physical
                                                                                                             65 ..............        2.5       1/40            4
TABLE 2.—PHASE II—INCIDENCE AND                              properties of large multiple-tube devices       68 ..............        0         0/40            2
  PERCENTAGE OF TIP-OVER WITH                                to develop a static test. The staff             69 ..............        0         0/50            9
  LARGE MULTIPLE-TUBE DEVICES ON                             measured the dimensions, mass, and              70 ..............        0         0/40            3
                                                             static tip-over resistance (‘‘tip angle’’) of   78, 80 b ......          0         0/90            8
  GRASS OR 1.0-INCH HIGH DENSITY
                                                             all the devices tested. The angle at              a Device    modified to increase tip-over rate.
  POLYURETHANE UPHOLSTERY FOAM
                                                             which a device will first tip over                b Different  samples of same device.
             Device                      Grass    Foam       depends on its base-height ratio, mass,            The staff also tested several large
                                                             and center of gravity. A device’s               devices other than those it had
1 a ..................................     4/50   14/50 *    dynamic stability—its ability to remain         examined when considering a dynamic
                                            8%      28%      upright when fired—depends on its tip           test. One device was a modified form of
2 b ..................................    32/50    25/50     angle and other factors, such as its lift       device 1, that originally had no base.
                                           64%      50%
                                                             force, the firing order, and the time           The staff glued a 12-inch (30.5-cm)
3 b ..................................    27/50    3/50 *
                                           54%       6%      between firings. The staff found that tip       square particleboard base to the device.
4 b ..................................    30/50    36/50     angle could predict whether a device            With this modification, the tip angle
                                           60%      72%      would tip over while functioning and            increased from 37 degrees to 68 degrees.
5 ....................................     0/90     0/50     also be sufficiently sensitive for routine      The tip-over incidence on grass also
                                            0%       0%      compliance testing. [9]                         decreased, from 4/50 to 0/50. This
6 a ..................................    10/50   25/50 *                                                    additional test demonstrates that a
                                           20%      50%         The staff measured the tip angle of
                                                                                                             device’s stability can be improved by
7 ....................................     0/50     0/50     devices by placing one edge of the
                                                                                                             adding a base. [9]
                                            0%       0%      device against a mechanical stop                   The second additional device that the
8 ....................................     0/90     0/50     approximately 1⁄16-inch high (to prevent
                                            0%       0%                                                      staff tested, an imported one, had a
                                                             sliding) at the edge of a horizontal            square plastic base. The tip angle of this
9 ....................................     0/50     0/50
                                            0%       0%
                                                             hinged platform. The platform was               device ranged from 54 to 55 degrees
                                                             slowly raised from the horizontal until         (based on measurements of four
   * Significantly different from grass, P<0.05.             the device tipped over. The tip angle           individual samples), and it did not tip
   a Device has no base.
   b Device modified to increase tip-over rate.              was considered to be the angle at which         over in 50 dynamic tests on grass. [16] 4
                                                             the device first tips over. The staff              None of the seven devices originally
   The staff concluded that the dynamic                      repeated the test for each edge of the          tested had tip angles between 43 and 61
stability test it attempted to develop                       device to determine its minimum tip             degrees. Therefore, the staff modified
could not reasonably form the basis for                      angle. In this manner, the staff measured       the base of a device that had a large
a standard addressing the tip-over                           the tip angle for the nine large devices        particleboard base in order to obtain a
hazard with large multiple-tube devices.                     used in the dynamic tests. The staff then       tip angle near 50 degrees. The staff
Particularly problematic was the                             compared these measurements and the
dynamic test’s inconsistency. There                                                                            4 The staff had previously tested this type of
                                                             results of the dynamic tests to determine
were two cases (devices 1 and 6) in                                                                          device (tip angle: 52–55 degrees and tip-over rate:
                                                             whether there was a relationship                2/40), but the bases of some of the devices in the
which foam significantly overpredicted
                                                             between the minimum tip angle of a              earlier test were cracked. Therefore, the
the tip-over rate with grass. In another                                                                     Commission does not consider the earlier tests to
case (device 3) foam significantly                           device and its dynamic stability on grass
                                                                                                             be reliable and has not considered them in
underpredicted the tip-over rate with                        (see Table 3). [9]                              determining an appropriate tip angle. [10 and 11]
13088                Federal Register / Vol. 61, No. 59 / Tuesday, March 26, 1996 / Rules and Regulations

trimmed 21⁄16 inches off each of the two             measurements of eight individual                 over rates of the three additional devices
long edges of the base. The minimum                  samples). This modified device tipped            that the staff tested.
tip angle of the device then ranged from             over in 33 out of 51 tests on grass. [16]
50 to 51 degrees (based on                           Table 4 shows the tip angles and tip-

       TABLE 4.—STATIC TIP-OVER RESISTANCE AND DYNAMIC TIP-OVER RATE OF ADDITIONAL LARGE MULTIPLE-TUBE
                                                  DEVICES a
Minimum tip            Tip-over rate on grass
 angle (de-                                                                              Description of device
   grees)              Percent      Incidence

50–51 b .......               65         33/51   Four-tube device with base. Base trimmed to obtain 50 degree tip angle.
54–55 b .......                0          0/50   Seven-tube device with plastic base.
68 ...............             0          0/50   Seven-tube device. Same as device 1, but with added 12 inch base.
  a Does    not include devices that the staff considered to present inconclusive results.
  bRange     of values for replicate samples.


   The Commission proposed and now                   tested tipped in actual firing. As                  One group of commenters stated that
issues in final a standard requiring that            explained below in Section G of this             in their evaluation of injuries recorded
large multiple-tube devices must have a              notice, this limited testing does not            in the state of Indiana, multiple-tube
minimum tip angle above 60 degrees.                  show that a requirement for a tip angle          devices and other consumer fireworks
The Commission’s data indicate that                  above 60 degrees is too stringent a              either have not tipped over or have
substantially all of the devices                     measure of whether a multiple-tube               caused few or no injuries.
measuring a tip angle above 60 degrees               device is unlikely to tip over in use.              Response: Mine and shell devices
did not tip over while functioning on                                                                 (both single and multiple shot) are more
                                                     G. Comments Responding to the
grass. Among such devices, there was                                                                  powerful than most consumer fireworks.
                                                     Proposed Rule
only one tip-over in 450 tests. On the                                                                Although the number of deaths and
other hand, devices with tip angles                     The Commission received eight                 injuries associated with mine and shell
below 60 degrees had tip-over rates on               comments in response to the proposed             devices is relatively low, the severity of
grass as high as 65 percent. Among all               rule. Some commenters stated that they           injuries is greater than with other
devices tested with tip angles below 60              support the proposed rule. Significant           devices. Any tip-over of large multiple-
degrees, there were 136 tipovers in 351              issues raised by other comments, and             tube devices has the potential to cause
tests.                                               the Commission’s responses, are                  death or serious injury. Two individuals
   The Commission believes that                      summarized below.                                are known to have been struck by large
requiring devices to have minimum tip                1. Scope of the Rule                             multiple-tube devices. Both suffered
angles above 60 degrees offers an                                                                     fatal injuries.
                                                        AFSL stated that it agreed with the
appropriate margin of safety. The fact                                                                   The yearly unit sales figures for
                                                     Commission’s decision to limit the
that the staff observed no tip-overs with                                                             fireworks are unknown. Therefore, the
                                                     scope of the proposed rule to large
one device that had a tip angle of 54–                                                                Commission cannot accurately assess
                                                     multiple-tube devices and that the
55 degrees might appear to suggest that                                                               any possible trends in exposure to large
                                                     Commission was correct in concluding
a tip angle of 54 degrees would be                                                                    multiple-tube devices. However, the
                                                     that devices with inside diameters
sufficient to protect against the tip-over                                                            cases show that the potential for tip-
                                                     greater than 1 inch, but less than 1.5
hazard. However, a device that had a tip                                                              over and serious injury or death is high
                                                     inches, are not common.
angle of 50–51 degrees had a very high                                                                under certain conditions of foreseeable
incidence of tip-overs (33/51). This                 2. Need for a Rule                               use. Since, as explained below, there is
device had a small base, and would                      Some commenters stated that the               no voluntary standard that can
have been even less stable if, like a                need for a rule had not been                     adequately reduce this risk, the
number of other devices on the market,               demonstrated because the number of               mandatory standard proposed by the
it had no base extending outward from                reported injuries is low or because the          Commission is necessary.
the tube configuration. Thus, it is likely           injuries are caused by consumer misuse.             Comment: The commenters on the
that some devices with 55-degree tip                 As explained below, the Commission               Indiana data also requested that the
angles would tip over when tested on                 disagrees with these contentions.                Commission survey dealers to inquire
grass. Furthermore, the tests were                                                                    about reported cases or instances of a
performed on level ground, and in                    a. Injury Data                                   problem with a multiple-tube mine and
actual use there probably will be                       Comments: One commenter claimed               shell device.
significant variations from level in a               that the number of multiple-tube                    Response: As noted above, a
number of cases. The Commission                      devices has increased, but that the              mandatory standard is appropriate
concludes that in order to adequately                number of injuries associated with them          despite the low number of reported
protect the public, it is appropriate to             has not. The commenter concludes that            deaths and injuries. In view of this,
require that the minimum tip angle be                the small number of injuries and deaths          there is no need to perform the
above 60 degrees.                                    associated with multiple-tube devices or         requested survey.
   AFSL submitted comments on the                    Class C fireworks does not justify                  Comment: AFSL contends that the
NPR that included results from its                   further regulation. This commenter also          lack of any known serious injury
testing of 43 units (13 different devices).          claimed that multiple-tube fireworks             attributed to large multiple-tube devices
AFSL reported that 35 percent of the                 devices are no different from other              since the adoption of the AFSL standard
units it tested met a 60-degree tip-angle            fireworks with respect to the potential          in 1993 supports their view that the
test and that none of the devices it                 for injury.                                      voluntary standard is adequate.
            Federal Register / Vol. 61, No. 59 / Tuesday, March 26, 1996 / Rules and Regulations                               13089

   Response: These devices had been on       of Shells and Mines (the major two             conditions on grass. In fact, 1 of the 450
the market for 6 years by the time the       types of devices included in the this          devices tested by the Commission with
two known deaths occurred. Thus, the         rulemaking), the report states that ‘‘little   a tip angle over 60 degrees did tip over
absence of any known deaths since 1993       can be said to characterize this category      when tested on grass. Increasing the
is not statistically significant. The        of fireworks due to the small sample           stringency of the static test to address
adequacy of AFSL’s standard, and the         size (five investigations). However, it        such hypothetical ‘‘outliers’’ would
extent to which it is adopted by             appeared that the flight path of the           make the requirement unduly restrictive
industry, are discussed below under the      projectile, particularly when tip-over         for the vast majority of designs that are
responses to comments favoring a             was involved, may be a major concern.’’        likely to be marketed. If such easy-to-tip
dynamic test and to comments favoring        [23]                                           designs are marketed in the future, the
the alternative of a voluntary standard.        There may well have been misuse of          Commission will consider action under
                                             the multiple shell devices associated          section 15 of CPSA. 15 U.S.C. 2064.
b. Possible Role of Misuse and Alcohol
                                             with some of the injuries in the study.           Comment: One commenter suggested
in Tip-Over Incidents
                                             However, nothing in the report                 a more lenient tilt test for items that do
   Comment: One commenter alleged            indicated that the injuries could be           not present as much of a tip-over hazard
that any increase in mortality related to    attributed to any such misuse, as              as other available designs. The
these items is the direct result of misuse   opposed to erratic flight path, tip-over,      commenter stated that a more lenient
and the failure of consumers to follow       or other problems with the devices.            tilt test was especially appropriate for
the appropriate instructions. The same                                                      devices with tubes clustered in the
commenter stated that the fireworks          c. Section 15 of the CPSA
                                                                                            center of the base. The commenter
industry cannot be held accountable for         Comment: One commenter stated that          asserted that multiple-tube items with
all injuries, particularly when the item     the proposed rule is unnecessary               tubes clustered close to the center of the
is being blatantly misused. The              because existing regulations and section       base will more likely fail the static test,
commenter also claimed that many             15 of the Consumer Product Safety Act          but be more stable when tested on foam
fireworks-related injuries involve some      (‘‘CPSA’’) are adequate. 15 U.S.C. 2064.       or grass than multiple-tube items with
level of intoxication by the operator and    Section 15 authorizes the Commission           tubes near the edge of the base. The
that the correlation between alcohol use     to take corrective actions regarding           commenter provided sketches to
and injury should be considered in the       product defects that create a substantial      illustrate this point, and also suggested
hazard analysis for any product.             risk of injury to the public. See 16 CFR       a formula to determine the tilt angle
   Response: The incident reports do not     1115.4, 1115.12 (e) and (g).                   based on the geometry of the devices
indicate that the fatalities involving          Response: Existing fireworks                relative to the geometry of the base:
large multiple-tube devices were a result    regulations require only a base-to-height
of misuse. Rather, they appear to have                                                      T=45+15 (d/b), where:
                                             ratio of at least 1:3. 16 CFR 1507.4. All      T is the tip angle in degrees; d is the
occurred during reasonably foreseeable       the devices tested by CPSC that tipped
use of the product. The two fatalities                                                            length of the diagonal of a square
                                             over during actual use complied with                 (or diameter of a circle) enclosing
occurred during family gatherings a day      this standard. Therefore, this
or two after the July 4th holiday.                                                                the tubes; and b is the length of the
                                             requirement does not adequately                      diagonal of a square base or
   The labels on multiple-tube devices       address the tip-over hazard.
generally state that the device should be                                                         diameter of a circular base.
                                                In addition, the ongoing problem of
placed on a solid level surface prior to     numerous section 15 recalls of multiple-          The commenter stated that
firing. In one fatality, concrete blocks     tube devices under section 15 of the           preliminary testing supports the
were stacked in the yard as a staging        CPSA due to tip-over indicates that            formula, but provided no data and
area. In the other fatality, the fireworks   existing regulations are not effective.        admits that further tests are needed.
device had been placed on a board so         Under these circumstances, a                      Response: The staff of the
that it would fire over a lake. The use      performance standard that effectively          Commission’s Engineering Laboratory
of the devices on either of these surfaces   addresses the problem for all devices is       agrees that there are configurations that
appears to indicate concern with the         more appropriate than case-by-case             could provide greater or lesser stability
appropriate placement of the fireworks       investigation and recall.                      for a fired multiple-tube device. The
device prior to firing.                                                                     commenter lists base size, base
   Thus, the known cases involving           3. Selection of the Tip-Over Angle             thickness, lift charge, and size of the
fatalities support the conclusion that the      Comment: One commenter stated that          aerial load as relevant factors affecting
users were attempting to follow the          there is no logical or statistically valid     stability. However, firing order and rate,
instructions for proper placement of the     reason for choosing any particular angle       as well as other variables, also affect the
devices. In addition, there is no            as the minimum angle required by the           dynamic stability of multiple-tube
indication that alcohol was a factor in      static test.                                   devices.
either of the deaths. Accordingly, the          Response: In developing the proposed           The commenter supplied no data on
Commission disagrees with the                rule, the staff considered specifying          which to evaluate the suggested
commenter’s contention that consumer         minimum tip angles as low as 45                formula. The Commission has very
misuse or intoxication was the cause of      degrees. However, as noted above, the          limited data on the tip-over
these accidents.                             Commission concluded that, to provide          characteristics of devices with tip angles
   Comment: One commenter claimed            a margin of safety and to address the          in the range of 45 to 60 degrees. As
that, based on a 1992 CPSC study of          likelihood that the devices will not be        explained above, the Commission
hospital emergency-room-treated              used on level ground, the static test          selected the 60-degree tip angle criterion
injuries, ‘‘a major problem with             should require that a device not tip at        based on a device with a tip angle of 50
fireworks injuries were the result of        an angle of 60 degrees.                        to 51 degrees that tipped over a large
consumer misuse.’’                              It is possible that a fireworks device      proportion of the time (33/51) when
   Response: The study cited does not        might be constructed that would not tip        tested dynamically on grass. In addition,
support this proposition for the devices     over in a static test at 60 degrees but        various combinations of the factors that
at issue here. In discussing the category    would tip over under foreseeable               affect tip-over could cause a device with
13090        Federal Register / Vol. 61, No. 59 / Tuesday, March 26, 1996 / Rules and Regulations

a similar configuration to tip over more      devices, rather than devices that are no      operation of multiple-tube devices on
readily than the tested device. The           longer manufactured or available.             grass to be ‘‘reasonably foreseeable.’’
suggested formula does not account for           Comment: Some commenters stated            Further, the resilient and variable nature
these other factors—such as load, firing      that there are devices that are stable in     of grass makes it more likely that a
rate, etc. The Commission’s criterion         actual use even though they do not            device will tip over when fired from a
does account for these factors by             comply with the proposed rule. AFSL           grass surface than from other common
correlating tip angle to dynamic tip-over     submitted test data to support this view.     supporting surfaces, such as dirt or
on grass.                                     These commenters asserted that the            pavement. Thus, an adequate test
   The commenter’s formula is intended        proposed rule unfairly penalizes such         should address the hazard of tip-over of
to be applied to devices with a square        devices.                                      these devices when fired while sitting
or circular base. The device with the            Response: As explained above, AFSL         on grass as well as on more forgiving
50–51 degree tip angle that had a high        presented limited test data on 12 large       surfaces.
tip-over rate had a rectangular base. It is   multiple-tube devices (one device                A substantial problem with dynamic
not clear how, if at all, the commenter       included in AFSL’s testing was actually       testing of these devices is that grass is
would apply the formula in this case.         a small device). Seven of these did not       not a reproducible test surface. Even
However, it can be expected that the          meet the 60-degree tip angle, but did not     patches of grass that appear to be
formula will produce tip-angle criteria       tip over in AFSL’s dynamic tests.             identical can react differently to the
ranging between 50 and 60 degrees,               AFSL’s testing was very limited—only       forces produced when a device is fired.
depending on the configuration.               one sample of each device on three               Foams of various characteristics have
Available data do not show that such          surfaces (concrete, 2-inch foam, and          been suggested as suitable test surfaces
criteria would provide an adequate            grass), and one device was not even           for determining whether a device will
margin of safety. Accordingly, the            tested on grass. A single test is not         tip over when fired. AFSL uses 2-inch
Commission is not adopting this               sufficient to establish the dynamic           thick medium-density foam in its tip-
commenter’s suggestion.                       stability of a device. For example, a         over testing.
   Comment: As explained above, the           device that tips over 1 in 10 times may          The staff considered whether foam is
Commission selected the 60-degree             present a serious risk of injury, but there   an adequate surrogate for grass—that is,
criterion based on the performance on         is only a 1-in-10 chance of observing a       whether there is a consistent
grass of a large number of tests of           tip-over in a single test. In CPSC’s tests,   relationship between the tip-over
various large devices. Some comments          the staff tested from 40 to 90 samples of     behaviors on grass and foam for a
questioned the adequacy of this testing.      each device. The Commission cannot            variety of devices. Based on the CPSC’s
One commenter asked why the                   conclude based on AFSL’s limited data         tests, however, there was no consistent
Commission did not test the devices           that the seven devices it tested are stable   relationship between the tip-over rates
that were recalled as a result of failing     when operated on grass.                       measured on grass and foam. In fact, the
the 2-inch foam test and the device                                                         tests suggested that there may be cases
                                              4. Static v. Dynamic Test
known to have been involved in the                                                          where devices that do not tip over when
death of a 3-year-old boy. The same              Introduction. As noted above, the          tested on foam may tip over frequently
commenter suggested that CPSC                 Commission’s requirement involves             on grass.
conduct additional tests comparing the        inclining the device at an angle of 60           The Commission concludes that,
static test to the dynamic test with foam.    degrees while it is prevented from            because of the absence of any suitable
Another commenter questioned why the          sliding by a stop on the inclined             test surface, the use of dynamic testing
Commission did not test a larger              supporting surface. If the device does        for devices, regardless of their tip angle,
sampling of the various multiple-tube         not tip over further at that angle, it        is not presently feasible. However, the
devices, including the W–800 inserts          complies with the requirement. This is        results of any voluntary dynamic tests
with a wooden base and a tube around          a static test; it is affected only by the     by industry may provide valuable
the insert.                                   location of the center of gravity of the      information when considered in
   Response: In developing the proposed       device with respect to the edge of the        conjunction with a device’s tip angle.
standard, the Commission selected             device that is against the stop.              And, as explained above, the
devices that represented a cross section         Comments: A number of commenters           Commission will examine whether
of the devices available at the time and      would prefer a dynamic test, which            devices that tip over when fired despite
that provided a range of tip-over rates.      would involve actually firing the device      passing the 60-degree tip-angle test
The Commission considered design              while it rests on a specified supporting      present a substantial product hazard
characteristics such as base size, firing     surface to see if the device tips over.       under section 15 of the CPSA.
order, internal fuse-burn time, lift          The American Pyrotechnic Association
charge, shell mass, device shape, center      (‘‘APA’’) and AFSL stated that, although      5. Dynamic Variations in Tip-Over
of gravity, and quality of materials and      they support a requirement for static         Potential
construction. This cross-section of           stability, a static requirement is not           Comment: One commenter noted that
devices is sufficient to ensure that the      sufficient by itself to address the tip-      the potential for tip-over from multiple-
test selected by the Commission is            over hazard. These two organizations          tube mine and shell devices is not equal
reasonable.                                   and other commenters stated that, in          among all of the various shapes, sizes,
   Devices that had been previously           addition to a static test, the proposed       and configurations of devices.
recalled—as well as the device involved       rule should require dynamic testing,             Response: The Commission agrees
in the death of the 3-year-old boy—were       either for all large devices or for those     that the potential for dynamic tip-over
not available at the time that the CPSC       with tip angles between 45 and 60             from multiple-tube fireworks devices
conducted its tests. It is expected that      degrees.                                      can differ among the various shapes,
had they been available for testing, they        Response: Under the FHSA,                  sizes, and configurations of devices with
would have been among those devices           manufacturers must consider whether           the same static tip angle. For example,
found to be unstable. However, the            their products pose a hazard during           devices that have larger or heavier bases
Commission believes that it is more           ‘‘reasonably foreseeable handling and         or smaller lift (propellant) charges are
reasonable to test currently available        use.’’ The Commission considers               less likely to tip over. Nevertheless, for
            Federal Register / Vol. 61, No. 59 / Tuesday, March 26, 1996 / Rules and Regulations                               13091

the reasons explained above, the 60-         modified) were 3.6 and 4.7 grams per          static test because it adequately
degree tip-angle test is the best means      tube. The lift charges in devices that did    addresses the hazard and a suitable
available to determine whether a             not tip over ranged from 4.7 to 11.6          dynamic test is not available. That the
multiple-tube device is unreasonably         grams per tube. [6] These results do not      static test is easier and safer to perform
likely to tip over when fired.               support limiting the lift charge. Devices     are additional advantages.
   Comments on specific factors that         with a lift charge greater than 12 grams
may affect tip-over potential are            per tube were not available to the staff.     7. Other Alternatives to the Proposed
discussed below.                                The lift charge is only one of the         Rule
   Comment: One commenter stated that        variables that affect dynamic stability.      a. Additional Labeling
the rate of firing of the projectiles from   Other variables include firing order,
the tubes can affect dynamic stability                                                        Comment: One commenter suggested
                                             firing rate, weight, the configuration of
and that this should be examined.                                                          requiring the warning label on multiple-
                                             the tubes, and base dimensions. Further,
   Response: The Commission agrees                                                         tube devices to include a phrase such
                                             the lift force (or propellant force)—
that the rate of firing—the time between                                                   as, ‘‘PLACE UPRIGHT ON HARD,
                                             rather than the lift charge—relates more
the firing of individual tubes—may           directly to dynamic stability. The lift       SMOOTH LEVEL SURFACE BEFORE
affect the dynamic stability of multiple     force depends on factors in addition to       IGNITING. DO NOT FIRE ON GRASS
devices. A multiple-tube device can          the lift charge, such as the type of          OR OTHER UNSTABLE SURFACE.’’
become less stable as a result of rapid                                                       Response: The Commission’s current
                                             powder and the design of the product.
sequential tube firings. In compliance                                                     labeling requirement for mine and shell
                                             Again, the staff’s data show that the
testing, the Commission considers            dynamic performance of the device is          devices includes the following
whether the firing rate may contribute to    better predicted by a static test.            statement: ‘‘Place on hard smooth
tip-over. The staff has discussed with          It may be possible to construct a          surface (or place upright on level
AFSL the possibility of incorporating        device that will tip over in actual use,      ground, if more descriptive).’’ 16 CFR
into their standard a minimum time           even though it passes the 60-degree           1500.14(a)(7)(ix). Except for the
between the firing of successive tubes.      static stability test. AFSL’s tests suggest   admonition not to fire on grass, the
However, the rate of firing is only one      this may be the case. But, the small          commenter’s suggested label is
of many variables that affect the            number of tests conducted by AFSL             equivalent to the Commission’s current
dynamic stability of multiple-tube           (two devices, one test each) and the          requirement. As to the statement ‘‘do
devices. The 60-degree tip-angle test        mixed results it reported (one device         not fire on grass,’’ it is likely that users
requirement, which takes into account        with 20 grams of lift powder tipped over      will place these devices on whatever
several factors, is the best known way to    on foam while another did not) are not        surface is at the desired location,
address the tip-over hazard.                 adequate to support a mandatory 12-           including grass. Thus, the Commission
   Comment: Several commenters stated        gram limit on the lift charge.                cannot conclude that there would be
that, in addition to the static test, the       Manufacturers, importers, and              significant safety benefits from a label
proposed rule should limit the lift          distributors must see that their products     advising against use on grass.
charge—i.e., the propellant powder           do not pose a substantial product             Furthermore, the longer label statement
weight—to 12 grams per tube. AFSL            hazard. Increasing the lift charge might      suggested by this commenter could
presented test data showing that             increase the tendency of multiple-tube        reduce the extent to which the basic
increasing the lift charge above the 12-     devices to tip over during operation.         message is noticed and read by users.
gram limit may decrease the dynamic          Devices developed in the future that          Although the Commission lacks the
stability of multiple-tube devices. A        exceed 12 grams of lift charge will be        evidence to mandate the ‘‘do not fire on
specially made device (not                   tested by the Commission. Any device          grass’’ statement, and questions its
commercially available), with 20 grams       that tips over while functioning, even        effectiveness, the Commission would
of lift charge per tube, tipped over in      though it complies with the static test,      not object if manufacturers voluntarily
one test on 2-inch foam. A similar           may present a substantial product             supply such a statement after the
device with 12 grams of lift charge did      hazard. As explained above, the               required label.
not tip over in one test on foam.            Commission may take enforcement                  In addressing a product hazard, the
Another specially-made device did not        action in such a case under section 15        most effective approach is to design the
tip over in one test on foam, even           of the CPSA. Thus, although the               hazard out of the product. A warning
though the lift charge was increased to      Commission lacks data to warrant a            does not remove the hazard; it only
20 grams.                                    mandatory limit at this time, the             informs the consumer of the hazard.
   Several commenters asked why the          Commission encourages manufacturers           Some users may read and follow the
CPSC did not study the effects on            and importers to continue compliance          information on a warning label.
stability of the amount of lift charge in    with the voluntary limit of 12 grams of       However, fireworks are frequently used
devices.                                     lift charge per tube since the amount of      at night when it is too dark for the user
   Response: U.S. Department of              lift charge may affect tip-over.              to read a warning label. Fireworks also
Transportation (‘‘DOT’’) regulations                                                       are often used at a party or celebration
permit a maximum of 20 grams of lift         6. Other Advantages of a Static Test          in which users are unlikely to take the
charge per tube. The AFSL voluntary             Comment: The AFSL and the APA              time to read and follow warning labels.
standard limits the lift charge to 12        stated that they favor a static test, as in   And, spectators, like the two victims
grams per tube. The proposed rule did        the proposed standard, because it is          killed by multiple-tube devices that
not separately address lift charge. The      safer to perform than dynamic testing.        tipped over, probably will not have an
DOT mandatory 20-gram upper limit            One commenter stated that it appears          opportunity to read the label.
and AFSL voluntary 12-gram upper             that the Commission proposed a                   Even if consumers read and follow a
limit are unaffected by this rulemaking.     standard based on a static test, in part,     warning label, the device may tip over.
   The staff measured the lift charge in     because it is easier to perform than          In the two death incidents, the fireworks
all the devices that were tested. The lift   dynamic testing.                              devices were placed on hard, smooth
charges in the two devices that tipped          Response: The Commission proposed          surfaces and they still tipped over. The
over on grass (before they were              a mandatory standard based on the             Commission believes that the proposed
13092          Federal Register / Vol. 61, No. 59 / Tuesday, March 26, 1996 / Rules and Regulations

tip-over performance requirement for                 Therefore, the Commission concludes              There is no information to support a
multiple-tube devices will result in less            that the currently available information       conclusion that the rates of compliance
hazardous multiple-tube devices.                     does not support the conclusion that 2-        with the AFSL standard will improve.
                                                     inch foam (or foam in other thicknesses)       The Commission concludes, therefore,
b. Defer to AFSL’s Voluntary Standard
                                                     is a worst-case test surface that is           that there will not likely be substantial
i. Adequacy of the Voluntary Standard                consistently more stringent than grass.        compliance with the AFSL standard.
   Comments: Several commenters                         As regards tip angle, the AFSL
                                                     standard requires a tip angle of only 18       c. A Ban of Large Devices
supported AFSL’s voluntary standard.
One group of commenters stated that                  degrees, whereas CPSC tests show that             The Commission also considered
they would prefer that the Commission                a tip angle of 60 degrees is needed to         whether large multiple-tube devices
allow the industry to adopt a voluntary              reasonably prevent tip-over. The               should be banned entirely.
standard, rather than issue a mandatory              Commission concludes that the AFSL                Comment: The National Fire
standard. Specifically, one commenter                standard’s tip-angle provision does not        Protection Association (‘‘NFPA’’)
referred to AFSL’s standard—i.e., the 2-             adequately address the tip-over hazard         generally has taken the position that
inch foam test—and asserted that foam                with large multiple-tube fireworks             fireworks should be used only by
is a standard, reproducible test surface,            devices.                                       licensed professionals. However, in this
even though it is not an adequate                                                                   case, NFPA agreed with the
                                                     ii. Likelihood of Compliance With the
surrogate for grass. Another commenter                                                              Commission’s conclusion that limiting
                                                     Voluntary Standard
questioned CPSC’s conclusion that the                                                               multiple-tube devices to professionals
                                                        Comment: AFSL commented that a              would not eliminate the tip-over hazard.
AFSL standard did not adequately
                                                     domestic testing program to allow              Some commenters stated that the
address the tip-over hazard. AFSL
                                                     manufacturers to obtain certification for      performance standard is preferable to a
commented that the foam test is
                                                     their products has not been established        total ban of large devices.
intended to simulate a worst-case
                                                     and that the decision to follow the               Response: The Commission agrees
scenario and that, even though the foam
                                                     voluntary standard rests solely with           that a performance standard is the most
test may not be suitable for a mandatory
                                                     individual manufacturers. However,             appropriate option in this case.
standard, it adequately addresses the
                                                     AFSL states that its recent testing of
tip-over hazard.                                                                                    8. Effective Date
   Response: AFSL’s foam test has many               large multiple-tube mine and shell
substantial shortcomings. AFSL does                  devices indicated that products received          Comment: One commenter stated that
not specify the properties of the foam—              from known manufacturers ‘‘appeared            manufacturers need 1 year to redesign
such as compressibility, resiliency, and             to comply with the stability provisions        devices, use up current inventory, order
density—that are essential for a                     of the AFSL standard.’’ According to           new packaging, and obtain Department
reproducible test.5 Neither does AFSL                AFSL, under its China-based testing and        of Transportation (‘‘DOT’’) approval for
specify the environmental conditions,                certification program, all large multiple-     that packaging.
                                                     tube mine and shell devices (with tubes           Response: The Commission proposed
such as temperature and wind speed,
                                                     larger than 1’’ inside diameter) from          an effective date of 6 months after
that may affect the test results, or the
                                                     participating firms are tested for             publication of a final rule. The rule will
number of devices to be tested. All of
                                                     compliance with the voluntary                  apply only to devices first introduced
these parameters must be specified
                                                     standard. Any devices that fail to             into commerce or imported on or after
before the foam test could be considered
                                                     comply are ‘‘withheld from shipment to         that date. The vast majority of fireworks
a standard, reproducible test. And,
                                                     the participating U.S. importer.’’             are ordered by dealers from July to
perhaps most significantly, there is
                                                        Response: Even if using 2-inch thick        December and delivered from December
simply no evidence of a consistent
                                                     medium-density foam were effective,            to June. The Commission expects that
relationship between tip-over rates on
                                                     the Commission concludes that AFSL’s           most of the devices currently not
grass and foam. Thus, a test on foam
                                                     voluntary standard would not                   complying with the standard can be
would not be appropriate even if all the
                                                     adequately reduce the risk of tip-over         modified to meet it—e.g., by adding a
test parameters were specified.
                                                     because it is unlikely that there will be      base. Consequently, any devices still in
   AFSL has never released test results
                                                     substantial industry compliance with           manufacturers’ or importers’ inventories
showing that 2-inch foam is a worst-case
                                                     that standard.                                 on the effective date would not be
surface compared to grass. CPSC has
                                                        The AFSL standard was adopted in            rendered useless.
only limited data from tests of devices
                                                     January 1993. However, the results of             According to the DOT official
on both 2-inch foam and grass. The
                                                     CPSC’s compliance testing indicate that        responsible for enforcing regulations on
Commission’s initial tests showed that
                                                     these devices still tip over. In fiscal year   new packaging, it may take 6 to 12
the 3 different densities of 2-inch foam
                                                     1994, all 24 imported devices tested by        months for firms to obtain DOT
tested had considerably higher tip-over
                                                     CPSC, and 1 of 8 domestic devices,             approval of changes to the devices,
rates than did grass.
                                                     tipped over on either grass or 2-inch          order new packaging, and obtain DOT
   The more extensive tests that the
                                                     thick medium density foam. Of the 32           approval for that packaging. Larger firms
Commission performed on other
                                                     devices tested on the foam, 25 tipped          are likely to be the ones that will need
thickness of foam show that, depending
                                                     over, and 4 of these also tipped over          the full 12-month period, due to the
on the device tested, the tip-over rate on
                                                     when tested on grass. In fiscal year           larger number of models that could be
foam may be greater than, equal to, or
                                                     1995, 22 of 27 imported devices and 1          affected.
less than that on grass. Furthermore, the
                                                     of 5 domestic devices tipped over. Of             Therefore, a number of firms will
Commission’s compliance testing in
                                                     the 32 devices tested that year on 2-inch      need an effective date that is longer than
1995 showed a domestic device that
                                                     medium-density foam, 21 tipped over,           the proposed date of 6 months, and up
tipped over on grass (1 of 5 tested), but
                                                     and 10 tipped over when tested on              to 12 months, following publication of
not on 2-inch medium-density foam.
                                                     grass. If there were substantial               the final rule in the Federal Register.
  5 Although AFSL specifies medium-density foam,     compliance with the AFSL standard,             Accordingly, the Commission is
the definition of ‘‘medium’’ may differ among foam   these high rates of tip-over on foam           extending the effective date to 12
suppliers.                                           would not likely occur.                        months following publication. The final
               Federal Register / Vol. 61, No. 59 / Tuesday, March 26, 1996 / Rules and Regulations                                   13093

rule will thus become effective March                  35 percent of domestic devices will          device to be tested. The test apparatus
26, 1997.                                              comply with the proposed rule.               must be placed on a smooth, hard
   As noted previously, fireworks                                                                   surface that is horizontal, as determined
                                                       b. Cost of Modifying Noncomplying
deliveries are concentrated in the period                                                           by a spirit level or equivalent
                                                       Devices
December through June. The effective                                                                instrument. The mechanical stop must
                                                          Comment: One commenter argued             be 1⁄16 inch (1.6 mm) in height and
date falls within that period. Therefore,              that retail prices of the modified devices
it is likely that some but not all large                                                            perpendicular to the inclined plane. The
                                                       would increase by 35 to 45 percent. The      stop must be positioned parallel to the
multiple-tube devices sold at retail for               commenter did not present any basis for
the 1997 summer season will comply                                                                  bottom edge of the inclined plane in
                                                       this estimate.                               such a way that no portion of the device
with the tip-angle requirement.                           Response: The Commission’s cost           to be tested or its base touches the
9. The Costs of the Regulation                         estimates are based on an average per-       horizontal surface.
                                                       unit increase of 25–30 percent. These           Any device that cannot be tested
a. Portion of Existing Large Devices To                estimates were provided by the National      using the apparatus described above, or
Be Changed by the Rule                                 Fireworks Association (NFA). The NFA         that presents a tip-over hazard while
   Comment: AFSL presented test data                   is the fireworks trade association with      functioning even though it complies
with large multiple-tube mine and shell                the largest number of members, and the       with the static test, may be examined to
devices from what it claims are all five               only one with a large contingent of          determine whether it presents a
domestic manufacturers.6 Based on                      retailers. The NFA estimate is the best      ‘‘substantial product hazard’’ under
these tests, AFSL claimed that only 35                 one available to the Commission’s staff.     section 15 of the CPSA. 15 U.S.C. 2064.
percent of domestic devices complied                   10. Environmental Impact                     If the Commission determines that a
with the proposed rule (60-degree tilt                                                              substantial product hazard exists,
test), although all were stable in                        Comment: One commenter stated that        appropriate enforcement action may be
dynamic testing. The Commission’s                      there would be a significant                 taken. See 15 U.S.C. 2064.
preliminary regulatory analysis assumed                environmental impact due to increased
                                                       rubbish from the larger bases.               J. Regulatory Analysis [22]
that almost all domestic devices would
                                                          Response: The rule is expected to
comply with the proposed rule.                                                                      1. Introduction
                                                       result in modifications to devices
   Response: AFSL’s results contrast                   representing sales of 100,000-to-175,000        The Commission is amending the
with CPSC staff’s tests, in which all                  items per year. [21] Consequently, the       FHSA fireworks regulations to establish
domestic large multiple-tube devices                   rule will result in a similar number of      new stability requirements for multiple-
met the proposed 60-degree tip-angle                   larger or new bases, and added               tube fireworks devices that have any
test. Several aspects of AFSL’s testing                packaging, being discarded. Most of          tube with an inside tube diameter of 1.5
lead the Commission to question AFSL’s                 these devices are expected to be thrown      inches or greater. These devices present
conclusions about the anticipated level                away after use with other residential        a tip-over hazard when firing that has
of compliance with the 60-degree tip-                  trash (as is currently being done). The      resulted in an average of about one
angle test.                                            added costs of disposing of the bases        death every 3 years over the period for
   AFSL presented test results for 13                  and packaging will be negligible. The        which data are available.
models of multiple-tube mine and shell                 environmental impact of disposing of            The amendment will reduce the risk
devices. Device number 7 had an inside                 the relatively small amount of               of injury and death from tip-overs.
tube diameter of only 1.25 inches, and                 additional material required to provide      Devices that do not remain stable at an
is not subject to the rule (which applies              a base, or increase its size, will be        angle 60 degrees or below in prescribed
only to devices with tube inner                        negligible. The additional cost to           tests will be banned hazardous
diameters measuring 1.5 inches or                      landfills of handling the extra rubbish      substances under the amendment. It is
more). The devices numbered 1, 2, 3, 12,               also will be negligible.                     expected that devices that do not
and 13 are essentially imported devices                                                             currently pass this test will be able to
or ‘‘inserts’’ to which wooden bases                   H. The Standard                              comply by adding or enlarging a base.
have been added. Based on AFSL’s test                     The Commission is issuing a standard         In the Federal Register of July 1,
data, 5 of 7 (71 percent) large domestic               requiring that multiple-tube devices that    1994, the Commission issued an ANPR
multiple-tube devices will satisfy the                 have any tube measuring 1.5 inches (3.8      to develop a mandatory requirement to
rule. The only two domestic devices                    cm) or more in inner diameter must           address the tip-over hazard. Although
tested by AFSL that would fail to                      have a minimum tip angle greater than        the ANPR addressed both large and
comply with the rule are devices 8 and                 60 degrees. Large multiple-tube devices      small multiple-tube fireworks devices,
11, since their tip angles were about 57               that do not meet the tip-angle               the notice of proposed rulemaking
degrees. Both are new devices that were                requirement will be banned. The tip          (NPR) published July 5, 1995, covered
not available at the time that the CPSC                angle may be measured by placing the         only large multiple-tube devices.
tests were conducted. Combining                        device on a smooth, flat surface inclined       To issue this amendment under the
AFSL’s test data with CPSC’s, 11 of 13                 at 60 degrees from the horizontal. The       FHSA, the Commission is required to
(85 percent) of large domestic multiple-               device must not tip over at the 60-          publish preliminary and final regulatory
tube devices would comply with the                     degree angle when tested at any edge of      analyses containing a discussion of
rule.7 Therefore, the Commission                       the device.                                  various factors. These factors include a
disagrees with AFSL’s claim that only                     An apparatus or ‘‘testing block’’ for     description of the potential benefits and
                                                       testing multiple-tube devices is             potential costs of the rule, including any
  6 Although AFSL stated that all the devices tested   illustrated in Figure 1 to § 1507.12. The    benefits and costs that cannot be
were ‘‘domestically manufactured,’’ some contained     height and width of the inclined plane       quantified in monetary terms, and an
imported inserts. CPSC classifies these devices as     (not including the portion of the plane      identification of those most likely to
imports.
  7 It appears that one device was tested by both      below the mechanical stop) must be at        receive the benefits or bear the costs.
AFSL and CPSC. In combining the data, this device      least 1 inch (2.54 cm) greater than the      The FHSA also requires a description of
was counted only once.                                 largest dimension of the base of the         any reasonable alternatives to the rule,
13094       Federal Register / Vol. 61, No. 59 / Tuesday, March 26, 1996 / Rules and Regulations

together with a summary description of       to the Commission’s tests, devices that              devices are expected to maintain current
their costs and benefits, and a brief        do not tip over at this angle are not                sales levels and pass on costs to
explanation of why such alternatives         likely to tip while functioning. Thus,               consumers, no significant adverse
were not chosen.                             the Commission believes that devices                 impact is expected in the suppliers’
                                             meeting this requirement are not likely              competitive positions.
2. Background                                                                                        If the changes eliminate all deaths
                                             to fall over while firing, thereby
   Large multiple-tube devices became        minimizing this risk of death and injury             associated with these devices, the cost
popular in the mid-1980’s. These             to operators or spectators. The                      per life saved would be between about
devices typically consist of three or        avoidance of these deaths and injuries               $4.5 and $8 million. This is within the
more tubes fused in a series to fire         represents the potential societal benefits           range of statistical values of life
sequentially; these tubes are grouped        of the proposed amendments.                          suggested in the recent professional
together, sometimes on top of a wooden          The costs per life saved of this rule             literature. [22]
base. The devices are designed to fire       are estimated to be between $4.5 and $8
aerial shells, comets, or mines                                                                   4. Alternatives to the Rule
                                             million. These costs are within the
producing visual and audible effects         range of statistical values of life                     The Commission considered several
from non-reloadable tubes. They are          suggested in the recent professional                 alternatives to the performance standard
among the largest fireworks available for    literature. [22] Given that no significant           issued below, including a product ban,
direct consumer use.                         substitution of more hazardous products              deferral to the voluntary standard, and
   The National Fireworks Association        is expected, no offsetting reduction in              additional labeling.
(NFA) reports that retail sales of these     these safety benefits is anticipated. To                a. Product Ban. The expected benefits
devices are between $24 million and          the extent that nonfatal injuries are                to society of banning all large multiple-
$36 million annually, with an estimated      avoided, the potential benefits would be             tube devices would be one life saved
400,000 to 700,000 units sold per year.      somewhat higher.                                     every 3 years, the same as the potential
Prices range from $30 to $130 per unit,         b. Potential Costs. Most devices that             benefits of the amendments. However,
with most devices priced in the $50–$60      already have bases will not have to be               costs to society of a ban (as opposed to
range. The NFA reports that domestic         modified to meet the amendments. The                 the performance standard) in terms of
devices account for about 75 percent of      devices that are not expected to need to             lost utility would be greater, because
the market by dollar value, and              be modified are generally manufactured               under a ban consumers would not be
somewhat less by unit sales. There may       domestically and, according to the NFA,              able to use large multiple-tube devices.
be hundreds of firms engaged in              account for at least 75 percent of the                  Large multiple-tube devices are
manufacturing, importing, and                retail dollar volume of the market. It is            unique with respect to the height and
distributing these fireworks. Imported       expected that most of the remaining                  duration of their displays. There are no
devices are primarily manufactured in        devices (mainly imports) will be                     close substitutes for the product. Single-
China, and may go through several            modified to meet the amendments, with                tube devices are available, but they do
wholesalers before reaching the retail       a resulting increase in cost of between              not provide the rapid sequential display
vendor.                                      25 to 30 percent per modified unit.8                 of multiple-tube devices. The lost utility
   To comply with the standard, devices         In its comments responding to the                 to consumers of not being able to use
that do not have a base would have to        NPR, AFSL reported that for the 43                   large multiple-tube devices cannot be
add one, and some currently used bases       units it examined, 65 percent did not                measured precisely. However, the fact
would have to be enlarged. However,          meet the 60-degree tip-angle test. The               that consumers are willing to spend
consumers are not likely to perceive any     Commission is not using AFSL’s                       $24-$36 million annually to buy these
significant loss of enjoyment as a result.   estimate of 35 percent compliance with               devices suggests that the lost utility
While some devices may be                    the tip-angle test, since the                        could be substantial.
discontinued, loss of consumer choice        Commission’s staff raised several                       The Commission believes that a ban
would be minimized by the availability       questions about the accuracy of AFSL’s               of all large multiple-tube devices is not
of devices that do comply with the           estimate. Thus, the Commission                       necessary, because a performance
standard. Smaller (less than 1.5 inch ID)    continues to use the industry-wide data              standard will likely achieve similar
multiple-tube devices are not covered        provided by NFA to estimate the portion              benefits with lower costs.
by the rule and would continue to be         of devices that would require                           b. Defer to the Voluntary Standard.
available without any change.                modification (25 percent).                           Another alternative is for the
                                                Assuming costs are passed on to                   Commission to take no mandatory
3. Regulatory Analysis of the                                                                     action, and to depend on a voluntary
                                             consumers (as expected), the total
Amendments                                                                                        standard.
                                             annual cost to consumers of modifying
   a. Potential Benefits. One of the         the affected devices would be between                   The AFSL revised its standard for
potential risks of injury associated with    $1.5 million and $2.7 million. While                 mines and shells on an interim basis on
large multiple-tube fireworks devices        certain devices may be discontinued,                 January 29, 1993, and adopted it on
results from the tip-over hazard. The        the loss of consumer choice would be                 September 5, 1995. In order to address
Commission’s Directorate for                 minimized by the availability of close               the potential tip-over hazard associated
Epidemiology and Health Sciences             substitutes—i.e., other large multiple-              with multiple-tube fireworks devices,
reports two deaths associated with the       tube devices that comply with the                    AFSL’s Voluntary Standard for Mines
tip-over hazard from January 1, 1988,        amendments. Additionally, since most                 and Shells—Single or Multiple Shot
through December 1993. This averages         suppliers of currently noncomplying                  requires that large multiple-tube devices
to about 1 death every 3 years. The                                                               not tip over (except as the result of the
Commission has received no reports of          8 Trade and industry sources report that           last shot) when fired on a 2-inch thick
injuries with the product.                   modifying the devices would add about 25 to 30       medium-density foam pad. [14]
   The Commission is issuing a               percent to production costs (although one            However, the Commission has concerns
                                             commenter on the NPR stated that the per-unit cost
performance standard that will require       increase would be 35 to 45 percent). Various sales
                                                                                                  about the adequacy of the provisions of,
these devices to have a minimum tip          catalogs also indicate that comparable devices       and the level of conformance to, the
angle greater than 60 degrees. According     without bases are significantly less expensive.      AFSL standard.
            Federal Register / Vol. 61, No. 59 / Tuesday, March 26, 1996 / Rules and Regulations                               13095

   The Commission also does not believe      to be effective in reducing the risk of      regulations will involve any special or
that AFSL’s existing voluntary standard      injury.                                      unusual circumstances that would alter
adequately reduces the risk of injury           Fireworks are frequently used at          this conclusion. The Commission
due to large devices tipping over while      night, reducing the likelihood that          determines, therefore, that no significant
functioning. The Commission’s tests          warning labels will be read. The fact        environmental effects will result from
using polyurethane foam did not find         that fireworks are commonly used at          the standard. Accordingly, no
sufficient agreement between tip-over        parties or celebrations further reduces      environmental assessment or
performance on foam and on grass. The        the likelihood that the user will read       environmental impact statement is
Commission has no data that would            and follow a warning label. Moreover,        required in this proceeding.
support AFSL’s dynamic test. As              tip-over may occur even if the user
explained in section G above, the test       reads and follows the warning label. In      M. Effective Date
results AFSL submitted in response to        both incidents involving large multiple-        The rule will take effect in 1 year and
the NPR were limited and the                 tube devices, the victims were               will apply to multiple-tube fireworks
Commission does not believe they show        spectators who were approximately 40         devices with any tube measuring 1.5
that this dynamic test is reliable.          feet (12 meters) away from the device,       inches or more in inner diameter that
   In addition, even if the AFSL standard    which they probably believed was a safe      first enter commerce or are imported on
were effective, the Commission               distance. The devices were placed on         or after the effective date. However,
concludes that compliance with the           smooth, hard surfaces, although one was      provisions may be stayed by the filing
standard would not be adequate. The          angled to shoot over a lake. In light of     of proper objections. Notice of the filing
majority of large multiple-tube devices      these facts, it is unlikely that a warning   of any objections or lack thereof will be
are domestic. In the NPR, the                label would have prevented these             given by publication in the Federal
Commission stated that according to          deaths. [1, Tab E]                           Register.
AFSL, not a single domestically
                                             K. Regulatory Flexibility Certification      List of Subjects in 16 CFR Part 1500
manufactured device has been certified
as complying with the AFSL standard.            Under the Regulatory Flexibility Act,       Consumer protection, Hazardous
In comments responding to the NPR,           5 U.S.C. §§ 601–612, agencies generally      materials, Hazardous substances,
AFSL stated that their standards are         are required to prepare proposed and         Imports, Infants and children, Labeling,
voluntary ‘‘and the decision to comply       final regulatory flexibility analyses        Law enforcement, and Toys.
with the standards rests solely with         describing the impact of the rule on
                                             small businesses and other small             Conclusion
individual manufacturers.’’ However,
the Commission must have assurance of        entities. However, these analyses are not       For the reasons given above, the
an adequate level of compliance with a       required if the head of the agency           Commission finds that cautionary
voluntary standard in order to depend        certifies that the rule will not have a      labeling required by the FHSA is not
on that standard to reduce a risk.           significant effect on a substantial          adequate for multiple-tube devices
AFSL’s limited testing conducted in          number of small entities. As described       having any tube 1.5 inches (3.8 cm) or
response to the NPR does not substitute      below, the Commission has analyzed           larger in inner diameter and having a
for an ongoing and comprehensive             the potential effect of the amendment on     minimum tip angle larger than 60
testing program.                             industry.                                    degrees. Further, in order to protect the
   AFSL reports that some shipments of          The Commission has determined that        public health and safety and due to the
imported large multiple-tube devices         the proposed standard will not have a        degree and nature of the tip-over hazard
have been tested and certified in China      significant impact on a substantial          presented by these devices, it is
this year and that, since January 1994,      number of small businesses. The              necessary to keep them out of commerce
30 percent of the lots it tested were        devices subject to the standard              if they fail to meet this standard. Thus,
rejected for failure to comply with the      constitute less than 1 percent of the        the Commission amends Parts 1500 and
AFSL standard. However, the results of       overall fireworks market. The foreign        1507 Title 16 of the Code of Federal
CPSC’s compliance testing indicate that      firms that make the types of devices         Regulations as follows:
multiple-tube devices still tip over         subject to this rule that are likely to
while functioning in dynamic tests on        require modification in order to comply      PART 1500—[AMENDED]
grass. In fiscal year 1994, all 24           also make other types of fireworks. Only
                                                                                            1. The authority for Part 1500
imported devices the Commission              a small portion of the total production
                                                                                          continues to read as follows:
tested, and 1 of 8 domestic devices,         of these firms involves the large
tipped over while functioning. In fiscal     multiple-tube devices subject to the             Authority: 15 U.S.C. 1261–1278
year 1995, 22 of 27 imported devices         rule. Thus, the Commission certifies           2. Section 1500.17 is amended by
and 1 of 5 domestic devices tipped over.     that no significant adverse impact on a      adding a new paragraph (a)(12) to read
[19]                                         substantial number of small firms, or        as follows:
                                             other entities, will result from the
c. Additional Labeling                                                                    § 1500.17   Banned hazardous substances.
                                             amendment issued below.
   The current product has extensive                                                      *     *     *     *     *
labeling. The text of the labels required    L. Environmental Considerations                (a) * * *
by the Commission is quoted in section         The Commission’s regulations                 (12) (i) Large multiple-tube devices.
D above. One alternative available to the    governing environmental review               Multiple-tube mine and shell fireworks
Commission is to add further warning or      procedures state that the amendment of       devices that first enter commerce or are
instructional labeling to large multiple-    rules or safety standards establishing       imported on or after [insert date that is
tube devices or to modify the existing       design or performance requirements for       1 year after publication], that have any
warning. Although this may have less         products normally have little or no          tube measuring 1.5 inches (3.8 cm) or
impact on manufacturers and importers        potential for affecting the human            more in inner diameter, and that have
than a performance standard, the             environment. 16 CFR 1021.6(c)(1). The        a minimum tip angle greater than 60
Commission believes that any                 Commission does not foresee that this        degrees when tested in accordance with
additional or altered labeling is unlikely   amendment to the existing fireworks          the procedure of § 1507.12 of this part.
13096       Federal Register / Vol. 61, No. 59 / Tuesday, March 26, 1996 / Rules and Regulations

   (ii) Findings. (A) General. In order to   tested, and 1 of 8 domestic devices,        PART 1507—[AMENDED]
issue a rule under the section 2(q)(1) of    tipped over while functioning. In fiscal
the FHSA, 15 U.S.C. 1261(q)(1),              year 1995, 22 of 27 imported devices          1. The authority for Part 1507
classifying a substance or article as a      and 1 of 5 domestic devices tipped over     continues to read as follows:
banned hazardous substance, the FHSA         during Commission testing. The                Authority: Sec. 2(q)(1)(B), (2), 74 Stat. 374
requires the Commission to make              Commission finds that there is unlikely     as amended 80 Stat. 1304–1305; (15 U.S.C.
certain findings and to include these in     to be substantial compliance with the       1261); sec. 701(e), 52 Stat. 1055 as amended;
the regulation. These findings are           voluntary standard applicable to            21 U.S.C. 371(e)); sec. 30(a), 86 Stat. 1231; 15
discussed in paragraphs (a)(12)(ii)(B)       multiple-tube devices.                      U.S.C. 2079(a)).
through (D) of this section.                    (C) Relationship of benefits to costs.     2. Part 1507 is amended by adding a
   (B) Voluntary standard. (1) One           The Commission estimates that the 60-       new § 1507.12 to read as follows:
alternative to the tip-angle requirement     degree tip-angle standard will eliminate
                                                                                         § 1507.12   Multiple-tube Fireworks Devices.
that the Commission considered is to         the unreasonable tip-over risk posed by
take no mandatory action, and to             these devices. This will provide benefits      (a) Application. Multiple-tube mine
depend on a voluntary standard. The          of saving one life about every 3 years,     and shell fireworks devices with any
American Fireworks Safety Laboratory         and preventing an unknown number of         tube measuring 1.5 inches (3.8 cm) or
(AFSL) has a standard for mines and          nonfatal injuries. The annual cost of       more in inside diameter and subject to
shells intended to address the potential     modifying affected devices is estimated     § 1500.17(a)(12) of this part shall not tip
tip-over hazard associated with              to be between $1.5 million and $2.7         over when subjected to the tip-angle test
multiple-tube fireworks devices. AFSL’s      million. The Commission finds that the      described in this section.
Voluntary Standard for Mines and             benefits from the regulation bear a            (b) Testing procedure. The device
Shells—Single or Multiple Shot requires      reasonable relationship to its costs.       shall be placed on a smooth surface that
that large multiple-tube devices not tip        (D) Least burdensome requirement.        can be inclined at 60 degrees from the
over (except as the result of the last       The Commission considered the               horizontal, as shown in Figure 1 of this
shot) when shot on a 2-inch thick            following alternatives: a ban of all        section. The height and width of the
medium-density foam pad. The                 multiple-tube devices with inner tube       inclined plane (not including the
Commission cannot conclude that              diameters 1.5 inches or greater; a          portion of the plane below the
AFSL’s existing voluntary standard           dynamic performance standard;               mechanical stop) shall be at least 1 inch
adequately reduces the risk of injury        additional labeling requirements; and       (2.54 cm) greater than the largest
from large devices that tip over while       relying on the voluntary standard.          dimension of the base of the device to
functioning. The Commission’s tests          Although a ban of all large multiple-       be tested. The test shall be conducted on
using polyurethane foam did not find         tube devices would address the risk of      a smooth, hard surface that is horizontal
sufficient agreement between                 injury, it would be more burdensome         as measured by a spirit level or
performance on foam and on grass. No         than the tip-angle standard. The            equivalent instrument. The mechanical
other data are available to show that this   Commission was unable to develop a          stop on the inclined plane shall be 1/16
dynamic test is reliable.                    satisfactory dynamic standard that          inches (1.6 mm) in height and
   (2) In addition, even if the AFSL         would reduce the risk of injury. Neither    perpendicular to the inclined plane. The
standard is effective, the Commission        additional labeling requirements nor        stop shall be positioned parallel to the
does not believe that compliance with        reliance on the voluntary standard          bottom edge of the inclined plane and
the standard will be adequate. AFSL          would adequately reduce the risk of         so that no portion of the device to be
reports that it has been testing in          injury. Thus, the Commission finds that     tested or its base touches the horizontal
accordance with its standard since           a standard requiring large multiple-tube    surface. The device shall not tip over
January 1994. However, the results of        devices to have a minimum tip angle         when the plane is inclined at 60-degrees
CPSC’s compliance testing indicate that      greater than 60 degrees is the least        from the horizontal. The procedure shall
multiple-tube devices still tip over         burdensome requirement that would           be repeated for each edge of the device.
while functioning. In fiscal year 1994,      prevent or adequately reduce the risk of    Figure 1 to § 1507.12
all 24 imported devices the Commission       injury.                                     BILLING CODE 6355–01–P
              Federal Register / Vol. 61, No. 59 / Tuesday, March 26, 1996 / Rules and Regulations                                    13097




BILLING CODE 6355–01–C                           HSHE, ‘‘Results for Dynamic Stability Testing   Laboratory, Bethesda, Maryland, January 28,
  Dated: March, 18, 1996.                        of Large Multiple-tube Mine and Shell           1993.
Sadye E. Dunn,                                   Devices,’’ May 18, 1995.                           16. Memorandum from Neal Gasser, LSHL,
Secretary, Consumer Product Safety                  7. Memorandum from Thomas Caton,             to Michael Babich, HSHE, ‘‘Additional Tests
Commission.                                      ESME, to Michael Babich, HSHE, ‘‘Fireworks      of Multiple-tube Mine and Shell Devices,’’
                                                 Testing: Test Surface Roughness,’’ May 22,      June 8, 1995.
  Reference Documents. (The following list       1995.                                              17. Briefing Memorandum on Multiple-
of documents will not be printed in the Code        8. Report from Terry Kissinger, EPHA, to     tube Mine and Shell Fireworks Devices—
of Federal Regulations.)                         Michael Babich, HSHE, ‘‘A Comparison of         Final Rule, from Michael Babich, EHHE, and
  The following documents contain                the Tip-over Performances of Multiple-tube      Ronald L. Medford, HIR, to the Commission,
information relevant to this rulemaking          Mine and Shell Devices on Grass and Foam,’’     January 23, 1996.
proceeding and are available for inspection at   January 1995.                                      18. Memorandum from Michael A. Babich,
the Office of the Secretary, Consumer               9. Memorandum from George F. Sushinsky,      EHHE, ‘‘Responses to Comments on
Product Safety Commission, Room 502, 4330        LSEL, to Michael Babich, HSHE,                  Multiple-tube Mine and Shell Devices,’’
East-West Highway, Bethesda, Maryland            ‘‘Dimensional and Stability Measurements of     January 16, 1996.
20814:                                           Fireworks,’’ March 10, 1995.                       19. Memorandum from Samuel B. Hall,
  1. Multiple-tube Mine and Shell Fireworks         10. Memorandum from George F.                CRM, to Michael Babich, HSHE,
Devices: Advance Notice of Proposed              Sushinsky, LSEL, to Michael Babich, HSHE,       ‘‘Compliance Tests of Large Multiple-tube
Rulemaking; Request for Comments and             ‘‘Tip Angle Measurements of a Device with       Mine and Shell Devices under FY 1994 and
Information, 59 Fed. Reg. 33928 (July 1,         a Plastic Base,’’ April 13, 1995.               FY 1995 Fireworks Enforcement Programs,’’
1994).                                              11. Memorandum from Jay Sonenthal,           December 8, 1995.
  2. Briefing Package: Multiple-tube Mine        LSHL, to Michael Babich, HSHE, ‘‘Test of a         20. Memorandum from Leonard Schacter,
and Shell Fireworks Devices, Consumer            Device with a Plastic Base,’’ May 22, 1995.     EHHA, to Michael Babich, HSHE, ‘‘Annual
Product Safety Commission, May 31, 1994.            12. Memorandum from Sam Hall, CERM, to       Estimated Injuries Associated with Multiple-
  3. Briefing Memorandum on Multiple-tube        Michael Babich, HSHE, ‘‘Acceptable Tipover      tube Mine and Shell Fireworks Devices,’’
Mine and Shell Fireworks Devices, from           Rate for Multiple-tube Devices,’’ November      November 1, 1995.
Ronald L. Medford, EXHR and Michael              21, 1994.                                          21. Memorandum from Anthony Homan,
Babich, EHHE, to the Commission, June 8,            13. Memorandum from Anthony Homan,           ECPA, to Michael Babich, HSHE, ‘‘Multiple-
1995.                                            ECPA, to Michael Babich, HSHE, ‘‘Multiple-      tube Mine and Shell Fireworks Devices—
  4. Memorandum from Michael Babich,             tube Mine and Shell Fireworks Devices—          Final Regulatory Analysis,’’ January 16, 1996.
Project Manager, HSHE, ‘‘Responses to Public     Regulatory Analysis,’’ May 18, 1995.               22. Viscusi, W.K., ‘‘The Value of Risks to
Comments on Multiple-tube Mine and Shell            14. Memorandum from Sam Hall, CERM, to       Life and Health,’’ Journal of Economic
Devices,’’ May 22, 1995.                         Michael Babich, HSHE, ‘‘AFSL’s Interim          Literature, December 1993.
  5. Memorandum from Leonard Schachter,          Voluntary Standard for Large Multiple-tube         23. Kissinger, T.L., Fireworks Injuries—
EPHA, to Michael Babich, HSHE, ‘‘Annual          Mine and Shell Devices and Staff’s Proposed     results of a 1992 NEISS study. U.S. Consumer
Estimated Injuries Associated with Multiple-     Mandatory Static Performance Standard, May      Product Safety Commission, Washington, DC
tube Mine and Shell Fireworks Devices,’’         25, 1995.                                       20207. September 1993.
June 1, 1995.                                       15. Product and Performance Standard for
  6. Memorandum from James Carleton and          Mines and Shells—Single or Multiple Shot,’’     [FR Doc. 96–6857 Filed 3–25–96; 8:45 am]
Jay Sonenthal, LSHS, to Michael Babich,          Version 1.1, American Fireworks Standards       BILLING CODE 6355–01–P
13098        Federal Register / Vol. 61, No. 59 / Tuesday, March 26, 1996 / Rules and Regulations

DEPARTMENT OF TRANSPORTATION                 written data, or arguments for or against   33 CFR Parts 154 and 155
                                             this deviation. Persons submitting
Coast Guard                                  comments should include their name,         46 CFR Parts 12, 13, 15, 30, 31, 35, 78,
                                             address, identify this rulemaking           90, 97, 98, 105, 151, 153, and 154
33 CFR Part 117
                                             (CGD07–96–010) and give the reason for      [Docket No. CGD–79–116]
[CGD07–96–010]                               each comment. Persons wanting
                                             acknowledgment of receipt of comments       RIN 2115–AA03
Drawbridge Operation Regulations:            should enclose a stamped self-addressed
Atlantic Intracoastal Waterway, FL                                                       Qualifications for Tankermen, and for
                                             postcard or envelope.
                                                                                         Persons in Charge of Transfers of
AGENCY:  Coast Guard, DOT.                      The Coast Guard will consider all        Dangerous Liquids and Liquefied
ACTION: Notice of deviation from             comments received during the comment        Gases
regulations and request for comments.        period and determine whether to
                                             initiate a rulemaking to propose a          AGENCY:  Coast Guard, DOT.
SUMMARY:   Notice is hereby given that       permanent change to the drawbridge          ACTION: Reopening of Comment Period
the Coast Guard issuing a temporary          operation schedule. Persons may submit      on interim rule.
deviation to the regulations governing
                                             comments by writing to the Commander
the J.D. Butler (Hillsboro Boulevard,                                                    SUMMARY:    The Coast Guard is reopening
                                             (oan), Seventh Coast Guard District
State Road 810) drawbridge, mile                                                         the period for public comment on its
1050.0, at Deerfield Beach, from March       listed under ADDRESSES.                     Interim Rule on the Qualifications for
1, 1996 through May 30, 1996. This           Background and Purpose                      Tankermen, and for Persons in Charge
deviation authorizes the bridge owner to                                                 of Transfers of Dangerous Liquids and
open the draw on signal, except that,           The City of Deerfield Beach has          Liquefied Gases. It would like public
from 7 a.m. to 6 p.m., Monday through        requested a change from the current         help in treating certain issues.
Thursday, the draw need open only on         seasonal operating schedule in Title 33     DATES: The effective date remains March
the hour, 20 minutes after the hour, and     CFR 117.261(bb) to a year-round hour        31, 1996. Written comments must be
forty minutes after the hour; and from       and half-hour opening schedule. A           received not later than May 28, 1996.
7 a.m. to 6 p.m., Friday through Sunday      Coast Guard analysis of highway traffic     ADDRESSES: Written comments may be
and federal holidays, the draw need          and bridge opening data provided by the     mailed to the Executive Secretary,
open only on the hour and half-hour.         Florida Department of Transportation        Marine Safety Council (G–LRA, 3406),
The purpose of this temporary change in      which was completed on May 8, 1995,         U.S. Coast Guard, 2100 Second Street
opening schedule from Friday through         indicated the heavy traffic congestion is   SW., Washington, DC 20593–0001, or
Sunday and federal holidays is to test       limited to weekends during the winter       may be delivered to room 3406 at the
the feasibility of establishing a            tourist season. This deviation will allow   same address between 8 a.m. and 3
permanent change to the seasonal             a test of the proposed hour and half-       p.m., Monday through Friday, except
opening restrictions to reduce severe        hour opening schedule during the            Federal holidays. Comments will
vehicular traffic congestion without         heaviest highway and waterway traffic       become part of this docket and will be
unreasonably impacting navigation.                                                       available for inspection or copying at
                                             periods. If the test reduces highway
DATES: This deviation is effective from      traffic congestion without unreasonably     room 3406, Coast Guard Headquarters,
March 1, 1996 through May 30, 1996,          impacting navigation, the Coast Guard       between 8 a.m. and 3 p.m., Monday
unless sooner terminated. Comments on        plans to publish a Notice of Proposed       through Friday, except Federal holidays.
the alternate schedule must be received      Rulemaking which will request               FOR FURTHER INFORMATION CONTACT:
on or before May 30, 1996.                                                               Mr. Mark C. Gould, Project Manager,
                                             comments on a permanent change to the
ADDRESSES: Comments may be mailed to         regulations.                                Marine Safety and Environmental
Commander (oan), Seventh Coast Guard                                                     Protection Directorate, Office of
District, Brickell Plaza Federal Building,      Public vessels of the United States,
                                                                                         Maritime Personnel Qualifications (G–
Room 406, 909 SE. 1st Avenue, Miami,         tugs with tows, and vessels in a
                                                                                         MOS–1), (202) 267–6890. This
Florida 33131–3050. The comments and         situation where a delay would endanger
                                                                                         telephone is equipped to record
other materials referenced in this notice    life or property shall, upon proper
                                                                                         messages on a 24-hour basis.
will be available for inspection and         signal, be passed through the draw at
                                                                                         SUPPLEMENTARY INFORMATION: On
copying at the above address. Normal         any time.
                                                                                         Tuesday, April 4, 1995 [60 FR 17134],
office hours are between 7:30 a.m. and          This deviation from normal operating     the Coast Guard issued an Interim Rule
4 p.m., Monday through Friday, except        regulations (33 CFR 117.5) is authorized    on the Qualifications for Tankermen,
federal holidays. Comments may also be       in accordance with the provisions of        and for Persons in Charge of Transfers
hand-delivered to the above address.         title 33 of the Code of Federal             of Dangerous Liquids and Liquefied
FOR FURTHER INFORMATION CONTACT:             Regulations, § 117.43.                      Gases. The deadline for written
Mr. Brodie Rich, Bridge Management                                                       comments was June 30, 1995.
                                               Dated: March 7, 1996.
Specialist, Seventh Coast Guard District,                                                   Comments submitted during the
at 305–536–5117.                             P.J. Cardaci,
                                                                                         comment period by the public and
                                             Captain U.S. Coast Guard, Commander,        further evaluation of the Interim Rule by
SUPPLEMENTARY INFORMATION:                   Seventh Coast Guard District, Acting.
                                                                                         the Coast Guard revealed certain issues
Request for Comments                         [FR Doc. 96–7171 Filed 3–25–96; 8:45 am]    that require further evaluation,
  The Coast Guard encourages                 BILLING CODE 4910–14–M                      clarification, or correction. The Coast
interested persons to participate in this                                                Guard has, therefore, decided to reopen
evaluation of possible changes to the                                                    the comment period. There is no need
regulations governing the J.D. Butler                                                    to refile comments already submitted.
Drawbridge over the Atlantic                                                             The effective date of the Interim Rule
Intracoastal Waterway by submitting                                                      remains March 31, 1996.
             Federal Register / Vol. 61, No. 59 / Tuesday, March 26, 1996 / Rules and Regulations                          13099

  Although the Coast Guard invites          in others. The Coast Guard did not           reasonable period of time to
comments on any feature of the Interim      intend that a large oil or chemical          satisfactorily complete the course. It
Rule, it specifically invites comments      company could employ a large number          invites comments.
on the following:                           of tankermen with restricted
                                                                                         Section 13.117 Any person:
TITLE 33—NAVIGATION AND NAVIGABLE           endorsements. It invites comments.
                                                                                         Endorsement as Tankerman-Assistant
WATERS                                      Section 13.113 Tankerman certified           based on unlicensed deck service before
Section 155.710 Qualifications of           under prior regulations.                     March 31, 1996.
person in charge.                             Paragraph (a) allows certain persons          This section requires that a person
   Paragraphs (a)(2)(ii), (b)(2), and (g)   who have acted as Tankermen-PICs             with unlicensed deck service before
allow the PIC of cargo-tank cleaning on     before March 31, 1996, to continue in        March 31, 1996, obtain a Tankerman-
a vessel at a tank-cleaning facility or     that capacity. However, paragraph            Assistant endorsement to his or her
shipyard to hold a marine chemist’s         (d)(1)(iii)(A)(1) does not require any       MMD no later than the first renewal of
certificate issued by the National Fire     particular period of sea service, and        the MMD after March 31, 1997, if he or
Protection Association instead of the       paragraphs (d)(1)(iii)(A)(2) and             she intends to continue in that capacity.
appropriate Tankerman-PIC                   (d)(1)(iii)(B) require only 30 days of sea   The Coast Guard intends that the final
endorsement. Numerous comments on           service. None of these sections comply       rule will allow service by one carrying
the Interim Rule objected to this           with the International Convention on         temporary proof of the tankerman’s
alternative. They stated that no marine     Standards of Training, Certification and     qualifications as § 13.113 did for
chemist is qualified to act as a            Watchkeeping for Seafarers, 1978             Tankerman-PIC or Tankerman-PIC
Tankerman-PIC. The Coast Guard will         (STCW), as amended in 1994, which            (Barge). But, again as we have just seen,
compare the qualifications for marine       requires 90 days of sea service on           § 13.113 itself comes up short—60 days
chemists with those for Tankerman-          tankers. Since the United States is          short—measured against STCW, as
PICs. It invites comments.                  signatory to STCW, the Coast Guard           amended in 1994. Therefore, to provide
                                            considers itself bound to amend              for an orderly transition to a regime
TITLE 46—SHIPPING                           paragraphs (d)(1)(iii)(A)(1),                governed by STCW, as amended in
Section 13.107 Tankerman                    (d)(1)(iii)(A)(2), and (d)(1)(iii)(B) to     1994, as well as to square § 13.117 with
endorsement: General.                       require 90 days of sea service on            § 13.113 in its STCW-compatible form,
                                            tankers. It invites comments.                the Coast Guard considers itself bound
Section 15.860 Tankerman.
                                            Section 13.115 Licensed engineer:            to amend paragraphs (a) and (b) to
  There appears to be some confusion                                                     require 90 days of sea service on
and disagreement regarding the term         Endorsement as Tankerman-Engineer
                                            based on service on tankships before         tankers. It invites comments.
direct supervision as used in these                                                         Further, STCW, as amended in 1994,
sections. The Coast Guard defines being     March 31, 1996.
                                                                                         allows an applicant for this
under direct supervision to mean being        This section requires that a licensed      endorsement to satisfactorily complete a
within the unobstructed view of the         person with service as chief, first          tanker-familiarization course rather than
supervisor. If the PIC assigns a person     assistant, or cargo engineer before          satisfy paragraph (a) or (b). Therefore,
to turn a particular value, and if this     March 31, 1996, obtain a Tankerman-          the Coast Guard is inclined to amend
person bends down so that either the        Engineer endorsement to his or her           this section to allow satisfactory
hands or the valve is not visible to the    MMD no later than the first renewal of       completion of this course, too. It invites
PIC, this person is not under direct        the MMD after March 31, 1997, if he or       comments.
supervision of the PIC. A fair equivalent   she intends to continue in any of those         Further yet, STCW, as amended in
might be being in ‘‘direct line of sight    capacities. The Coast Guard intends that     1994, requires that an application for
of the supervisor, or in close proximity    the final rule will allow service by one     this endorsement satisfactorily complete
to the transfer and maintaining direct,     carrying temporary proof of the              a firefighting course. The Coast Guard is
continuous communications by a              tankerman’s qualifications as § 13.113       included to amend this section to
convenient, reliable means, such as a       did for Tankerman-PIC or Tankerman-          require satisfactory completion of this
hand-held radio.’’ The Coast Guard          PIC (Barge). But, as we have just seen,      course, too. It invites comments.
invites comments.                           § 13.113 itself comes up short—60 days          For the Tankerman-Assistant
                                            short—measured against STCW, as              endorsement, the Coast Guard will
Section 13.111 Restricted                   amended in 1994. Therefore, to provide       accept pumpman service as well as the
endorsement.                                for an orderly transition to a regime        deck service described in §§ 13.117 and
   This section lets an applicant apply     governed by STCW, as amended in              13.403. It invites comments.
for a tankerman endorsement restricted      1994, as well as to square § 13.115 with
to specific cargoes or groups of cargoes,   § 13.113 in its STCW-compatible form,        Section 13.409 Eligibility
specific vessels, specific facilities,      the Coast Guard considers itself bound       requirements: Cargo course.
specific employers, or the like. The        to amend paragraphs (a) and (b) to              This section allows an applicant for
Coast Guard intended for this               require 90 days of sea service on            an endorsement as Tankerman-Assistant
endorsement to benefit oil and chemical     tankers. It invites comments.                to substitute sea service for satisfactory
companies that handle only one or two         In addition, STCW, as amended in           completion of a course in DL or LG. But
cargoes or that employ a small number       1994, requires that an applicant for this    STCW, as amended in 1994, requires the
of tankerman, who conduct transfers at      endorsement satisfactorily complete the      same applicants to either (1)
a small number of sites. This               appropriate DL or LG course. The Coast       satisfactorily complete a tanker-
endorsement would relieve its holders       Guard is inclined to amend this section      familiarization course or (2) prove 90
of having to take the DL or LG course       to require satisfactory completion of a      days of sea service on tankers.
because those holders would have            DL or LG course. However, the Coast          Therefore, the Coast Guard considers
frequent opportunity to observe and         Guard is willing to consider deferring       itself bound to amend this section to
participate in local transfers and would    the course requirement for a limited         require either (1) satisfactory
have no need to observe or participate      period of time, to give mariners a           completion of a tanker-familiarization
13100         Federal Register / Vol. 61, No. 59 / Tuesday, March 26, 1996 / Rules and Regulations

course, rather than of a course in DL or       terminates at 8 a.m. on September 31,         Collection of information
LG, or (2) 90 days of sea service on           1996.                                           This rule contains no information
tankers, rather than an unspecified                                                          collection requirements under the
                                               FOR FURTHER INFORMATION CONTACT:
amount of sea service of an unspecified                                                      Paperwork Reduction Act (44 U.S.C.
kind. It invites comments.                     LT Byron Black, Chief, Port Operations,
                                               Captain of the Port, 200 Jefferson            3501 et seq.).
Section 13.503 Eligibility                     Avenue, Suite 1301, Memphis, TN               Federalism
requirements: Experience.                      38103, Phone: (901) 544–3941.
                                                                                               The Coast Guard has analyzed this
  This section allows an applicant for                                                       under the principles and criteria
an endorsement as Tankerman-Engineer           SUPPLEMENTARY INFORMATION:
                                                                                             contained in Executive Order 12612 and
to combine sea service and satisfactory        Background and Purpose                        has determined that this rule does not
completion of a DL or LG course for the                                                      have sufficient federalism implications
requisite experience. But STCW, as                At approximately 10:10 p.m. on
                                               March 12, 1996, the M/V ROBERT A              to warrant the preparation of a
amended in 1994, requires that the same                                                      Federalism Assessment.
applicant both satisfactorily complete         KYLE reported that one iron barge had
the appropriate DL or LG course and            sunk at approximate mile 633.0 on the         Environment
prove 90 days of sea service on tankers.       Lower Mississippi River. The sunken
                                               barge’s exact location remains unknown           Teh Coast Guard considered the
Therefore, the Coast Guard is inclined to                                                    environmental impact of this rule and
amend this section to require both,            and survey operations at Lower
                                               Mississippi River mile 633.0 will             concluded that, under paragraph 2.B.2
rather than some blend of them. It                                                           of Commandant Instruction M16475.1B
invites comments.                              commence shortly. The navigable
                                               channel will be blocked during survey         (as revised by 59 FR 38654; July 29,
Section 13.509 Eligibility                     and salvage operations. A safety zone         1994), this rule is categorically excluded
requirements: Cargo course.                    has been established on the Lower             from further environmental
                                               Mississippi River from mile 631.0 to          documentation.
  This section allows an applicant for
an endorsement as Tankerman-Engineer           mile 635.0 in order to facilitate safe        List of Subjects in 33 CFR Part 165
to substitute sea service for satisfactory     vessel passage. Entry of vessels or
                                                                                               Harbors, Marine safety, Navigation
completion of a course in DL or LG. But        persons into this zone is prohibited
                                                                                             (water), Reporting and recordkeeping
STCW, as amended in 1994, requires             unless specifically authorized by the
                                                                                             requirements, Security measures,
that the same applicant both                   Captain of the Port.
                                                                                             Vessels, Waterways.
satisfactorily complete the appropriate           In accordance with 5 U.S.C. 553, a           For the reasons set out in the
DL or LG course and prove 90 days of           notice of proposed rulemaking was not         preamble, the Coast Guard amends 33
sea service on tankers. Therefore, the         published for this regulation and good        CFR Part 165 as follows:
Coast Guard is inclined to amend this          cause exists for making it effective in
section to require both, rather than some                                                      1. The authority citation for Part 165
                                               less than 30 days after Federal Register      continues to read as follows:
blend of them. It invites comments.            publication. Publication of a notice of
                                               proposed rulemaking and delay of                Authority: 33 U.S.C. 1231; 50 U.S.C. 191;
   Dated: March 15, 1996.
                                                                                             and 33 CFR 1.05–1(g), 6.04–1, 6.04–6, and
J.C. Card,                                     effective date would be contrary to the
                                                                                             160.5; and 49 CFR 1.46.
Rear Admiral, U.S. Coast Guard Chief, Office   public interest because immediate
of Marine Safety, Security and Environmental   action is necessary. Specifically,              2. A new temporary section 165.T02–
Protection.                                    immediate action is necessary to              078 is added to read as follows:
[FR Doc. 96–7169 Filed 3–25–96; 8:45 am]       facilitate the survey for the sunken
                                                                                             § 165.T02–078 Safety Zone; Lower
BILLING CODE 4910–14–M
                                               barge’s exact location. Harm to the           Mississippi River.
                                               public or environment may result if
                                               vessel traffic is not controlled during the      (a) Location. The following area is a
                                               operations. As a result, the Coast Guard      Safety Zone: Lower Mississippi River
33 CFR Part 165                                                                              mile 631.0 to mile 635.0.
                                               deems it to be in the public’s best
[CGD02–96–078]                                 interest to issue a regulation                   (b) Effective dates. This section is
                                               immediately.                                  effective from 11 p.m. on March 12,
RIN 2115–AA97                                                                                1996, and terminates at 8 a.m. on
                                               Regulatory Evaluation                         September 31, 1996.
Safety Zone; Lower Mississippi River,                                                           (c) Regulations. In accordance with
Mile 631.0 to Mile 635.0                         This rule is not a significant              the general regulations in § 165.23, entry
                                               regulatory action under section 3(f) of       into this zone is prohibited except as
AGENCY:    Coast Guard, DOT.                   Executive Order 12866 and does not            authorized by the Captain of the Port.
ACTION:   Temporary rule.                      require and assessment of potential           The Captain of the Port, Memphis,
                                               costs and benefits under section 6(a)(3)      Tennessee, will notify the maritime
SUMMARY: The Coast Guard is                    of that order. It has not been reviewed
establishing a temporary safety zone on                                                      community of conditions affecting the
                                               by the Office of Management and               area covered by this safety zone by
the Lower Mississippi River between            Budget under that order. It is not
mile 631.0 and mile 635.0. This                                                              Marine Safety Information Radio
                                               significant under the regulatory policies     Broadcast on VHF Marine Band Radio,
regulation is needed to restrict vessel        and procedures of the Department of
traffic in the regulated area to prevent a                                                   Channel 22 (157.1 MHz).
                                               Transportation (DOT) (44 FR 11040;
collision with a sunken barge, surveying       February 26, 1979). The Coast Guard             Dated: March 12, 1996.
and salvage equipment and to provide a         expects the economic impact of this           P.L. Mountcastle,
safe work area for survey and salvage          proposal to be so minimal that a full         Lieutenant Commander, USCG, Acting
personnel.                                     Regulatory Evaluation under paragraph         Captain of the Port.
DATES: This regulation is effective from       10e of the regulatory policies and            [FR Doc. 96–7305 Filed 3–25–96; 8:45 am]
11 p.m. on March 12, 1996, and                 procedures of DOT is unnecessary.             BILLING CODE 4910–14–M
            Federal Register / Vol. 61, No. 59 / Tuesday, March 26, 1996 / Rules and Regulations                           13101

ENVIRONMENTAL PROTECTION                    subsequent rulemaking action based on        FOR FURTHER INFORMATION CONTACT:
AGENCY                                      the proposed rule.                           Kelly Fortin, Title V Program
                                                                                         Development Team, Air Programs
40 CFR Part 52                              List of Subjects in 40 CFR Part 52
                                                                                         Branch, Air, Pesticides & Toxics
[DE26–1–6940; FRL–5444–8]
                                              Environmental protection, Air              Management Division, U.S.
                                            pollution control, Carbon Monoxide,          Environmental Protection Agency,
Approval and Promulgation of Air            Hydrocarbons, Intergovernmental              Region 4, 345 Courtland Street NE,
Quality Implementation Plans;               relations, Nitrogen Dioxide, Ozone,          Atlanta, Georgia 30365, (404) 347–3555,
Delaware: Amendment of Final Rule           Reporting and recordkeeping                  Ext. 4150.
Pertaining to Regulation 24—Control         requirements.
                                                                                         SUPPLEMENTARY INFORMATION:
of Volatile Organic Compound                  Dated: March 14, 1996.
Emissions, Section 47—Offset                                                             I. Background and Purpose
                                            Stanley L. Laskowski,
Lithographic Printing                       Acting Regional Administrator, Region III.   A. Introduction
AGENCY: Environmental Protection              Accordingly, 40 CFR part 52 is               Title V of the 1990 Clean Air Act
Agency (EPA).                               amended as follows:                          Amendments (sections 501–507 of the
ACTION: Amendment of direct final rule.                                                  Clean Air Act (the Act)) and the
                                            PART 52—[AMENDED]                            implementing regulations at 40 Code of
SUMMARY:    On January 26, 1996, EPA                                                     Federal Regulations (CFR) part 70
                                              1. The authority citation for part 52      require that states or authorized local
published approval of a State
                                            continues to read as follows:                agencies develop and submit operating
Implementation Plan (SIP) revision
submitted by Delaware (61 FR 2419)            Authority: 42 U.S.C. 7402–7671q.           permits programs to EPA by November
pertaining to Delaware Regulation 24,                                                    15, 1993, and that EPA act to approve
                                            § 54.420   [Amended]
Control of Volatile Organic Compound                                                     or disapprove each program within one
Emissions, sections 10, 11, 12, 44, 45,        2. In § 54.420(c)(54)(i)(B), the number   year after receiving the submittal. If the
47, 48, and 49, and Appendices I, K, L,     ‘‘47’’ is removed.                           permitting authority’s submission is
and M, effective November 29, 1994.         [FR Doc. 96–7063 Filed 3–25–96; 8:45 am]     materially changed during the one-year
These sections of Regulation 24             BILLING CODE 6560–50–P                       period, 40 CFR 70.4(e)(2) allows EPA to
establish additional emission standards                                                  extend the review period for no more
that represent the application of                                                        than one year following the receipt of
reasonably available control technology     40 CFR Part 70                               the additional materials.
(RACT) to categories of stationary                                                         EPA’s operating permit program
sources of volatile organic compounds       [TN-CHAT–95–01; FRL–5445–8]                  review occurs pursuant to section 502 of
(VOCs). This action was published                                                        the Act and the part 70 regulations,
without prior proposal. Because EPA         Clean Air Act Final Full Approval of         which together outline criteria for
received adverse comments on a section      Operating Permits Program; Hamilton          approval or disapproval. Where a
of this action, EPA is withdrawing the      County, Tennessee                            program substantially, but not fully,
reference pertaining to Regulation 24,                                                   meets the requirements of part 70, EPA
                                            AGENCY:  Environmental Protection
section 47, Offset Lithographic Printing.                                                may grant the program interim approval
                                            Agency (EPA).
                                                                                         for a period of up to two years. If EPA
EFFECTIVE DATE: March 26, 1996.             ACTION: Final full approval.                 has not fully approved a program by
FOR FURTHER INFORMATION CONTACT: Rose                                                    November 15, 1995, or by the end of an
Quinto, (215) 597–3164.                     SUMMARY:   EPA is promulgating full
                                            approval of the title V operating permits    interim program, it must establish and
SUPPLEMENTARY INFORMATION: EPA                                                           implement a Federal operating permit
approved this direct final rule without     program submitted by the State of
                                            Tennessee on behalf of the Chattanooga-      program for that state or local agency.
prior proposal because the agency                                                          On November 8, 1995, EPA proposed
viewed it as a noncontroversial             Hamilton County Air Pollution Control
                                                                                         full approval, or in the alternative,
amendment and anticipated no adverse        Bureau (CHCAPCB). The CHCAPCB
                                                                                         interim approval of the operating
comments. The direct final rule was         program was submitted for the purpose
                                                                                         permits program for CHCAPCB in the
published, without prior proposal, in       of complying with Federal requirements
                                                                                         Federal Register. See 60 FR 56285. The
the Federal Register (61 FR 2419) with      which mandate that states or local
                                                                                         Federal Register notice stated that, as a
a provision for a 30 day comment            authorities develop, and submit to EPA,
                                                                                         condition of full approval, certain
period. At the same time, EPA               programs for issuing operating permits
                                                                                         revisions or clarifications were required
published a proposed rule which             to all major stationary sources and to
                                                                                         in the insignificant activities list
announced that this final rule would        certain other sources.
                                                                                         contained in CHCAPCB’s program. The
convert to a proposed rule in the event     EFFECTIVE DATE: April 25, 1996.              above-referenced Federal Register
that adverse comments were submitted        ADDRESSES: Copies of the CHCAPCB             notice and the technical support
to EPA within 30 days of publication of     submittal and other supporting               document describe in detail the changes
the rule in the Federal Register (61 FR     information used in developing the final     required for full program approval. The
2464). By publishing a document             full approval are available for inspection   November 8, 1995, notice also proposed
announcing withdrawal of the final rule     during normal business hours at the          approval of CHCAPCB’s interim
action, this action would be withdrawn.     following location: U.S. Environmental       mechanism for implementing section
EPA received adverse comments within        Protection Agency, Region 4, 345             112(g) and for delegation of section 112
the prescribed comment period on            Courtland Street NE, Atlanta, Georgia        standards as promulgated. EPA did not
section 47, Offset Lithographic Printing.   30365. Interested persons wanting to         receive any comments on the proposal
Therefore, EPA is withdrawing the           examine these documents, contained in        notice.
reference pertaining to Regulation 24,      EPA docket number TN-CHAT–95–01,               On March 14, 1996, the State of
section 47 only. All public comments        should make an appointment at least 24       Tennessee submitted, on behalf of
received will be addressed in a             hours before the visiting day.               CHCAPCB, revisions to the operating
13102       Federal Register / Vol. 61, No. 59 / Tuesday, March 26, 1996 / Rules and Regulations

permits program that addressed the           pursuant to Tennessee Code Annotated,      delegation of section 112 standards and
deficiencies discussed in the proposed       Section 68–201–115, has authority to       programs that are unchanged from
full/interim approval Federal Register       administer the operating permits           Federal rules as promulgated. In
notice. These changes became locally         program in all areas of Hamilton           addition, EPA is approving the
effective on the following dates:            County, Tennessee, with the exception      delegation of all existing standards and
February 7, 1996, in the unincorporated      of Indian reservations and tribal lands.   programs under 40 CFR parts 61 and 63.
areas of Hamilton County and in the          The CHCAPCB program is implemented         This program for delegation applies to
East Ridge municipality; March 6, 1996,      and enforced through: (1) the              both part 70 sources and non-part 70
in the City of Chattanooga; March 7,         Chattanooga Air Pollution Control Code     sources.
1996, in the Soddy-Daisy municipality;       (within the incorporated municipality of
                                                                                        III. Administrative Requirements
March 11, 1996, in the Signal Mountain       the City of Chattanooga, Tennessee); (2)
municipality; March 12, 1996, in the         the Hamilton County Air Pollution          A. Docket
Lookout Mountain and Walden                  Control Regulation (in the                   Copies of the CHCAPCB submittal
municipalities; March 18, 1996, in the       unincorporated areas of Hamilton           and other information relied upon for
Collegedale municipality; March 19,          County, Tennessee); and (3) the air        this final full approval action are
1996, in the Red Bank municipality; and      pollution control ordinances prepared      contained in docket number TN-CHAT–
March 21, 1996, in the Lakesite              for and enacted in the incorporated        95–01 maintained at the EPA Region 4
municipality. The changes will become        municipalities of East Ridge, Red Bank,    office. The docket is an organized and
locally effective in the Ridgeside           Soddy-Daisy, Signal Mountain, Lakesite,    complete file of all the information
municipality on April 16, 1996. In this      Walden, Collegedale, Lookout               submitted to or otherwise considered by
action, EPA is promulgating full             Mountain, and Ridgeside.                   EPA in the development of this action.
approval of the CHCAPCB operating            B. Preconstruction Permit Program          The docket is available for public
permits program, and approving the           Implementing Section 112(g)                inspection at the location listed
section 112(g) and section 112(l)                                                       previously in the ADDRESSES section of
mechanisms noted above.                         EPA is approving the use of
                                                                                        this document.
                                             CHCAPCB’s preconstruction review
II. Final Action and Implications            program found in section 4–8 of the        B. Executive Order 12866
A. Title V Operating Permits Program         Chattanooga Code and the                     The Office of Management and Budget
                                             corresponding sections of the Hamilton     has exempted this action from Executive
   EPA is promulgating full approval of      County and local municipalities’           Order 12866 review.
the operating permits program                regulations as the mechanism for
submitted by the State of Tennessee, on      implementing section 112(g) during the     C. Regulatory Flexibility Act
behalf of CHCAPCB, on November 22,           transition period between promulgation       EPA’s actions under section 502 of the
1993, and as supplemented on January         of EPA’s section 112(g) rule and           Act do not create any new requirements,
23, 1995, February 24, 1995, October 13,     CHCAPCB’s adoption of rules                but simply address operating permits
1995, and March 14, 1995. The                specifically designed to implement         programs submitted to satisfy the
November 8, 1995, Federal Register           section 112(g). This approval is limited   requirements of 40 CFR part 70. Because
notice established that CHCAPCB would        to the implementation of the 112(g) rule   this action does not impose any new
receive full approval of its program if      and is effective only during any           requirements, it does not have a
certain changes were made to the             transition time between the effective      significant impact on a substantial
insignificant activities provisions of the   date of the 112(g) rule and the adoption   number of small entities.
program and submitted to EPA prior to        of specific rules by CHCAPCB to
EPA’s final action. CHCAPCB has              implement section 112(g). The duration     D. Unfunded Mandates Reform Act of
demonstrated that the program will be        of this approval is limited to 18 months   1995
adequate to meet the minimum                 following promulgation by EPA of              Under section 202 of the Unfunded
elements of a local operating permits        section 112(g) regulations, to provide     Mandates Reform Act of 1995, signed
program as specified in 40 CFR part 70.      Hamilton County, the City of               into law on March 22, 1995, EPA must
   The scope of the CHCAPCB program          Chattanooga, and the affected              prepare a budgetary impact statement to
that EPA is approving in this action         municipalities with adequate time to       accompany any proposed or final rule
applies to all part 70 sources (as defined   adopt regulations consistent with          that includes a Federal mandate that
in the approved program) within              Federal requirements.                      may result in estimated costs to State,
Hamilton County, except any sources of                                                  local, or tribal governments in the
air pollution over which an Indian Tribe     C. Program for Delegation of Section 112   aggregate, or to the private sector, of
has jurisdiction. See, e.g., 59 FR 55813,    Standards as Promulgated                   $100 million or more. Under section
55815–18 (November 9, 1994). The term          Requirements for approval, specified     205, EPA must select the most cost-
‘‘Indian Tribe’’ is defined under the Act    in 40 CFR 70.4(b), encompass section       effective and least burdensome
as ‘‘any Indian tribe, band, nation, or      112(l)(5) requirements for approval of a   alternative that achieves the objectives
other organized group or community,          program for delegation of section 112      of the rule and is consistent with
including any Alaska Native village,         standards as promulgated by EPA as         statutory requirements. Section 203
which is Federally recognized as             they apply to part 70 sources. Section     requires EPA to establish a plan for
eligible for the special programs and        112(l)(5) requires that CHCAPCB’s          informing and advising any small
services provided by the United States       program contain adequate authorities,      governments that may be significantly
to Indians because of their status as        adequate resources for implementation,     or uniquely impacted by the rule.
Indians.’’ See section 302(r) of the CAA;    and an expeditious compliance                 EPA has determined that the final full
see also 59 FR 43956, 43962 (August 25,      schedule, which are also requirements      approval promulgated in this document
1994); 58 FR 54364 (October 21, 1993).       under part 70. Therefore, EPA is also      does not include a Federal mandate that
   The Chattanooga-Hamilton County           promulgating approval under section        may result in estimated costs of $100
Air Pollution Control Board, operating       112(l)(5) and 40 CFR 63.91 of              million or more to State, local, or tribal
under a certificate of exemption             CHCAPCB’s program for receiving            governments in the aggregate, or to the
                  Federal Register / Vol. 61, No. 59 / Tuesday, March 26, 1996 / Rules and Regulations                            13103

private sector. This Federal action           petroleum refining process. The current           C. Recycling of Secondary Materials
approves pre-existing requirements            text of the exclusion contains a factual             Between Industries
under State or local law, and imposes         error as to the location in the refining        IV. State Authority
                                                                                              V. 60–Day Effective Date
no new Federal requirements.                  process at which recovered oil can be
                                                                                              VI. Regulatory Requirements
Accordingly, no additional costs to           inserted. The result of this error is to          A. Executive Order No. 12866
State, local, or tribal governments, or to    inappropriately restrict legitimate               B. Regulatory Flexibility Act
the private sector, result from this          recycling of recovered oil. The corrected         C. Paperwork Reduction Act
action.                                       rule also in fact reflects the result EPA         D. Unfunded Mandates Reform Act
                                              initially intended, which was to
List of Subjects in 40 CFR Part 70                                                            I. Authority
                                              condition the exclusion of recovered oil
  Environmental protection,                   on that oil being reinserted into the              These regulations are issued under
Administrative practice and procedure,        petroleum refining process at a point           the authority of Sections 2002 and 3001
Air pollution control, Intergovernmental      where that process removes or will              et seq. of the Solid Waste Disposal Act,
relations, Operating permits, Reporting       remove at least some contaminants.              as amended by the Resource
and recordkeeping requirements.                  In the proposed rules Section of             Conservation and Recovery Act, as
                                              today’s Federal Register, EPA is                amended by the Hazardous and Solid
  Dated: March 15, 1996.
                                              proposing this identical correction and         Waste Amendments of 1984, 42 U.S.C.
Phyllis P. Harris,                                                                            6912 and 6921 et seq.
                                              soliciting public comment on this
Acting Regional Administrator.                correction. If adverse comments are             II. Background
  Part 70, title 40 of the Code of Federal    received, EPA will withdraw this direct
Regulations is amended as follows:            final rule and address the comments in             In this document, EPA is correcting a
                                              a subsequent final rule. EPA will not           significant error in the text of a
PART 70—[AMENDED]                             provide additional opportunity for              regulatory exclusion relating to
                                              comment on the correction.                      recycling of recovered oil—oil that has
  1. The authority citation for part 70                                                       been recovered from secondary
continues to read as follows:                 DATES: This final action will become
                                              effective on May 28, 1996, unless EPA           materials such as wastewater generated
    Authority: 42 U.S.C. 7401, et seq.        is notified by April 9, 1996, that any          from normal petroleum exploration,
  2. In appendix A to part 70 the entry       person wishes to submit adverse                 refining, and transport activities—back
for Tennessee is amended by                   comment. If such notification is                into the petroleum refining process.
redesignating paragraph (b) as (d), by        received and EPA withdraws this final           Although the genesis of this error
adding and reserving paragraph (c), and       rule, then timely notice will be                requires some detailed explanation
by adding a new paragraph (b) to read         published in the Federal Register.              (which appears below), the ultimate
as follows:                                                                                   resolution is straightforward: the
                                              ADDRESSES: Comments and materials
                                                                                              Agency intended to exclude from the
Appendix A to Part 70—Approval                supporting this rulemaking are
                                                                                              definition of solid waste, and RCRA
Status of State and Local Operating           contained in Public Docket No. F–96–
                                                                                              Subtitle C authority, recovered oil that
Permits Programs                              SW2F-FFFFF and are located in the EPA
                                                                                              is inserted into a petroleum refining
                                              RCRA docket, Crystal Gateway #1, 1st
*       *     *      *     *                                                                  process at a point at which the process
                                              Floor, 1235 Jefferson Davis Highway,
                                                                                              removes or will remove at least some
Tennessee                                     Arlington, VA. The docket is open from
                                                                                              contaminants. Today’s document
                                              9:00 to 4:00, Monday through Friday,
  (a) [Reserved]                                                                              corrects the erroneous regulatory text to
  (b) Chattanooga-Hamilton County Air         except for Federal holidays. The public
                                                                                              restore this intended result.
Pollution Control Bureau, Hamilton County,    must make an appointment to review                 The rule at issue is an exclusion for
State of Tennessee: submitted on November     docket materials by calling (703) 603–          recovered oil found at 40 CFR
22, 1993, and supplemented on January 23,     9230. The public may copy a maximum             261.4(a)(12) (promulgated at 59 FR
1995, February 24, 1995, October 13, 1995,    of 100 pages from any one regulatory
and March 14, 1996; full approval effective
                                                                                              38545 (July 28, 1994)). That rule
                                              docket at no cost. Additional copies cost       excludes recovered oil from the
on April 25, 1996.                            § .15 per page. Persons wishing to notify       definition of solid waste, and RCRA
*       *     *      *     *                  EPA of their intent to submit adverse           Subtitle C authority, provided the
[FR Doc. 96–7166 Filed 3–25–96; 8:45 am]      comments on this action should contact          recovered oil is reinserted into a
BILLING CODE 6560–50–P                        Steven Silverman, Office of General             petroleum refining process ‘‘prior to
                                              Counsel (2366), 401 M Street, S.W.,             crude distillation or catalytic cracking.’’
                                              Washington, D.C. 20460.                         40 CFR 261.4(a)(12). The purpose of the
40 CFR Part 261                               FOR FURTHER INFORMATION CONTACT:                exclusion is to exclude from RCRA
[FRL–5446–2]                                  Steven Silverman, (202) 260–7716,               regulation recovered oil which is used
                                              Office of General Counsel at the above          as a feedstock in the petroleum refining
RIN 2050–AE31                                 address.                                        process. 59 FR at 38538. Conditioning
Identification and Listing of Hazardous       SUPPLEMENTARY INFORMATION:                      the exclusion on insertion into the
Waste; Amendments to Definition of                                                            refining process at a point where the
                                              Outline of Today’s Action                       process removes contaminants from the
Solid Waste
                                              I. Authority                                    recovered oil also helps assure the
AGENCY: Environmental Protection              II. Background                                  legitimacy and safety of the activity. 59
Agency.                                       III. Clarification of Issues Discussed in the   FR at 38542.
                                                    Preamble                                     However, the rule’s limitation on the
ACTION: Direct final rule.                       A. Status of Recovered Oil from Refineries   point of reinsertion is, in fact,
                                                    with Synthetic Organic Chemical
SUMMARY: EPA is correcting the text of              Manufacturing Industry (SOCMI) Units      erroneously restrictive. The correct
a regulatory exclusion from the                  B. Status of Recovered Oil from Co-Located   formulation is that reinsertion should be
regulatory definition of solid waste for            Petroleum Refineries and Petrochemical    at, or before, any point in the petroleum
recovered oil which is inserted into the            Facilities                                refining process where at least some
13104        Federal Register / Vol. 61, No. 59 / Tuesday, March 26, 1996 / Rules and Regulations

contaminants are removed (i.e.                5, 1995; letter from Ralph Colleli, Esq.      is excluded from RCRA regulation if it
separated from the matrix). Crude             to Mr. Michael Shapiro, June 20, 1995.        is inserted into designated refinery
distillation and catalytic cracking are          The 1994 regulatory text is                process points. Since promulgation of
examples of such points but are not the       consequently factually wrong, and             the recovered oil rule, EPA has learned
exclusive locations where the refining        inappropriately reduces recycling             that a number of petroleum refineries
process removes contaminants. See, e.g.,      opportunities for recovered oil without       also operate petrochemical processing
50 FR at 28725 (July 15, 1985).               corresponding environmental benefit.          units on-site and that wastewater from
   The regulatory history of this rule,       For these reasons, EPA is correcting the      these units is discharged into the
although tangled, indicates that the          text of the exclusion by revising the first   refinery’s wastewater treatment system.
Agency did not intend to impose the           sentence to state that insertion of           The wastewater from these units
limiting condition (insertion before          recovered oil must be into the refining       represents 2%–12% of the total refinery
crude distillation or catalytic cracking      process ‘‘at or before a point where          wastewater volumes and rarely contains
only) in fact promulgated, but rather to      contaminants are removed.’’                   recoverable oil according to some
condition the exclusion on insertion             There is also one further caveat about     petroleum industry sources. In response
into any part of the refining process that    the regulatory language. EPA did not          to questions from the regulated
removes contaminants. Since November          extend the scope of the exclusion to          community regarding whether the
1985, EPA has exempted certain fuels          include situations where recovered oil        recovered oil exclusion applies to oil
resulting from refining of materials          is inserted into a petroleum coker. 59 FR     recovered from petroleum refineries
derived from oil-containing petroleum         at 38542. Instead, EPA deferred making        with SOCMI units on-site, EPA provides
industry hazardous wastes. See 50 FR          a final decision on that issue until a        the following clarification.
49169, 49203 (Nov. 29, 1985) (codifying       later rulemaking. 59 FR at 38536, 38541,         While EPA did not specifically
40 CFR 261.6(a)(viii)(B)). The                38542. In fact, EPA has recently              address this situation in the recovered
accompanying preamble explained that          proposed that petroleum coking                oil rule, the Agency intended that the
these exemptions were based on the            operations be expressly encompassed           exclusion apply to refineries with on-
waste being inserted into a part of the       within the scope of an expanded               site petrochemical processing units.
petroleum refining process ‘‘designed to      exclusion. 60 FR 57747, 57796 (Nov. 20,       EPA views these SOCMI units as part of
remove contaminants in the normal             1995). EPA will take final action on that     the normal petroleum refining
operation of the refining process.’’ 50 FR    proposal as part of that separate             operation. Therefore, the presence of
                                              rulemaking proceeding.                        these units at a petroleum refining
at 49169. The preamble further
                                                 However, because a final decision on       facility does not preclude the refinery’s
explained that the source of the test was
                                              the status of petroleum cokers is being       eligibility for the recovered oil
a comparable statutory exemption from
                                              made in that other rulemaking, and            exclusion.
hazardous waste fuel labelling
                                              because petroleum cokers do remove
requirements for fuels produced from                                                        B. Status of Recovered Oil From Co-
                                              contaminants from incoming materials,
oil-bearing refining wastes that are                                                        Located Petroleum Refineries and
                                              at this time EPA is adding to the
inserted into the refining process at a                                                     Petrochemical Facilities
                                              amended regulatory text the
point where ‘‘contaminants are                                                                 The recovered oil rule also failed to
                                              qualification that insertion be into or
removed.’’ 50 FR at 49169, referring to                                                     specifically address how the regulations
                                              before a part of the process where
RCRA sections 3004(r)(2)(B), and (r)(3).                                                    apply in cases where co-located
                                              contaminants are removed, but not
As set out in the legislative history to                                                    petroleum refineries and petrochemical
                                              direct insertion to petroleum cokers. In
those provisions, the underlying                                                            facilities share the same wastewater
                                              addition, EPA wishes to clarify that
principle is that ‘‘(r)efineries often take                                                 treatment system. In these situations,
                                              neither the July 28, 1994 rule nor this
oily wastes and refining transportation                                                     the proximally located facilities are
                                              document is intended to change the
wastes and reintroduce these wastes                                                         generally owned and operated by the
                                              current regulatory status of petroleum
into the refining process where the oil                                                     same parent company. However, the
                                              cokers.
component is incorporated into a                                                            facilities may be separately owned and
product and contaminants are removed.         III. Clarification of Issues Discussed in     operated in some instances. This
Refineries should not automatically           the Preamble                                  situation presents essentially the same
have to place a warning label on these           In addition to the correction              issue as that posed by the previous case
fuels.’’ S. Rep. No. 98–284, 98th Cong.       discussed above, EPA wishes to clarify        involving on-site SOCMI units. The
1st Sess. at 40.                              several issues discussed in the preamble      difference in this case is that the
   The 1994 rule at issue here meant to       to the July 28, 1994 recovered oil rule.      petrochemical processes are located off-
retain this principle by requiring that                                                     site of the petroleum refining facility. In
the recovered oil be inserted into the        A. Status of Recovered Oil From               response to questions from the regulated
refining process ‘‘at or before a point       Refineries With Synthetic Organic             community regarding whether the
* * * designed to remove toxic metal          Chemical Manufacturing Industry               recovered oil exclusion applies to oil
and organic contaminants * * *.’’ 59          (SOCMI) Units                                 recovered from wastewater treatment
FR at 38542 (July 28, 1994). The                 The recovered oil rule, as corrected by    systems that service both petrochemical
preamble then incorrectly stated that         today’s document, provides an                 and petroleum refining operations, EPA
this means that insertion had to be           exclusion from RCRA regulation for oil        provides the following clarification.
‘‘prior to crude distillation or catalytic    that is recovered from ‘‘normal’’                The Agency’s intent in crafting the
cracking.’’ Id. As noted above, this is       petroleum refinery operations and             recovered oil exclusion was to limit its
factually incorrect. The refining process     inserted prior to points in the petroleum     applicability to oil recovered from
removes contaminants at a number of           refining process, other than direct           petroleum industry sources for reasons
points after distillation and catalytic       insertion into a coker, where                 explained in the preamble to the
cracking, an example being in                 contaminant removal occurs                    recovered oil rule. 51 FR 38539.
fractionation units located downstream        (§ 261.4(a)(12)). Under this provision,       Accordingly, the exclusion specifically
of catalytic crackers. See letter from        oil recovered from a petroleum                does not apply to oil generated from
Ralph Colleli, Esq. to Ross Elliott, April    refinery’s wastewater treatment system        non-petroleum industry operations. The
            Federal Register / Vol. 61, No. 59 / Tuesday, March 26, 1996 / Rules and Regulations                             13105

exclusion does, however, apply broadly       EPA’s position that recycling of             from the State to the appropriate
to recovered oil generated from both on-     secondary materials (on- or off-site) may    Regional office, certifying that it has
and off-site sources within the              involve an element of discard and may        adopted provisions equivalent to and no
petroleum industry (e.g., the exclusion      therefore be subject to regulation under     less stringent than today’s final rule (see
applies to recovered oil from petroleum      RCRA subtitle C; and (2) make clear that     the December 19, 1994, memorandum
exploration and production activities). It   the scope of the recovered oil rule is       from Michael Shapiro, Director of the
is EPA’s position that, in cases where       limited to determining the Agency’s          Office of Solid Waste, to the EPA
petrochemical and petroleum refining         jurisdiction only over recycling that        Regional Division Directors that is in the
operations are co-located and share a        occurs within the petroleum refining         docket for today’s rule). The State
common wastewater treatment system,          industry.                                    should also submit a copy of its final
the petrochemical operations are                                                          rule or other authorizing authority.
                                             IV. State Authority
appropriately considered part of normal                                                   Revisions to the revised Program
petroleum refining for purposes of the          Under Section 3006 of RCRA, EPA           Description, Memorandum of
recovered oil exclusion. In these            may authorize qualified States to            Agreement, and Attorney General’s
situations, given the common                 administer and enforce the RCRA              statement are not necessary (see 40 CFR
wastewater treatment system and the          program within the State. Following          271.21(b)(1)). EPA expects that this
predominance of petroleum refining           authorization, EPA retains enforcement       simplified process will expedite the
wastewater, the integration between the      authority under Sections 3008, 3013,         review of the authorization submittal for
two facilities is such that the              and 7003 of RCRA, although authorized        this rule.
petrochemical facility falls within scope    States have primary enforcement
of the exclusion. The recovered oil          responsibility. The standards and            V. 60–Day Effective Date
exclusion therefore applies to oil           requirements for authorization are             Because the regulatory community
recovered from a wastewater treatment        found in 40 CFR Part 271.                    does not need 6 months to come into
system that a refinery shares with a co-        Today’s amendments are not imposed        compliance with this rule, EPA finds,
located petrochemical facility. The          pursuant to the Hazardous and Solid          pursuant to RCRA section 3010(b)(1),
exclusion does not, however, apply to        Waste Amendments of 1984 (HSWA).             that this rule can be made effective in
recovered oil from a petrochemical           The rule changes, therefore, will become     less than six months.
facility that is sent to a petroleum         effective immediately only in those
refinery for recycling via any route other   States without interim or final              VI. Regulatory Requirements
than a shared wastewater treatment           authorization, not in authorized States.     A. Executive Order 12866
system (e.g., via truck, rail, etc).         The effect of the rule changes on
However, in a separate document              authorized State programs is discussed          Under Executive Order 12866 (58 FR
published in the Federal Register on         next.                                        51735, October 4, 1993), the Agency
November 20, 1995 (60 FR 57747), EPA            Today’s direct final rule eliminates a    must determine whether this regulatory
is proposing to expand the exclusion to      factual error, an error that                 action is ‘‘significant’’ and therefore
cover recovered oil that is sent from        inappropriately restricts the location in    subject to OMB review and the
petrochemical facilities to co-located or    the refining process at which recovered      requirements of the Executive Order.
commonly owned refineries for                oil can be inserted for the legitimate       The Order defines ‘‘significant’’
recycling by other means of transport.       recycling of the recovered oil. Therefore,   regulatory action as one that is likely to
                                             today’s rule restores the Agency’s           lead to a rule that may:
C. Recycling of Secondary Materials          intended result to exclude from the             (1) have an annual effect on the
Between Industries                           definition of solid waste, and RCRA          economy of $100 million or more, or
   With the above exceptions, the            Subtitle C authority, recovered oil that     adversely and materially affect a sector
recovered oil exclusion does not extend      is inserted into a petroleum refining        of the economy, productivity,
to recovered oil from non-petroleum          process at a point at which the process      competition, jobs, the environment,
industries. As explained in the              removes or will remove at least some         public health or safety, or State, local,
preamble to the July 28, 1994 rule,          contaminants. The effect of today’s          or tribal governments or communities;
‘‘such an extension is beyond the scope      direct final rule is therefore considered       (2) create a serious inconsistency or
of the recovered oil rule. It is also        to be less stringent than the existing       otherwise interfere with an action taken
beyond the scope of judicial decisions       federal standards. Authorized States are     or planned by another agency;
construing the definition of solid waste’’   only required to modify their programs          (3) materially alter the budgetary
which indicated that, ‘‘when one             when EPA promulgates federal                 impact of entitlement, grants, user fees,
industry sends its residual materials to     regulations that are more stringent or       or loan programs or the rights and
another industry for recycling, the          broader in scope than the existing           obligations of recipients thereof; or
initial industry can be considered to        federal regulations. Therefore, States          (4) raise novel legal or policy issues
have discarded them.’’ (emphasis             that are authorized for the July 28, 1994    arising out of legal mandates, the
added) 59 FR 38,539, July 28, 1994. EPA      rule are not required to modify their        President’s priorities, or the principles
wishes to clarify that this preamble         programs to adopt today’s rule.              set forth in the Executive Order.
discussion was not intended to modify        However, EPA strongly urges States to           It has been determined that this
in any way the pre-existing state of law     do so. EPA’s authorization guidance to       amendment to the final rule is not a
regarding EPA’s regulatory jurisdiction      States will link the July 28, 1994 rule      ‘‘significant regulatory action’’ under
over recycling. More specifically, EPA       and today’s final amendments.                the terms of the Executive Order and is
wishes to make clear that this                  Given the minor scope of today’s          therefore not subject to OMB review.
discussion was not meant to imply that       amendment, those States that are
all secondary materials that are sent off-   authorized for the July 28, 1994 rule        B. Regulatory Flexibility Act
site for recycling must be considered to     may submit an abbreviated                      The Regulatory Flexibility Act, 5
be discarded materials in all situations.    authorization revision application to the    U.S.C. 601–602, requires that Federal
Rather, the intent of this discussion was    Region for today’s amendment. This           agencies examine the impacts of their
merely to: (1) explain the court’s and       application should consist of a letter       regulations on ‘‘small entities’’. If a
13106       Federal Register / Vol. 61, No. 59 / Tuesday, March 26, 1996 / Rules and Regulations

rulemaking will have a significant          provide for notifying potentially              that the oil must not be stored in a
impact on a substantial number of small     affected small governments, giving them        manner involving placement on the
entities, agencies must consider            meaningful and timely input in the             land, and must not be accumulated
regulatory alternatives that minimize       development of EPA regulatory                  speculatively, before being so recycled.
economic impact.                            proposals with significant Federal             Recovered oil is oil that has been
  EPA believes that this amendment          intergovernmental mandates, and                reclaimed from secondary materials
will have negligible impact on any small    informing, educating, and advising them        (such as wastewater) generated from
entity because it expands the terms of      on compliance with the regulatory              normal petroleum refining, exploration
an exclusion from regulation. In            requirements.                                  and production, and transportation
addition, the underlying rule itself was       Today’s rule contains no Federal            practices. Recovered oil includes oil
deregulatory and so did not have            mandates (under the regulatory                 that is recovered from refinery
significant adverse economic impact on      provisions of Title II of the UMRA) for        wastewater collection and treatment
small entities. See 59 FR 38545.            State, local, or tribal governments or the     systems, oil recovered from oil and gas
Therefore, the Administrator certifies      private sector because it imposes no           drilling operations, and oil recovered
pursuant to 5 U.S.C. 601 et seq., that      enforceable duties on any of these             from wastes removed from crude oil
this rule will not have a significant       governmental entities or the private           storage tanks. Recovered oil does not
impact on a substantial number of small     sector. The rule merely corrects a factual     include (among other things) oil-bearing
entities because this amendment             error in the regulatory text of the            hazardous waste listed in 40 CFR part
reduces the scope of the RCRA subtitle      regulatory definition of solid waste. In       261 D (e.g., K048–K052, F037, F038).
C regulatory program.                       any event, EPA has determined that this        However, oil recovered from such
C. Paperwork Reduction Act                  rule does not include a Federal mandate        wastes may be considered recovered oil.
                                            that may result in estimated costs of          Recovered oil also does not include
  Under the Paperwork Reduction Act,        $100 million or more to either State,          used oil as defined in 40 CFR 279.1.
44 U.S.C. 3501 et seq., EPA must            local, or tribal governments in the
consider the paperwork burden imposed                                                      *     *     *    *     *
                                            aggregate, or to the private sector in any     [FR Doc. 96–7275 Filed 3–25–96; 8:45 am]
by any information collection request in
                                            one year. Thus, today’s rule is not
a proposed or final rule. This rule will                                                   BILLING CODE 6560–50–P
                                            subject to the requirements of sections
not impose any new information
                                            202 and 205 of the UMRA. Similarly,
collection requirements.
                                            EPA has determined that this rule
D. Unfunded Mandates Reform Act             contains no regulatory requirements that       DEPARTMENT OF DEFENSE
   Title II of the Unfunded Mandates        might significantly or uniquely affect
Reform Act of 1995 (UMRA), P.L. 104–        small governments.                             48 CFR Parts 225 and 252
4, establishes requirements for Federal     List of Subjects in 40 CFR Part 261
agencies to assess the effects of their                                                    Defense Federal Acquisition
regulatory actions on State, local, and       Environmental protection, Hazardous          Regulation Supplement; Naval Vessel
tribal governments and the private          waste, Solid waste, Petroleum,                 Components
sector. Under section 202 of the UMRA,      Recycling.
                                                                                           AGENCY:Department of Defense (DoD).
EPA generally must prepare a written          Dated: March 19, 1996.
statement, including a cost-benefit         Carol M. Browner,                                    Interim rule with request for
                                                                                           ACTION:
analysis, for proposed and final rules      Administrator.
                                                                                           comment.
with ‘‘Federal mandates’’ that may            For the reasons set out in the
result in expenditures to State, local,                                                    SUMMARY:   The Director of Defense
                                            preamble, chapter I of title 40 of the         Procurement has issued an interim rule
and tribal governments, in the aggregate,   Code of Federal Regulations is amended
or to the private sector, of $100 million                                                  amending the Defense Federal
                                            as follows:                                    Acquisition Regulation Supplement
or more in any one year. When a written
statement is needed for an EPA rule,        PART 261—IDENTIFICATION AND                    (DFARS) to implement additional
section 205 of the UMRA generally           LISTING OF HAZARDOUS WASTE                     statutory restrictions on the acquisition
requires EPA to identify and consider a                                                    of anchor and mooring chain and totally
reasonable number of regulatory               1. The authority citation for part 261       enclosed lifeboats, when used as naval
alternatives and adopt the least costly,    continues to read as follows:                  vessel components.
most cost-effective or least burdensome       Authority: 42 U.S.C. 6905, 6912 (a), 6921,   DATES: Effective date: April 1, 1996.
alternative that achieves the objectives    6922 and 6938.
                                                                                              Comment date: Comments on the
of the rule. The provisions of section        2. Section 261.4 is amended by               interim rule should be submitted in
205 do not apply when they are              revising paragraph (a)(12) to read as          writing to the address shown below on
inconsistent with applicable law.           follows:                                       or before May 28, 1996, to be considered
Moreover, section 205 allows EPA to                                                        in the formulation of the final rule.
adopt an alternative other than the least   § 261.4   Exclusions.
                                                                                           ADDRESSES: Interested parties should
costly, most cost-effective or least          (a) * * *
burdensome alternative if the                 (12) Recovered oil from petroleum            submit written comments to: Defense
Administrator publishes with the final      refining, exploration and production,          Acquisition Regulations Council, Attn:
rule an explanation why that alternative    and from transportation incident               Ms. Amy Williams, PDUSD (A&T) DP
was not adopted. Before EPA establishes     thereto, which is to be inserted into the      (DAR), IMD 3D139, 3062 Defense
any regulatory requirements that may        petroleum refining process (SIC Code           Pentagon, Washington, DC 20301–3062.
significantly or uniquely affect small      2911) at or before a point (other than         Telefax number (703) 602–0350. Please
governments, including tribal               direct insertion into a coker) where           cite DFARS Case 96–D300 in all
governments, it must have developed         contaminants are removed. This                 correspondence related to this issue.
under section 203 of the UMRA a small       exclusion applies to recovered oil stored      FOR FURTHER INFORMATION CONTACT:
government agency plan. The plan must       or transported prior to insertion, except      Ms. Amy Williams, (703) 602–0131
             Federal Register / Vol. 61, No. 59 / Tuesday, March 26, 1996 / Rules and Regulations                           13107

SUPPLEMENTARY INFORMATION:                     1. The authority citation for 48 CFR         (2) Requiring welded shipboard
A. Background                                Parts 225 and 252 continues to read as       anchor or mooring chain of four inches
                                             follows:                                     in diameter or less.
   This interim DFARS rule implements          Authority: 41 U.S.C. 421 and 48 CFR        225.7012–4   [Removed]
Section 806, paragraph (a), of the Fiscal    Chapter 1.
Year 1996 Defense Authorization Act                                                         3. Section 225.7012–4 is removed.
(Pub. L. 104–106), amending the              PART 225—FOREIGN ACQUISITION                   4. Sections 225.7022, 225.7002–1, and
restriction on anchor and mooring chain                                                   225.7022–2 are revised to read as
                                               2. Sections 225.7012, 225.7012–1,          follows:
at 225.7012 and the restriction on totally
                                             225.7012–2, and 225.7012–3 are revised
enclosed lifeboat survival systems at
                                             to read as follows:                          225.7002 Restrictions on totally enclosed
225.7022. The interim rule also removes                                                   lifeboat survival systems.
outdated restrictions relating to anchor     225.7012 Restrictions on anchor and
and mooring chain for fiscal years 1988      mooring chain.                               225.7022–1   Restrictions.
through 1990, at DFARS 225.7012–2,                                                           (a) In accordance with Section 8124 of
225.7012–3, 225.7012–4(b) and (c),           225.7012–1   Restrictions.
                                                                                          the Fiscal Year 1994 Defense
252.225–7020, and 252.225–7021.                (a) Under Public Law 101–511,
                                                                                          Appropriations Act (Public Law 103–
                                             Section 8041, and similar sections in
B. Regulatory Flexibility Act                                                             139) and Section 8093 of the Fiscal Year
                                             subsequent Defense appropriations acts,
                                                                                          1995 Defense Appropriations Act
   This interim rule is not expected to      DoD appropriations for fiscal years 1991
                                                                                          (Public Law 103–335), do not purchase
have a significant economic impact on        and after may not be used to acquire
                                                                                          a totally enclosed lifeboat survival
a substantial number of small entities       welded shipboard anchor and mooring
                                                                                          system, which consists of the lifeboat
within the meaning of the Regulatory         chain, four inches in diameter and
                                                                                          and associated davits and winches,
Flexibility Act, 5 U.S.C. 602, et seq.,      under, unless—
                                                                                          unless 50 percent or more of the
because the foreign source restrictions        (1) It is manufactured in the United
                                                                                          components are manufactured in the
contained in the rule are not                States, including cutting, heat treating,
                                                                                          United States, and 50 percent or more
significantly different from existing        quality control, testing, and welding
                                                                                          of the labor in the final manufacture and
foreign source restrictions. An Initial      (both forging and shot blasting process);
                                                                                          assembly of the entire system is
Regulatory Flexibility Analysis has          and
                                                                                          performed in the United States.
therefore not been prepared. Comments          (2) The cost of the components
                                             manufactured in the United States               (b) In accordance with 10 U.S.C.
from small entities concerning the                                                        2534(a)(3)(B), do not purchase a totally
affected DFARS subparts will be              exceeds 50 percent of the total cost of
                                             components.                                  enclosed lifeboat which is a component
considered in accordance with Section                                                     of a naval vessel, unless it is
610 of the Act. Such comments must be          (b) Acquisition of welded shipboard
                                             anchor and mooring chain, four inches        manufactured in the United States or
submitted separately and cite DFARS                                                       Canada. In accordance with 10 U.S.C.
Case 96–d300 in correspondence.              in diameter and under, when used as a
                                             component of a naval vessel, is also         2534(h), this restriction may not be
C. Paperwork Reduction Act                   restricted under 10 U.S.C. 2534(a)(3)(ii).   implemented through the use of a
                                             However, the more stringent restriction      contract clause or certification.
   The Paperwork Reduction Act does                                                       Implementation shall be effected
                                             under 225.7012–1(a) takes precedence.
not apply. This interim rule does not                                                     through management and oversight
impose any new information collection        225.7012–2   Waiver.                         techniques that achieve the objective of
requirements which require the                 The restriction in 225.7012–1(a) may       the restriction without imposing a
approval of OMB under 44 U.S.C. 3501,        be waived by the Secretary of the            significant management burden on the
et seq.                                      Department responsible for acquisition,      Government or the contractor involved.
D. Determination To Issue an Interim         on a case-by-case basis, where sufficient
                                                                                          225.7022–2   Exceptions.
Rule                                         domestic suppliers are not available to
                                             meet DoD requirements on a timely              The restriction in 225.7022–1(b) does
  A determination has been made under        basis and the acquisition is necessary to    not apply if—
the authority of the Secretary of Defense    acquire capability for national security       (a) The acquisition is at or below the
that compelling reasons exist to publish     purposes.                                    simplified acquisition threshold; or
this interim rule prior to affording the       (a) Document the waive in a written          (b) Spare or repair parts are needed to
public an opportunity to comment. This       D&F containing—                              support totally enclosed lifeboats
action is necessary to promptly                (1) The factors supporting the waiver;     manufactured outside the United States
implement Section 806, paragraph (a),        and                                          or Canada.
of the Fiscal Year 1996 Defense                (2) A certification that the acquisition     5. Sections 225.7022–3 and 225.7022–
Authorization Act (Pub. L. 104–106).         must be made in order to acquire             4 are added to read as follows:
Comments received in response to the         capability for national security
publication of this interim rule will be     purposes.                                    225.7022–3   Waiver.
considered in formulating the final rule.      (b) Provide a copy of the D&F to the         The waiver criteria at 225.7004–4
                                             House and Senate Committees on               apply only to the restriction of
List of Subjects in 48 CFR Parts 225 and
                                             Appropriations.                              225.7022–1(b).
252
                                             225.7012–3   Contract clauses.               225.7022–4   Contract clause.
  Government procurement.
Michele P. Peterson,                           Use the clause at 252.225–7019,               Use the clause at 252.225–7039,
                                             Restriction on Acquisition of Foreign        Restriction on Acquisition of Totally
Executive Editor, Defense Acquisition
Regulations Council.                         Anchor and Mooring Chain, in all             Enclosed Lifeboat Survival Systems, in
                                             solicitations and contracts—                 all solicitations and contracts which
  Therefore, 48 CFR Parts 225 and 252          (1) Using fiscal year 1991 or later        require delivery of totally enclosed
are amended as follows:                      funds; and                                   lifeboat survival systems.
13108           Federal Register / Vol. 61, No. 59 / Tuesday, March 26, 1996 / Rules and Regulations

PART 252—SOLICITATION                           ‘‘Caution’’ on the sun visor label. This      under E.O. 12866, ‘‘Regulatory Planning
PROVISIONS AND CONTRACTS                        notice corrects that error.                   and Review.’’ This document is part of
CLAUSES                                         DATES: Effective Date: The amendments         an action that was determined to be not
                                                made in this rule are effective March 26,     ‘‘significant’’ under the Department of
252.225–7019     [Amended]                                                                    Transportation’s regulatory policies and
                                                1966.
   6. Section 252.225–7019 is amended              Petition Date: Any petitions for           procedures. This notice does not impose
in the introductory text by revising the        reconsideration must be received by           any new requirements on
citation ‘‘225.7012–4(a)’’ to read              NHTSA no later than April 25, 1996.           manufacturers. It simply corrects an
‘‘225.7012–3’’.                                                                               error.
                                                ADDRESSES: Any petitions for
225.225–7020 and 252.7021     [Removed and      reconsideration should refer to the           Regulatory Flexibility Act
reserved]                                       docket and notice number of this notice
  7. Sections 252.225–7020 and                  and be submitted to: Administrator,             NHTSA has also considered the
252.225–7021 are removed and                    National Highway Traffic Safety               impacts of this final rule under the
reserved.                                       Administration, 400 Seventh Street,           Regulatory Flexibility Act. I hereby
  8. Section 252.225–7039 is amended            SW., Washington, DC 20590.                    certify that this rule will not have a
by revising the introductory text, the          FOR FURTHER INFORMATION CONTACT: Ms.          significant economic impact on a
clause date, and the introductory text of       Mary Versailles, Office of the Chief          substantial number of small entities.
the clause to read as follows:                  Counsel, NCC–20, National Highway             Further, this final rule will not alter the
                                                Traffic Safety Administration, 400            economic impacts of the May 1995 final
252.225–7039 Restriction on acquisition of      Seventh Street, SW., Washington, DC           rule. As explained above, this rule will
Totally Enclosed Lifeboat Survival Systems.                                                   not have an economic impact on any
                                                20590; telephone (202) 366–2992;
  As prescribed in 225.7022–4, use the          facsimile (202) 366–3820; electronic          manufacturers.
following clause:                               mail ‘‘mversailles@nhtsa.dot.gov’’.           Paperwork Reduction Act
RESTRICTION ON ACQUISITION OF                   SUPPLEMENTARY INFORMATION: On May
TOTALLY ENCLOSED LIFEBOAT                       23, 1995, NHTSA published a final rule          In accordance with the Paperwork
SURVIVAL SYSTEMS (APR 1996)                                                                   Reduction Act of 1980 (P.L. 96–511),
                                                amending 49 CFR 571.208 to allow
  For totally enclosed lifeboat survival        manufacturers the option of installing a      there are no requirements for
systems furnished under this contract, which    manual device that motorists could use        information collection associated with
consist of lifeboat and associated davits and                                                 this final rule.
winches, the Contractor agrees that—
                                                to deactivate the front passenger-side air
                                                bag in vehicles in which infant               National Environmental Policy Act
*     *     *      *     *                      restraints can be used in the front seat
[FR Doc. 96–7218 Filed 3–25–96; 8:45 am]        only. As part of this final rule, NHTSA         NHTSA has also analyzed this final
BILLING CODE 5000–04–M                          amended the air bag warning label             rule under the National Environmental
                                                required on vehicle sun visors to specify     Policy Act and determined that it will
                                                that the caution against installing a rear-   not have a significant impact on the
DEPARTMENT OF TRANSPORTATION                    facing infant seat in a front seating         human environment.
                                                position did not apply if the air bag         Executive Order 12612 (Federalism)
National Highway Traffic Safety                 were off. The amendments were
Administration                                  effective June 22, 1995. Due to an error,       NHTSA has analyzed this rule in
                                                the regulatory language of the final rule     accordance with the principles and
49 CFR Part 571                                 deleted language incorporating the            criteria contained in E.O. 12612, and
[Docket No. 74–14; Notice 98]
                                                provision in S5.4.1(b)(1) that permits        has determined that this rule will not
                                                the use of the signal word ‘‘Warning,’’       have significant federalism implications
RIN 2127–AF30                                   in place of the word ‘‘Caution,’’ on the      to warrant the preparation of a
                                                sun visor label. This notice corrects that    Federalism Assessment.
Federal Motor Vehicle Safety                    error.
Standards; Occupant Crash Protection               NHTSA finds for good cause that this       Civil Justice Reform
                                                final rule can be made effective                 This final rule does not have any
AGENCY:  National Highway Traffic
                                                immediately. The stated purpose of the        retroactive effect. Under 49 U.S.C.
Safety Administration (NHTSA), DOT.
                                                May 23, 1995, final rule was to affect        30103, whenever a Federal motor
ACTION: Final Rule, correcting                  only the cautionary statement
amendment.                                                                                    vehicle safety standard is in effect, a
                                                concerning placement of a rear-facing         State may not adopt or maintain a safety
SUMMARY: On May 23, 1995, NHTSA
                                                infant seat in a front seating position,      standard applicable to the same aspect
published a final rule allowing                 and not any other part of the label. This     of performance which is not identical to
manufacturers the option of installing a        notice corrects an error which resulted       the Federal standard, except to the
manual device that motorists could use          in the unintentional amending of the          extent that the State requirement
to deactivate the front passenger-side air      options for the choice of the signal word     imposes a higher level of performance
bag in vehicles in which infant                 to be used at the beginning of the label.     and applies only to vehicles procured
restraints can be used in the front seat        Rulemaking Analyses and Notices               for the State’s use. 49 U.S.C. 30161 sets
only. As part of this final rule, NHTSA                                                       forth a procedure for judicial review of
amended the air bag warning label               Executive Order 12866 and DOT                 final rules establishing, amending or
required on vehicle sun visors. The             Regulatory Policies and Procedures            revoking Federal motor vehicle safety
amendments were effective June 22,                NHTSA has considered the impact of          standards. That section does not require
1995. Due to an error, the regulatory           this rulemaking action under E.O. 12866       submission of a petition for
language of the final rule deleted an           and the Department of Transportation’s        reconsideration or other administrative
option to use the signal word                   regulatory policies and procedures. This      proceedings before parties may file suit
‘‘Warning’’ in place of the word                rulemaking document was not reviewed          in court.
              Federal Register / Vol. 61, No. 59 / Tuesday, March 26, 1996 / Rules and Regulations                                        13109

List of Subjects in 49 CFR Part 571               restraint shall have a label permanently          yellowfin sole fishery category in Zone
  Imports, Motor vehicle safety, Motor            affixed to the sun visor for such seating         1.
vehicles.                                         position on either side of the sun visor,         EFFECTIVE DATE: 12 noon, Alaska local
                                                  at the manufacturer’s option. Except as           time (A.l.t.), March 20, 1996, until 12
  In consideration of the foregoing, 49
                                                  provided in S5.4.1(b)(1), this label shall        noon, A.l.t., April 1, 1996.
CFR Part 571 is amended as follows:
                                                  read:
                                                                                                    FOR FURTHER INFORMATION CONTACT:
PART 571—FEDERAL MOTOR                            CAUTION
                                                                                                    Andrew N. Smoker, 907–586-7228.
VEHICLE SAFETY STANDARDS                          TO AVOID SERIOUS INJURY:                          SUPPLEMENTARY INFORMATION: The
  1. The authority citation for Part 571            For maximum safety protection in all types      groundfish fishery in the BSAI exclusive
of Title 49 continues to read as follows:         of crashes, you must always wear your safety      economic zone is managed by NMFS
                                                  belt.
  Authority: 49 U.S.C. 322, 30111, 30115,                                                           according to the Fishery Management
                                                    Do not install rearward-facing child seats
30117, and 30166; delegation of authority at      in any front passenger seat position, unless      Plan for the Groundfish Fishery of the
49 CFR 1.50.                                      the air bag is off.                               Bering Sea and Aleutian Islands Area
  2. Section 571.208 is amended by                  Do not sit or lean unnecessarily close to the   (FMP) prepared by the North Pacific
revising section S4.5.1(b)(1) to read as          air bag.                                          Fishery Management Council under
follows:                                            Do not place any objects over the air bag       authority of the Magnuson Fishery
                                                  or between the air bag and yourself.              Conservation and Management Act.
§ 571.208 Standard No. 208, Occupant                See the owner’s manual for further              Fishing by U.S. vessels is governed by
Crash Protection                                  information and explanations.                     regulations implementing the FMP at 50
*      *     *     *    *                         *     *     *      *     *                        CFR parts 620 and 675.
   S4.5.1 Labeling and owner’s manual               Issued on: March 18, 1996.                         The 1996 PSC allowance of C. bairdi
information.                                      Barry Felrice,                                    Tanner crab in Zone 1 for the trawl
*      *     *     *    *                         Associate Administrator for Safety                yellowfin sole fishery category, which is
   (b) Label on sun visor above front             Performance Standards.                            defined at § 675.21(b)(1)(iii)(B)(1), was
outboard seating positions equipped               [FR Doc. 96–6965 Filed 3–25–96; 8:45 am]          established by the Final 1996 Harvest
with inflatable restraint.                        BILLING CODE 4910–59–P                            Specifications of Groundfish (61 FR
   (1) Each vehicle manufactured on or                                                              4311, February 5, 1996) as 250,000 crab.
after September 1, 1994, shall comply                                                               The first seasonal bycatch
with either S4.5.1(b)(1)(i) or                    DEPARTMENT OF COMMERCE                            apportionment of that allowance is
S4.5.1(b)(1)(ii), except that the word                                                              50,000 crab.
‘‘WARNING’’ may be used instead of                National Oceanic and Atmospheric                     The Director, Alaska Region, NMFS,
‘‘CAUTION’’.                                      Administration                                    has determined, in accordance with
   (i) Each front outboard seating                                                                  § 675.21(c)(1)(i), that the first seasonal
position that provides an inflatable              50 CFR Part 675
                                                                                                    apportionment of the PSC allowance of
restraint shall have a label permanently          [Docket No. 960129019–6019–01; I.D.               C. bairdi Tanner crab for the trawl
affixed to the sun visor for such seating         032096A]                                          yellowfin sole fishery in Zone 1 has
position on either side of the sun visor,                                                           been reached. Therefore, NMFS is
at the manufacturer’s option. Except as           Groundfish of the Bering Sea and                  prohibiting directed fishing for
provided in S5.4.1(b)(1) and                      Aleutian Islands Area; Yellowfin Sole             yellowfin sole by vessels using trawl
S4.5.1(b)(3), this label shall read:              by Vessels Using Trawl Gear in                    gear in Zone 1 of the BSAI.
CAUTION                                           Bycatch Limitation Zone 1
                                                                                                       Maximum retainable bycatch amounts
TO AVOID SERIOUS INJURY:                          AGENCY:  National Marine Fisheries                for applicable gear types may be found
                                                  Service (NMFS), National Oceanic and              in the regulations at § 675.20(h).
  For maximum safety protection in all types
of crashes, you must always wear your safety      Atmospheric Administration (NOAA),
                                                                                                    Classification
belt.                                             Commerce.
  Do not install rearward-facing child seats      ACTION: Closure.                                    This action is taken under § 675.21
in any front passenger seat position.                                                               and is exempt from review under E.O.
  Do not sit or lean unnecessarily close to the   SUMMARY:   NMFS is closing the directed           12866.
air bag.                                          fishery for yellowfin sole by vessels
                                                                                                      Authority: 16 U.S.C. 1801 et seq.
  Do not place any objects over the air bag       using trawl gear in Bycatch Limitation
or between the air bag and yourself.              Zone 1 (Zone 1) of the Bering Sea and               Dated: March 20, 1996.
  See the owner’s manual for further              Aleutian Islands management area                  Richard W. Surdi,
information and explanations.                     (BSAI). This action is necessary to               Acting Director, Office of Fisheries
  (ii) If the vehicle is equipped with a          prevent exceeding the first seasonal              Conservation and Management, National
cutoff device permitted by S4.5.4 of this         apportionment of the prohibited species           Marine Fisheries Service.
standard, each front outboard seating             catch (PSC) allowance of C. bairdi                [FR Doc. 96–7182 Filed 3–20–96; 3:57 pm]
position that provides an inflatable              Tanner crab apportioned to the trawl              BILLING CODE 3510–22–F
13110

Proposed Rules                                                                              Federal Register
                                                                                            Vol. 61, No. 59

                                                                                            Tuesday, March 26, 1996



This section of the FEDERAL REGISTER             FOR FURTHER INFORMATION CONTACT:           updated lifing analyses that revealed
contains notices to the public of the proposed   Robert J. Ganley, Aerospace Engineer,      certain high pressure turbine rotor
issuance of rules and regulations. The           Engine Certification Office, FAA, Engine   (HPTR) front shafts, HPTR front air
purpose of these notices is to give interested   and Propeller Directorate, 12 New          seals, HPTR disks, booster spools, and
persons an opportunity to participate in the     England Executive Park, Burlington, MA     low pressure turbine rotor (LPTR) stage
rule making prior to the adoption of the final
rules.
                                                 01803–5299; telephone (617) 238–7138,      3 disks have minimum calculated low
                                                 fax (617) 238–7199.                        cycle fatigue (LCF) lives which are
                                                                                            lower than published LCF retirement
                                                 SUPPLEMENTARY INFORMATION:
DEPARTMENT OF TRANSPORTATION                                                                lives. These reduced LCF lives are due
                                                 Comments Invited                           to changes in component operating
Federal Aviation Administration                    Interested persons are invited to        environments, which are associated
                                                 participate in the making of the           with the incorporation of the takeoff
14 CFR Part 39                                   proposed rule by submitting such           mach bump in the analysis. This
                                                 written data, views, or arguments as       condition, if not corrected, could result
[Docket No. 95–ANE–64]                           they may desire. Communications            in an LCF failure of the HPTR front
                                                 should identify the Rules Docket           shaft, HPTR front air seal, HPTR disk,
Airworthiness Directives; CFM                    number and be submitted in triplicate to   booster spool, and LPTR stage 3 disk,
International CFM56–5C Series                    the address specified above. All           which could result in an uncontained
Turbofan Engines                                 communications received on or before       engine failure and damage to the
                                                 the closing date for comments, specified   aircraft..
AGENCY: Federal Aviation                                                                       Since an unsafe condition has been
Administration, DOT.                             above, will be considered before taking
                                                 action on the proposed rule. The           identified that is likely to exist or
ACTION: Notice of proposed rulemaking                                                       develop on other products of this same
                                                 proposals contained in this notice may
(NPRM).                                          be changed in light of the comments        type design, the proposed AD would
                                                 received.                                  require a reduction of the LCF
SUMMARY: This document proposes the                                                         retirement lives for certain HPTR front
adoption of a new airworthiness                    Comments are specifically invited on
                                                 the overall regulatory, economic,          shafts, HPTR front air seals, HPTR disks,
directive (AD) that is applicable to CFM                                                    booster spools, and LPTR stage 3 disks.
International (CFMI) CFM56–5C2/G,                environmental, and energy aspects of
                                                 the proposed rule. All comments               There are approximately 10 engines of
–5C3/G, and –5C4 series turbofan                                                            the affected design in the worldwide
engines. This proposal would require a           submitted will be available, both before
                                                 and after the closing date for comments,   fleet. The manufacturer has advised the
reduction of the low cycle fatigue (LCF)                                                    FAA that there are no engines installed
retirement lives for certain high                in the Rules Docket for examination by
                                                 interested persons. A report               on U.S. registered aircraft that would be
pressure turbine rotor (HPTR) front                                                         affected by this AD. Therefore, there is
shafts, HPTR front air seals, HPTR disks,        summarizing each FAA-public contact
                                                 concerned with the substance of this       no associated cost impact on U.S.
booster spools, and low pressure turbine                                                    operators as a result of this AD.
rotor (LPTR) stage 3 disks. This proposal        proposal will be filed in the Rules
                                                 Docket.                                    However, should an affected engine be
is prompted by the results of a refined                                                     imported on an aircraft and placed on
life analysis performed by the                     Commenters wishing the FAA to
                                                 acknowledge receipt of their comments      the U.S. registry in the future, it would
manufacturer which revealed minimum                                                         not take any additional work hours per
calculated LCF lives lower than                  submitted in response to this notice
                                                 must submit a self-addressed, stamped      engine to accomplish the proposed
published LCF retirement lives. The                                                         actions. Assuming that the parts cost is
actions specified by the proposed AD             postcard on which the following
                                                 statement is made: ‘‘Comments to           proportional to the reduction of the LCF
are intended to prevent an LCF failure                                                      retirement lives, the required parts
of the HPTR front shaft, HPTR front air          Docket Number 95–ANE–64.’’ The
                                                 postcard will be date stamped and          would cost approximately $25,736 per
seal, HPTR disk, booster spool, and                                                         engine. Based on these figures, the total
LPTR stage 3 disk, which could result            returned to the commenter.
                                                                                            cost impact of the AD is estimated to be
in an uncontained engine failure and             Availability of NPRMs                      $25,736 per engine.
damage to the aircraft.                                                                        The regulations proposed herein
                                                   Any person may obtain a copy of this
DATES: Comments must be received by              NPRM by submitting a request to the        would not have substantial direct effects
May 28, 1996.                                    FAA, New England Region, Office of the     on the States, on the relationship
ADDRESSES: Submit comments in                    Assistant Chief Counsel, Attention:        between the national government and
triplicate to the Federal Aviation               Rules Docket No. 95–ANE–64, 12 New         the States, or on the distribution of
Administration (FAA), New England                England Executive Park, Burlington, MA     power and responsibilities among the
Region, Office of the Assistant Chief            01803–5299.                                various levels of government. Therefore,
Counsel, Attention: Rules Docket No.                                                        in accordance with Executive Order
95– ANE–64, 12 New England Executive             Discussion                                 12612, it is determined that this
Park, Burlington, MA 01803–5299.                   This proposed airworthiness directive    proposal would not have sufficient
Comments may be inspected at this                (AD) is applicable to CFM International    federalism implications to warrant the
location between 8:00 a.m. and 4:30              (CFMI) CFM56–5C2/G, –5C3/G, and            preparation of a Federalism Assessment.
p.m., Monday through Friday, except              –5C4 series turbofan engines. The             For the reasons discussed above, I
Federal holidays.                                manufacturer performed a study using       certify that this proposed regulation (1)
                  Federal Register / Vol. 61, No. 59 / Tuesday, March 26, 1996 / Proposed Rules                                    13111

is not a ‘‘significant regulatory action’’       front shaft, HPTR front air seal, HPTR disk,           Notice of proposed rulemaking
                                                                                                  ACTION:
under Executive Order 12866; (2) is not          booster spool, and low pressure turbine rotor    (NPRM).
a ‘‘significant rule’’ under the DOT             (LPTR) stage 3 disk, which could result in an
Regulatory Policies and Procedures (44           uncontained engine failure and damage to         SUMMARY:    This document proposes the
                                                 the aircraft, accomplish the following:
FR 11034, February 26, 1979); and (3) if                                                          adoption of a new airworthiness
                                                    (a) Remove from service HPTR front shafts,
promulgated, will not have a significant         Part Numbers (P/N’s) 1498M40P03,                 directive (AD) that is applicable to
economic impact, positive or negative,           1498M40P05, and 1498M40P06, prior to             AlliedSignal, Inc. (formerly Textron
on a substantial number of small entities        accumulating 8,400 cycles since new (CSN),       Lycoming) AL5512 series turboshaft
under the criteria of the Regulatory             and replace with a serviceable part.             engines. This proposal would require a
Flexibility Act. A copy of the draft                (b) Remove from service HPTR front air        one-time eddy current inspection of the
regulatory evaluation prepared for this          seals, P/N’s 1523M34P02 and 1523M34P03,          second stage turbine disk, reduced
action is contained in the Rules Docket.         prior to accumulating 4,000 CSN, and replace     service lives for the second, third, and
A copy of it may be obtained by                  with a serviceable part.                         fourth stage turbine disks, reduced
                                                    (c) Remove from service HPTR disks, P/N
contacting the Rules Docket at the                                                                service lives for the first and third
                                                 1498M43P04, prior to accumulating 6,200
location provided under the caption              CSN, and replace with a serviceable part.        through seventh stage compressor rotor
ADDRESSES.                                          (d) Remove from service booster spools, P/    disks, and a reduced service life for the
                                                 N 337–005–210–0, prior to accumulating           gas producer turbine spacer. This
List of Subjects in 14 CFR Part 39
                                                 13,800 CSN, and replace with a serviceable       proposal would also require a new,
  Air transportation, Aircraft, Aviation         part.                                            more conservative minor cycle counting
safety, Safety.                                     (e) Remove from service LPTR stage 3          factors table for repetitive heavy lift
                                                 disks, P/N’s 337–001–602–0 and 337–001–          operations, and provides a method for
The Proposed Amendment                           605–0, prior to accumulating 8,630 CSN, and      prorating past utilization for all gas
  Accordingly, pursuant to the                   replace with a serviceable part.
                                                                                                  producer and compressor components
authority delegated to me by the                    (f) This action establishes the new LCF
                                                 retirement lives stated in paragraphs (a)        based on the new cycle counting factors.
Administrator, the Federal Aviation                                                               For those components that exceed their
Administration proposes to amend part            through (e) of this AD, which are published
                                                 in Chapter 05 of the CFM56 Engine Shop           new published life limits, this proposal
39 of the Federal Aviation Regulations           Manual, CFMI–TP.SM.8.                            would implement a drawdown for safe
(14 CFR part 39) as follows:                        (g) For the purpose of this AD, a             removal of time-expired components.
                                                 ‘‘serviceable part’’ is one that has not         This proposal is prompted by reports of
PART 39—AIRWORTHINESS                            exceeded its respective new life limit as set
DIRECTIVES                                                                                        cracks in certain AlliedSignal, Inc.
                                                 out in this AD.                                  ALF502R series turbofan engine disks,
  1. The authority citation for part 39             (h) An alternative method of compliance or
                                                                                                  which are identical in design and
                                                 adjustment of the compliance time that
continues to read as follows:                    provides an acceptable level of safety may be    construction to those within the
  Authority: 49 U.S.C. 106(g), 40113, 44701.     used if approved by the Manager, Engine          AlliedSignal, Inc. AL5512 series
                                                 Certification Office. The request should be      turboshaft engines. The actions
§ 39.13   [Amended]                              forwarded through an appropriate FAA             specified by the proposed AD are
  2. Section 39.13 is amended by                 Principal Maintenance Inspector, who may         intended to prevent disk failure, which
adding the following new airworthiness           add comments and then send it to the             could result in an uncontained engine
directive:                                       Manager, Engine Certification Office.            failure, inflight shutdown, or possible
                                                    Note: Information concerning the existence    damage to the rotorcraft.
CFM International: Docket No. 95–ANE–64.
                                                 of approved alternative methods of
  Applicability: CFM International (CFMI)        compliance with this airworthiness directive,    DATES:Comments must be received by
CFM56–5C2/G, –5C3/G, and –5C4 series             if any, may be obtained from the Engine          May 28, 1996.
turbofan engines, installed on but not limited   Certification Office.
to Airbus A340 series aircraft.                                                                   ADDRESSES:    Submit comments in
                                                    (i) Special flight permits may be issued in   triplicate to the Federal Aviation
  Note: This airworthiness directive (AD)        accordance with sections 21.197 and 21.199
applies to each engine identified in the                                                          Administration (FAA), New England
                                                 of the Federal Aviation Regulations (14 CFR      Region, Office of the Assistant Chief
preceding applicability provision, regardless    21.197 and 21.199) to operate the aircraft to
of whether it has been modified, altered, or     a location where the requirements of this AD
                                                                                                  Counsel, Attention: Rules Docket No.
repaired in the area subject to the              can be accomplished.                             95–ANE–01, 12 New England Executive
requirements of this AD. For engines that                                                         Park, Burlington, MA 01803–5299.
have been modified, altered, or repaired so         Issued in Burlington, Massachusetts, on
                                                 March 12, 1996.                                  Comments may be inspected at this
that the performance of the requirements of                                                       location between 8:00 a.m. and 4:30
this AD is affected, the owner/operator must     Jay J. Pardee,
use the authority provided in paragraph (h)                                                       p.m., Monday through Friday, except
to request approval from the Federal Aviation    Manager, Engine and Propeller Directorate,       Federal holidays.
Administration (FAA). This approval may          Aircraft Certification Service.                     The service information referenced in
address either no action, if the current                                                          the proposed rule may be obtained from
                                                 [FR Doc. 96–7243 Filed 3–25–96; 8:45 am]
configuration eliminates the unsafe                                                               AlliedSignal, Inc., 550 Main St.,
condition, or different actions necessary to     BILLING CODE 4910–13–P
                                                                                                  Stratford, CT 06497–7593. This
address the unsafe condition described in
this AD. Such a request should include an                                                         information may be examined at the
assessment of the effect of the changed                                                           FAA, New England Region, Office of the
                                                 14 CFR Part 39
configuration on the unsafe condition                                                             Assistant Chief Counsel, 12 New
addressed by this AD. In no case does the        [Docket No. 95–ANE–01]                           England Executive Park, Burlington,
presence of any modification, alteration, or                                                      MA.
repair remove any engine from the
applicability of this AD.                        Airworthiness Directives; AlliedSignal,          FOR FURTHER INFORMATION CONTACT:
  Compliance: Required as indicated, unless      Inc. AL5512 Series Turboshaft Engines            Daniel Kerman, Aerospace Engineer,
accomplished previously.                                                                          Engine Certification Office, FAA, Engine
  To prevent a low cycle fatigue (LCF) failure   AGENCY:Federal Aviation                          and Propeller Directorate, 12 New
of the high pressure turbine rotor (HPTR)        Administration, DOT.                             England Executive Park, Burlington, MA
13112           Federal Register / Vol. 61, No. 59 / Tuesday, March 26, 1996 / Proposed Rules

01803–5299; telephone (617) 238–7130,        several first and third through seventh      based on the new cycle counting factors.
fax (617) 238–7199.                          stage compressor rotor disks in the          For those components that exceed their
                                             ALF502R engines. Subsequent analysis         new published life limits, this proposal
SUPPLEMENTARY INFORMATION:
                                             and testing of the current design of first   would implement a drawdown for safe
Comments Invited                             and third through seventh stage              removal of time-expired components.
  Interested persons are invited to          compressor rotor disks; second, third,       The actions would be required to be
participate in the making of the             and fourth stage turbine disks; and the      accomplished in accordance with the
proposed rule by submitting such             gas producer spacer have revealed a          service bulletins described previously.
written data, views, or arguments as         lower fatigue life than originally              There are approximately 33 engines of
they may desire. Communications              calculated. In addition, the FAA has         the affected design in the worldwide
should identify the Rules Docket             determined the need to require a             fleet. The FAA estimates that 20 engines
number and be submitted in triplicate to     special, one-time eddy current               installed on aircraft of U.S. registry
the address specified above. All             inspection of the second stage turbine       would be affected by this proposed AD,
communications received on or before         disk to discover possible bolt hole          that it would take approximately 60
the closing date for comments, specified     cracking. This condition, if not             work hours per engine to disassemble,
above, will be considered before taking      corrected, could result in disk failure,     assemble, and test each engine, that
action on the proposed rule. The             which could result in an uncontained         each engine would consume $2,000 per
proposals contained in this notice may       engine failure, inflight shutdown, or        engine of fuel and disposable hardware,
be changed in light of the comments          possible damage to the rotorcraft.           and that the average labor rate is $60 per
received.                                      The FAA has reviewed and approved          work hour. The prorated life-expired
  Comments are specifically invited on       the technical contents of Textron            components replacement cost would be
the overall regulatory, economic,            Lycoming Service Bulletin (SB) No.           approximately $74,530 per engine.
environmental, and energy aspects of         AL5512–0002, Revision 5, dated               Based on these figures, the cost impact
the proposed rule. All comments              December 16, 1993, that describes            of performing the actions described in
submitted will be available, both before     reduced service lives for first and third    Textron Lycoming SB No. AL5512–
and after the closing date for comments,     through seventh stage compressor rotor       0002, Revision 5, dated December 16,
in the Rules Docket for examination by       disks; second, third, and fourth stage       1993, is estimated to be $1,602,600.
interested persons. A report                 turbine disks; and the gas producer             In addition, the FAA also estimates
summarizing each FAA-public contact          spacer. In addition this SB describes        that it would take approximately 16
concerned with the substance of this         factors to be used for cyclic computation    work hours to perform a one-time eddy
proposal will be filed in the Rules          of components utilized in repetitive         current inspection of the second stage
Docket.                                      heavy lift (RHL) operation, and provides     turbine disk. The cost impact of
  Commenters wishing the FAA to              a method for prorating past component        performing the actions described in
acknowledge receipt of their comments        utilization based on the new cycle           Textron Lycoming SB No. AL5512–
submitted in response to this notice         counting factors.                            0042, dated December 16, 1993, is
must submit a self-addressed, stamped          The FAA has also reviewed and              estimated to be $19,200. Therefore, the
postcard on which the following              approved the technical contents of the       total cost impact of the proposed AD on
statement is made: ‘‘Comments to             following SB’s: Textron Lycoming SB          U.S. operators is estimated to be
Docket Number 95–ANE–01.’’ The               No. AL5512–0041, dated December 16,          $1,621,800.
postcard will be date stamped and            1993, and Textron Lycoming SB No.               The regulations proposed herein
returned to the commenter.                   AL5512–0046, dated April 4, 1994.            would not have substantial direct effects
                                             These SB’s describe drawdown                 on the States, on the relationship
Availability of NPRMs                        schedules for those components that          between the national government and
  Any person may obtain a copy of this       exceed their new life limits.                the States, or on the distribution of
NPRM by submitting a request to the            In addition, the FAA has reviewed          power and responsibilities among the
FAA, New England Region, Office of the       and approved the technical contents of       various levels of government. Therefore,
Assistant Chief Counsel, Attention:          Textron Lycoming SB No. AL5512–              in accordance with Executive Order
Rules Docket No. 95–ANE–01, 12 New           0042, dated December 16, 1993, that          12612, it is determined that this
England Executive Park, Burlington, MA       describes procedures for a one-time          proposal would not have sufficient
01803–5299.                                  eddy current inspection of the second        federalism implications to warrant the
                                             stage turbine disk bolt holes.               preparation of a Federalism Assessment.
Discussion                                     Since an unsafe condition has been            For the reasons discussed above, I
  The Federal Aviation Administration        identified that is likely to exist or        certify that this proposed regulation (1)
(FAA) has received reports of cracks         develop on other engines of this same        is not a ‘‘significant regulatory action’’
found in certain disks returned from         type design, the proposed AD would           under Executive Order 12866; (2) is not
service to the manufacturer and in           require a one-time eddy current              a ‘‘significant rule’’ under the DOT
certain factory tested disks installed on    inspection of the second stage turbine       Regulatory Policies and Procedures (44
AlliedSignal, Inc. (formerly Textron         disk, reduced service lives for the          FR 11034, February 26, 1979); and (3) if
Lycoming) ALF502R series turbofan            second, third, and fourth stage turbine      promulgated, will not have a significant
engines. While no cracks have been           disks, reduced service lives for the first   economic impact, positive or negative,
found in AlliedSignal, Inc. AL5512           and third through seventh stage              on a substantial number of small entities
series turboshaft engine components,         compressor rotor disks, and a reduced        under the criteria of the Regulatory
certain disks are identical in design and    service life for the gas producer turbine    Flexibility Act. A copy of the draft
construction to those utilized in the        spacer. This proposal would also             regulatory evaluation prepared for this
ALF502R engine. The cracks in the            require a new, more conservative minor       action is contained in the Rules Docket.
ALF502R engines have been found in           cycle counting factors table for RHL         A copy of it may be obtained by
the bolt hole area of several second stage   operation and provides a method for          contacting the Rules Docket at the
turbine disks. Cracks have also been         prorating past utilization for all gas       location provided under the caption
discovered in the rim dovetail area of       producer and compressor components           ADDRESSES.
                  Federal Register / Vol. 61, No. 59 / Tuesday, March 26, 1996 / Proposed Rules                                      13113

List of Subjects in 14 CFR Part 39               component removal schedules defined in             14 CFR Part 39
                                                 Textron Lycoming SB No. AL5512–0041,
  Air transportation, Aircraft, Aviation                                                            [Docket No. 95–ANE–68]
                                                 dated December 16, 1993, and SB No.
safety, Safety.
                                                 AL5512–0046, dated April 4, 1994, as
                                                                                                    Airworthiness Directives; AlliedSignal,
The Proposed Amendment                           applicable. Replacement components must
                                                                                                    Inc. TSCP700–4B, –4E, and –5
  Accordingly, pursuant to the                   have cyclic accumulation no greater than the
                                                 reduced life limits as defined in Textron
                                                                                                    Auxiliary Power Units
authority delegated to me by the
Administrator, the Federal Aviation              Lycoming SB AL5512–0002, Revision 5,               AGENCY: Federal Aviation
Administration proposes to amend part            dated December 16, 1993.                           Administration, DOT.
                                                    (d) Following implementation of the             ACTION: Notice of proposed rulemaking
39 of the Federal Aviation Regulations
                                                 revised operating cycle count methodology          (NPRM).
(14 CFR part 39) as follows:
                                                 (prorate) specified in paragraph (a) of this
PART 39—AIRWORTHINESS                            AD, installation of those components that          SUMMARY:    This document proposes the
DIRECTIVES                                       exceed their life limit on the effective date of   adoption of a new airworthiness
                                                 this AD is prohibited.                             directive (AD) that is applicable to
  1. The authority citation for part 39             (e) Perform a one-time eddy current             AlliedSignal, Inc. (formerly Garrett)
continues to read as follows:                    inspection of installed second stage turbine       Models TSCP700–4B, –4E, and –5
  Authority: 49 USC 106(g), 40113, 44701.        rotor disk, part number 2–121–058–18, bolt         auxiliary power units (APU’s). This
                                                 holes at the next shop visit that the disk         proposal would require removal from
§ 39.13   [Amended]                              assembly is removed from the engine or             service of certain high pressure turbine
  2. Section 39.13 is amended by                 module after the effective date of this AD and     (HPT) disks identified by serial number,
adding the following new airworthiness           after the part has accrued a minimum of            and replacement with serviceable parts.
directive:                                       5,000 cycles in service, in accordance with        This proposal is prompted by the
AlliedSignal, Inc.: Docket No. 95–ANE–01.        the Accomplishment Instructions of Textron         discovery of a material defect in certain
   Applicability: AlliedSignal, Inc. (formerly   Lycoming SB No. AL5512–0042, dated                 HPT disk forgings that may result in
Textron Lycoming) AL5512 series turboshaft       December 16, 1993. Prior to further flight,        HPT disk rupture prior to reaching the
engines, installed on but not limited to         remove from service disks that do not meet         disk cyclic life limit. The actions
Boeing Helicopter Model 234 rotorcraft.          the return to service limits defined in the SB,    specified by the proposed AD are
   Note: This AD applies to each engine          and replace with serviceable parts.                intended to prevent an HPT disk
identified in the preceding applicability           (f) Prior to installation, but after accruing   rupture.
provision, regardless of whether it has been     a minimum of 5,000 cycles in service,
                                                                                                    DATES: Comments must be received by
modified, altered, or repaired in the area       perform a one-time eddy current inspection
subject to the requirements of this AD. For                                                         May 28, 1996.
                                                 of uninstalled second stage turbine rotor
engines that have been modified, altered, or     disk, part number 2–121–058–18, bolt holes         ADDRESSES: Submit comments in
repaired so that the performance of the          in accordance with the Accomplishment              triplicate to the Federal Aviation
requirements of this AD is affected, the         Instructions of Textron Lycoming SB No.            Administration (FAA), New England
owner/operator must use the authority                                                               Region, Office of the Assistant Chief
                                                 AL5512–0042, dated December 16, 1993.
provided in paragraph (g) to request approval                                                       Counsel, Attention: Rules Docket No.
from the FAA. This approval may address          Installation of disks that do not meet the
                                                 return to service limits defined in the SB is      95–ANE–68, 12 New England Executive
either no action, if the current configuration
eliminates the unsafe condition, or different    prohibited.                                        Park, Burlington, MA 01803–5299.
actions necessary to address the unsafe             (g) An alternative method of compliance or      Comments may be inspected at this
condition described in this AD. Such a           adjustment of the compliance time that             location between 8:00 a.m. and 4:30
request should include an assessment of the      provides an acceptable level of safety may be      p.m., Monday through Friday, except
effect of the changed configuration on the       used if approved by the Manager, Engine            Federal holidays.
unsafe condition addressed by this AD. In no     Certification Office. The request should be           The service information referenced in
case does the presence of any modification,                                                         the proposed rule may be obtained from
                                                 forwarded through an appropriate FAA
alteration, or repair remove any engine from                                                        AlliedSignal Engines, P.O. Box 52181,
                                                 Principal Maintenance Inspector, who may
the applicability of this AD.
                                                 add comments and then send it to the               Phoenix, AZ 85072–2181; telephone
   Compliance: Required as indicated, unless                                                        (800) 338–3378, fax (602) 231–4402.
                                                 Manager, Engine Certification Office.
accomplished previously.
                                                    Note: Information concerning the existence      This information may be examined at
   To prevent disk failure, which could result
in an uncontained engine failure, inflight       of approved alternative methods of                 the FAA, New England Region, Office of
shutdown, or possible damage to the              compliance with this airworthiness directive,      the Assistant Chief Counsel, 12 New
rotorcraft, accomplish the following:            if any, may be obtained from the Engine            England Executive Park, Burlington,
   (a) Within 30 days after the effective date   Certification Office.                              MA.
of this airworthiness directive (AD), conduct       (h) Special flight permits may be issued in     FOR FURTHER INFORMATION CONTACT:
a revised operating cycle count (prorate) of     accordance with sections 21.197 and 21.199         Robert Baitoo, Aerospace Engineer, Los
all gas producer and compressor components       of the Federal Aviation Regulations (14 CFR        Angeles Aircraft Certification Office,
in accordance with paragraph 2.D of Textron
Lycoming Service Bulletin (SB) No. AL5512–
                                                 21.197 and 21.199) to operate the aircraft to      FAA, Transport Airplane Directorate,
0002, Revision 5, dated December 16, 1993.       a location where the requirements of this AD       3960 Paramount Blvd., Lakewood, CA
   (b) After the effective date of this AD,      can be accomplished.                               90712–4137; telephone (310) 627–5245;
utilize the new, more conservative minor            Issued in Burlington, Massachusetts, on         fax (310) 627–5210.
cycle counting methodology for repetitive        March 11, 1996.                                    SUPPLEMENTARY INFORMATION:
heavy lift operation described in Textron        James C. Jones,
Lycoming SB No. AL5512–0002, Revision 5,                                                            Comments Invited
dated December 16, 1993                          Acting Manager, Engine and Propeller
   (c) Following implementation of the           Directorate, Aircraft Certification Service.         Interested persons are invited to
revised operating cycle count methodology        [FR Doc. 96–7244 Filed 3–25–96; 8:45 am]           participate in the making of the
(prorate) specified in paragraph (a) of this                                                        proposed rule by submitting such
                                                 BILLING CODE 4910–13–P
AD, replace those components that exceed                                                            written data, views, or arguments as
their new life limits in accordance with the                                                        they may desire. Communications
13114           Federal Register / Vol. 61, No. 59 / Tuesday, March 26, 1996 / Proposed Rules

should identify the Rules Docket            and replacement with serviceable parts,      PART 39—AIRWORTHINESS
number and be submitted in triplicate to    prior to accumulating 7,500 CSN, or 3        DIRECTIVES
the address specified above. All            years after the effective date of this AD,
communications received on or before        whichever occurs first. The FAA                1. The authority citation for part 39
the closing date for comments, specified    determined this calendar end-date based      continues to read as follows:
above, will be considered before taking     upon the effect of the material defect on      Authority: 49 USC 106(g), 40113, 44701.
action on the proposed rule. The            the HPT disks’ cyclic life. In addition,
                                                                                         § 39.13   [Amended]
proposals contained in this notice may      the FAA considered the rate of cyclic
be changed in light of the comments         accumulation on disks in service. The          2. Section 39.13 is amended by
received.                                   actions would be required to be              adding the following new airworthiness
  Comments are specifically invited on      accomplished in accordance with the          directive:
the overall regulatory, economic,           SB described previously.                     AlliedSignal, Inc.: Docket No. 95–ANE–68.
environmental, and energy aspects of           There are approximately 31 APU’s of          Applicability: AlliedSignal, Inc. (formerly
the proposed rule. All comments             the affected design in the worldwide         Garrett) Models TSCP700–4B, –4E, and –5
submitted will be available, both before    fleet. The FAA estimates that 20 APU’s
                                                                                         auxiliary power units (APU’s), with high
and after the closing date for comments,                                                 pressure turbine (HPT) disks identified by
                                            installed on aircraft of U.S. registry       serial number in AlliedSignal Aerospace
in the Rules Docket for examination by      would be affected by this proposed AD,
interested persons. A report                                                             Service Bulletin (SB) No. TSCP700–49–
                                            and that no additional work hours            A7168, dated November 7, 1995. These
summarizing each FAA-public contact         would be required if the disk is replaced    APU’s are installed on, but not limited to,
concerned with the substance of this        during overhaul. The manufacturer has        McDonnell Douglas DC–10, KC–10 (military),
proposal will be filed in the Rules         advised the FAA that they will supply        and MD–11 series, and Airbus A300 series
Docket.                                     required parts at no charge to the           aircraft.
  Commenters wishing the FAA to                                                             Note: This airworthiness directive (AD)
                                            operator. The FAA has therefore
acknowledge receipt of their comments                                                    applies to each APU identified in the
                                            determined that this AD would impose
submitted in response to this notice                                                     preceding applicability provision, regardless
                                            no additional cost on U.S. operators.
must submit a self-addressed, stamped                                                    of whether it has been modified, altered, or
postcard on which the following                The regulations proposed herein           repaired in the area subject to the
statement is made: ‘‘Comments to            would not have substantial direct effects    requirements of this AD. For APU’s that have
Docket Number 95–ANE–68.’’ The              on the States, on the relationship           been modified, altered, or repaired so that the
                                            between the national government and          performance of the requirements of this AD
postcard will be date stamped and                                                        is affected, the owner/operator must use the
returned to the commenter.                  the States, or on the distribution of
                                                                                         authority provided in paragraph (d) to
                                            power and responsibilities among the         request approval from the Federal Aviation
Availability of NPRMs                       various levels of government. Therefore,     Administration (FAA). This approval may
  Any person may obtain a copy of this      in accordance with Executive Order           address either no action, if the current
NPRM by submitting a request to the         12612, it is determined that this            configuration eliminates the unsafe
FAA, New England Region, Office of the      proposal would not have sufficient           condition, or different actions necessary to
Assistant Chief Counsel, Attention:         federalism implications to warrant the       address the unsafe condition described in
Rules Docket No. 95–ANE–68, 12 New          preparation of a Federalism Assessment.      this AD. Such a request should include an
England Executive Park, Burlington, MA                                                   assessment of the effect of the changed
                                               For the reasons discussed above, I        configuration on the unsafe condition
01803–5299.                                 certify that this proposed regulation (1)    addressed by this AD. In no case does the
Discussion                                  is not a ‘‘significant regulatory action’’   presence of any modification, alteration, or
                                            under Executive Order 12866; (2) is not      repair remove any APU from the
  The Federal Aviation Administration
                                            a ‘‘significant rule’’ under the DOT         applicability of this AD.
(FAA) received a report from the
                                            Regulatory Policies and Procedures (44          Compliance: Required as indicated, unless
manufacturer that a material defect
                                            FR 11034, February 26, 1979); and (3) if     accomplished previously.
exists in certain forgings of high                                                          To prevent an HPT disk rupture,
                                            promulgated, will not have a significant
pressure turbine (HPT) disks installed                                                   accomplish the following:
                                            economic impact, positive or negative,
on AlliedSignal, Inc. (formerly Garrett)                                                    (a) Prior to accumulating 7,500 cycles since
                                            on a substantial number of small entities
Models TSCP700–4B, –4E, and –5                                                           new (CSN), or 3 years after the effective date
                                            under the criteria of the Regulatory
auxiliary power units (APU’s). Analysis                                                  of this AD, whichever occurs first, remove
                                            Flexibility Act. A copy of the draft         from service affected HPT disks and replace
indicates that HPT disks forged from
                                            regulatory evaluation prepared for this      with a serviceable part.
this material may rupture prior to
                                            action is contained in the Rules Docket.        (b) The definition of a disk cycle may be
reaching the disk cyclic life limit of
                                            A copy of it may be obtained by              found in the applicable AlliedSignal, Inc.
30,000 cycles since new (CSN). This
                                            contacting the Rules Docket at the           APU Component Maintenance Manual.
condition, if not corrected, could result                                                   (c) Auxiliary Power Unit maintenance
                                            location provided under the caption
in an HPT disk rupture.                                                                  records may be used to determine if the HPT
                                            ADDRESSES.
  The FAA has reviewed and approved                                                      disk installed in the APU has a serial number
the technical contents of AlliedSignal      List of Subjects in 14 CFR Part 39           listed in AlliedSignal Aerospace SB No.
Aerospace Service Bulletin (SB) No.                                                      TSCP700–49–A7168, dated November 7,
TSCP700–49–A7168, dated November 7,           Air transportation, Aircraft, Aviation     1995.
1995, that identifies by serial number      safety, Safety.                                 (d) An alternative method of compliance or
HPT disks that may have been forged                                                      adjustment of the compliance time that
                                            The Proposed Amendment                       provides an acceptable level of safety may be
with a material defect.
  Since an unsafe condition has been                                                     used if approved by the Manager, Los
                                              Accordingly, pursuant to the
                                                                                         Angeles Aircraft Certification Office. The
identified that is likely to exist or       authority delegated to me by the             request should be forwarded through an
develop on other products of this same      Administrator, the Federal Aviation          appropriate FAA Principal Maintenance
type design, the proposed AD would          Administration proposes to amend part        Inspector, who may add comments and then
require removal from service of certain     39 of the Federal Aviation Regulations       send it to the Manager, Los Angeles Aircraft
HPT disks identified by serial number,      (14 CFR part 39) as follows:                 Certification Office.
                   Federal Register / Vol. 61, No. 59 / Tuesday, March 26, 1996 / Proposed Rules                               13115

   Note: Information concerning the existence       The official docket may be examined      by calling (202) 267–3484.
of approved alternative methods of               in the Office of the Assistant Chief        Communications must identify the
compliance with this airworthiness directive,    Counsel for the Central Region at the       notice number of this NPRM. Persons
if any, may be obtained from the Los Angeles     same address between 9:00 a.m. and
Aircraft Certification Office.
                                                                                             interested in being placed on a mailing
                                                 3:00 p.m., Monday through Friday,           list for future NPRMs should also
   (e) Special flight permits may be issued in   except Federal holidays.
accordance with sections 21.197 and 21.199                                                   request a copy of Advisory Circular No.
                                                    An informal docket may also be           11–2A, which describes the procedures.
of the Federal Aviation Regulations (14 CFR
21.197 and 21.199) to operate the aircraft to    examined during normal business hours
a location where the requirements of this AD     in the office of the Manager, Air Traffic   The Proposal
can be accomplished.                             Operations Branch, Air Traffic Division,
                                                                                                The FAA is considering an
   Issued in Burlington, Massachusetts, on       at the address listed above.
                                                                                             amendment to part 71 of the Federal
March 12, 1996.                                  FOR FURTHER INFORMATION CONTACT:
                                                                                             Aviation Regulations (14 CFR part 71) to
James C. Jones,                                  Kathy Randolph, Air Traffic Division,
                                                                                             provide additional controlled airspace
Acting Manager, Engine and Propeller             Air Traffic Operations Branch, ACE–
                                                                                             for a new Instrument Flight Rules (IFR)
Directorate, Aircraft Certification Service.     530C, Federal Aviation Administration,
                                                                                             procedure at the St. Charles Co. Smartt
[FR Doc. 96–7245 Filed 3–25–96; 8:45 am]         601 East 12th Street, Kansas City,
                                                 Missouri 64106; telephone number (816)      Airport, MO; Camdenton Memorial
BILLING CODE 4910–13–P                                                                       Airport, MO; Monett Municipal Airport,
                                                 426–3408.
                                                                                             MO; West Plains Municipal Airport,
                                                 SUPPLEMENTARY INFORMATION:                  MO; Butler Municipal Airport, MO;
14 CFR Part 71
                                                 Comments Invited                            Point Lookout, M. Graham Clark
[Airspace Docket No. 96–ACE–02]                                                              Airport, MO; Sedalia Memorial Airport,
                                                    Interested parties are invited to
                                                                                             MO; Monroe City Regional Airport, MO;
Proposed Amendment to Class E                    participate in this proposed rulemking
                                                                                             Farmington Regional Airport, MO;
Airspace; Kaiser, MO, Camdenton, MO,             by submitting such written data, views,
                                                                                             Kaiser, Lee C. Fine Airport, MO; Fort
Sedalia, MO, West Plains, MO, Point              or arguments as they may desire.
                                                 Comments that provide the factual basis     Leavenworth, Sherman AAF, KS; and
Lookout, MO, St. Charles, MO, Monett,
                                                 supporting the views and suggestions        Dodge City Regional Airport, KS. The
MO, Butler, MO, Monroe City, MO,
                                                 presented are particularly helpful in       additional airspace would segregate
Farmington, MO, Fort Leavenworth,
                                                 developing reasoned regulatory              aircraft operating under VFR conditions
Sherman Army Airfield, KS, and Dodge
City, KS                                         decisions on the proposal. Comments         from aircraft operating under IFR
                                                 are specifically invited on the overall     procedures. The area would be depicted
AGENCY: Federal Aviation                         regulatory, economic, environmental,        on appropriate aeronautical charts
Administration (FAA), DOT.                       and energy-related aspects of the           thereby enabling pilots to
ACTION: Notice of proposed rulemaking.           proposal. Communications should             circumnavigate the area or otherwise
                                                 identify the airspace docket number and     comply with IFR procedures. Class E
SUMMARY: This notice proposes to                                                             airspace designations for airspace areas
                                                 be submitted in triplicate to the address
amend the Class E airspace area at                                                           extending upward from 700 feet or more
                                                 listed above. Commenters wishing the
Kaiser, Lee C. Fine Memorial Airport,                                                        above the surface of the earth are
                                                 FAA to acknowledge receipt of their
MO, Camdenton Memorial Airport,                                                              published in paragraph 6005 of FAA
                                                 comments on this notice must submit
Camdenton, MO, Sedalia Memorial
                                                 with those comments as self-addressed,      Order 7400.9C, dated August 17, 1995,
Airport, Sedalia, MO, West Plains
                                                 stamped postcard on which the               and effective September 16, 1995, which
Municipal Airport, West Plains, MO, M.
                                                 following statement is made:                is incorporated by reference in 14 CFR
Graham Clark Airport, Point Lookout,
                                                 ‘‘Comments to Airspace Docket No. 96–       71.1. The Class E airspace designation
MO, St. Charles Co. Smartt Airport, St.
                                                 ACE–02.’’ The postcard will be date/        listed in this document would be
Charles, MO, Monett Municipal Airport,
                                                 time stamped and returned to the            published subsequently in the Order.
Monett, MO, Butler Memorial Airport,
                                                 commenter. All communications                  The FAA has determined that this
Butler, MO, Monroe City Regional
                                                 received on or before the closing date      proposed regulation only involves an
Airport, Monroe City, MO, Farmington
                                                 for comments will be considered before
Regional Airport, Farmington, MO, Fort                                                       established body of technical
                                                 taking action on the proposed rule. The
Leavenworth, Sherman AAF, KS, and                                                            regulations for which frequent and
                                                 proposal contained in this notice may
Dodge City Regional Airport, Dodge                                                           routine amendments are necessary to
                                                 be changed in light of comments
City, KS. The development of new                                                             keep them operationally current.
                                                 received. All comments submitted will
Standard Instrument Approach                                                                 Therefore, this proposed regulation (1)
                                                 be available for examination in the
Procedures (SIAP) based on the Global                                                        is not a ‘‘significant regulatory action’’
                                                 Rules Docket both before and after the
Positioning System (GPS) at the above                                                        under Executive Order 12866; (2) is not
                                                 closing date for comments. A report
locations has made the proposal                                                              a ‘‘significant rule’’ under DOT
                                                 summarizing each substantive public
necessary. The intended effect of this                                                       Regulatory Policies and Procedures (44
                                                 contact with FAA personnel concerned
proposal is to provide additional                                                            FR 11034; February 26, 1979); and (3)
                                                 with this rulemaking will be filed in the
controlled airspace for aircraft executing                                                   does not warrant preparation of a
                                                 docket.
the SIAP at the above listed airports.                                                       Regulatory Evaluation as the anticipated
DATES: Comments must be received on              Availability of NPRMs                       impact is so minimal. Since this is a
or before May 1, 1996.                             Any person may obtain a copy of this      routine matter that will only affect air
ADDRESSES: Send comments on the                  Notice of Proposed Rulemaking (NPRM)        traffic procedures and air navigation, it
proposal in triplicate to: Manager, Air          by submitting a request to the Federal      is certified that this proposed rule will
Traffic Operations Branch, ACE–530,              Aviation Administration, Office of          not have a significant economic impact
Federal Aviation Administration,                 Public Affairs, Attention: Public Inquiry   on a substantial number of small entities
Docket No. 96–ACE–02, 601 East 12th              Center, APA–230, 800 Independence           under the criteria of the Regulatory
Street, Kansas City, MO 64106.                   Avenue, SW, Washington, DC 20591, or        Flexibility Act.
13116                Federal Register / Vol. 61, No. 59 / Tuesday, March 26, 1996 / Proposed Rules

List of Subjects in 14 CFR Part 71                  (lat. 36°52′41′′ N., long. 91°54′10′′ W.)     miles south of the VORTAC to 22.1 miles
                                                 Pomona NDB                                       south of the VORTAC.
  Airspace, Incorporation by reference,             (lat. 36°52′42′′ N, long. 91°54′02′′ W.)
Navigation (air).                                                                                 *     *     *     *      *
                                                    That airspace extending upward from 700
                                                                                                  ACE MO E5 Monett, MO
The Proposed Amendment                           feet above the surface within a 6.4-mile
                                                 radius of West Plain Municipal Airport and       Monett Municipal Airport, MO
  Accordingly, pursuant to the                   within 2.6 miles each side of the 185° bearing     (lat. 36°54′39′′ N., long. 94°00′46′′ W.)
authority delegated to me, the Federal           from the Pomona NDB extending from the           Neosho VORTAC
Aviation Administration proposes to              6.4-mile radius of the West Plains Municipal       (lat. 36°50′33′′ N., long. 94° 26′08′′ W.)
amend part 71 of the Federal Aviation            Airport to 7.4 miles south of the NDB.             That airspace extending upward from 700
Regulations (14 CFR part 71) as follows:         *     *     *     *      *                       feet above the surface within a 6.5-mile
                                                                                                  radius of Monett Municipal Airport and
PART 71—[AMENDED]                                ACE MO E5 Point Lookout, MO                      within 1.8 miles each side of the Neosho
                                                 Point Lookout, M. Graham Clark Airport, MO       VORTAC 079° radial extending from the 6.5-
  1. The authority citation for part 71                                                           mile radius to 7 miles west of the airport.
                                                    (lat. 36°37′33′′ N., long. 93°13′44′′ W.)
continues to read as follows:                                                                     *     *     *     *      *
                                                    That airspace extending upward from 700
  Authority: 49 U.S.C. 106(g); 40103, 40113,     feet above the surface within a 6.5-mile         ACE MO E5 Butler, MO
40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959–      radius of M. Graham Clark Airport and
1963 Comp., p. 389; 14 CFR 11.69.                                                                 Butler Memorial Airport, MO
                                                 within 2.6 miles each side of the 123° bearing     (lat. 38°17′23′′ N, long. 94°20′25′′ W.)
§ 71.1       [Amended]                           from the M. Graham Clark Airport extending       Butler VORTAC
                                                 from the 6.5-mile radius to 7 miles southeast      (lat 38°16′′29′′ N., long. 94°29′18′′ W.)
  2. The incorporation by reference in           of the airport.
14 CFR 71.1 of Federal Aviation                                                                     That airspace extending upward from 700
Administration Order 7400.9C, Airspace           *     *     *     *      *                       feet above the surface within a 6.4-mile
Designations and Reporting Points,               ACE MO E5 St. Louis, MO                          radius of Butler Memorial Airport and within
                                                                                                  1.8 miles each side of the 082° radial of the
dated August 17, 1995, and effective             Lambert-St. Louis International Airport          Butler VORTAC extending from the 6.4-mile
September 16, 1995, is amended as                (lat. 38° 44′51′′ N., long. 90°21′36′′ W.)       radius to the VORTAC.
follows:                                         Spirit of St. Louis Airport, MO
                                                                                                  *     *     *     *      *
                                                    (lat. 38°39′43′′ N., long 90°39′00′′ W.)
Paragraph 6005 Class E airspace areas
                                                 St. Louis Regional Airport, Alton, IL            ACE MO E5 Monroe City, MO
extending upward from 700 feet or more
                                                    (lat 38°53′25′′ N., long. 90°02′45′′ W.)      Monroe City Regional Airport, MO
above the surface of the earth.
                                                 St. Charles County Smartt Airport, St.             (lat. 39°38′04′′ N., long. 91°43′38′′ W.)
*        *      *    *   *                             Charles, MO                                Quincy VORTAC
ACE MO E5 Kaiser, MO                                (lat. 38°55′47′′ N., long. 90°25′47′′ W.)       (lat. 39°50′53′′ N., long. 91°16′44′′ W.)
                                                 St. Louis VORTAC                                   That airspace extending upward from 700
Kaiser, Lee E. Fine Memorial Airport, MO            (lat. 38°51′38′′ N., long. 90°28′57′′ W.)
  (lat. 38°05′46′′ N., long. 92°32′59′′ W.)                                                       feet above the surface within a 6.2-mile
                                                 Foristell VORTAC                                 radius of Monroe City Regional Airport and
Camdenton Memorial Airport, MO                      (lat. 38°41′40′′ N., long. 90°58′17′′ W.)
  (lat 37°58′29′′ N., long. 92°41′30′′ W.)                                                        within 3.5 miles each side of the Quincy
                                                 ZUMAY LOM                                        VORTAC 239° radial extending from the 6.2-
Osage Beach, Linn Creek-Grand Glaize                (lat. 38°47′17′′ N., long. 90°16′44′′ W.)
     Memorial Airport, MO                                                                         mile radius to 7 miles northeast of the
                                                 OBLIO LOM                                        airport.
  (lat 38°06′28′′ N., long. 92°40′50′′ W.)          (lat. 38°48′01′′ N., long. 90°28′29′′ W.)
Kaiser NDB                                                                                        *     *     *     *      *
                                                 Civic Memorial NDB
  (lat. 38°05′48′′ N., long. 92°33′11′′ W.)
                                                    (lat. 38°53′32′′ N., long. 90°03′23′′ W.)     ACE MO E5 Farmington, MO
  That airspace extending upward from 700
                                                    That airspace extending upward from 700       Farmington Regional Airport, MO
feet above the surface within a 6.5-mile
                                                 feet above the surface within a 6.9-mile            (lat. 37°45′42′′ N., long. 90°25′41′′ W.)
radius of Lee C. Fine Memorial Airport and
                                                 radius of the Lambert-St. Louis International    Farmington VORTAC
within 2.6 miles each side of the 045° bearing
                                                 Airport, and within 4 miles southeast and 7         (lat. 37°40′24′′ N., long. 90°14′03′′ W.)
of the Kaiser NDB extending from the 6.5-
                                                 miles northwest of the Lambert-St. Louis         Perrine NDB
mile radius of the Lee C. Fine Memorial
                                                 International Airport Runway 24 ILS                 (lat. 37°45′54′′ N., long. 90°25′45′′ W.)
Airport to 7.9 miles northeast of the airport
                                                 localizer course extending from the airport to      That airspace extending upward from 700
and within a 6.3-mile radius of Camdenton
                                                 10.5 miles northeast of the ZUMAY LOM,           feet above the surface within a 6.4-mile
Memorial Airport and within a 6.3-mile
                                                 and within 4 miles southwest and 7.9 miles       radius of Farmington Regional Airport and
radius of Linn Creek-Grand Glaize Memorial
Airport.                                         northeast of the Lambert-St. Louis Airport       within 2.6 miles each side of the 034° bearing
                                                 Runway 12R ILS localizer course extending        from the Perrine NDB extending from the 6.4
*        *      *    *   *                       from the airport to 10.5 miles northwest of      mile radius to 7.9 miles north of the airport,
ACE MO E5 Sedalia, MO                            the OBLIO LOM, and within 4 miles                and within 2.6 miles each side of the 191°
                                                 southwest and 7.9 miles northeast of the         bearing from the Perrine NDB extending from
Sedalia Memorial Airport, MO                     Lambert-St. Louis Airport Runway 30L ILS         the 6.4 mile radius to 7.9 miles south of the
   (lat 38°42′25′′ N., long. 93°10′34′′ W.)      localizer southeast course extending from the    airport, and within 1.3 miles each side of the
   That airspace extending upward from 700       airport to 8.7 miles southeast of the airport,   Farmington VORTAC 300° radial extending
feet above the surface within a 6.7-mile         and within a 6.6-mile radius of Spirit of St.    from the 6.4-mile radius to the VORTAC.
radius of Sedalia Memorial Airport and           Louis Airport and within 2.6 miles each side     *     *     *     *      *
within 2.6 miles each side of the 011° bearing   of the 098° radial of the Foristell VORTAC
from Sedalia Memorial Airport extending          extending from the 6.6-mile radius area to 8.3   ACE MO E5 Kansas City International
from the 6.7-mile radius to 7 miles north of     miles west of the airport, and within a 6.4-     Airport, MO
the airport and within 2.6 miles each side of    mile radius of St. Charles County Smartt         Kansas City International Airport, MO
the 178° bearing from Sedalia Memorial           Airport, and within a 6.7-mile radius of St.       (lat. 39°17′57′′ N., long. 94°43′05′′ W.)
Airport extending from the 6.7-mile radius to    Louis Regional Airport, and within 4 miles       Kansas City Downtown Airport, MO
7 miles south of the airport.                    each side of the 014° bearing from the Civic       (lat. 39°07′24′′ N., long. 94°35′34′′ W.)
*        *      *    *   *                       Memorial NDB extending from 6.7-mile             Fort Leavenworth, Sherman Army Airfield
                                                 radius to 7 miles north of the airport, and           (AAF), KS
ACE MO E5 West Plains, MO                        within 4.4 miles each side of the 190° radial      (lat. 39°22′06′′ N., long. 94°54′53′′ W.)
West Plains Municipal Airport, MO                of the St. Louis VORTAC extending from 2         Kansas City VORTAC
                   Federal Register / Vol. 61, No. 59 / Tuesday, March 26, 1996 / Proposed Rules                                 13117

  (lat. 39°16′46′′ N., long. 94°35′28′′ W.)      records available to appropriate            SUPPLEMENTARY INFORMATION:     On
DOTTE LOM                                        regulatory officials upon request. The      October 5, 1995, the PBGC announced
  (lat. 39°13′15′′ N., long. 94°45′00′′ W.)      document was published with some            the establishment of the Reportable
Riverside VOR/DME                                errors. This document corrects those        Events Negotiated Rulemaking Advisory
  (lat. 39°07′14′′ N., long. 94°35′48′′ W.)
                                                 errors.                                     Committee (60 FR 52135). The ground
  That airspace extending upward from 700                                                    rules for the Committee state that the
feet above the surface within a 6-mile radius    DATES: Written comments by April 17,
of the Kansas City Downtown Airport and          1996; except that comments regarding        deadline for negotiations, unless
within 3 miles each side of the 210° radial      information collection requirements by      extended by the PBGC, is March 29,
of the Riverside VOR/DME extending from          March 4, 1996, but not later than April     1996. At the Committee’s most recent
the 6-mile radius to 12.6 miles southwest of     2, 1996.                                    meeting, held on March 13, 1996, the
the Downtown Airport, and within a 6.5-mile      FOR FURTHER INFORMATION CONTACT: F.
                                                                                             PBGC extended the deadline for
radius of the Sherman AAF and within a 6-                                                    negotiations to April 30, 1996.
mile radius of the Kansas City International
                                                 Edward Scarbrough, Center for Food
                                                 Safety and Applied Nutrition (HFS–            The Committee agreed to meet again
Airport, and within 4.4 miles each side of the                                               on April 10, 1996. The agenda for the
Kansas City International Runway 19 ILS          150), Food and Drug Administration,
                                                 200 C St. SW., Washington, DC 20204,        April meeting includes reports from
localizer north course extending from the 6-
mile radius to 21.7 miles north of the DOTTE     202–205–4561.                               working groups and preparation of a
LOM, and within 4.4 miles each side of the          In FR Doc. 96–2153, appearing on         consensus recommendation for the
096° radial of the Kansas City VORTAC            page 3885 in the Federal Register of        PBGC. The meeting will be open to the
extending from the Kansas City International     Friday, February 2, 1996, the following     public.
Airport 6-mile radius to 5 miles east of the     corrections are made: On page 3888, in        Issued in Washington, DC, this 22 day of
Kansas City VORTAC, and within 2.5 miles                                                     March, 1996.
each side of the Kansas City International
                                                 the third column, in footnote 1, in line
Runway 1 ILS localizer south course              3, the second comma after ‘‘7’’ is          Martin Slate,
extending from the 6-mile radius to 9.3 miles    removed; in the fourth line from the        Executive Director, Pension Benefit Guaranty
south of the DOTTE LOM.                          bottom, ‘‘FTS’’ is corrected to read        Corporation.
*      *      *    *     *                       ‘‘FTC’’; and in the third line from the     [FR Doc. 96–7378 Filed 3–25–96; 8:45 am]
                                                 bottom, the phrase ‘‘F.2d 189, 193 (D.C.    BILLING CODE 7708–01–P–M
ACE KS E5 Dodge City, KS                         Cir. 1986), cert. denied, 479 U.S. 1086’’
Dodge City Regional Airport, KS                  is added after ‘‘791’’.
  (lat. 37°45′44′′ N., long. 99°57′54′′ W.)
                                                   Dated: March 18, 1996.                    DEPARTMENT OF THE INTERIOR
  That airspace extending upward from 700
                                                 William K. Hubbard,
feet above the surface within a 6.5-mile                                                     Office of Surface Mining Reclamation
radius of Dodge City Regional Airport.           Associate Commissioner for Policy
                                                 Coordination.                               and Enforcement
*      *      *    *     *
  Issued in Kansas City, MO, on March 1,         [FR Doc. 96–7173 Filed 3–25–96; 8:45 am]
                                                                                             30 CFR Part 931
1996.                                            BILLING CODE 4160–01–F

Christopher R. Blum,                                                                         [SPATS No. NM–037–FOR]
Acting Manager, Air Traffic Division, Central                                                New Mexico Regulatory Program
Region.                                          PENSION BENEFIT GUARANTY
[FR Doc. 96–7296 Filed 3–25–96; 8:45 am]         CORPORATION                                 AGENCY:  Office of Surface Mining
BILLING CODE 4910–13–M                                                                       Reclamation and Enforcement, Interior.
                                                 29 CFR Part 2615
                                                                                             ACTION: Proposed rule; public comment
                                                 RIN 1212–AA77                               period and opportunity for public
DEPARTMENT OF HEALTH AND                                                                     hearing on proposed amendment.
                                                 Reportable Events Negotiated
HUMAN SERVICES
                                                 Rulemaking Advisory Committee;              SUMMARY:   Office of Surface Mining
Food and Drug Administration                     Meeting                                     Reclamation and Enforcement (OSM) is
                                                                                             announcing receipt of a proposed
                                                 AGENCY: Pension Benefit Guaranty
21 CFR Part 101                                                                              amendment to the New Mexico
                                                 Corporation.
                                                                                             regulatory program (hereinafter, the
[Docket No. 95N–0103]                            ACTION: Notice of meeting.                  ‘‘New Mexico program’’) under the
Food Labeling; Nutrient Content                  SUMMARY:   This notice announces the        Surface Mining Control and
Claims and Health Claims; Special                time and place of the next meeting of       Reclamation Act of 1977 (SMCRA). The
Requirements; Correction                         the Reportable Events Negotiated            proposed amendment consists of
                                                 Rulemaking Advisory Committee.              revisions to or additions of rules
AGENCY:    Food and Drug Administration,                                                     pertaining to permit application
                                                 DATES: The Committee will meet at
HHS.                                                                                         contents for contour maps of the permit
                                                 10:00 a.m. on Wednesday, April 10,          area and operations exclusively under
ACTION:    Proposed rule; correction.            1996.                                       reclamation, permit approval or denial,
SUMMARY: The Food and Drug                       ADDRESSES: The meeting will be held at      contents of bond release applications,
Administration (FDA), is correcting a            the PBGC’s offices at 1200 K Street,        timeliness of backfilling and grading,
proposed rule that appeared in the               NW., Washington, DC 20005–4026.             approval of small depressions,
Federal Register of February 2, 1996 (61         FOR FURTHER INFORMATION CONTACT:            performance standards for all roads and
FR 3885). The document proposed to               Harold J. Ashner, Assistant General         primary roads, and blaster examination
require that, in certain circumstances,          Counsel, or James L. Beller, Attorney,      and certification requirements. The
persons responsible for the labeling of          Office of the General Counsel, PBGC,        amendment is intended to revise the
foods with nutrient content and health           1200 K Street, NW., Washington, DC          New Mexico program to incorporate the
claims maintain records that support the         20005–4026, 202–326–4024 (202–326–          additional flexibility afforded by the
claims, and that they make those                 4179 for TTY and TTD).                      revised Federal regulations, as
13118           Federal Register / Vol. 61, No. 59 / Tuesday, March 26, 1996 / Proposed Rules

amended, and improve operational            applications, by adding a reference to        limits are the only measure of when
efficiency.                                 Part 15 for mines exclusively under           backfilling and grading must commence,
DATES: Written comments must be             reclamation;                                  and replacing the term ‘‘area strip
received by 4:00 p.m., m.d.t., April 25,       CSMC Rule 80–1–8–25(k), concerning         mining’’ with the term ‘‘strip mining’’ at
1996. If requested, a public hearing on     contour maps with a maximum of 5 foot         20–101(a)(3);
the proposed amendment will be held         contour intervals in permit applications,        CSMC 80–1–20–102(c), concerning
on April 22, 1996. Requests to present      by deleting specific requirements at          backfilling and grading to create small
oral testimony at the hearing must be       CSMC Rule 80–1–8–25(k) (1) through (3)        depressions, to add the allowance for
received by 4:00 p.m., m.d.t., on April     for showing the existing land surface         New Mexico to approval small
10, 1996.                                   configuration for the proposed affected       depressions if they create and enhance
ADDRESSES: Written comments should
                                            areas and adding the requirement that         wildlife habitat;
be mailed or hand delivered to Guy          the existing land surface configuration          CSMC 80–1–20–150(b), concerning
Padgett at the address listed below.        be shown for the proposed permit area;        performance standards for all roads, to
   Copies of the New Mexico program,           CSMC Rule 80–1–11–19(c),                   delete the requirement at 20–150(b)(9)
the proposed amendment, and all             concerning criteria for permit approval       that all roads have, at a minimum, a
written comments received in response       or denial, by adding the word                 static safety factor of 1.3 for all
to this document will be available for      ‘‘hydrological’’ to the phrase ‘‘probable     embankments;
                                            cumulative hydrological impacts’’ and            CSMC 80–1–20–151(a), concerning
public review at the addresses listed
                                            the acronym ‘‘(CHIA)’’ following the          performance standards for primary
below during normal business hours,
                                            phrase;                                       roads, to add at 20–151(a)(5) the
Monday through Friday, excluding               CSMC Rule 80–1–14–40(a),
holidays. Each requester may receive                                                      requirement that all primary roads have
                                            concerning bond release applications,         a static factor of safety of 1.3, at a
one free copy of the proposed               by adding a new paragraph (a)(2) which
amendment by contacting OSM’s                                                             minimum, for all embankments; and
                                            summarizes the minimum contents of               CSMC 80–1–33–14 and 80–1–33–15,
Albuquerque Field Office.                   an application for a bond release and         concerning examination and
Guy Padgett, Director, Albuquerque          revising recodified paragraph (a)(3) to       certification for blasters, by deleting the
   Field Office, Office of Surface Mining   delete a bond release application             existing requirements and replacing
   Reclamation and Enforcement, 505         content requirement that is now part of       them with new requirements for (1)
   Marquette Avenue, NW., Suite 1200,       new paragraph (a)(2);                         examination at 33–14(a) and (b) that
   Albuquerque, New Mexico 87102               CSMC Rule 80–1–15, concerning              include a written exam to demonstrate
Mining and Minerals Division, New           minimum requirements for permit               competence and a minimum of one year
   Mexico Energy and Minerals               applications for coal mining operations       of practical field experience and (2)
   Department, 2040 South Pacheco           exclusively under reclamation, by             certification at 33–15(a) through (e) that
   Street, Santa Fe, New Mexico 87505,      adding a new Part 15 which consists of        include requirements for certification
   Telephone: (505) 827–5970                requirements for: general information at      every four years, suspension and
FOR FURTHER INFORMATION CONTACT: Guy        15–11, information concerning                 revocation of certification,
Padgett, Telephone: (505) 248–5081.         identification of interests at 15–12(a)       recertification (by reexamination,
SUPPLEMENTARY INFORMATION:
                                            through (j), compliance information at        training, and demonstration), protection
                                            15–13(a) through (d), right of entry and      of certification, and conditions for
I. Background on the New Mexico             operation information at 15–14(a) and         maintaining certification.
Program                                     (b), permit term information at 15–15(a)
   On December 31, 1980, the Secretary      and (b), personal injury and property         III. Public Comment Procedures
of the Interior conditionally approved      damage insurance information at 15–16,           In accordance with the provisions of
the New Mexico program. General             identification of other licenses and          30 CFR 732.17(h), OSM is seeking
background information on the New           permits at 15–17(a) through (d),              comments on whether the proposed
Mexico program, including the               identification of location of public office   amendment satisfies the applicable
Secretary’s findings, the disposition of    for filing of application at 15–18,           program approval criteria of 30 CFR
comments, and the conditions of             newspaper advertisement and proof of          732.15. If the amendment is deemed
approval of the New Mexico program          publication at 15–19, general                 adequate, it will become part of the New
can be found in the December 31, 1980,      environmental resources information at        Mexico program.
Federal Register (45 FR 86459).             15–20(a) through (f), the operation plan
Subsequent actions concerning New           at 15–21(a) and (b), the fish and wildlife    1. Written Comments
Mexico’s program and program                plan at 15–22(a) and (b), the reclamation        Written comments should be specific,
amendments can be found at 30 CFR           plan including protection of the              pertain only to the issues proposed in
931.11, 931,15, 931.16, and 931.30.         hydrologic balance, postmining land           this rulemaking, and include
                                            uses, and ponds, impoundments, banks,         explanations in support of the
II. Proposed Amendment                      dams, and embankments, at                     commenter’s recommendations.
   By letter dated March 11, 1996, New      respectively, 15–23(a) and (b), 15–24(a)      Comments received after the time
Mexico submitted a proposed                 through (e), 15–25(a) and (b), and 15–        indicated under DATES or at locations
amendment to its program pursuant to        26(a) through (e), and protection of          other than the Albuquerque Field Office
SMCRA (administrative record No. NM–        public parks and historic places at 15–       will not necessarily be considered in the
773, 30 U.S.C. 1201 et seq.). New           27;                                           final rulemaking or included in the
Mexico submitted the proposed                  CSMC 80–1–20–101(a), concerning            administrative record.
amendment at its own initiative. The        backfilling and grading requirements for
provisions of the Coal Surface Mining       contour mining, open pit mining, and          2. Public Hearing
Commission (CSMC) rules that New            strip mining, by deleting from 20–               Persons wishing to testify at the
Mexico proposes to revise or add are:       101(a)(1) through (3) all time limits by      public hearing should contact the
   CSMC Rule 80–1–5–23(a), concerning       which backfilling and grading must            person listed under FOR FURTHER
general requirements for permit             commence so that the existing distance        INFORMATION CONTACT by 4:00 p.m.,
                Federal Register / Vol. 61, No. 59 / Tuesday, March 26, 1996 / Proposed Rules                               13119

m.d.t., on April 10, 1996. Any disabled     SMCRA (30 U.S.C. 1253 and 1255) and          DEPARTMENT OF TRANSPORTATION
individual who has need for a special       the Federal regulations at 30 CFR
accommodation to attend a public            730.11, 732.15, and 732.17(h)(10),           Coast Guard
hearing should contact the individual       decisions on proposed State regulatory
listed under FOR FURTHER INFORMATION        programs and program amendments              33 CFR Part 100
CONTACT. The location and time of the       submitted by the States must be based        [CGD07–96–015]
hearing will be arranged with those         solely on a determination of whether the     RIN 2115–AE46
persons requesting the hearing. If no one   submittal is consistent with SMCRA and
requests an opportunity to testify at the   its implementing Federal regulations         Special Local Regulations; Harborwalk
public hearing, the hearing will not be     and whether the other requirements of        Boat Race, Sampit River, Georgetown,
held.                                       30 CFR Parts 730, 731, and 732 have          SC
   Filing of a written statement at the     been met.
time of the hearing is requested as it                                                   AGENCY:   Coast Guard, DOT.
will greatly assist the transcriber.        3. National Environmental Policy Act         ACTION:   Notice of proposed rulemaking.
Submission of written statements in
advance of the hearing will allow OSM         No environmental impact statement is       SUMMARY:   The Coast Guard proposes to
officials to prepare adequate responses     required for this rule since section         establish permanent special local
and appropriate questions.                  702(d) of SMCRA (30 U.S.C. 1292(d))          regulations for the Harborwalk Boat
   The public hearing will continue on      provides that agency decisions on            Race. This event held annually on the
the specified date until all persons        proposed State regulatory program            last Sunday of June, between 12 p.m.
scheduled to testify have been heard.       provisions do not constitute major           and 5:30 p.m. Eastern Daylight Time.
Persons in the audience who have not        Federal actions within the meaning of        Historically, there have been
been scheduled to testify, and who wish     section 102(2)(C) of the National            approximately sixty participants racing
to do so, will be heard following those     Environmental Policy Act of 1969 (42         14 to 20 foot outboard power boats on
who have been scheduled. The hearing        U.S.C. 4332(2)(C)).                          a prescribed course on a portion of the
will end after all persons scheduled to                                                  Sampit River, Georgetown, SC. The
                                            4. Paperwork Reduction Act                   nature of the event and the closure of
testify and persons present in the
audience who wish to testify have been                                                   the Sampit River creates an extra or
                                              This rule does not contain
heard.                                                                                   unusual hazard in the navigable waters.
                                            information collection requirements that
                                                                                         These proposed regulations are
3. Public Meeting                           require approval by OMB under the
                                                                                         necessary to provide for the safety of life
                                            Paperwork Reduction Act (44 U.S.C.
  If only one person requests an                                                         on navigable waters during the event.
                                            3507 et seq.).
opportunity to testify at a hearing, a                                                   By establishing these proposed
public meeting, rather than a public        5. Regulatory Flexibility Act                permanent regulations, the Coast Guard
hearing, may be held. Persons wishing                                                    expects to give better notice of
to meet with OSM representatives to            The Department of the Interior has        requirements related to marine events,
discuss the proposed amendment may          determined that this rule will not have      and also avoid the recurring costs of
request a meeting by contacting the         a significant economic impact on a           publication related with temporary
person listed under FOR FURTHER             substantial number of small entities         regulations. However, the establishment
INFORMATION CONTACT. All such meetings      under the Regulatory Flexibility Act (5      of these proposed permanent
will be open to the public and, if          U.S.C. 601 et seq.). The State submittal     regulations would not relieve the event
possible, notices of meetings will be       that is the subject of this rule is based    organizers from applying for an annual
posted at the locations listed under        upon counterpart Federal regulations for     marine event permit.
ADDRESSES. A written summary of each        which an economic analysis was               DATES: Comments must be received on
meeting will be made a part of the          prepared and certification made that         or before May 28, 1996.
administrative record.                      such regulations would not have a            ADDRESSES: Comments may be mailed to
                                            significant economic effect upon a           Commander, U.S. Coast Guard Group
IV. Procedural Determinations               substantial number of small entities.        Charleston, 196 Tradd Street,
1. Executive Order 12866                    Accordingly, this rule will ensure that      Charleston, SC 29401, or may be
                                            existing requirements previously             delivered to operations office at the
  This rule is exempted from review by
                                            promulgated by OMS will be                   same address between 7:30 a.m. and
the Office of Management and Budget
                                            implemented by the State. In making the      3:30 p.m., Monday through Friday,
(OMB) under Executive Order 12866
(Regulatory Planning and Review).           determination as to whether this rule        except federal holidays. The telephone
                                            would have a significant economic            number is (803) 724–7621. Comments
2. Executive Order 12778                    impact, the Department relied upon the       will become a part of the public docket
  The Department of the Interior has        data and assumptions for the                 and will be available for copying and
conducted the reviews required by           counterpart Federal regulations.             inspection at the same address.
section 2 of Executive Order 12778                                                       FOR FURTHER INFORMATION CONTACT:
                                            List of Subjects in 30 CFR Part 931
(Civil Justice Reform) and has                                                           ENS M. J. DaPonte, Coast Guard Group
determined that this rule meets the          Intergovernmental relations, Surface        Charleston at (803) 724–7621.
applicable standards of subsections (a)     mining, Underground mining.                  SUPPLEMENTARY INFORMATION:
and (b) of that section. However, these       Dated: March 19, 1996.
standards are not applicable to the                                                      Request for Comment
actual language of State regulatory         Russell F. Price,                              The Coast Guard encourages
programs and program amendments             Acting Regional Director, Western Regional   interested persons to participate in this
since each such program is drafted and      Coordinating Center.                         rulemaking by submitting written views,
promulgated by a specific State, not by     [FR Doc. 96–7288 Filed 3–25–96; 8:45 am]     data, or arguments. Persons submitting
OSM. Under sections 503 and 505 of          BILLING CODE 4310–05–M                       comments should include their names,
13120             Federal Register / Vol. 61, No. 59 / Tuesday, March 26, 1996 / Proposed Rules

addresses, identify the notice (CGD07–      expects the economic impact of this         Proposed Regulations
96–015) and the specific section of this    proposed rule to be so minimal that a         In consideration of the foregoing, Part
proposal to which their comments            full Regulatory Evaluation under            100 of Title 33, Code of Federal
apply, and give reasons for each            paragraph 10e of the regulatory policies    Regulations, is proposed to be amended
comment. The Coast Guard will               and procedures of DOT is unnecessary.       as follows:
consider all comments received during       The proposed regulation would last for        1. The authority citation for Part 100
the comment period. The regulations         only 5 and a half hours each day of the     continues to read as follows:
may be changed in view of the               event.
comments received. All comments                                                         PART 100—[AMENDED]
received before the expiration of the       Small Entities
comment period will be considered                                                         Authority: 33 U.S.C. 1233; 49 CFR 1.46 and
                                              Under the Regulatory Flexibility Act      33 CFR 100.35.
before final action is taken on this
                                            (5 U.S.C. 601 et seq.), the Coast Guard
proposal.                                                                                 2. A new section 100.713 is added to
  No public hearing is planned, but one     must consider whether this proposal
                                            will have a significant economic impact     read as follows:
may be held if the written requests for
a hearing are received, and it is           on a substantial number of small            § 100.713 Harborwalk Boat Race, Sampit
determined that the opportunity to          entities. ‘‘Small entities’’ include        River, Georgetown, SC.
make oral presentations will add to the     independently owned and operated               (a) Regulated Area. The regulated area
rulemaking process.                         small businesses that are not dominant      is formed by a line from:
                                            in their field and that otherwise qualify
Discussion of Proposed Regulations                                                      33° 21.5′ N, 079° 17.10′ W; thence to
                                            as ‘‘small business concerns’’ under        33° 21.7′ N, 079° 16.8′ W; thence along the
   The proposed regulations are needed      Section 3 of the Small Business Act (15       shore to
to provide for the safety of life during    U.S.C. 632).                                33° 21.1′ N, 079° 16.7′ W; thence to
the Harborwalk Boat Race. These               For reasons set forth in the above        33° 21.1′ N, 079° 16.9′ W; thence back to
proposed rules are intended to promote      Regulatory Evaluation, the Coast Guard      33° 21.5′ N, 079° 17.10′ W.
safe navigation on the waters off East      certifies under 5 U.S.C. 605(b) that this      All coordinates use datum: NAD 83.
Bay Park on the Sampit River during the     proposal, if adopted, would not have a         (b) Special local regulations. (1) Entry
race by controlling the traffic entering,   significant economic impact on a            into the regulated area is prohibited to
exiting, and traveling within these         substantial number of small entities.       all nonparticipants.
waters. Historically, the anticipated                                                      (2) After the termination of the
concentration of spectator and              Collection of Information                   Harborwalk Boat Race, and during
participant vessels associated with the                                                 intervals between scheduled events, at
Harborwalk Boat Race has posed a              These proposed regulations contain
                                            no collection of information                the discretion of the Captain of the Port,
safety concern, which is addressed in                                                   all vessels may resume normal
these proposed special local regulations.   requirements under the Paperwork
                                                                                        operations.
The proposed regulations would not          Reduction Act (44 U.S.C. 3501 et seq.).
                                                                                           (c) Effective Dates. This section is
permit movement of spectator vessels        Federalism                                  effective at 12 p.m. and terminate at
and other nonparticipating vessel traffic                                               5:30 p.m. annually during the last
within the regulated area, bounded by a       This action has been analyzed in          Sunday of June. However, the
line drawn from                             accordance with the principles and          requirements of this section may be
33°21.5′ N, 079°17.10′ W, thence to         criteria contained in Executive Order       waived by a Coast Guard Notice to
33°21.7′ N, 079°16.8′ W, thence along the   12612, and it has been determined that      mariners.
  shore to                                  the rulemaking does not have sufficient
33°21.1′ N, 079°16.7′ W, thence to                                                        Dated: March 12, 1996.
                                            Federalism implication to warrant the
33°21.1′ N, 079°16.9′ W, thence back to                                                 Roger T. Rufe, Jr.,
                                            preparation of a Federalism Assessment.
33°21.5′ N, 079°17.10′ W                                                                Rear Admiral, U.S. Coast Guard, Commander,
from 7 a.m. to 5:30 p.m. annually during    Environmental Assessment                    Seventh Coast Guard District.
the last Sunday of June. All coordinates                                                [FR Doc. 96–7307 Filed 3–25–96; 8:45 am]
                                               The Coast Guard has considered the
use Datum: NAD 83. The proposed             environmental impact of this proposal
                                                                                        BILLING CODE 4910–14–M
regulations would permit the movement
                                            consistent with Section 2.B.2. of
of spectator vessels and other
                                            Commandant Instruction M16475.1B. In        33 CFR Part 100
nonparticipants after the termination of
                                            accordance with that section, this
race, and during intervals between                                                      [CGD07–96–014]
                                            proposed action has been
scheduled events at the discretion of the
                                            environmentally assessed (EA                RIN 2115–AE46
Captain of the Port.
                                            completed), and the Coast Guard has
Regulatory Evaluation                       concluded that it will not significantly    Special Local Regulations; River Race
  This proposal is not a significant        affect the quality of the human             Augusta; Augusta, GA
regulatory action under Section 3(f) of     environment. An environmental
                                                                                        AGENCY:   Coast Guard, DOT.
the Executive Order 12866 and does not      assessment and a finding of no
                                            significant impact have been prepared       ACTION:   Notice of proposed rulemaking.
require an assessment of the potential
costs and benefits under Section 6(a)(3)    and are available in the docket for         SUMMARY:   The Coast Guard proposes to
of that Order. It has been exempted from    inspection or copying where indicated       establish permanent special local
review by the Office of Management and      under ADDRESSES.                            regulations for the River Race Augusta.
Budget under that order. It is not          List of Subjects in 33 CFR Part 100         This event will be held annually on
significant under the regulatory policies                                               Friday, Saturday and Sunday during the
and procedures of the Department of           Marine safety, Navigation (water),        second week of June, between 7 a.m.
Transportation (DOT) (44 FR 11040;          Reporting and record keeping                and 5 p.m. Eastern Daylight Time.
February 26, 1979). The Coast Guard         requirements, Waterways.                    Historically, there have been
                Federal Register / Vol. 61, No. 59 / Tuesday, March 26, 1996 / Proposed Rules                                13121

approximately sixty participants racing     make oral presentations will add to the        For reasons set forth in the above
16 to 18 foot outboard power boats on       rulemaking process.                          Regulatory Evaluation, the Coast Guard
that portion of the Savannah River at                                                    certifies under 5 U.S.C. 605 (b) that this
                                            Discussion of Proposed Regulations
Augusta, GA, between U.S. Highway 1                                                      proposal, if adopted, would not have a
(Fifth St) Bridge at mile marker 199.45       The proposed regulations are needed        significant economic impact on a
and Eliot’s Fish Camp at mile marker        to provide for the safety of life during     substantial number of small entities.
197. The boats would be competing at        the River Race Augusta. These proposed
high speeds and at close range on a         regulations are intended to promote safe     Collection of Information
prescribed course. The nature of the        navigation on the waters off Augusta on        These proposed regulations contain
event and the closure of the Savannah       the Savannah River during the races by       no collection of information
River creates an extra or unusual hazard    controlling the traffic entering, exiting,   requirements under the Paperwork
in the navigable waters. These proposed     and traveling within these waters.           Reduction Act (44 U.S.C. 3501 et seq.).
regulations are necessary to provide for    Historically, the anticipated
                                            concentration of spectator and               Federalism
the safety of life on navigable waters
during the event. By establishing these     participant vessels associated with the        This action has been analyzed in
proposed permanent regulations, the         River Race has posed a safety concern,       accordance with the principles and
Coast Guard expects to give better notice   which is addressed in these proposed         criteria contained in Executive Order
of requirements related to marine           special local regulations. The proposed      12612, and it has been determined that
events, and also avoid the recurring        regulations would not permit the entry       the rulemaking does not have sufficient
costs of publication related with           or movement of spectator vessels and         Federalism implications to warrant the
temporary regulations. However, the         other nonparticipating vessel traffic        preparation of a Federalism Assessment.
establishment of these proposed             between the U.S. Highway Route 1
                                                                                         Environmental Assessment
permanent regulations would not             (Fifth Street) Bridge at mile marker
relieve the event organizers from           199.45 and Eliot’s Fish Camp at mile            The Coast Guard has considered the
applying for an annual marine event         marker 197 from 7 a.m. to 5 p.m.             environmental impact on this proposal
permit.                                     annually, Friday, Saturday and Sunday        consistent with Section 2.B.2. of
                                            of the second week of June. The              Commandant Instruction M16475.1B. In
DATES: Comments must be received on
                                            proposed regulations would permit the        accordance with that section, this
or before May 15, 1996.
                                            movement of spectator vessels and other      proposed action has been
ADDRESSES: Comments may be mailed to
                                            non-participants after the termination of    environmentally assessed (EA
Commander, U.S. Coast Guard Group                                                        completed), and the Coast Guard has
                                            race each day, and during intervals
Charleston, 196 Tradd Street,                                                            concluded that it will not significantly
                                            between scheduled events at the
Charleston, SC 29401, or may be                                                          affect the quality of the human
                                            discretion of the Coast Guard Patrol
delivered to operations office at the                                                    environment. An environmental
                                            Commander.
same address between 7:30 a.m. and                                                       assessment and a finding of no
3:30 p.m., Monday through Friday,           Regulatory Evaluation                        significant impact have been prepared
except federal holidays. The telephone        This proposal is not a significant         and are available in the docket for
number is (803) 724–7621. Comments          regulatory action under Section 3(f) of      inspection or copying where indicated
will become a part of the public docket     the Executive Order 12866 and does not       under ADDRESSES.
and will be available for copying and       require an assessment of the potential
inspection at the same address.                                                          List of Subjects in 33 CFR Part 100
                                            costs and benefits under Section 6(a)(3)
FOR FURTHER INFORMATION CONTACT:            of that Order. It has been exempted from       Marine safety, Navigation (water),
ENS M.J. DaPonte, Coast Guard Group         review by the Office of Management and       Reporting and record keeping
Charleston at (803) 724–7621.               Budget under that order. It is not           requirements, Waterways.
SUPPLEMENTARY INFORMATION:                  significant under the regulatory policies    Proposed Regulations
                                            and procedures of the Department of
Request for Comments                        Transportation (DOT) (44 FR 11040;             In consideration of the foregoing, Part
  The Coast Guard encourages                February 26, 1979). The Coast Guard          100 of Title 33, Code of Federal
interested persons to participate in this   expects the economic impact of this          Regulations, is proposed for amendment
rulemaking by submitting written views,     proposed rule to be so minimal that a        as follows:
data, or arguments. Persons submitting      full Regulatory Evaluation under               1. The authority citation for Part 100
comments should include their names,        paragraph 10e of the regulatory policies     continues to read as follows:
addresses, identify the notice (CGD07–      and procedures of DOT is unnecessary.        PART 100—[AMENDED]
96–014) and the specific section of this    The proposed regulation would last for
proposal to which their comments            only 10 hours each day of the event.           Authority: 33 U.S.C. 1233; 49 CFR 1.46 and
apply, and give reasons for each                                                         33 CFR 100.35
comment. The Coast Guard will               Small Entities
                                                                                           2. A new section 100.712 is added to
consider all comments received during         Under the Regulatory Flexibility Act       read as follows:
the comment period. The regulations         (5 U.S.C. 601 et seq.), the Coast Guard
may be changed in view of the               must consider whether this proposal          § 100.712 Annual River Race Augusta;
comments received. All comments             will have a significant economic impact      Savannah River, Augusta GA.
received before the expiration of the       on a substantial number of small               (a) Definitions: (1) Regulated area.
comment period will be considered           entities. ‘‘Small entities’’ include         The regulated area is formed by a line
before final action is taken on this        independently owned and operated             drawn directly across the Savannah
proposal.                                   small businesses that are not dominant       River at the U.S. Highway 1 (Fifth
  No public hearing is planned, but one     in their field and that otherwise qualify    Street) Bridge at mile marker 199.45 and
may be held if the written requests for     as ‘‘small business concerns’’ under         directly across the Savannah River at
a hearing are received, and it is           Section 3 of the Small Business Act (15      Eliot’s Fish Camp at mile marker 197.
determined that the opportunity to          U.S.C. 632).                                 The regulated area would encompass
13122              Federal Register / Vol. 61, No. 59 / Tuesday, March 26, 1996 / Proposed Rules

the width of the Savannah River               applying for an annual marine event         channels creates an extra or unusual
between these two lines.                      permit.                                     hazard in the navigable waters. These
   (2) Coast Guard Patrol Commander.          DATES: Comments must be received on         regulations are intended to promote safe
The Coast Guard Patrol Commander is           or before May 15, 1996.                     navigation on the waters off Miami
a commissioned, warrant, or petty             ADDRESSES: Comments may be mailed to        Beach during the race by restricting
officer of the Coast Guard who has been       U.S. Coast Guard Group Miami, 100           vessels from entering the race area
designated by the Commander, Coast            Macarthur Causeway, Miami Beach, FL         described below and permit anchoring
Guard Group Charleston, South                 33139–5101 or may be delivered to           only in the designated spectator area.
Carolina.                                     operations office at the same address         The proposed race area would be
   (b) Special local regulations. (1) Entry   between 7 a.m. and 3 p.m., Monday           formed by a line joining the following
into regulated area is prohibited to all      through Friday, except Federal holidays.    points:
non-participants.                             The telephone number is (305) 535–          25°46.3′ N, 080°07.85′ W; thence to,
   (2) After termination of the River Race    4448. Comments will become a part of        25°46.3′ N, 080°06.82′ W; thence to,
Augusta each day, and during intervals        the public docket and will be available     25°51.3′ N, 080°06.2′ W; thence to,
between scheduled events, at the              for copying and inspection at the same      25°51.3′ N, 080°07.18′ W; thence along the
discretion of the Coast Guard Patrol          address.                                      shoreline to the starting point. All
Commander, all vessels may resume                                                           coordinates referenced use datum: NAD
                                              FOR FURTHER INFORMATION CONTACT:              1983.
normal operations.                            QMC T. E. Kjerulff, Coast Guard Group
   (c) Effective Dates. This section is                                                     A spectator area would be established in
                                              Miami, FL at (305) 535–4448.                the regulated area for spectator traffic and
effective at 7 a.m. and terminates at 5
p.m. annually on Friday, Saturday and         SUPPLEMENTARY INFORMATION:                  would be defined by a line joining the
                                                                                          following points, beginning from:
Sunday of the second week of June.            Request for Comments
However, the requirements of this                                                         25°51.3′ N, 080°06.15′ W; thence to,
                                                The Coast Guard encourages                25°51.3′ N, 080°05.85′ W; thence to,
section may be waived by a Coast Guard
                                              interested persons to participate in this   25°46.3′ N, 080°06.55′ W; thence to,
Notice to mariners.                                                                       25°46.3′N, 080° 06.77′ W; and back to the
                                              rulemaking by submitting written views,
  Dated: March 13, 1996.                      data, or arguments. Persons submitting        starting point.
Roger T. Rufe, Jr.,                           comments should include their names,          All coordinates referenced use datum:
Rear Admiral, U.S. Coast Guard, Commander,    addresses, identify the notice (CGD07–      NAD 1983. The proposed regulation would
Seventh Coast Guard District.                 96–018) and the specific section of this    also include a buffer zone of 300 feet between
                                                                                          the race course and the spectator area defined
[FR Doc. 96–7306 Filed 3–25–96; 8:45 am]      proposal to which their comments            above.
BILLING CODE 4910–14–M                        apply, and give reasons for each
                                              comment. The Coast Guard will                 Entry into the proposed regulated area
                                              consider all comments received during       by other than event participants would
33 CFR Part 100                               the comment period. The regulations         be prohibited unless otherwise
                                              may be changed in view of the               authorized by the Coast Guard Patrol
[CGD07–96–018]                                comments received. All comments             Commander. However, the Coast Guard
                                              received before the expiration of the       Patrol Commander could at his
RIN 2115–AE46
                                              comment period will be considered           discretion permit traffic to resume
Special Local Regulations; Miami              before final action is taken on this        normal operations between scheduled
Super Boat Race; Miami Beach, FL              proposal.                                   racing events.
                                                No public hearing is planned, but one       The proposed regulations would also
AGENCY:   Coast Guard, DOT.                   may be held if the written requests for     establish safety measures of 5 short
ACTION:   Notice of proposed rulemaking.      a hearing are received, and it is           whistle or horn blasts from a patrol
                                              determined that the opportunity to          vessel to signal any and all vessels to
SUMMARY: The Coast Guard is proposing         make oral presentations will add to the     take immediate steps to avoid collision.
to establish permanent special local          rulemaking process.                         The display of an orange distress smoke
regulations for the Miami Super Boat                                                      signal from a patrol vessel would be the
Race. This event will be held annually        Discussion of Proposed Regulations          signal for any and all vessels to stop
on the second Sunday of June, between            The proposed regulations are needed      immediately. All spectators not in the
12:30 p.m. and 3:30 p.m. Eastern              to provide for the safety of life during    designated spectator areas above would
Daylight Time. Historically, there have       the Miami Superboat Race. This event        be required to remain clear of the race
been approximately 35 participant and         will be held annually on the second         area at all times.
200 spectator craft. The resulting            Sunday of June, between 12:30 p.m. and
congestion of navigable channels creates      3:30 p.m. Eastern Daylight Time. These      Regulatory Evaluation
an extra or unusual hazard in the             regulations are intended to promote safe      This proposal is not a significant
navigable waters. These proposed              navigation on the waters off Miami          regulatory action under Section 3(f) of
regulations are necessary to provide for      Beach during the races by controlling       the Executive Order 12866 and does not
the safety of life on navigable waters        the traffic entering, exiting, and          require an assessment of the potential
during the event. By establishing these       traveling within these waters.              costs and benefits under Section 6(a)(3)
proposed permanent regulations, the           Historically, there have been               of that Order. It has been exempted from
Coast Guard expects to give better notice     approximately 35 participant and 200        review by the Office of Management and
of requirements related to marine             spectator craft during the race. The        Budget under that order. It is not
events, and also avoid the recurring          anticipated concentration of spectator      significant under the regulatory policies
costs of publication related with             and participant vessels associated with     and procedures of the Department of
temporary regulations. However, the           the Miami Super Boat Race poses a           Transportation (DOT) (44 FR 11040;
establishment of these proposed               safety concern, which is addressed in       February 26, 1979). The Coast Guard
permanent regulations would not               these proposed special local regulations.   expects the economic impact of this
relieve the event organizers from             The resulting congestion of navigable       proposed rule to be so minimal that a
                 Federal Register / Vol. 61, No. 59 / Tuesday, March 26, 1996 / Proposed Rules                                13123

full Regulatory Evaluation under            PART 100—[AMENDED]                              p.m. Eastern Daylight Time annually
paragraph 10e of the regulatory policies                                                    during the second Sunday of June.
and procedures of DOT is unnecessary.         Authority: 33 U.S.C. 1233; 49 CFR 1.46 and
                                            33 CFR 100.35.                                    Dated: March 14, 1996.
The proposed regulation would last for                                                      Roger T. Rufe, Jr.,
only 4 hours each day of the event.           2. A new section 100.714 is added to
                                            read as follows:                                Rear Admiral, U.S. Coast Guard, Commander,
Small Entities                                                                              Seventh Coast Guard District.
                                            § 100.714 Annual Miami Super Boat Race;         [FR Doc. 96–7303 Filed 3–25–96; 8:45 am]
  Under the Regulatory Flexibility Act      Miami Beach, FL.                                BILLING CODE 4910–14–M
(5 U.S.C. 601 et seq.), the Coast Guard        (a) Definitions: (1) Regulated Areas.
must consider whether this proposal         The regulated area includes the race
will have a significant economic impact     course area, the spectator area, and a          33 CFR Part 183
on a substantial number of small            buffer zone.
entities. ‘‘Small entities’’ include                                                        [CGD 95–041]
                                               (i) The race course area is formed by
independently owned and operated            a line joining the following points:            Propeller Injury Prevention Aboard
small businesses that are not dominant
                                            25°46.3′ N, 080°07.85′ W; thence to,            Rental Boats
in their field and that otherwise qualify   25°46.3′ N, 080°06.82′ W; thence to,
as ‘‘small business concerns’’ under        25°51.3′ N, 080°06.2′ W; thence to,             AGENCY: Coast Guard, DOT.
Section 3 of the Small Business Act (15     25°51.3′ N, 080°07.18′ W; thence along the      ACTION:Advance notice of proposed
U.S.C. 632).                                  shoreline to the starting point.              rulemaking.
  For reasons set forth in the above          All coordinates referenced use datum:
Regulatory Evaluation, the Coast Guard
                                            NAD 1983.                                       SUMMARY:   The purpose of this Advance
certifies under 5 U.S.C. 605(b) that this     (ii) A spectator area is established in the   Notice of Proposed Rulemaking
proposal, if adopted, would not have a      regulated area for spectator traffic and is     (ANPRM) is to gather current, specific,
significant economic impact on a            defined by a line joining the following         and accurate information about the
                                            points, beginning from:                         injuries involving propeller strikes and
substantial number of small entities.
                                            25° 51.3′ N, 080° 06.15′ W; thence to,          rented boats. In a request for comments
Collection of Information                   25° 51.3′ N, 080° 05.85′ W; thence to,          published May 11, 1995, the Coast
                                            25° 46.3′ N, 080° 06.55′ W; thence to,          Guard solicited comments from all
  These proposed regulations contain        25° 46.3′ N, 080° 06.77′ W; and back to the     segments of the marine community and
no collection of information                  starting point.                               other interested persons on various
requirements under the Paperwork              All coordinates referenced use datum:         aspects of propeller accident avoidance
Reduction Act (44 U.S.C. 3501 et seq.).     NAD 1983.                                       aboard houseboats and other
Federalism                                     (iii) A buffer zone of 300 feet is           displacement type recreational vessels.
                                            established between the race course and         The information received was
  This action has been analyzed in          the spectator area.                             voluminous, but was too general to be
accordance with the principles and             (2) Coast Guard Patrol Commander.            helpful. Consistent with the President’s
criteria contained in Executive Order       The Coast Guard Patrol Commander is             Regulatory Reinvention Initiative, the
12612, and it has been determined that      a commissioned, warrant, or petty               Coast Guard is interested in obtaining
the rulemaking does not have sufficient     officer of the Coast Guard who has been         maximum public involvement before it
Federalism implications to warrant the      designated by the Captain of the Port,          makes any decision that would impose
preparation of a Federalism Assessment.     Miami, Florida.                                 a new burden on the regulated
Environmental Assessment                       (b) Special local regulations: (1) Entry     community. Information gathered in
                                            into the race course area by other than         response to this ANPRM will
  The Coast Guard has considered the        event participants is prohibited unless         supplement that which the Coast Guard
environmental impact of this proposal       otherwise authorized by the Coast               received in response to the request for
and has concluded that preparation of       Guard Patrol Commander. At the                  comments and will be used to
an Environmental Impact Statement is        completion of scheduled races and               determine the appropriate Federal and
not necessary. An Environmental             departure of participants from the              State roles in reducing propeller-strike
Assessment and Finding of No                regulated area, traffic may resume              incidents, whether governmental
Significant Impact are available in the     normal operations. At the discretion of         intervention is appropriate and, if so,
docket for inspection or copying where      the Coast Guard Patrol Commander,               whether it should be directed at the
indicated under ADDRESSES. The Coast        between scheduled racing events, traffic        vessels, their manufacturers, their
Guard has concluded that this proposed      may be permitted to resume normal               operators or owners, or the companies
action would not significantly affect the   operations.                                     leasing such vessels. This ANPRM also
quality of the human environment.              (2) A succession of not fewer than 5
                                                                                            announces one public meeting at Coast
                                            short whistle or horn blasts from a
List of Subjects in 33 CFR Part 100                                                         Guard Headquarters at which
                                            patrol vessel will be the signal for any
                                                                                            individuals and interested parties may
  Marine safety, Navigation (water),        and all vessels to take immediate steps
                                                                                            make oral presentations about the
Reporting and record keeping                to avoid a collision. The display of an
                                                                                            propeller strike avoidance issue. The
requirements, Waterways.                    orange distress smoke signal from a
                                                                                            Coast Guard has also arranged four other
                                            patrol vessel will be the signal for any
Proposed Regulations                        and all vessels to stop immediately.            opportunities, throughout the country,
                                               (3) Spectators not in the designated         for those interested in this subject to
  in consideration of the foregoing, Part   spectator areas, defined in paragraph (a)       express their views.
100 of Title 33, Code of Federal            of the regulated area, are required to          DATES: Comments must be received on
Regulations, is proposed to be amended      maintain clear of the race course area at       or before September 1, 1996.
as follows:                                 all times.                                      ADDRESSES: Comments may be mailed to
  1. The authority citation for Part 100       (c) Effective Dates: This section is         the Executive Secretary, Marine Safety
continues to read as follows:               effective at 12 p.m. and terminates at 4        Council (G–LRA/3406)(CGD95–041),
13124            Federal Register / Vol. 61, No. 59 / Tuesday, March 26, 1996 / Proposed Rules

U.S. Coast Guard Headquarters, 2100           13 boat and engine manufacturers, and            5. Some States have laws requiring
Second Street SW., Washington, DC             six naval architects or marine                boat operators to complete a boating
20593–0001, or may be delivered to            consultants.                                  safety course.
room 3406 at the above address between                                                         a. To what extent do available data
                                              Solicitation of Views                         indicate whether boater behavior
8 a.m. and 3 p.m., Monday through
Friday, except Federal holidays. The             While available data in the Coast          patterns, a lack of boating education, or
telephone number is (202) 267–1477.           Guard’s regulatory docket on this             a lack of boating law enforcement
   The Executive Secretary maintains the      subject does not fully support the costs      contribute to the incidence of propeller-
public docket for this notice. Comments       or burdens that would be imposed by           strike accidents involving rental boats?
will become a part of this docket and         Federal regulation, the number of                b. Do data indicate whether
will be available for inspection or           responses received to the request for         mandatory boating education for
copying at room 3406, U.S. Coast Guard        comments indicates a great deal of            individuals renting boats with
Headquarters.                                 public interest in whether and how the        propellers significantly contribute to a
FOR FURTHER INFORMATION CONTACT:              Federal Government should act to              reduction in the number of propeller-
Mr. Randolph Doubt, Project Manager,          prevent propeller-strike accidents.           strike accidents?
Recreational Boating Product Assurance                                                         c. If so, do data indicate what type of
                                                 Persons submitting comments should         boating education would be the most
Division, (202) 267–0984.                     do as directed under REQUEST FOR              effective?
SUPPLEMENTARY INFORMATION:                    COMMENTS above, and reply to the                 d. What other vessel operator-oriented
                                              following specific questions. Form            requirements might reduce the
Request for Comments                          letters simply citing anecdotal evidence      incidence of propeller-strike accidents
   The Coast Guard encourages                 or stating support for, or opposition to      involving rental boats?
interested persons to submit written          regulations, without providing                   e. What economic or other burdens
data, views or arguments. Persons             substantive data or arguments do not          would be imposed on companies leasing
submitting comments should include            supply support for regulations.               recreational boats if either the Federal or
their names and addresses and identify           1. The Coast Guard is making an effort     State Government was to require
this notice (CGD 95–041). Please submit       to improve its database of recreational       education of individuals renting
two copies of all comments and                boating accidents resulting in injuries       propeller-driven boats?
attachments in an unbound format, no          which require medical treatment                  6. The two fatal accidents mentioned
larger than 81⁄2 by 11 inches, suitable for   beyond first aid. Part of that effort         above occurred when individuals were
copying and electronic filing. Persons        consists in trying to determine the           in the water astern of the vessels and the
wanting acknowledgment of receipt of          extent to which accidents involving           vessels were put in reverse. While
comments should enclose a stamped,            propeller strikes by rented boats are a       limited operator visibility astern may
self-addressed postcard or envelope.          problem. What information is available        have contributed to the accidents, the
   The Coast Guard will consider all          regarding the incidence of propeller-         transom is also the usual location for
comments received during the comment          strike injuries or fatalities involving       swim platforms and boarding ladders
period.                                       individuals who rent boats, and what          for swimmers. Do available data
Background Information                        trends, if any, do the data indicate?         indicate whether vessel design features
                                                 2. To what extent are data available to    contribute to the incidence of propeller-
   The Coast Guard published a request                                                      strike accidents involving rental boats?
for comments on propeller accidents           indicate whether the type of propulsion
                                              (e.g., outboard motor, inboard engine or      If so, what vessel design features might
involving houseboats and other                                                              reduce the incidence of propeller-strike
displacement type recreational vessels        inboard-outboard engine) contributes to
                                              the incidence of propeller-strike             accidents involving rental boats?
on May 11, 1995 [60 FR 25191]. In a                                                            7. Are there any proven technologies
second Federal Register notice                accidents involving rental boats?
                                                                                            that would help reduce the risk of
published August 9, 1995, the Coast              3. In two fatal accidents during the       propeller-strike accidents involving
Guard reopened and extended the               last several years, one on Lake Shasta        rented boats? What technologies are
comment period until November 7,              and one on Lake Havasu, the victim was        unacceptable, and for what reasons?
1995. The Coast Guard received 1,994          in the water and was struck by the               8. The two fatal accidents mentioned
responses. More than 1,800 of these           propeller when a rental houseboat was         above involved rental houseboats. If the
were form letters from individuals who        put in reverse and backed into them.          Coast Guard developed regulations in
support the development of regulations        Several other houseboat accidents have        this area, how should it define the term,
to require the use of propeller guard         resulted in injuries. The Coast Guard is      ‘‘houseboat?’’ Are there any other vessel
technology or pump jet propulsion on          interested in determining whether             types the Coast Guard should consider
vessels used in the rental houseboat          accidents involving propeller strikes         regulating? If so, what vessels, if any,
industry. An additional 69 comments           and rented houseboats occur                   should be excepted from such
supporting the development of                 nationwide, or are limited to a few           regulations?
regulations to prevent the incidence of       States or bodies of water. If the latter is      9. What, if any, types of information
propeller-strike accidents were received      the case, do any particular hazardous         should be displayed on boats and/or
from accident victims and their               local conditions contribute to the            motors leased, rented or chartered for
relatives, attorneys, physicians, State       likelihood of such accidents? If so, the      noncommercial use for the purpose of
law enforcement agencies,                     Coast Guard is interested in determining      alerting operators or passengers to the
manufacturers of devices designed to          the nature and location of those              dangers of a propeller strike?
prevent propeller-strike accidents, and       conditions.                                      10. What are the economic and other
other individuals. Comments opposing             4. To what extent are data available       impacts on companies renting boats or
regulations were received from 57             on the relationship between the               other entities if the Coast Guard were to
boaters, nine houseboat livery operators      consumption of alcohol or the use of          require companies to retrofit such
and marinas, members of 10                    controlled substances and propeller-          vessels with devices or methods of
associations, committees, or councils,        strike accidents involving rental boats?      propulsion designed to reduce the
                Federal Register / Vol. 61, No. 59 / Tuesday, March 26, 1996 / Proposed Rules                                     13125

incidence of propeller-strike accidents?     in the Camden Room at the Samoset               (HAP). When no emission standard has
In considering regulations, the Coast        Resort in Rockland, ME (April 29–30,            been promulgated under section 112(d)
Guard must assess the potential adverse      1996).                                          of the Act, determinations concerning
impacts on small business entities. To          From 1 to 4 p.m., Monday, May 6,             such sources must be made on a case-
what extent are small entities engaged       1996 in Room 2415 of Coast Guard                by-case basis. Today’s notice announces
in leasing recreational boats?               Headquarters in Washington, DC.                 the availability of a revised draft of the
   11. a. How many companies are                From 10 a.m. to 12 p.m., Sunday, May         proposed rule which implements
currently leasing propeller-driven boats     19, 1996 at the Southern States Boating         section 112(g)(2)(B) of the Act with
for bareboat charters by the recreational    Law Administrator Conference at the             respect to constructed or reconstructed
boating public? How many vessels are         Royal Sonesta Hotel in New Orleans, LA          major sources, and requests comment on
involved and on which bodies of water?       (May 18–22, 1996).                              the revised draft. The EPA does not
   b. How many companies are currently          Those wishing to give an oral                intend at this time to issue a rule
offering propeller-driven uninspected        presentation should submit their name,          implementing the provisions of section
boats for charter by the recreational        address, and organization represented           112(g) which concern modifications.
boating public? How many vessels are         (if any) at least seven days prior to the
involved and on which bodies of water?       particular meeting or event, to                 DATES:  The revised draft of the proposed
   12. What adverse impacts might result     COMMANDANT (G–NAB–6), room                      rule will be available in the public
from a regulation requiring livery           1505, U.S. Coat Guard Headquarters,             docket and on the EPA electronic
companies to verbally brief individuals      2100 Second Street SW., Washington,             bulletin board on the date this
renting propeller-driven boats about the     DC 20593–0001, Attn: Mr. Jay Doubt.             document is signed. Comments
dangers of propeller-strike accidents,       Individuals wishing to give an oral             concerning this document or the revised
and requiring individuals chartering         presentation who fail to notify the Coast       draft rule must be received by EPA on
such vessels to acknowledge receiving        Guard within seven days of a particular         or before April 25, 1996.
the information?                             meeting or event will be allowed to do          ADDRESSES: The revised draft rule and
   13. Under current Federal statutes (46    so if time permits.                             other information pertaining to the
U.S.C. 4306), the States do not have the        Those giving oral presentations are          proposed rule are contained in Docket
authority to establish carriage              reminded of the necessity to also               Number A–91–64. The docket is
requirements for associated equipment,       furnish written comments, if those              available for public inspection and
such as a mechanical means for               comments are intended for inclusion in          copying from 8:30 a.m. to 12:00 p.m.
preventing propeller strikes, on vessels     the regulatory docket.                          and 1:00 p.m. to 3:00 p.m., Monday
operated on waters where both the Coast         The Coast Guard will consider all            through Friday, at the EPA’s Air Docket
Guard and the State have jurisdiction.       relevant comments in determining what           Section, Waterside Mall, Room M1500,
However, a State may impose more             action may be necessary to address              EPA, 401 M Street, Southwest,
stringent requirements on vessels such       propeller accidents involving rented            Washington, DC 20460. A reasonable fee
as rental boats on waters subject to the     propeller-driven vessels.                       may be charged for copying. The draft
State’s exclusive jurisdiction, so long as      Dated: March 15, 1996.                       rule is also available on the Office of Air
such a requirement is not imposed upon                                                       Quality Planning and Standards
                                             Rudy K. Peschel,
vessel manufacturers. What is the                                                            (OAQPS) electronic bulletin board, the
                                             Rear Admiral, U.S. Coast Guard, Chief, Office
proper role for the States in reducing                                                       Technology Transfer Network (TTN),
                                             of Navigation Safety and Waterway Services.
propeller-strike accidents involving                                                         under Clean Air Act, Title III, Recently
                                             [FR Doc. 96–7304 Filed 3–25–96; 8:45 am]
rented boats? If the Coast Guard allowed                                                     Signed Rules. For information on how
                                             BILLING CODE 4910–14–M
the States to regulate the equipment                                                         to access the TTN, please call (919) 541–
carried, or the use of rental boats, how                                                     5384 between the hours of 1:00 p.m. and
would interstate commerce be affected?                                                       5:00 p.m. eastern standard time.
                                             ENVIRONMENTAL PROTECTION
Open Meetings                                                                                  Comments concerning this notice or
                                             AGENCY
                                                                                             the revised draft rule should be
   A subcommittee of the National                                                            submitted (in duplicate if possible) to:
Boating Safety Advisory Council, and         40 CFR Part 63
                                                                                             Central Docket Section (6102), EPA,
the National Association of State            [FRL–5446–8]                                    Attn: Air Docket No. A–91–64,
Boating Law Administrators are                                                               Washington, DC 20460.
studying the propeller injury prevention     Proposed Requirements for Control
issue. The Coast Guard invites               Technology Determinations for Major             FOR FURTHER INFORMATION CONTACT: Ms.
interested parties and the public to         Sources in Accordance With Clean Air            Gerri Pomerantz, telephone (919) 541–
make brief oral presentations about the      Act (Act) Section 112(g)                        2371, or Ms. Kathy Kaufman, telephone
propeller injury prevention issue during                                                     (919) 541–0102, Information Transfer
                                             AGENCY:  Environmental Protection               and Program Integration Division (MD–
the following meetings or events:
   From 5 to 7 p.m., Monday, April 22,       Agency (EPA).                                   12), OAQPS, EPA, Research Triangle
1996 at the National Water Safety            ACTION: Notice of reopening of comment          Park, NC, 27711.
Congress Professional Development            period; notice of availability of draft
                                                                                             SUPPLEMENTARY INFORMATION:     The
Seminar at the Boardwalk Resort in           rule.
                                                                                             information in this notice is organized
Panama City, FL, (April 23–25, 1996).        SUMMARY: The EPA is reopening the
                                                                                             as follows:
   From 3 to 5 p.m., Monday April 29,        comment period for the proposed rule
1996 at the National Boating Safety          implementing section 112(g) of the Act          I. Background and Major Differences between
                                             and is announcing the availability of a               the Proposed Rule and Draft Final Rule
Advisory Council Meeting at the Parc                                                         II. Definition of ‘‘Construct a Major Source’’
Fifty-Five Hotel in San Francisco, CA        revised draft of the proposal. Section          III. Review of Applications for a maximum
(April 27–29, 1996).                         112(g) establishes requirements for                   achievable control technology (MACT)
   From 8:30 to 10:30 a.m., Wednesday        owners or operators who intend to                     Determination
May 1, 1996 at the Northeastern States       construct, reconstruct, or modify a             IV. Extensions of Compliance Date for
Boating Law Administrators Conference        major source of hazardous air pollutants              Subsequent Emission Standards
13126           Federal Register / Vol. 61, No. 59 / Tuesday, March 26, 1996 / Proposed Rules

I. Background and Major Differences         time of construction or reconstruction,     environmentally beneficial alternative
Between the Proposed Rule and Draft         when controls are most cost-effective to    means of control.
Final Rule                                  install. This is a major streamlining and     Finally, the program must be as
                                            simplification step that will focus         consistent as possible with other
   In designing a program to implement
                                            section 112(g) implementation where it      Federal air pollution control programs,
MACT requirements under section
                                            will provide the greatest reduction in      and must be simple enough to ensure
112(g), the EPA is guided by the need
                                            emissions to the environment, certainty     smooth implementation. Today’s draft
to balance several, often competing,
                                            to the regulated community, and reduce      rule eliminates much of the complexity
goals. Given a complex statutory
                                            the overall administrative burden on        inherent in the portion of section 112(g)
mandate, the EPA has the difficult task
                                            both regulators and the regulated           which covers modifications to existing
of designing a rule that is
                                            community.                                  sources. Among other things, under this
simultaneously environmentally                The EPA’s decision to implement
protective, maintains consistency across                                                simpler approach, it will not be
                                            only the construction and                   necessary to proceed with development
Agency programs, minimizes the              reconstruction provisions of section
administrative burden on sources and                                                    of de minimis emission values or the
                                            112(g) is premised in part on the           hazard ranking system necessary to
States, provides flexibility to sources,    Agency’s ability to issue the remaining
and maintains enforceability—yet is not                                                 support offset determinations. It will
                                            MACT standards under section 112(d)         also not be necessary to address the
overly complex. The EPA’s task is to        in a timely way, and also in part on the
create a coherent regulatory whole that                                                 multitude of issues and concerns, raised
                                            assumption that where there are existing    in the proposed rule, associated with
strikes the right balance among a broad     State air toxics programs that address
set of goals.                                                                           defining the types of operations that
                                            modifications, they will continue to        would be considered ‘‘modifications.’’
   Section 112(g) is primarily a            operate as they do currently. If there
transitional program designed to operate    were substantial delays in issuance of      II. Definition of ‘‘Construct a Major
until MACT standards issued under           MACT standards, or radical changes to       Source’’
section 112(d) are in effect for all        existing State programs, increased
categories of major sources of HAP. To                                                     Today’s draft rule does require
                                            exposure to emissions from unregulated      additional discussion to clarify the
date, the EPA has issued 17 MACT            sources of HAP could occur and
standards covering 29 categories of                                                     conditions under which a stationary
                                            threaten public health and the              source would require a new source
major sources of HAP emissions, and         environment. If such delays were to
has proposed five additional MACT                                                       MACT determination; i.e., what criteria
                                            occur, the EPA would reconsider             must be met for new equipment to be
standards covering 18 source categories.    whether to move forward to cover
The EPA is currently developing all of                                                  considered construction or
                                            modifications under section 112(g).         reconstruction of a major source. The
the MACT standards that are due to be         The EPA believes that Congress’s
completed in 1997, as well as several of                                                new equipment which would meet
                                            basic goal in adopting section 112(g) of
the standards due to be completed in                                                    these criteria is referred to as the
                                            the Act was to make use of the
2000.                                                                                   ‘‘affected source.’’ The EPA intends that
                                            opportunity for environmental
   The EPA has concluded that the                                                       either a major source constructed on a
                                            protection that exists when major
greatest benefits to be derived from                                                    greenfield site, or a new major-emitting
                                            sources of HAP undergo changes that
section 112(g) would be from the control                                                stationary source with a discrete
                                            would lead to significant emission
of major source construction and                                                        function at an existing plant site, such
                                            increases. The opportunity to evaluate
reconstruction in the period before these                                               as a new discrete process or production
                                            emission control technologies, or other
MACT standards go into effect.                                                          unit, should be considered construction
                                            beneficial ways to bring about
Therefore the EPA has determined that                                                   of a major source, and thus require a
                                            environmental improvements, generally
today’s draft rule should implement                                                     new source MACT determination. The
                                            exists because the environmental
only that portion of section 112(g)                                                     stationary source must also itself be
                                            improvements are more efficient when
which requires new source MACT                                                          inherently major-emitting; the EPA does
                                            built as part of the initial design.
determinations for constructed and            The EPA also recognizes that it is        not intend that a new process unit
reconstructed major sources, but not        critical to the success of the program to   causing increased emissions at another
that portion which requires existing        ensure that its provisions are              unit downstream should be covered by
source MACT determinations for              enforceable and provide the greatest        today’s draft rule. The EPA requests
modifications of existing sources. The      possible incentive for compliance. At       comment on this overall approach.
EPA requests comment on this                the same time, the EPA recognizes the          Figure (1) illustrates how the
approach.                                   need to minimize administrative delays      definition of ‘‘construct a major source’’
   Under this approach, sources of toxic    and grant sources and permitting            works.
air pollution will be controlled at the     authorities the flexibility to seek         BILLING CODE 6560–50–P
                   Federal Register / Vol. 61, No. 59 / Tuesday, March 26, 1996 / Proposed Rules   13127




BILLING CODE 6560–50–C
13128            Federal Register / Vol. 61, No. 59 / Tuesday, March 26, 1996 / Proposed Rules

   If the stationary source is constructed     applied to area sources that are within              equipment with next generation etching,
on a greenfield site and is major-             the definition of a ‘‘green-field site.’’            plating or photolithography equipment.
emitting, then the stationary source is           Box (ii) asks: Is the new stationary              This equipment change would not
an affected source under section 112(g),       source an integral component of a larger             trigger section 112(g), because the
and must apply new source MACT. If             process or production unit? If the source            individual etching or plating or
the stationary source is being                 is a discrete process unit or production             photolithography equipment is the kind
constructed at an existing plant site,         unit as defined in the rule, and                     of component upon which the
then several other criteria will               emissions from the source exceed the                 functioning of the larger production
determine whether it is to be considered       major source threshold, it meets the                 process relies. Therefore the function of
an affected source under section 112(g),       definition of an ‘‘affected source’’ under           the new stationary source (the new
and must apply new source MACT.                section 112(g) and is subject to new                 etching, plating, or photolithography
   Box (i) (the box labels refer back to the   source MACT control. The EPA requests                equipment) and the larger production
sections of the ‘‘construct a major            comment on this exclusion.                           process are interdependent.
source’’ definition in the draft rule)            What does it mean to be an integral                  2. An aluminum reduction plant has
asks: Will the stationary source be            component of a larger process or                     several potlines. Each potline consists of
controlled by existing emission control        production unit? Today’s rule defines                many pots, which are controlled using
equipment which the permitting                 ‘‘integral component of a larger process             a common dry scrubbing system. The
authority has determined represents one        or production unit’’ to be a stationary              company replaces a few pots on each
of the best technologies for control of        source or group of stationary sources                line. This equipment change would not
HAP? If a new source can be                    whose function, and the function of the              trigger section 112(g), because the
incorporated into such existing control        process unit or production unit, are                 individual pots are the kind of
technology without any reduction in the        interdependent. In other words, the                  component upon which the functioning
degree of control of HAP, the new              stationary source is the kind of                     of the larger production process relies.
source would not be considered                 component upon which the functioning                 Therefore the function of the new
‘‘construction’’ under section                 of the process or production unit relies,            stationary source (the new pots) and the
112(g)(2)(B). The state permitting             and vice versa. Equipment which is an                larger production process are
authority will be responsible for              integral component of a process or                   interdependent.
determining whether these criteria             production unit is part of the                          3. A chemical plant builds a new
apply, using those procedures it deems         functioning of the overall process or                distillation column, to be added to a
most appropriate.                              production unit. Under the proposed                  series of distillation columns, the
   The general purpose of this exclusion       definition, equipment which is not an                emissions from which are collected at
from the definition of ‘‘construct a major     integral component itself comprises a                the end of the series and vented to a
source’’ is to assure that facilities which    process or production unit.                          carbon absorber. This equipment change
have previously installed good control            The EPA acknowledges that there is                would not trigger section 112(g),
equipment with presently unutilized            some room for judgment in determining                because the individual distillation
capacity will not be precluded from            if a stationary source is an integral                columns are the kind of component
fully utilizing such equipment by any          component of a larger unit. Each                     upon which the functioning of the larger
marginal differences in control                individual determination should be                   production process relies. Therefore the
effectiveness between such equipment           based on answers to the following                    function of the new stationary source
and that required by new source MACT.          questions: Is the new stationary source              (the new distillation column) and the
Existing controls should be deemed             a component critical to the function of              larger production process are
satisfactory only where they are               the larger process or production unit?               interdependent.
representative of the best technologies        Could the stationary source stand alone                 4. A composites manufacturer adds
presently in use and the addition of new       as an individually functioning unit if               additional vacuum and/or in-mold
sources to existing control equipment          constructed elsewhere? Could the                     coating capability to an existing mold,
will not impair its overall effectiveness.     stationary source be reasonably                      in order to improve surface quality. This
The rule also explicitly recognizes that       controlled independently of the larger               equipment change would not trigger
some facilities have previously installed      process? Reference documents such as                 section 112(g), because the additional
such controls to comply with a best            AP–42 1 describe examples of different               components of the mold are the kind of
available control technology (BACT)            groupings of stationary sources that                 components upon which the
determination (that controls the HAP           should be considered to be separately-               functioning of the larger production
emitted by the stationary source) under        controlled processes, as well as those               process relies. Therefore the function of
the prevention of significant                  stationary sources, contained within                 the new stationary source (the new
deterioration (PSD) program, a lowest-         such processes, which should be                      components of the mold) and the larger
achievable emission rate (LAER)                considered integral components.                      production process are interdependent.
determination under the new source             Examples in these reference documents,                  5. A glass manufacturer adds a new
review (NSR) program, or a toxics-best         where relevant, should be used to define             glass furnace and associated process
available control technology (T-BACT)          a process or production unit.                        line which will emit HAPs in amounts
determination under a State or local air          The following examples should help                above the major source threshold. This
toxics control program. The EPA                illustrate where section 112(g) should               is an example of a stationary source
requests comment on this exclusion.            and should not apply. The EPA requests               which is not an integral component of
   The EPA notes that the definition of        comment on these examples.                           a process or production unit, because it
a ‘‘green-field site’’ in the draft rule          1. An electronics manufacturing                   is itself a production or process unit.
includes developed sites which do not          facility replaces individual                         Therefore the new furnace meets the
presently emit major source quantities         manufacturing equipment such as                      definition of ‘‘affected source’’ under
of HAP. EPA therefore requests                 etching, plating, or photolithography                section 112(g) and should be controlled
comment concerning whether the                                                                      with new source MACT.
exclusion for new sources that use              1 U.S. EPA, AP–42, ‘‘Compilation of Air Pollutant      6. A composites manufacturer adds a
existing emission controls should be           Emission Factors,’’ 5. ed., January 1995.            new large molding line which will emit
                 Federal Register / Vol. 61, No. 59 / Tuesday, March 26, 1996 / Proposed Rules                                13129

HAPs in amounts above the major               Approval.’’ Today’s draft rule adds one      MACT standard, a later compliance date
source threshold. This is an example of       more option, designed to provide             for those sources which have installed
a stationary source which is not an           flexibility to the permitting authority      controls pursuant to section 112(g), and
integral component of a process or            and the source. Proposed section             have provided the EPA with data on
production unit, because the molding          63.43(c)(2)(ii) provides that if a           their section 112(g) control
line is itself a separately functioning       permitting authority establishes, or has     determination by the end of the public
process unit. Therefore the molding line      already established, preconstruction         comment period on the subsequent
meets the definition of ‘‘affected source’’   review procedures for sources to follow,     Federal standard.
under section 112(g) and should be            then these procedures may be used in           The EPA requests comment on this
controlled with new source MACT.              lieu of any procedures prescribed by         approach, and on whether such sources
   7. An auto parts manufacturer adds a       today’s draft rule. The permitting           should be required to inform EPA,
new automobile surface coating line           authority’s prescribed procedures may        before proposal of the subsequent
(i.e., from body shop to trim shop)           have been developed for other purposes       MACT standard, that they have installed
which will emit HAPs in amounts above         beyond implementation of section             section 112(g) controls.
the major source threshold. This is an        112(g), so long as they provide for            In those instances where the
example of a stationary source which is       public participation in the case-by-case     subsequent MACT standard does not
not an integral component of a process        MACT determination and ensure that a         establish a compliance date for sources
or production unit, because the line is       final MACT determination will be made        subject to a prior case-by-case MACT
itself a separately functioning process       prior to construction or reconstruction.     determination, the present draft rule
unit, as described in AP–42. Therefore        The draft rule also provides that a final    retains the provision from the original
the coating line meets the definition of      case-by-case MACT determination              proposal authorizing the permitting
‘‘affected source’’ under section 112(g)      issued pursuant to any of these              authority to grant up to eight years of
and should be controlled with new             procedures will be deemed federally          additional time for the affected source to
source MACT.                                  enforceable. The permitting authority        comply with the subsequent MACT
   8. An existing chemical plant builds       need not obtain delegation under 40          standard. The EPA has previously
a new nitric acid plant onsite which          CFR Part 63 subpart E in order to adopt      explained that the structure of section
will emit HAPs in amounts above the           its own review procedures for a case-by-     112 as a whole supports such a
major source threshold. This is an            case MACT determination. The EPA             construction of section 112(g), and a
example of a stationary source or group       requests comment on this new                 source may also be afforded up to 8
of stationary sources which is not an         provision.                                   years to comply with a MACT standard
integral component of a process or               The EPA also requests comment             in instances where a prior emission
production unit. Therefore the nitric         specifically on the presumption, in          limitation has been established by
acid plant meets the definition of            section 63.43(d)(iv), that the constructed   permit under section 112(j). The EPA
‘‘affected source’’ under section 112(g)      or reconstructed major source should         requests comment on these provisions
and should be controlled with new             comply with the emission limitation set      and this interpretation.
source MACT.                                  out in a relevant proposed MACT
   9. A manufacturer replaces an entire                                                      Dated: March 18, 1996.
                                              standard or presumptive MACT
process which is similar to an entire         determination made by the EPA. The           Mary D. Nichols,
process as it is described in AP–42. This     EPA believes that sources would be           Assistant Administrator.
is an example of a stationary source or       well-advised to comply with such             [FR Doc. 96–7277 Filed 3–25–96; 8:45 am]
group of stationary sources which is not      emission limitations, as those               BILLING CODE 6560–50–P
an integral component of a process or         limitations would be most likely to be
production unit. Therefore the process        consistent with the requirements of the
meets the definition of ‘‘affected source’’   eventual MACT standard.                      40 CFR Part 261
under section 112(g) and should be                                                         [FRL–5446–3]
controlled with new source MACT,              IV. Extensions of Compliance Date for
provided that it will emit HAPs in            Subsequent Emission Standards                RIN 2050–AE31
amounts above the major source                   The EPA anticipates that new source
                                              MACT requirements adopted with               Identification and Listing of Hazardous
threshold.
                                              respect to construction or reconstruction    Waste; Amendments to Definition of
III. Review of Applications for a MACT        of a particular source under section         Solid Waste
Determination                                 112(g)(2)(B) will normally be at least as    AGENCY:  Environmental Protection
   Today’s draft rule contains three          stringent as any subsequent                  Agency.
options for preconstruction review            requirements for existing sources            ACTION: Proposed rule.
procedures for constructed and                adopted as part of a MACT standard
reconstructed major sources. The              issued under section 112(d). However,        SUMMARY:    EPA is proposing to correct
permitting authority has discretion to        should a subsequently promulgated            the text of a regulatory exclusion from
prescribe those procedures to be used in      MACT standard impose more stringent          the regulatory definition of solid waste
making a case-by-case MACT                    requirements, EPA believes that it may       for recovered oil which is inserted into
determination for constructed or              be appropriate in some instances for         the petroleum refining process. The
reconstructed major sources (except that      EPA to establish a later compliance date     current text of the exclusion contains a
the owner or operator of the source may       for those sources which have acted in        factual error inappropriately limiting
elect to use the part 70 or part 71           reliance on a prior case-by-case MACT        the location in the refining process at
permitting process). The proposed rule        determination. The draft rule expressly      which recovered oil can be inserted.
allowed use of either the part 70 or 71       provides that EPA may establish              The result of this error is to restrict
permitting process or a process,              separate compliance dates for facilities     legitimate recycling of recovered oil.
described in the proposed rule and in         which have notified EPA of such              The proposed correction also in fact
today’s draft rule, culminating in            determinations in a timely manner.           reflects the result EPA initially
issuance of a ‘‘Notice of MACT                Specifically, EPA may establish, in the      intended, which was to condition the
13130           Federal Register / Vol. 61, No. 59 / Tuesday, March 26, 1996 / Proposed Rules

exclusion of recovered oil on that oil       I. Authority                                            (3) materially alter the budgetary
being reinserted into the petroleum             These regulations are being proposed              impact of entitlement, grants, user fees,
refining process at a point where that       under the authority of Sections 2002                 or loan programs or the rights and
process removes or will remove               and 3001 et seq. of the Solid Waste                  obligations of recipients thereof; or
contaminants.                                Disposal Act, as amended by the                         (4) raise novel legal or policy issues
   In the final rules Section of today’s     Resource Conservation and Recovery                   arising out of legal mandates, the
Federal Register, EPA is promulgating        Act, as amended by the Hazardous and                 President’s priorities, or the principles
this amendment as a final rule without       Solid Waste Amendments of 1984, 42                   set forth in the Executive Order.
prior proposal because EPA views this        U.S.C. 6912 and 6921 et seq.                            It has been determined that this
as a noncontroversial action which                                                                amendment to the final rule is not a
corrects an unintended mistake, and so       II. Background                                       ‘‘significant regulatory action’’ under
anticipates no adverse comments. A              As set out in detail in the related               the terms of the Executive Order and is
detailed rationale for the amendment is      direct final rule, EPA is proposing to               therefore not subject to OMB review.
set forth in the final rule. If no adverse   correct an error in the text of a                    B. Regulatory Flexibility Act
comments are received in response to         regulatory exclusion (found at
this proposal, no further activity is        261.4(a)(12)), regarding the location in a             The Regulatory Flexibility Act, 5
contemplated in relation to this             petroleum refining process at which                  U.S.C. 601–602, requires that Federal
proposed rule. If EPA receives adverse       recovered oil can be inserted in order to            agencies examine the impacts of their
comments, EPA will withdraw the final        be excluded from the authority of RCRA               regulations on ‘‘small entities’’. If a
rule and all public comments received        subtitle C. The test for point of insertion          rulemaking will have a significant
will be addressed in a subsequent final      should be at or before any point in the              impact on a substantial number of small
rule based on the proposed rule. EPA         process that removes contaminants from               entities, agencies must consider
will not institute a second comment          recovered oil.1 The current regulatory               regulatory alternatives that minimize
period on this action.                       text limiting insertion to locations                 economic impact.
                                             before distillation and catalytic cracking             EPA believes that this amendment
DATES: Comments on this proposed rule
                                             is too restrictive because there are                 will have negligible impact on any small
must be received on or before April 24,                                                           entity because it expands the terms of
1996, and notice of intent to file adverse   points in the petroleum process
                                             downstream of these unit operations                  an exclusion from regulation. In
comments must be received on or before                                                            addition, the underlying rule itself was
April 9, 1996. An adverse comment will       (such as fractionation) which remove
                                             contaminants. The current terms of the               deregulatory and so did not have
be considered to be any comment                                                                   significant adverse economic impact on
substantively criticizing the proposal on    exclusion impede legitimate recycling of
                                             recovered oil without providing any                  small entities. See 59 FR at 38545.
a basis not already provided to EPA in                                                            Therefore, the Administrator certifies
comment.                                     corresponding environmental benefit,
                                             and moreover are based on a factual                  pursuant to 5 U.S.C. 601 et seq., that
ADDRESSES: Comments and materials                                                                 this rule will not have a significant
                                             error. Accordingly, EPA believes the
supporting this rulemaking are                                                                    impact on a substantial number of small
                                             rule should be amended.
contained in Public Docket No. F–96–                                                              entities because this amendment
SW2P-FFFFF and are located in the EPA        III. Additional Information                          reduces the scope of the RCRA subtitle
RCRA docket, Crystal Gateway #1, 1st            For additional information, see the               C regulatory program.
Floor, 1235 Jefferson Davis Highway,         corresponding direct final rule
Arlington, VA. The docket is open from                                                            C. Paperwork Reduction Act
                                             published in the rules section of this
9:00 to 4:00, Monday through Friday,         Federal Register.                                      Under the Paperwork Reduction Act,
except for Federal holidays. The public                                                           44 U.S.C. 3501 et seq., EPA must
must make an appointment to review           IV. Regulatory Requirements                          consider the paperwork burden imposed
docket materials by calling (703) 603–       A. Executive Order 12866                             by any information collection request in
9230. The public may copy a maximum                                                               a proposed or final rule. This rule will
of 100 pages from any one regulatory           Under Executive Order 12866 (58 FR                 not impose any new information
docket at no cost. Additional copies cost    51735, October 4, 1993), the Agency                  collection requirements.
§ .15 per page. Persons wishing to notify    must determine whether this regulatory
                                             action is ‘‘significant’’ and therefore              D. Unfunded Mandates Reform Act
EPA of their intent to submit adverse
comments on this action should contact       subject to OMB review and the                           Title II of the Unfunded Mandates
Steven Silverman, Office of General          requirements of the Executive Order.                 Reform Act of 1995 (UMRA), P.L. 104–
Counsel (2366), 401 M Street, SW.,           The Order defines ‘‘significant’’                    4, establishes requirements for Federal
Washington, DC 20460.                        regulatory action as one that is likely to           agencies to assess the effects of their
                                             lead to a rule that may:                             regulatory actions on State, local, and
FOR FURTHER INFORMATION CONTACT:               (1) have an annual effect on the
Steven Silverman, (202) 260–7716,                                                                 tribal governments and the private
                                             economy of $100 million or more, or                  sector. Under section 202 of the UMRA,
Office of General Counsel at the above       adversely and materially affect a sector
address.                                                                                          EPA generally must prepare a written
                                             of the economy, productivity,                        statement, including a cost-benefit
SUPPLEMENTARY INFORMATION:                   competition, jobs, the environment,                  analysis, for proposed and final rules
                                             public health or safety, or State, local,            with ‘‘Federal mandates’’ that may
Outline of Today’s Action                    or tribal governments or communities;                result in expenditures to State, local,
I. Authority                                   (2) create a serious inconsistency or              and tribal governments, in the aggregate,
II. Background                               otherwise interfere with an action taken             or to the private sector, of $100 million
III. Additional Information                  or planned by another agency;
IV. Regulatory Requirements
                                                                                                  or more in any one year. When a written
   A. Executive Order No. 12866                1 The issue of whether this should include
                                                                                                  statement is needed for an EPA rule,
   B. Regulatory Flexibility Act             insertion into petroleum cokers is being addressed
                                                                                                  section 205 of the UMRA generally
   C. Paperwork Reduction Act                in a separate rulemaking proceeding. 60 FR 57747     requires EPA to identify and consider a
   D. Unfunded Mandates Reform Act           (November 20, 1995).                                 reasonable number of regulatory
                 Federal Register / Vol. 61, No. 59 / Tuesday, March 26, 1996 / Proposed Rules                                13131

alternatives and adopt the least costly,       Authority: 42 U.S.C. 6905, 6912 (a), 6921,   Substances Pollution Contingency Plan
most cost-effective or least burdensome      6922 and 6938.                                 (NCP), which U.S. EPA promulgated
alternative that achieves the objectives       2. Section 261.4 in amended by               pursuant to Section 105 of the
of the rule. The provisions of section       revising paragraph (a)(12) to read as          Comprehensive Environmental
205 do not apply when they are               follows:                                       Response, Compensation, and Liability
inconsistent with applicable law.                                                           Act of 1980 (CERCLA) as amended. This
Moreover, section 205 allows EPA to          § 261.4   Exclusions.                          action is being taken by U.S. EPA
adopt an alternative other than the least       (a) * * *                                   because it has been determined that
costly, most cost-effective or least            (12) Recovered oil from petroleum           Responsible Parties and the State of
burdensome alternative if the                refining, exploration and production,          Minnesota have implemented all
Administrator publishes with the final       and from transportation incident               appropriate response actions required.
rule an explanation why that alternative     thereto, which is to be inserted into the      U.S. EPA, in consultation with the State
was not adopted. Before EPA establishes      petroleum refining process (SIC Code           of Minnesota, have also determined that
any regulatory requirements that may         2911) at or before a point (other than         no further response is appropriate.
significantly or uniquely affect small       direct insertion into a coker) where           Although full compliance with off-site
governments, including tribal                contaminants are removed. This                 surface water and ground water
governments, it must have developed          exclusion applies to recovered oil stored      standards has not been demonstrated as
under section 203 of the UMRA a small        or transported prior to insertion, except      yet due to past interruptions in ground
government agency plan. The plan must        that the oil must not be stored in a           water remediation, the State of
provide for notifying potentially            manner involving placement on the              Minnesota has assumed the legal
affected small governments, giving them      land, and must not be accumulated              obligation to carry out the response
meaningful and timely input in the           speculatively, before being so recycled.       action duties, including but not limited
development of EPA regulatory                Recovered oil is oil that has been             to operation and maintenance of the
proposals with significant Federal           reclaimed from secondary materials             remedy and attaining the response
intergovernmental mandates, and              (such as wastewater) generated from            action objectives and cleanup standards.
informing, educating, and advising them      normal petroleum refining, exploration         A determination of compliance with the
on compliance with the regulatory            and production, and transportation             off-site surface water and ground water
requirements.                                practices. Recovered oil includes oil          standards will be demonstrated by the
   Today’s rule contains no Federal          that is recovered from refinery                State after a longer period of operation
mandates (under the regulatory               wastewater collection and treatment            and maintenance of the remedy.
provisions of Title II of the UMRA) for      systems, oil recovered from oil and gas        Moreover, U.S. EPA and the State have
State, local, or tribal governments or the   drilling operations, and oil recovered         determined that remedial activities
private sector because it imposes no         from wastes removed from crude oil             conducted at the Site to date are and
enforceable duties on any of these           storage tanks. Recovered oil does not          will continue to be protective of public
governmental entities or the private         include (among other things) oil-bearing       health, welfare, and the environment.
sector. The rule merely corrects a factual   hazardous waste listed in 40 CFR part          DATES: Comments concerning the
error in the regulatory text of the          261 D (e.g., K048–K052, F037, F038).           proposed deletion of the Site from the
regulatory definition of solid waste. In     However, oil recovered from such               NPL may be submitted on or before
any event, EPA has determined that this      wastes may be considered recovered oil.        April 25, 1996.
rule does not include a Federal mandate      Recovered oil also does not include
                                                                                            ADDRESSES: Comments may be mailed to
that may result in estimated costs of        used oil as defined in 40 CFR 279.1.
$100 million or more to either State,                                                       Gladys Beard, Associate Remedial
                                             *      *    *     *     *                      Project Manager, Office of Superfund,
local, or tribal governments in the          [FR Doc. 96–7276 Filed 3–25–96; 8:45 am]
aggregate, or to the private sector in any                                                  U.S. EPA, Region 5, 77 W. Jackson Blvd.
one year. Thus, today’s rule is not
                                             BILLING CODE 6560–50–P                         (SR–6J), Chicago, IL 60604.
subject to the requirements of sections                                                     Comprehensive information on the site
202 and 205 of the UMRA. Similarly,                                                         is available at U.S. EPA’s Region 5 office
                                             40 CFR Part 300                                and at the local information repository
EPA has determined that this rule
contains no regulatory requirements that     [FRL–5445–8]                                   located at: Anoka County Community
might significantly or uniquely affect                                                      Health and Environmental Service,
                                             National Oil and Hazardous                     Anoka County Government Center, Rm.
small governments.
                                             Substances Pollution Contingency               360, 2100 3th Ave., Anoka, MN 55303
List of Subjects in 40 CFR Part 261          Plan; National Priorities List                 and Andover City Hall, 1685 Crosstown
  Environmental protection, Hazardous        AGENCY:  Environmental Protection              Blvd. Andover, MN 55304. Requests for
waste, Solid Waste, Petroleum,               Agency.                                        comprehensive copies of documents
Recycling.                                                                                  should be directed formally to the
                                             ACTION: Notice of intent to delete the
                                                                                            Region 5 Docket Office. The address and
  Dated: March 19, 1996.                     Waste Disposal Engineering Inc. site
                                                                                            phone number for the Regional Docket
Carol M. Browner,                            from the national priorities list; request
                                                                                            Officer is Jan Pfundheller (H–7J), U.S.
Administrator.                               for comments.
                                                                                            EPA, Region 5, 77 W. Jackson Blvd.,
  For the reasons set out in the             SUMMARY:    The United States                  Chicago, IL 60604, (312) 353–5821.
preamble, chapter I of title 40 of the       Environmental Protection Agency (U.S.          FOR FURTHER INFORMATION CONTACT:
Code of Federal Regulations is proposed      EPA) Region 5 announces its intent to          Lawrence Schmitt, Remedial Project
to be amended as follows:                    delete the Waste Disposal Engineering          Manager at (312) 353–6565, Gladys
                                             Inc. (Site) from the National Priorities       Beard (SR–6J), Associate Remedial
PART 261—IDENTIFICATION AND
                                             List (NPL) and requests public comment         Project Manager, Office of Superfund,
LISTING OF HAZARDOUS WASTE
                                             on this action. The NPL constitutes            U.S. EPA, Region 5, 77 W. Jackson
  1. The authority citation for part 261     Appendix B of 40 CFR part 300 which            Blvd., Chicago, IL 60604, (312) 886–
continues to read as follows:                is the National Oil and Hazardous              7253 or Susan Pastor (P–19J), Office of
13132             Federal Register / Vol. 61, No. 59 / Tuesday, March 26, 1996 / Proposed Rules

Public Affairs, U.S. EPA, Region V, 77          (ii) All appropriate Fund-financed         1984 through 1987. Contaminants of
W. Jackson Blvd., Chicago, IL 60604,          responses under CERCLA have been             concern identified at the site include a
(312) 353–1325.                               implemented, and no further response         number of volatile organic compounds
                                              action by responsible parties is             in ground water, including 1,1,1-
SUPPLEMENTARY INFORMATION:
                                              appropriate; or                              trichloroethane, trichloroethene, and
Table of Contents                               (iii) The Remedial investigation has       vinyl chloride, at concentrations well
I. Introduction                               shown that the release poses no              above Maximum Contaminant Levels.
II. NPL Deletion Criteria                     significant threat to public health or the   The site posed potential threats to
III. Deletion Procedures                      environment and, therefore, remedial
IV. Basis for Intended Site Deletion                                                       human health and the environment
                                              measures are not appropriate.                through direct contact with wastes,
I. Introduction                                                                            soils, and leachate seeps; ingestion of
                                              III. Deletion Procedures
   The U.S. Environmental Protection                                                       ground or surface water impacted by the
                                                 Upon determination that at least one      site; and possible off-site migration of
Agency (EPA) Region 5 announces its
                                              of the criteria described in 300.425(e)      landfill gas containing hazardous
intent to delete the Waste Disposal
                                              has been met, U.S. EPA may formally          constituents.
Engineering Inc. Site from the National
                                              begin deletion procedures once the State        On December 31, 1987, the Regional
Priorities List (NPL), which constitutes
                                              has concurred. This Federal Register         Administrator signed a Record of
Appendix B of the National Oil and
                                              notice, and a concurrent notice in the       Decision (ROD) selecting the following
Hazardous Substances Pollution
                                              local newspaper in the vicinity of the       remedy:
Contingency Plan (NCP), and requests
comments on the proposed deletion.            Site, announce the initiation of a 30-day       1. A multilayer soil cap;
The EPA identifies sites that appear to       comment period. The public is asked to          2. A ground water containment
present a significant risk to public          comment on U.S. EPA’s intention to           (extraction and treatment) system;
health, welfare or the environment, and       delete the Site from the NPL. All critical      3. A slurry wall/non-aqueous phase
maintains the NPL as the list of those        documents needed to evaluate U.S.            layer control system for a portion of the
sites. Sites on the NPL may be the            EPA’s decision are included in the           site;
subject of remedial actions financed by       information repository and the deletion
                                                                                              4. Wetlands replacement;
the Hazardous Substance Superfund             docket.
                                                 Upon completion of the public                5. A monitoring program for ground
Response Trust Fund (Fund). Pursuant                                                       water, surface water, and landfill gas;
to Section 300.425(e)(3) of the NCP, any      comment period, if necessary, the U.S.
                                              EPA Regional Office will prepare a              6. An operation and maintenance
site deleted from the NPL remains                                                          program; and
eligible for Fund-financed remedial           Responsiveness Summary to evaluate
                                              and address comments that were                  7. Institutional controls.
actions if the conditions at the site                                                         After attempts at negotiating a consent
warrant such action.                          received. The public is welcome to
                                              contact the U.S. EPA Region 5 Office to      decree with the PRPs failed, U.S. EPA
   The U.S. EPA will accept comments                                                       issued a CERCLA Section 106 Unilateral
on this proposal for thirty (30) days after   obtain a copy of this responsiveness
                                              summary, if one is prepared. If U.S. EPA     Administrative Order for Remedial
publication of this notice in the Federal                                                  Design/Remedial Action (RD/RA) to 28
Register.                                     then determines the deletion from the
                                              NPL is appropriate, final notice of          PRPs on August 23, 1991. The PRPs
   Section II of this notice explains the                                                  agreed to implement the Order and
criteria for deleting sites from the NPL.     deletion will be published in the
                                              Federal Register.                            completed the RD for Operable Unit
Section III discusses procedures that                                                      (OU) 1, the ground water containment
EPA is using for this action. Section IV      IV. Basis for Intended Site Deletion         system, in October 1992. OU1
discusses the history of this site and
                                                 The Waste Disposal Engineering, Inc.,     Construction was initiated in October
explains how the site meets the deletion
                                              Site occupies approximately 114 acres        1992 and completed in September 1993.
criteria.
   Deletion of sites from the NPL does        in the City of Andover, Minnesota.           The RD for OU2, the multilayer cap, was
not itself create, alter, or revoke any       Andover has a population of                  completed in December 1992, with
individual’s rights or obligations.           approximately 9000 and is located 20         construction completed in August 1994.
Furthermore, deletion from the NPL            miles north of Minneapolis/St. Paul.         The State provided oversight of all RD/
does not in any way alter U.S. EPA’s          Land uses in the vicinity of the site        RA activities under a cooperative
right to take enforcement actions, as         include agricultural, commercial, and        agreement with U.S. EPA. U.S. EPA and
appropriate. The NPL is designed              residential, with several subdivisions       the State conducted a final inspection of
primarily for informational purposes          and a stream bordering directly on the       the site on August 9, 1994.
and to assist in Agency management.           site. Some area residents rely on local         After the final inspection was
                                              ground water as a drinking water             completed, the PRPs were required to
II. NPL Deletion Criteria                     supply.                                      discontinue operation of the ground
   The NCP establishes the criteria the          The site operated as an open dump         water containment system for several
Agency uses to delete Sites from the          from 1963 to 1971, and as a landfill         months due to difficulties in meeting
NPL. In accordance with 40 CFR                from 1971 until 1983. Approximately          permit requirements for the discharge of
300.425(e), sites may be deleted from         2.5 million cubic yards of solid             the ground water to a sanitary sewer.
the NPL where no further response is          municipal and industrial wastes and 3        The ground water exhibited a low flash
appropriate. In making this                   million gallons of liquid industrial         point, creating the hazard of fire or
determination, U.S. EPA will consider,        wastes were deposited at the site during     explosion in the sewer, and the PRPs
in consultation with the State, whether       this time. The site was proposed for the     concluded that the presence of landfill
any of the following criteria have been       NPL July 16, 1982. The listing was           gas in the ground water was responsible.
met:                                          finalized on September 8, 1983, Federal      U.S. EPA approved the PRP’s proposal
   (i) Responsible parties or other           Register number 175, volume number           to construct an air stripping system for
persons have implemented all                  48 and Page number 40658–40682.              the extracted ground water in March
appropriate response actions required;           A Remedial Investigation/Feasibility      1995 and the system was completed in
or                                            Study was conducted at the site from         June 1995.
                Federal Register / Vol. 61, No. 59 / Tuesday, March 26, 1996 / Proposed Rules                            13133

   The ground water containment system      Cleanup Law. The State has now               payment plans to small businesses
has operated without interruption since     assumed full responsibility for the          bidding on the D and E blocks,
June 1995, and no further construction      remedy at this site, including achieving     adjustments to the payment plans
is anticipated. U.S. EPA approved the       all cleanup levels for the remedy.           available to small businesses bidding on
Remedial Action Report submitted by         Compliance with off-site surface water       the D and E blocks, and adjustments to
the PRPs and issued the Certification of    and ground water cleanup levels must         the benefits provided to entrepreneurs
Completion of Remedial Construction         still be demonstrated. U.S. EPA will         in the F block rules that might be
required under the Order to the PRPs on     proceed in deleting the site from the        warranted in light of the fact that 10
August 10, 1995. U.S. EPA has also          NPL.                                         MHz licenses are expected to have
approved the Operation and                                                               lower values than the 30 MHz C block
                                              EPA, with concurrence from the State
Maintenance Plan and, as a result, only                                                  licenses. In addition, the Notice
                                            of Minnesota, has determined that
routine operating, maintenance, and                                                      proposes changes to the F block license
                                            Responsible Parties and the State of
monitoring are presently required.                                                       transfer restrictions.
   Activities at the site were consistent   Minnesota have implemented all
                                                                                            The Notice also proposes to resolve
with the ROD, and work plans were           appropriate response actions required at
                                                                                         the question whether, in light of
issued to contractors for design and        the Waste Disposal Engineering Inc.
                                                                                         Cincinnati Bell Telephone Co. v. FCC,
construction of the RA, including           Superfund Site, and that no further
                                                                                         the Commission should for all
sampling and analysis. The RD Report,       CERCLA response is appropriate in
                                                                                         broadband PCS licensees, retain or relax
including a Quality Assurance Project       order to provide protection of human
                                                                                         the cellular/PCS cross-ownership rule
Plan, incorporated all U.S. EPA and         health and the environment. Therefore,
                                                                                         and the attribution rules for cellular
State quality assurance and quality         EPA proposes to delete the site from the
                                                                                         licensees interested in acquiring
control (QA/QC) procedures and              NPL.
                                              Dated: March 11, 1996.                     broadband PCS licenses. In addition, the
protocol. U.S. EPA analytical methods                                                    Notice proposes to amend the
were used for all validation and            David A. Ullrich,
                                                                                         ownership information disclosure
monitoring samples during remedial          Acting Regional Administrator, U.S. EPA,
                                                                                         requirements for broadband PCS auction
action activities.                          Region V.
                                                                                         applicants, and proposes to auction the
   The QA/QC program utilized               [FR Doc. 96–7163 Filed 3–25–96; 8:45 am]
                                                                                         D, E, and F block licenses in concurrent
throughout this remedial action was         BILLING CODE 6560–50–P
                                                                                         auctions.
rigorous and in conformance with U.S.                                                       This Notice contains proposed or
EPA and State standards; therefore U.S.                                                  modified information collections subject
EPA and the State determined that all       FEDERAL COMMUNICATIONS                       to the Paperwork Reduction Act of 1995
analytical results are accurate to the      COMMISSION                                   (PRA). It has been submitted to the
degree needed to assure satisfactory                                                     Office of Management and Budget
execution of the remedial action, and       47 CFR Parts 20 and 24                       (OMB) for review under the PRA. OMB,
consistent with the ROD and RD plans                                                     the general public, and other Federal
                                            [WT Docket No. 96–59; GN Docket No. 90–
and specifications.                         314; FCC 96–119]                             agencies are invited to comment on the
   Since 1983 the MPCA and the U.S.                                                      proposed or modified information
EPA have been involved in numerous          Broadband Personal Communications            collections contained in this
community relations activities              Services                                     proceeding.
associated with the Waste Disposal
                                            AGENCY:  Federal Communications              DATES: Comments must be submitted on
Engineering Site. Numerous fact sheets
and news releases were issued               Commission.                                  or before April 15, 1996; reply
throughout the remedial investigation/                                                   comments must be submitted on or
                                            ACTION: Proposed rule.
feasibility study (RI/FS). Public                                                        before April 25, 1996. Written
meetings were held at the beginning of      SUMMARY:   The Federal Communications        comments by the public on the
the project on the remedial investigation   Commission has adopted a Notice of           proposed and/or modified information
report and on the proposed remedy. The      Proposed Rule Making (‘‘Notice’’) that       collections are due April 15, 1996.
City of Andover and Anoka County            proposes to resolve a number of issues       Written comments must be submitted by
officials were invited to participate in    relevant to the award of licenses for the    the Office of Management and Budget
the discussions.                            broadband Personal Communications            (OMB) on the proposed and/or modified
   On September 3, 1987, the MPCA           Services (‘‘PCS’’) D, E, and F blocks. The   information collections on or before
issued a news release on the proposed       Notice begins the process of                 May 28, 1996.
remedy and the public meeting. On           supplementing the record supporting          ADDRESSES: Federal Communications
September 8, 1987, U.S. EPA sponsored       the gender- and race-based competitive       Commission, 1919 M Street, N.W.,
an ad in the Minneapolis daily paper        bidding rules in the wake of Adarand         Washington, D.C. 20554. In addition to
announcing the beginning of the public      Constructors, Inc. v. Pena, but it also      filing comments with the Secretary, a
comment period. On September 14,            tentatively concludes that the               copy of any comments on information
1987, a public meeting was held in the      Commission should not delay                  collections contained herein should be
Andover City Hall. On September 29,         auctioning the remaining broadband           submitted to Dorothy Conway, Federal
1987, the public comment period was         PCS frequency blocks long enough to          Communications Commission, Room
closed. On March 17, 1993, an               complete that process. Accordingly, the      234, 1919 M Street, N.W., Washington,
Environmental News Release                  Notice proposes to modify the F block        D.C. 20554, or via the Internet to
announced the operation schedule of         auction rules to make them gender- and       dconway@fcc.gov, and to Timothy Fain,
the cleanup at the site.                    race-neutral. The Notice also seeks          OMB Desk Officer, 10236 NEOB, 725—
   All the components of the remedy         comment on several other matters             17th Street, N.W., Washington, D.C.
have been fully implemented. On             relating to designated entities and          20503 or via the Internet to
November 27, 1995, the site was issued      entrepreneurs, including the definitions     fain t@al.eop.gov.
a Notice of Compliance (NOC) from the       of small business and rural telephone        FOR FURTHER INFORMATION CONTACT:
State under the Minnesota Landfill          company, whether to extend installment       Mark Bollinger, Wireless
13134            Federal Register / Vol. 61, No. 59 / Tuesday, March 26, 1996 / Proposed Rules

Telecommunications Bureau, (202) 418–            Total Annual Burden: 77,817 hours.        provision of PCS. The standard of
0660. For additional information                 Estimated costs per respondent: 2,848     review applied to federal programs
concerning the information collections        dollars.                                     designed to enhance opportunities for
contained in this Notice, contact                Needs and Uses: The auction rules         racial minorities at the time the F block
Dorothy Conway at (202) 418–0217, or          require broadband PCS applicants for         rules were adopted was an intermediate
via the Internet at dconway@fcc.gov.          the D, E, and F blocks to submit (1)         scrutiny standard.
SUPPLEMENTARY INFORMATION: This is a          ownership information, (2) terms of                                   ˜
                                                                                              3. In Adarand v. Pena, the Supreme
summary of the Commission’s Notice of         joint bidding agreements, (3) net asset (F   Court invalidated the intermediate
Proposed Rule Making in WT Docket             block only) and gross revenues               scrutiny standard for federal race-based
No. 96–59; GN Docket No. 90–314; FCC          calculations, and (4) evidence of            programs. The Court held that all racial
96–119, adopted March 20, 1996 and            environmental impact. Furthermore, in        classifications, imposed by whatever
released March 20, 1996. The complete         case a licensee defaults or loses its        federal, state or local government actor,
text of the Notice of Proposed Rule           license, the Commission retains the          must be analyzed by a reviewing court
Making is available for inspection and        discretion to re-auction such licenses. If   under strict scrutiny. In other words,
copying during normal business hours          licenses are re-auctioned, the new           such classifications are constitutional
in the FCC Reference Center (Room             license winners would be required at         only if they are narrowly tailored to
239), 1919 M Street, N.W., Washington,        the close of the re-auction to comply        further a compelling governmental
D.C. and also may be purchased from           with the same disclosure requirements        interest. Moreover, as the Court made
the Commission’s copy contractor,             explained above.                             clear in Adarand, a strict scrutiny
International Transcription Service,             The information collected will be         standard of review will be applied even
(202) 857–3800, 2100 M Street, N.W.,          used by the Commission to determine          if the racial classifications are well
Suite 140, Washington, D.C. 20037.            whether the applicant is legally,            motivated or ‘‘benign.’’
   This Notice contains either a              technically, and financially qualified to       4. Application of the two-prong strict
proposed or modified information              bid in the broadband PCS auctions and        scrutiny standard of review to
collection. The Commission, as part of        hold a broadband PCS license. Without        provisions designed to encourage
its continuing effort to reduce               such information the Commission could        minority participation in PCS requires
paperwork burdens, invites the general        not determine whether to issue the           the Commission to show (1) that a
public and the Office of Management           license to the successful applicant and      compelling governmental interest exists
and Budget (OMB) to comment on the            therefore fulfill its statutory              for taking race into account in adopting
information collections contained in          responsibilities in accordance with the      such provisions, and (2) that the
this Notice, as required by the               Communications Act of 1934, as               provisions in question are narrowly
Paperwork Reduction Act of 1995, Pub.         amended.                                     tailored to further the compelling
L. No. 104–13. Public and agency              SYNOPSIS OF THE NOTICE OF PROPOSED           governmental interest established by the
comments are due at the same time as          RULE MAKING                                  record and findings. Richmond v. J.A.
other comments on this Notice; OMB                                                         Croson Co., and other cases provide the
                                              I. Introduction                              Commission with some indications of
notification of action is due 60 days
from date of publication of this Notice          In this Notice, the Commission seeks      the type of record it might be necessary
in the Federal Register. Comments             comment on a range of issues pertaining      to develop in order to meet the strict
should address: (a) whether the               to the competitive bidding and               scrutiny standard.
proposed collection of information is         ownership rules for the D, E, and F             5. In Croson, the Court held that
necessary for the proper performance of       frequency blocks of the Personal             remedying past discrimination
the functions of the Commission,              Communications Services in the 2 GHz         constitutes a compelling interest,
including whether the information shall       band (‘‘broadband PCS’’), and the            whether the discrimination was
have practical utility; (b) the accuracy of   Commission proposes modifications to         committed by the government or by
the Commission’s burden estimates; (c)        these rules. A number of the issues the      private actors within its jurisdiction.
ways to enhance the quality, utility, and     Commission addresses relate to the           Other courts have also held remedial
clarity of the information collected; and     treatment of designated entities, i.e.,      measures—those intended to
(d) ways to minimize the burden of the        small businesses, rural telephone            compensate for past discrimination—to
collection of information on the              companies, and businesses owned by           be compelling governmental interests.
                                              members of minority groups and               In Croson, however, the Court makes
respondents, including the use of
                                              women. In addition, on remand from           clear that an interest in remedying
automated collection techniques or
                                              the U.S. Circuit Court of Appeals for the    general societal discrimination could
other forms of information technology.
   OMB Approval Number: N/A.                  Sixth Circuit, the Commission                not be considered compelling because a
   Title: Amendment of Part 20 and 24         reexamines certain rules governing           ‘‘generalized assertion’’ of past
of the Commission’s Rules—Broadband           cellular licensees’ ownership of             discrimination ‘‘has no logical stopping
PCS Competitive Bidding and the               broadband PCS licenses in all frequency      point’’ and would support
Commercial Mobile Radio Service               bands.                                       unconstrained uses of racial
Spectrum Cap; Amendment of the                                                             classifications. Whether other objectives
                                              II. Proposals                                for race-based measures rise to the level
Commission’s Cellular PCS Cross-
Ownership Rule.                               A. Treatment of Designated Entities          of a compelling governmental interest is
   Form No.: Form 175 and Form 600.                                                        unclear. However, in a plurality opinion
                                              1. Meeting the Adarand Standard              issued before Adarand, the Supreme
   Type of Review: New collection.
   Respondents: Business or other for-           2. In the Competitive Bidding Fifth       Court indicated that non-remedial
profit; individuals or households; not-       Report and Order, 59 Fed Reg 37566           measures aimed at fostering ethnic
for-profit institutions; and state, local     (July 22, 1994) the Commission adopted       diversity could satisfy the compelling
and tribal governments.                       gender- and race-based provisions as         interest requirement of strict scrutiny.
   Number of Respondents: 6,000.              part of the F block rules to encourage          6. The Supreme Court in Croson
   Estimated Time Per Response: 13            the participation of women- and              noted the high standard of evidence
hours.                                        minority-owned businesses in the             required of the government to establish
                Federal Register / Vol. 61, No. 59 / Tuesday, March 26, 1996 / Proposed Rules                                13135

a compelling interest. It stated that the   scrutiny standard of review. The               employment in the communications
government must demonstrate a ‘‘strong      evidence supporting the gender- and            industry or increased industry
basis in evidence for its conclusion that   race-based provisions cited in the             competition. In commenting, the
remedial action was necessary’’ and that    Competitive Bidding Fifth Report and           Commission asks parties to submit
such evidence should approach ‘‘a           Order primarily shows broad                    statistical data, personal accounts,
prima facie case of a constitutional or     discrimination against racial groups and       studies, or any other data relevant to the
statutory violation of the rights of        women by lenders and                           entry of specific racial groups into the
minorities.’’ Other courts, in cases        underrepresentation of these groups as         field of telecommunications. Examples
decided after Croson, have held that        owners and employees in the                    of relevant evidence could include
statistical evidence can be probative of    communications industry. Similar               discrimination against minorities trying
discrimination in the remedial setting,     evidence has been submitted to the             to obtain FCC licenses for auctioned or
and that anecdotal evidence can buttress    Commission since that time, including          non-auctioned spectrum; discrimination
statistical evidence.                       evidence supporting a petition for             against minorities seeking positions of
   7. As indicated above, even if a         reconsideration of the Competitive             ownership or employment in
compelling governmental interest is         Bidding Sixth Report and Order.                communications or related businesses;
established, the second prong of the          10. The Commission continues to              discrimination against minorities
strict scrutiny test, narrow tailoring,     believe that this evidence is insufficient     attempting to obtain capital to start up
must also be shown. This requirement is     to demonstrate a compelling interest           or expand a telecommunications
intended to ensure ‘‘that the means         under the strict scrutiny standard to          enterprise, including terms and
chosen ’fit’ [the] compelling goal so       support the race-based provisions of the       conditions; and discrimination against
closely that there is little or no          F block because it reflects primarily          minorities operating
possibility that the motive for the         generalized assertions of discrimination.      telecommunications businesses,
classification was illegitimate racial      Adarand and Croson make clear that             including treatment by vendors, FCC
prejudice or stereotype.’’ Different        only a record of discrimination against        licensees, and suppliers.
factors have been used by courts to         a particular racial group would support           12. The Commission also asks those
determine, under a strict scrutiny          remedial measures designed to help that        parties who conclude that the race-
standard, whether a program is              group. Therefore, the Commission               based provisions serve a compelling
narrowly tailored. These include: (1)       believes that a record of discrimination       governmental interest to comment on
whether race-neutral measures were          against minorities in general is not           whether the provisions are narrowly
considered before adopting race-            sufficient. Specific evidence of               tailored to serve that interest. Are these
conscious measures; (2) the scope of the    discrimination against particular racial       provisions sufficiently narrow in scope?
program and whether it contains a           groups would be required to support a          Do they unduly burden non-minorities?
waiver mechanism that facilitates           rule for any group. Commission Rules
                                                                                           Would race-neutral measures further the
narrowing of that scope; (3) the            define minority group members to
                                                                                           same interests and achieve the same
comparison of any numerical target to       include Blacks, Hispanics, American
                                                                                           objectives as race-conscious measures?
the number of qualified minorities in       Indians, Alaskan Natives, Asians, and
the relevant sector; (4) the duration of    Pacific Islanders. Although the                   13. In addition, the Commission also
the program and whether it is subject to    Commission has some general evidence           tentatively concludes that the present
periodic review; (5) the manner in          of discrimination against certain racial       record in support of the gender-based F
which race is considered; and (6) the       groups, none of the evidence it has            block rules may be insufficient to satisfy
degree and type of burden on non-           appears to satisfy strict scrutiny.            intermediate scrutiny. The Commission
minorities.                                   11. The Commission notes too that            seeks comment on this tentative
   8. An intermediate scrutiny standard     last year, the D.C. Circuit Court of           conclusion. The Commission also seeks
of review currently applies to gender-      Appeals stayed the C block auction in          comment on whether there are remedial
based measures. Under this standard, a      response to a constitutional equal             or nonremedial goals that would satisfy
gender-based provision is constitutional    protection challenge against women-            the ‘‘important governmental objective’’
if it serves an important governmental      and minority-based provisions, even            requirement of the intermediate scrutiny
objective and is substantially related to   though an intermediate level standard of       standard. Are the gender-based F block
achievement of that objective. The          review applied. Thus, the Commission           rules ‘‘substantially related’’ to the
Supreme Court has not addressed             tentatively concludes that the present         achievement of such objectives? Just as
constitutional challenges to federal        record in support of race-based F block        it requested for the F block race-based
gender-based programs since Adarand.        provisions is insufficient to satisfy strict   provisions, the Commission asks parties
However, the Court’s refusal in Adarand     scrutiny. The Commission seeks                 to submit statistical data, personal
to apply a less strict standard to benign   comment on this tentative conclusion.          accounts studies or any other data
race-based classifications than that        The Commission also requests comment           relevant to the entry of women into the
applied to ‘‘invidious’’ race-based         on whether the F block provisions              field of telecommunications.
classifications suggests that the same      promote a compelling governmental                 14. The Commission also is interested
standard should be applied to benign        interest and, more particularly, whether       in supplementing the current record to
and invidious gender-based                  compensating for discrimination in             support race- and gender-based
classifications.                            lending practices and in practices in the      provisions in other rules. In this regard,
   9. In the Competitive Bidding Sixth      communications industry constitutes            the Commission plans shortly to issue a
Report and Order, 60 FR 37786 (July 21,     such an interest. The Commission also          Notice of Inquiry that requests evidence
1995), in which it eliminated the race-     asks interested parties to comment on          of current and past discrimination
and gender-based provisions in the C        nonremedial objectives that could be           experienced by small businesses and
block rules, the Commission expressed       furthered by the minority-based                businesses owned by women and
its concern that the record would not       provisions of the F block rules and            minorities or by individual women and
adequately support the race- and            whether they could be considered               minorities. The record outlined in
gender-based provisions in the C block      compelling governmental interests, such        response to this Notice will also be
competitive bidding rules under a strict    as increased diversity in ownership and        incorporated into that Docket.
13136           Federal Register / Vol. 61, No. 59 / Tuesday, March 26, 1996 / Proposed Rules

   15. The Commission undertakes this        dissemination of additional broadband         purposes of determining eligibility to
effort to support the auction rules          PCS licenses, and ultimately the              participate in the F block auction if the
because it is committed to fulfilling the    introduction of competition.                  applicant utilizes one of two equity
Congressional mandate to provide                17. As a result, the Commission            structures. Use of either of these equity
opportunities for women- and minority-       tentatively concludes that if it is unable    structures requires the applicant to form
owned businesses through the                 to gather sufficient evidence to support      a ‘‘control group,’’ but one of these
competitive bidding process. The             the race- and gender-based provisions in      options is available only to minority-
Commission believes, however, that           the instant proceeding, it should             and women-owned businesses.
marshaling sufficient evidence to satisfy    eliminate these provisions from the              20. The first equity structure option,
the strict scrutiny standard of review       rules and proceed as expeditiously as         the Control Group Minimum 25 Percent
now applicable to federal race-based         possible to auction the remaining             Equity Option, is available to all
programs may be a time-consuming             broadband PCS licenses. The                   applicants for the F block auction.
process, and it is mindful that it may       Commission seeks comment on these             Under this option, the control group
not fulfill its other obligations under      tentative conclusions.                        must hold at least 25 percent of the
Section 309(j) if it delayed the award of       18. In reaching these tentative            applicant’s total equity. Of that 25
F block licenses until that process is       conclusions, the Commission notes that        percent, at least 15 percent must be held
complete.                                    of the 255 bidders that qualified to bid      by ‘‘qualifying investors.’’ The
                                             in the C block auction, 46 claimed            remaining ten percent may be held by
   16. The Commission notes that some
                                             minority-owned business status and 34         qualifying investors, certain
representatives of the
                                             claimed women-owned business status.          institutional investors, non-controlling
telecommunications industry have
                                             These statistics indicate that even           existing investors in any preexisting
voiced a need to have the D, E, and F        without the women- and minority-              entity that is a member of the control
block licenses awarded quickly. With         owned business specific provisions in         group, or individuals that are members
the completion of the C block auction,       the C block rules, women- and minority-       of the applicant’s management. In
the Commission will have neared              owned businesses were able to                 addition, members of the control group
completion of awarding the 30 MHz A,         participate in the auction. However, one      must have de facto control of the control
B, and C block licenses. Any entity with     could also argue that the presence of         group and of the applicant, and hold at
plans to aggregate a 10 MHz F block          race- and gender-based rules before the       least 50.1 percent of the voting stock or
license with a 30 MHz A, B, or C block       Competitive Bidding Sixth Report and          all general partnership interests. If these
PCS license or any cellular or               Order encouraged the participation of         requirements are met, the remaining 75
Specialized Mobile Radio (‘‘SMR’’)           minorities and women. It may have             percent of the applicant’s equity may be
licensee that plans to acquire a 10 MHz      helped such companies open the door to        held by other non-controlling investors,
license for use in its service area, the     discussions with investors that persisted     and the gross revenues and total assets
Commission believes, will be interested      even when the rules changed. Indeed, in       of any such investor will not be
in swift auctioning of D, E, and F block     the Competitive Bidding Sixth Report          attributed to the applicant provided that
licenses. The Commission also believes       and Order, one of the Commission’s            the investor holds no more than 25
that entities that were unable to win        primary objectives was to preserve the        percent of the total equity of the
licenses in the previous PCS auctions        relationships and deals minority- and         applicant.
may be interested in bidding on the D,       women-owned companies had made                   21. The second equity structure
E, and F blocks, and that it will be         prior to the rule change. As discussed        option, the Control Group Minimum
important to these entities to acquire       more fully below, the Commission seeks        50.1 Percent Equity Option, is currently
licenses quickly so that they can            comment on whether, if it ultimately          available only to minority- or women-
compete at the earliest point possible       decides to make the F block rules race-       owned applicants for the F block
with other providers of Commercial           and gender-neutral, it should do so by        auction. Under this option, the control
Mobile Radio Services (‘‘CMRS’’), and        making these rules conform to the C           group must own at least 50.1 percent of
with wireline service providers. Further,    block rules, or whether other                 the applicant’s total equity. Of that 50.1
the Commission believes that both            approaches to amending the F block            percent equity, at least 30 percent must
Congress and consumers expect it to          rules would be more appropriate. The          be held by qualifying investors who are
promote the rapid development of PCS.        Commission also seeks comment on              members of minority groups or women.
Balancing its obligation to provide          how the Commission can meet its               The remaining 20.1 percent may be held
opportunities for women- and minority-       statutory requirement under Section           by qualifying investors, certain
owned businesses to participate in           309(j) to ensure participation by             institutional investors, non-controlling
spectrum-based services against its          minorities and women in the provision         existing investors in any preexisting
statutory duties to facilitate the rapid     of service, if the rules are changed to be    entity that is a member of the control
delivery of new services to the              race- and gender-neutral.                     group, or individuals who are members
American consumer and promote                                                              of the applicant’s management. In
efficient use of the spectrum, the           a. Control Group Equity Structures            addition, members of the control group
Commission tentatively concludes that           19. To be eligible to participate in the   must hold