issue-1996-07-31•Federal Register final rules — 1996-07-31
Federal Register final rules — 1996-07-31
issue-1996-07-31Federal Register final rules — 1996-07-31Regulation
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FR Doc. 96-19500 Implementation of the Equal Acess to Justice Act in Agency Proceedings
[Federal Register Volume 61, Number 148 (Wednesday, July 31, 1996)]
[Rules and Regulations]
[Pages 39898-39900]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19500]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 1
[FCC 96-306]
Implementation of the Equal Acess to Justice Act in Agency
Proceedings
AGENCY: Federal Communications Commission.
ACTION: Final rule.
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SUMMARY: The Commission has amended its rules implementing the Equal
Access to Justice Act to conform to and carry out the intent of recent
amendments of that Act to permit recovery, in conjunction with
adversary adjudications commenced on or after March 29, 1996, of
attorney fees, not exceeding $125.00 per hour, and other expenses. In
addition, such an award is permitted when the demand of the Commission
for relief is substantially in excess of the decision in an adversary
adjudication and is unreasonable when compared with such decision,
under the facts and circumstances of the case, unless the party has
committed a willful violation of law or otherwise acted in bad faith,
or special circumstances make an award unjust. Finally, a small entity
as defined in 5 U.S.C. 601 is declared to be an eligible party for such
relief.
EFFECTIVE DATE: July 31, 1996.
FOR FURTHER INFORMATION CONTACT: John I. Riffer, Office of General
Counsel, (202) 418-1756.
SUPPLEMENTARY INFORMATION:
Adopted: July 15, 1996.
Released: July 18, 1996.
1. By this Order, we amend our rules implementing the Equal Access
to Justice Act (EAJA) for Commission proceedings in conformance with
recent amendments of that Act adopted as part of the Contract with
America Advancement Act of 1996, Pub. L. 104-121, 110 Stat. 847 (1996).
2. The pertinent provisions of the Contract with America
Advancement Act of 1996 amend the EAJA to permit recovery, in
conjunction with adversary adjudications commenced on or after March
29, 1996, of attorney fees, not exceeding $125.00 per hour, and other
expenses. In addition, the legislation provides for such an award when
the demand of the Commission for relief is substantially in excess of
the decision in an adversary adjudication and is unreasonable when
compared with such decision, under the facts and circumstances of the
case, unless the party has committed a willful violation of law or
otherwise acted in bad faith, or special circumstances make an award
unjust. Finally, the statute establishes that a small entity as defined
in 5 U.S.C. 601 is an eligible party for such relief. The revised
rules, as set forth below, simply incorporate the changes in the EAJA
and make those changes applicable to Commission proceedings. These
changes merely reiterate the specific terms of the statute and do not
involve any discretionary action. Under these circumstances, this
action comes within the ``good cause'' exemptions of the Administrative
Procedure Act, 5 U.S.C. 553(b)(B) and 553(d), and the notice and
comment and effective date provisions of the Administrative Procedure
Act are inapplicable.
3. Accordingly, it is ordered, That, effective July 31, 1996, part
1 is amended as set forth below.
List of Subjects in 47 CFR Part 1
Administrative practice and procedure, Federal Communications
Commission.
Federal Communications Commission.
William F. Caton,
Acting Secretary.
Rule Changes
Part 1 of Chapter I of Title 47 of the Code of Federal Regulations
is amended as follows:
PART 1--PRACTICE AND PROCEDURE
1. The authority citation for part 1 continues to read as follows:
Authority: 47 U.S.C. 151, 154, 303, and 309(j) unless otherwise
noted.
2. The second sentence of Sec. 1.1501 is revised to read as
follows:
Sec. 1.1501 Purpose of these rules.
* * * An eligible party may receive an award when it prevails over
the Commission, unless the Commission's position in the proceeding was
substantially justified or special circumstances make an award unjust,
or when the demand of the Commission is substantially in excess of the
decision in the adversary adjudication and is unreasonable when
compared with such decision, under the facts and circumstances of the
case, unless the party has committed a willful violation of law or
otherwise acted in bad faith, or special circumstances make an award
unjust. * * *
3. Section 1.1502 is revised to read as follows:
Sec. 1.1502 When the EAJA applies.
The EAJA applies to any adversary adjudication pending or commenced
before the Commission on or after August 5, 1985. The provisions of
Sec. 1.1505(b) apply to any adversary adjudications commenced on or
after March 29, 1996.
4. Section 1.1504 is amended by removing the period at the end of
paragraph (b)(5), adding in its place a semicolon, and adding a new
paragraph (b)(6) to read as follows:
Sec. 1.1504 Eligibility of applicants.
* * * * *
(6) For purposes of Sec. 1.1505(b), a small entity as defined in 5
U.S.C. 601.
* * * * *
[[Page 39899]]
5. Section 1.1505 is revised to read as follows:
Sec. 1.1505 Standards for awards.
(a) A prevailing party may receive an award for fees and expenses
incurred in connection either with an adversary adjudication, or with a
significant and discrete substantive portion of an adversary
adjudication in which the party has prevailed over the position of the
Commission.
(1) The position of the Commission includes, in addition to the
position taken by the Commission in the adversary adjudication, the
action or failure to act by the agency upon which the adversary
adjudication is based.
(2) An award will be reduced or denied if the Commission's position
was substantially justified in law and fact, if special circumstances
make an award unjust, or if the prevailing party unduly or unreasonably
protracted the adversary adjudication.
(b) If, in an adversary adjudication arising from a Commission
action to enforce a party's compliance with a statutory or regulatory
requirement, the demand of the Commission is substantially in excess of
the decision in the adversary adjudication and is unreasonable when
compared with that decision, under the facts and circumstances of the
case, the party shall be awarded the fees and other expenses related to
defending against the excessive demand, unless the party has committed
a willful violation of law or otherwise acted in bad faith, or special
circumstances make an award unjust. The ``demand'' of the Commission
means the express demand which led to the adversary adjudication, but
it does not include a recitation by the Commission of the maximum
statutory penalty in the administrative complaint, or elsewhere when
accompanied by an express demand for a lesser amount.
(c) The burden of proof that an award should not be made is on the
appropriate Bureau (see Sec. 1.21) whose representative shall be called
``Bureau counsel'' in this subpart K.
6. The first sentence of Sec. 1.1506(b) is revised to read as
follows:
Sec. 1.1506 Allowable fees and expenses.
* * * * *
(b) No award for the fee of an attorney or agent under these rules
may exceed $75.00, or for adversary adjudications commenced on or after
March 29, 1996, $125.00, per hour. * * *
* * * * *
Sec. 1.1507 [Amended]
7. The first sentence of Sec. 1.1507(a) is amended by removing the
word ``attorney's'' and adding in its place the word ``attorneys'' and
by removing ``$75'' and adding in its place ``$125.00.''
Sec. 1.1508 [Amended]
8. The first sentence of Sec. 1.1508 is revised by removing the
word ``for'' and adding in its place the word ``or.''
9. Section 1.1511 is amended by revising paragraph (a) and the
introductory text of paragraph (b) to read as follows:
Sec. 1.1511 Contents of application.
(a) An application for an award of fees and expenses under EAJA
shall identify the applicant and the proceeding for which an award is
sought. Unless the applicant is an individual, the application shall
state the number of employees of the applicant and describe briefly the
type and purpose of its organization or business. The application shall
also:
(1) Show that the applicant has prevailed and identify the position
of an agency or agencies in the proceeding that the applicant alleges
was not substantially justified; or
(2) Show that the demand by the agency or agencies in the
proceeding was substantially in excess of, and was unreasonable when
compared with, the decision in the proceeding.
(b) The application shall also include a declaration that the
applicant is a small entity as defined in 5 U.S.C. 601 or a statement
that the applicant's net worth does not exceed $2 million (if an
individual) or $7 million (for all other applicants, including their
affiliates). However, an applicant may omit the statement concerning
its net worth if:
* * * * *
10. The first and second sentence of Sec. 1.1513 are revised to
read as follows:
Sec. 1.1513 Documentation of fees and expenses.
The application shall be accompanied by full documentation of the
fees and expenses, including the cost of any study, analysis,
engineering report, test, project or similar matter, for which an award
is sought. A separate itemized statement shall be submitted for each
professional firm or individual whose services are covered by the
application, showing hours spent in connection with the proceeding by
each individual, a description of the specific services performed, the
rate at which each fee has been computed, any expenses for which
reimbursement is sought, the total amount claimed, and the total amount
paid or payable by the applicant or by any other person or entity for
the services provided. * * *
11. Section 1.1514 is amended by revising paragraphs (a) and (c) to
read as follows:
Sec. 1.1514 When an application may be filed.
(a) An application may be filed whenever the applicant has
prevailed in the proceeding or in a significant and discrete
substantive portion of the proceeding, or when the demand of the
Commission is substantially in excess of the decision in the
proceeding, but in no case later than 30 days after the Commission's
final disposition of the proceeding.
* * * * *
(c) For purposes of this rule, final disposition means the later of
(1) The date on which an initial decision or other recommended
disposition of the merits of the proceeding by an Administrative Law
Judge becomes administratively final;
(2) Issuance of an order disposing of any petitions for
reconsideration of the Commission's order in the proceeding;
(3) If no petition for reconsideration is filed, the last date on
which such petition could have been filed;
(4) Issuance of a final order by the Commission or any other final
resolution of a proceeding, such as settlement or voluntary dismissal,
which is not subject to a petition for reconsideration, or to a
petition for judicial review; or
(5) Completion of judicial action on the underlying controversy and
any subsequent Commission action pursuant to judicial mandate.
Sec. 1.1524 [Amended]
12. The first sentence of Sec. 1.1524 is amended by removing the
word ``often'' and adding in its place the word ``after.''
13. Section 1.1526(a) is revised to read as follows:
Sec. 1.1526 Further proceedings.
(a) Ordinarily, the determination of an award will be made on the
basis of the written record. However, on request of either the
applicant or Bureau counsel, or on his or her own initiative, the
Administrative Law Judge may order further proceedings, such as an
informal conference, oral argument, additional written submissions or,
as to issues other than excessive demand or substantial justification,
an evidentiary hearing. Such further proceedings shall be held only
when necessary for full and fair resolution of the issues arising from
the application, and shall be conducted as promptly as possible.
Whether or not the position of the
[[Page 39900]]
agency embodied an excessive demand or was substantially justified
shall be determined on the basis of the administrative record, as a
whole, which is made in the adversary adjudication for which fees and
other expenses are sought.
* * * * *
14. Section 1.1527 is revised to read as follows:
Sec. 1.1527 Decision.
The Administrative Law Judge shall issue an initial decision on the
application as soon as possible after completion of proceedings on the
application. The decision shall include written findings and
conclusions regarding the applicant's eligibility and whether the
applicant was a prevailing party or whether the demand by the agency or
agencies in the proceeding was substantially in excess of, and was
unreasonable when compared with, the decision in the adversary
adjudication, and an explanation of the reasons for any difference
between the amount requested and the amount awarded. The decision shall
also include, if at issue, findings on whether the Commission's
position substantially justified, whether the applicant unduly
protracted the proceedings, committed a willful violation of law, or
otherwise acted in bad faith, or whether special circumstances make an
award unjust. If the applicant has sought an award against more than
one agency, the decision shall allocate responsibility for payment of
any award made among the agencies, and shall explain the reasons for
the allocation made.
Sec. 1.1528 [Amended]
15. The first sentence of Sec. 1.1528 is amended by removing the
word ``fee.''
[FR Doc. 96-19500 Filed 7-30-96; 8:45 am]
BILLING CODE 6712-01-P
Complete official Federal Register PDF
FR Doc. 96-19493 Supplemental Standards of Ethical Conduct for Employees of the Department of Transportation
[Federal Register Volume 61, Number 148 (Wednesday, July 31, 1996)]
[Rules and Regulations]
[Pages 39901-39904]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19493]
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DEPARTMENT OF TRANSPORTATION
Office of the Secretary
5 CFR Chapter L
49 CFR Part 99
RIN 3209-AA15
Supplemental Standards of Ethical Conduct for Employees of the
Department of Transportation
AGENCY: Office of the Secretary, DOT.
ACTION: Final rule.
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SUMMARY: The Department of Transportation, with the concurrence of the
Office of Government Ethics (OGE), is issuing regulations for DOT
employees that supplement the Standards of Ethical Conduct for
Employees of the Executive Branch (Standards) issued by OGE. These
regulations are a necessary supplement to the executive branch-wide
Standards because they address ethics matters unique to DOT. In
particular, they specify agency designees authorized to make
determinations and grant approvals under the Standards, designate DOT
components as separate agencies for purposes, in part, of the gift
rules contained in the Standards, and prohibit employees of the Federal
Railroad Administration and the Federal Aviation Administration, which
are two administrations within DOT, from having certain financial
interests.
EFFECTIVE DATE: These rules become effective: August 30, 1996.
FOR FURTHER INFORMATION CONTACT: William R. Register, Office of the
General Counsel (C-10), Department of Transportation, 400 7th Street,
S.W., Room 10102, Washington, D.C. 20590, (202) 366-9154.
SUPPLEMENTARY INFORMATION:
I. Background
On August 7, 1992, OGE published the Standards of Ethical Conduct
for Employees of the Executive Branch. See 57 FR 35006-35067, as
corrected at 57 FR 48557, 57 FR 52583 and 60 FR 51667, with additional
grace period extensions at 59 FR 4779-4780, 60 FR 6390-6391 and 60 FR
66857-66858. The executive branch-wide Standards are now codified at 5
CFR part 2635. Effective February 3, 1993, they established uniform
ethical conduct standards applicable to all executive branch personnel.
Also, effective February 3, 1993, DOT canceled most of the
regulations on Employee Responsibilities and Conduct in 49 CFR part 99
which apply to DOT employees. See 58 FR 7993-7995. The remaining DOT
regulations, which include post-employment guidance and regulatory
conflict of interest waivers under 18 U.S.C. 208(b)(2), continue in
effect pending issuance of superseding OGE regulations.
With the concurrence of OGE, 5 CFR 2635.105 authorizes executive
branch agencies to publish agency-specific supplemental regulations
necessary to implement their respective ethics programs. The Department
of Transportation, with OGE's concurrence, has determined that the
supplemental regulations in this rulemaking are necessary to the
ongoing implementation of DOT's ethics program.
II. Analysis of the Regulations
Section 6001.101 General
Section 6001.101 explains that the regulations contained in the
final rules apply to DOT employees and are supplemental to the
executive branch-wide standards. Employees of DOT are also subject to
the Standards of Ethical Conduct for Employees of the Executive Branch
at 5 CFR part 2635 and the executive branch financial disclosure
regulations at 5 CFR part 2634.
[[Page 39902]]
Section 6001.102 Agency Designees
Section 6001.102 explains that, within DOT, the ``agency
designees'' are the Department's Designated Agency Ethics Official, the
Alternate Agency Ethics Official, the Deputy Ethics Officials, and
legal counsel in regional and other offices as designated by Deputy
Ethics Officials. As defined in 5 CFR 2635.102(b), ``agency designees''
are employees having delegated authority to make determinations, give
approvals, and take other action required or permitted by 5 CFR part
2635.
Section 6001.103 Designation of Separate Agency Components
5 CFR 2035.202(a) prohibits, inter alia, an employee from
soliciting or accepting a gift from a prohibited source. A prohibited
source is defined by 5 CFR 2635.203(d) to include a person who has a
specific relationship with an employee's agency. For purposes of
identifying an employee's agency, 5 CFR 2635.203(a) authorizes an
executive department, by supplemental regulation, to designate as a
separate agency a component of the department that exercises distinct
and separate functions. Designations made pursuant to Sec. 2635.203(a)
are used also for purposes of applying the prohibition in 5 CFR
2635.807(a) against the receipt of compensation for teaching, speaking,
or writing related to an employee's duties.
Section 6001.103(a) designates eight administrations in the
Department of Transportation as separate agency components. These
designated agency components are the Federal Aviation Administration
(FAA), Federal Highway Administration, Federal Railroad Administration
(FRA), Federal Transit Administration, Maritime Administration,
National Highway Traffic Safety Administration, Saint Lawrence Seaway
Development Corporation, and United States Coast Guard. These
designated agency components are generally recognized as separate
agencies within DOT because they exercise separate and distinct
functions. As further amplified in Sec. 6001.103(b), DOT employees not
employed in one of these eight designated agency components are deemed
to be employees of an agency that consists of all parts of the
Department, other than the eight designated agency components, and that
is separate and distinct from each of those agency components.
Pursuant to the designations in Sec. 6001.103, an aircraft
manufacturer, for example, would be a prohibited source for employees
of the Federal Aviation Administration, but not for employees of the
National Highway Traffic Safety Administration. Neither would the
aircraft manufacturer be a prohibited source for employees in the
Office of the Secretary, the Research and Special Programs
Administration, or the Bureau of Transportation Statistics unless the
manufacturer was seeking official action by one of those components, or
otherwise had a matter pending before those components or had interests
substantially affected by official duties of employees of those
components.
Section 6001.104 Prohibited Financial Interests
To assure public confidence in the integrity of the programs and
operations of the FAA and FRA, both of these administrations have
prohibited their employees, their spouses, and dependents, as matters
of longstanding policy and practice, from having financial interests in
entities subject to or substantially affected by regulations issued by
those administrations. Pursuant to the Standards, at 5 CFR 2635.403(a),
the supplemental regulations in Sec. 6001.104 continue in effect these
longstanding prohibitions.
The Standards, at 5 CFR 2635.403(a), provide that an individual
agency may, by supplemental regulation, prohibit or restrict the
acquisition or holding of a financial interest or a class of financial
interests by its employees, and by the spouses and minor children of
those employees, based on the agency's determination that the
acquisition or holding of such financial interests would cause a
reasonable person to question the impartiality and objectivity with
which agency programs are administered. The FRA and FAA have made such
determinations with respect to continuing in effect the above
prohibitions. Also, determinations have been made, with respect to the
spouses and minor children of FRA and FAA employees, that there
continues to be a direct and appropriate nexus between the above
prohibition as applied to spouses and minor children and the efficiency
of the services provided by the FRA and FAA.
The above prohibitions, as codified in section 6001.104, provide as
follows:
Section 6001.104(a)(1) prohibits FRA employees from owning stock or
any other financial interest in a railroad company subject to FRA
regulation.
Section 6001.104(a)(2) prohibits FRA employees hired after December
1991 from holding reemployment rights with a railroad company regulated
by the FRA after their first year of employment. However, this
prohibition does not extend to employees hired before January 1992.
Most employees hired before January 1992 do not hold employment rights
with former employers, except certain employees who have been allowed
to retain those rights pursuant to judicial orders issued in American
Federation of Government Employees, Local 2814 v. Andrew Card,
Secretary of Transportation and Gilbert Carmichael, Administrator,
Federal Railroad Administration, Civil Action No. 92-1853 (D.D.C. Oct.
1, 1992).
Section 6001.104(a)(3) prohibits the spouse or minor children of an
FRA employee from holding stock or other securities interest in a
railroad company subject to FRA regulation.
Section 6001.104(b) prohibits FAA employees from holding stock or
any other securities interest in an airline or aircraft manufacturing
company, or in a supplier of components or parts to an airline or
aircraft manufacturing company.
Prohibiting the financial interests described in sections
6001.104(a) and 6001.104(b) will maintain the FRA's and FAA's
appearance of impartiality and objectivity in the execution of their
regulatory functions; and will avoid inopportune disqualification of
employees from official matters, resulting in an inability of the FRA
and FAA to fulfill their regulatory functions.
Section 6001.104(c) provides that the prohibitions in Sec. 6001.104
(a)(1) and (b) against holding certain financial interests do not apply
to financial interests held in a publicly traded or publicly available
investment fund provided that, at the time of the employee's
appointment or upon initial investment in the fund, whichever occurs
later, the fund does not have invested more than 30 percent of its
assets in a particular transportation or geographic sector and the
employee neither exercises control or has the ability to exercise
control over the financial interests held in the fund.
Section 6001.104(d) provides that an employee, spouse, or minor
child who acquires a financial interest that is subject to
Sec. 6001.104, through gift, marriage, or inheritance, must divest the
interest within a period set by the agency designee.
III. Amendment of Employee Responsibilities and Conduct Regulations
To ensure that employees are on notice of the ethical standards to
which they are subject, DOT is amending its remaining standards of
conduct regulations at 49 CFR part 99 to include a provision that cross
references 5 CFR parts 2634 and 2635 and the Department
[[Page 39903]]
of Transportation supplemental regulations at 5 CFR part 6001.
IV. Matters of Regulatory Procedure
Administrative Procedure Act
The Department of Transportation has found that good cause exists
under 5 U.S.C. 553 for waiving, as unnecessary and contrary to the
public interest, the general requirements for a general notice of
proposed rulemaking. As noted above, these supplemental rules are a
restatement of current and longstanding policy and practices, and their
continued effectiveness under OGE's rules is essential to the
effectiveness of DOT's ethics program. In addition, these rules relate
to agency organization, procedure, and practice, and to matters of
agency management and personnel.
Executive Order 12866
In promulgating this final regulation, the Department of
Transportation has adhered to the regulatory philosophy and the
applicable principles of regulation set forth in section 1 of Executive
Order 12866, Regulatory Planning and Review. This final rule has not
been reviewed by the Office of Management and Budget under that
Executive order.
Regulatory Flexibility Act
The Department of Transportation has determined under the
Regulatory Flexibility Act (5 U.S.C. chapter 6) that these regulations
will not have a significant economic impact on a substantial number of
small entities because they effect only DOT employees.
Paperwork Reduction Act
These supplemental rules do not contain any information collection
requirements that require the approval of the Office of Management and
Budget pursuant to the Paperwork Reduction Act (44 U.S.C. 3501 et.
seq.).
DOT Regulatory Policies and Procedures
These supplemental rules are not significant under DOT Regulatory
Policy and Procedures, 44 FR 11040, and their economic impact will be
minimal. For this reason, further regulatory evaluation is not
necessary.
Federalism Assessment: Executive Order 12012
These rules have been analyzed in accordance with the principles
and criteria contained in Executive Order 12012, and it has been
determined that they do not have sufficient federalism implications to
warrant the preparation of a Federalism Assessment. This is because the
rules have no effect on State and local governments since they only
apply to Federal employees. Furthermore, there are no reporting or
recordkeeping requirements associated with this rulemaking.
List of Subjects
5 CFR Part 6001
Conflict of interests, Government employees.
49 CFR Part 99
Conflict of interests.
Dated: July 8, 1996.
Federico Pena,
Secretary of Transportation.
Approved: July 16, 1996.
Stephen D. Potts,
Director, Office of Government Ethics.
For the reasons set forth in the preamble, the Department of
Transportation, with the concurrence of the Office of Government
Ethics, is amending title 5 of the Code of Federal Regulations and
title 49, subtitle A, of the Code of Federal Regulations as follows:
TITLE 5--[AMENDED]
1. A new Chapter L, consisting of part 6001, is added to title 5 of
the Code of Federal Regulations to read as follows:
Chapter L--Department of Transportation
PART 6001--SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES
OF THE DEPARTMENT OF TRANSPORTATION
6001.101 General.
6001.102 Agency designees.
6001.103 Designation of separate agency components.
6001.104 Prohibited financial interests.
Authority: 5 U.S.C. 301, 7301; 5 U.S.C. App. (Ethics in
Government Act of 1978); 49 U.S.C. 322; E.O. 12674, 54 FR 15159, 3
CFR, 1989 Comp., p. 215, as modified by E.O. 12731, 55 FR 42547, 3
CFR, 1990 Comp., p. 306; 5 CFR 2635.105, 2635.203(a), 2635.403(a),
2635.807.
Sec. 6001.101 General.
In accordance with 5 CFR 2635.105, the regulations in this part
apply to employees of the Department of Transportation and supplement
the Standards of Ethical Conduct for Employees of the Executive Branch
contained in 5 CFR part 2635. In addition to the standards in 5 CFR
part 2635, employees are subject to the executive branch financial
disclosure regulations contained in 5 CFR part 2634.
Sec. 6001.102 Agency designees.
For purposes of 5 CFR part 2635, the following Department of
Transportation officials are agency designees within the meaning of 5
CFR 2635.102(b):
(a) The Designated Agency Ethics Official;
(b) The Alternate Agency Ethics Official;
(c) The Deputy Ethics Officials; and
(d) As designated by Deputy Ethics Officials, legal counsel in
regional and other offices.
Sec. 6001.103 Designation of separate agency components.
(a) Pursuant to 5 CFR 2635.203(a), each of the following components
of the Department of Transportation is designated as a separate agency
for purpose of the regulations in subpart B of 5 CFR part 2635
governing gifts from outside sources and Sec. 2635.807 of this title
governing teaching, speaking, or writing:
(1) Federal Aviation Administration;
(2) Federal Highway Administration;
(3) Federal Railroad Administration;
(4) Federal Transit Administration;
(5) Maritime Administration;
(6) National Highway Traffic Safety Administration;
(7) Saint Lawrence Seaway Development Corporation; and
(8) United States Coast Guard.
(b) Employees of Department of Transportation components not
designated as separate agencies, including employees of the Office of
the Secretary of Transportation, the Research and Special Programs
Administration, and the Bureau of Transportation Statistics, will be
treated as employees of DOT which shall be treated as a single agency
that is separate from the above listed agencies for purposes of
determining whether the donor of a gift is a prohibited source under 5
CFR 2635.203(d) and for identifying the DOT employee's agency under 5
CFR 2635.807 governing teaching, speaking, and writing.
Sec. 6001.104 Prohibited financial interests.
(a) Federal Railroad Administration (FRA). (1) Except as provided
in paragraph (c) of this section, no FRA employee shall hold stock or
have any other financial interest, including outside employment, in a
railroad company subject to FRA regulation.
(2) No FRA employee appointed after December 1991 shall hold
reemployment rights with a railroad company subject to FRA regulation
after his or her first year of employment.
(3) No spouse or minor child of an FRA employee shall hold stock or
any other securities interest in a railroad company subject to FRA
regulation.
[[Page 39904]]
(b) Federal Aviation Administration (FAA). Except as provided in
paragraph (c) of this section, no FAA employee, or spouse or minor
child of the employee, may hold stock or have any other securities
interest in an airline or aircraft manufacturing company, or in a
supplier of components or parts to an airline or aircraft manufacturing
company.
(c) Exception. The prohibitions in paragraphs (a)(1) and (b) of
this section do not apply to a financial interest in a publicly traded
or publicly available investment fund, provided that, at the time of
the employee's appointment or upon initial investment in the fund,
whichever occurs later, the fund does not have invested, or indicate in
its prospectus the intent to invest more than 30 percent of its assets
in a particular transportation or geographic sector and the employee
neither exercises control nor has the ability to exercise control over
the financial interests held in the fund.
(d) Period to divest. An individual subject to this section who
acquires a financial interest subject to this section, as a result of
gift, inheritance, or marriage, shall divest the interest within a
period set by the agency designee. Until divestiture, the
disqualification requirements of 5 CFR 2635.402 and 2635.502 remain in
effect.
TITLE 49--[AMENDED]
Subtitle A--Office of the Secretary of Transportation
PART 99--EMPLOYEE RESPONSIBILITIES AND CONDUCT
2. The authority citation for part 99 is revised to read as
follows:
Authority: 49 U.S.C. 322; E.O. 12674, 54 FR 15159, 3 CFR, 1989
Comp., p. 215, as modified by E.O. 12731, 55 FR 42547, 3 CFR, 1990
Comp., p. 306.
3. A new subpart A, consisting of Sec. 99.735-1, is added to read
as follows:
Subpart A--General
Sec. 99.735-1 Cross-reference to ethical conduct standards and
financial disclosure regulations.
Employees of the Department of Transportation are subject to the
executive branch-wide Standards of Ethical Conduct at 5 CFR part 2635,
the Department of Transportation regulations at 5 CFR part 6001 which
supplement the executive branch-wide standards and the executive
branch-wide financial disclosure regulations at 5 CFR part 2634.
[FR Doc. 96-19493 Filed 7-30-96; 8:45 am]
BILLING CODE 4910-62-P
Complete official Federal Register PDF
FR Doc. 96-19488 Reduction of Reporting Requirements for the State Systems Advance Planning Document (APD) Process
[Federal Register Volume 61, Number 148 (Wednesday, July 31, 1996)]
[Rules and Regulations]
[Pages 39894-39898]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19488]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF HEALTH AND HUMAN SERVICES
Administration for Children and Families
45 CFR Part 95
RIN 0970-AB46
Reduction of Reporting Requirements for the State Systems Advance
Planning Document (APD) Process
AGENCY: Administration for Children and Families, HHS.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This final rule decreases the reporting burden on States
relative to the State systems advance planning document (APD) process
by increasing the threshold amounts above which APDs and related
procurement documents need to be submitted for Federal approval. The
APD process is the procedure by which States obtain approval for
Federal financial participation in the cost of acquiring automatic data
processing equipment and services. Additionally, this rule eliminates
the requirement for State submittal of biennial security plans for
Federal review.
EFFECTIVE DATE: July 31, 1996.
FOR FURTHER INFORMATION CONTACT: Bill Davis, State Systems Policy
Staff, 370 L'Enfant Promenade SW., Washington, DC 20447, telephone
(202) 401-6404.
SUPPLEMENTARY INFORMATION:
Paperwork Reduction Act
In accordance with the Paperwork Reduction Act (44 U.S.C. 3507),
information collection requirements relating to automated data
processing and information retrieval systems have been approved by OMB
Approval No. 0992-0005. The provisions of this rule do not contain any
additional reporting and/or recordkeeping requirements subject to OMB
approval.
Statutory Authority
These regulations are published under the general authority of
sections 402(a)(5), 452(a)(1), 1902(a)(4), and 1102 of the Social
Security Act (the Act).
Background and Description of Regulatory Provisions
State public assistance agencies acquire automatic data processing
(ADP) equipment and services for computer operations which support the
Aid to Families with Dependent Children, Adult Assistance, Child
Support Enforcement, Medicaid, Child Welfare, Foster Care and Adoption
Assistance, Job Opportunities and Basic Skills Training (JOBS), and
Refugee Resettlement programs. Conditions and procedures for acquiring
such systems are found at 45 CFR part 95. To reduce the reporting
burden on States and to provide better use of Federal resources, we
issued a notice of proposed rulemaking revising these requirements
which was published in the Federal Register July 24, 1995 (60 FR
37858). We received 23 letters of public comment regarding the proposed
rule from State agencies and other interested parties. Specific
comments and responses follow the discussion of regulatory provisions.
These comments did not generate any changes to the regulatory
provisions outlined in the proposed rule.
Currently any competitive acquisition over $500,000 or any sole
source acquisition over $100,000 in total State and Federal costs which
will be matched at the regular Federal financial participation (FFP)
rate, as defined in Section 95.605 of these rules, requires written
prior approval of an APD. Project cost increases of more than $300,000
require the submission of an APD Update. Also, most procurement
documents (Request for Proposals (RFPs) and contracts) over $300,000,
and contract amendments over $100,000 must be approved by the Federal
funding agencies.
As a first step toward reducing the reporting burden on States and
improving the use of Federal resources, we are raising the threshold
amounts for regular match acquisitions. We will continue to require
written prior approval for all equipment and services acquired at an
enhanced matching rate.
Accordingly, these rules revise 45 CFR 95.611(a)(1), which provides
that States must obtain prior written approval for ADP equipment or
services anticipated to have total acquisition costs of $500,000 or
more in Federal and State funds, to increase the $500,000 threshold
amount to $5 million or more. Similarly, paragraph (a)(4), which
requires prior written approval with respect to State plans to acquire
noncompetitively from a non-government source, ADP equipment and
services, with a total acquisition cost of greater than $100,000, is
revised to require that a State obtain prior written approval of its
justification for a sole source acquisition with total State and
Federal costs of more than $1 million but no more than $5 million and
to provide that noncompetitive acquisitions of greater than $5 million
continue to be subject to the requirements of paragraph (b), which
[[Page 39895]]
provides specific prior written approval requirements.
We are also eliminating paragraph (a)(3), which provides a separate
threshold amount for acquisitions in support of State Medicaid systems
funded at the 75 percent FFP rate. The Health Care Financing
Administration (HCFA) will apply the new thresholds to Title XIX funded
projects. Additionally, we are modifying paragraph (a)(2) to delete a
reference to paragraph (a)(3) and to redesignate paragraphs (a)(4)
through (a)(7) as paragraphs (a)(3) through (a)(6). We are also
revising paragraph (a)(4), as redesignated, to change the reference
from (a)(6) to (a)(5) and to update the office names from Office of
Information Management Systems to Office of State Systems and State
Data Systems Staff to State Systems Policy Staff to reflect a recent
organizational change. And we are correcting a typographical error in
paragraph (a)(6) so that ``ADP'' now reads ``APD''.
Paragraph (b)(1)(iii), which provides that unless specifically
exempted by the Department, written approval must be received prior to
release of a Request for Proposal (RFP) or execution of a contract
where costs are anticipated to exceed $300,000, is revised to increase
the threshold to $5 million with respect to competitive procurements
and $1 million for noncompetitive acquisitions from nongovernment
sources.
With respect to contract amendments, 45 CFR 95.611(b)(1)(iv) is
revised to provide that prior written approval is needed, unless
specifically exempted by the Department, prior to execution of a
contract amendment involving cost increases of greater than $1 million
or time extensions of more than 120 calendar days. In addition, States
will be required to submit for written approval contract amendments
under these threshold amounts on an exception basis or if HHS
determines that the contract amendment was not adequately described and
justified in the APD.
As indicated, with respect to both changes to paragraph (b), HHS
retains the right to review and prior approve all RFPs, contracts, and
contract amendments, regardless of dollar amount, on an exception
basis.
Paragraph (c)(1), which provides specific approval requirements
with respect to regular FFP requests, is also revised to provide
increased thresholds. First, under paragraph (c)(1)(i), the $1 million
threshold with respect to the need for written approval from the
Department of Annual Advanced Planning Document Updates (APDU) is
increased to $5 million. In paragraph (c)(1)(ii)(A), the threshold with
respect to the requirement for approval of an ``as needed'' APDU of
projected cost increases is raised from the lesser of $300,000 or 10
percent of the project cost, to projected cost increases of $1 million
or more.
We are also changing the rules to provide prompt Department action
on State funding requests by providing that if the Department has not
provided a State written approval, disapproval, or a request for
information within 60 calendar days of issuing an acknowledgement of
receipt of a State's request, the request is deemed to have
provisionally met the prior approval requirements.
Accordingly, 45 CFR 95.611(d) is revised to provide that, if the
Department has not provided written approval, disapproval, or a request
for information within 60 calendar days of issuing an acknowledgement
of receipt of a State's request, the request will be provisionally
deemed to have met the prior approval requirements. As indicated in the
proposed rule, provisional approval does not absolve a State from
meeting all Federal requirements which pertain to the computer project
or acquisition. Such projects continue to be subject to Departmental
audit and review, and the determinations made from such audits and
reviews.
Finally, to further the goal of reduced burden and increased
efficiency, these rules amend 45 CFR 95.621(f)(6), by eliminating the
requirement that States submit biennial security reports for Federal
review and approval, to require simply that such reports be maintained
by States for on-site review by HHS. As such, States must continue to
perform security reviews and will be responsible for maintaining review
reports for inspection by HHS staff during on-site reviews.
Response to Comments
We received a total of 23 comments on the proposed rule published
in the Federal Register July 24, 1995 (60 FR 37858) from State agencies
and other interested parties. Specific comments and our responses
follow.
General Comments
1. Comment: Two commenters felt that the changes provided by the
proposed rule did not go far enough to provide significant relief from
the existing burden associated with the APD process. However, the
majority of commenters voiced support for the rule. In fact, 13 of the
respondents offered no other comment than to provide their support.
Response: We disagree. With this rule we are providing a ten-fold
increase in the prior approval threshold for APDs, an even greater
increase for RFPs and contracts, and other significant changes. This
rule will greatly reduce the State burden associated with the APD
process.
Increased Thresholds
1. Comment: Two commenters asked that the increased thresholds also
apply to systems funded at enhanced rates, or at a minimum to Request
for Proposals (RFPs) and contracts after approval of APDs for enhanced
funded projects.
Response: We do not agree with these suggestions. We are convinced
that enhanced funded projects, where the Federal Government pays up to
90 percent of costs, should be given greater attention and scrutiny
than regular match projects. HHS reviews RFPs and contracts to ensure
State plans as expressed in related APDs, and Federal requirements are
being met. Accordingly, thresholds for APDs, RFPs, and contracts for
enhanced funded projects will remain at current levels, even in cases
where enhanced funding becomes available after the beginning of the
project.
2. Comment: One commenter was concerned that the allowance for
review of documents by ``exception'' as stated in the proposed rule,
should truly be used on an exception basis and not become the norm. The
commenter suggested that criteria be developed for exercising the
option and be disseminated to States. The commenter also asked that
when the exception option is used, adequate notice be given to States.
Response: We would like to assure the commenter that we fully
intend that this option will only be exercised on an exception basis.
While we have not developed an exhaustive list of criteria for use of
the exception, as provided in the preamble to the proposed rule, the
criteria ``* * * could include instances where new program requirements
or technology are involved, as in electronic benefits transfer, or when
adequate description and justification has not been provided in the
APD.'' However, States will always receive written notification when
documents must be submitted for review.
3. Comment: One commenter suggested that after Federal review of an
APD, the RFPs and contracts should not be reviewed by HHS.
Response: We do not agree with this suggestion. We will continue to
review RFPs and contracts, in accordance with revised thresholds, to
ensure that State
[[Page 39896]]
plans as expressed in related APDs, and Federal requirements are being
met.
4. Comment: One commenter suggested that HHS should limit its
review of State ADP acquisitions to new development efforts. This
commenter stated that ongoing operations, equipment upgrades, and
systems enhancements should be exempt from Federal review.
Response: We do not agree with this recommendation. Equipment
upgrades and systems enhancements, above the threshold limits, will
continue to be subject to prior approval.
5. Comment: Three commenters recommended that large States should
have higher thresholds than other States. The commenters believe that
because the systems activities of large States are proportionally
larger and more costly than those of other States, large States should
have proportionally more of their systems expenditures exempt from HHS
prior approval.
Response: In establishing the dollar thresholds under which a State
need not obtain HHS' prior approval for an ADP acquisition, HHS sought
to achieve a balance between exercising its responsibility and
providing States a measure of flexibility. HHS is responsible under
Federal law and regulation for ensuring that it provides Federal
matching funds for purposes which are necessary for effective and
efficient program operations. At the same time, however, HHS seeks to
provide flexibility to States who manage and carry-out these ADP
projects.
In establishing a $5,000,000 threshold, HHS is making a ten-fold
increase to the current threshold. We believe that at this time the
increased threshold provides an appropriate balance between its
responsibility for assuring the effective use of Federal dollars and
providing States flexibility of action.
While it is true that large States have commensurately large
systems expenditures, such large expenditures should appropriately
receive a higher level of review to reduce the risk to taxpayers.
6. Comment: One State commenter suggested that HHS should not
review any RFPs, contracts and contract amendments, asserting that
Federal agencies micro-manage State projects and cause delays in nearly
every case where approval is requested. The commenter included a list
of State procedures and approvals required for ADP acquisitions, which
the commenter believes makes Federal approval procedures redundant. The
commenter asserts that Federal review causes delays in nearly every
case.
On the other hand, a commenter from another State could not recall
ever having been delayed by the Federal review process.
Response: As these comments indicate, States are not of a single
mind as to whether the requirement for prior Federal approval delays
States in developing ADP projects. Underlying the first commenter's
assertion is the suggestion that HHS rely on State procedures and
officials to meet its responsibilities for assuring that the
expenditure of Federal funds on State systems is necessary for
effective and efficient operation of the programs.
With the information received through the APD procedures,
accountable HHS officials are able to meet their responsibilities for
assuring that the expenditure of Federal funds on State systems is
necessary for the effective and efficient operation of the programs. As
stated in response to another commenter, HHS intends to continue to
review RFPs, contracts and contract amendments, subject to applicable
dollar thresholds, to ensure that programmatic requirements are being
met.
7. Comment: One commenter noted that the regulation now includes
the Medicaid 75 percent match rate in the regular match category and
noted that now all Medicaid 75 percent acquisitions will require prior
approval.
Response: We believe the commenter misunderstood this provision of
the regulation. The revision now puts Medicaid 75 percent funding in
the $5 million threshold category. HCFA will further clarify this in a
revision to Chapter 11 of the Medicaid Management Manual, which deals
with Medicaid Management Information System requirements.
8. Comment: One State was confused by our statement that some RFPs
and contracts under the threshold amounts would require prior approval.
The commenter was concerned as to how they would know if approval was
required.
Response: Approval of RFPs, contracts, and contract amendments will
be required, on an exception basis, for projects utilizing new
technology, such as Electronic Benefits Transfer (EBT), and in those
cases in which the procurement is not well defined in the approved APD.
States will know when approval of these documents is required because
HHS will inform them, in writing, when these documents must be
submitted for approval.
9. Comment: One commenter noted that contract amendments that are
funded at the regular FFP rate and exceed the $1 million threshold, or
contract time extensions of more than 120 days require prior approval.
The commenter suggested that since a project that costs $1 million will
usually have a duration of more than one year, the number of days
should be changed to 365.
Response: The commenter implies a necessary connection, with which
we do not agree, between increased project cost and the duration of a
project. There are two different issues here. A contract amendment
which exceeds $1 million in cost requires prior approval. Additionally,
a contract amendment for a time extension of more than 120 days
requires prior approval. For example, the cost of a project may
increase with no change in project time frame. Similarly, the time
frame for a project may increase with no increase in project cost.
Federal Response Deadline
1. Comment: One commenter expressed concern that the definition and
use of ``provisional approval'' in the proposed rule was unclear.
Specifically, the commenter noted that the phrases ``deemed to have
provisionally met the prior approval requirements'' and ``provisionally
met the prior approval requirements'' were used interchangeably, but
was concerned that they may in fact have different meanings.
Response: These phrases were not intended to have different
meanings. We use the term ``provisional approval'' rather than
``approval'' to make it clear that States are still subject to all
Federal requirements (other than prior approval). These are the same
requirements, such as those listed in 45 CFR part 74, which States must
comply with for any acquisition in which Federal financial
participation is requested. As stated in the preamble to the proposed
rule, ``Even written prior approval by the Department does not
guarantee absolutely that there will be no subsequent determination of
violation of the pertinent Federal statutes and regulations.''
The proposed rule preamble further states that ``States which are
confident that their project is in compliance would be able, however,
to proceed after the 60-day period has expired without further delay
awaiting Federal approval.'' However, if it is subsequently determined
that the State's project does not meet Federal requirements,
appropriate changes will be necessary.
2. Comment: One commenter suggested that establishing 60 days as
the standard response time may have the effect of lengthening the
response
[[Page 39897]]
time in all situations to a full 60 days. This commenter suggested that
the standard be between 30 and 40 days.
Response: We are not establishing 60 days as the standard response
time. In fact, the Department of Health and Human Services considers
responses to State requests to be ``overdue'' in 30 days. Sixty days is
the outside time period at which point a request will be considered
``provisionally approved.'' If the State has not received a response
within 60 days and is confident that a request meets Federal
requirements, this provision permits the State to proceed as if it had
prior written approval.
3. Comment: One commenter was concerned that we might delay sending
out an acknowledgement letter to effectively increase the 60-day
response time limit.
Response: We would like to assure the commenter that this will not
happen. We will continue our policy of promptly acknowledging State
requests.
Security Review Reports
1. Comment: One commenter suggested that the requirement for
biennial security reports be eliminated.
Response: This regulation eliminates the requirement for States to
submit the biennial security reports to HHS for review. However, the
requirement to conduct the bi-annual reviews and maintain the reports
will remain in place as a minimal requirement to assist States in
assuring the security of their data processing assets and systems.
These reports must be available for review by HHS staff during site
visits to States to assist in assessing the security status of
Federally funded data processing activities.
Other
1. Comment: One commenter stated that the Federal depreciation
requirements should be changed.
Response: Federal depreciation requirements are not set by the
Department of Health and Human Services but by the Office of Management
and Budget under OMB Circular A-87 and thus are not within the purview
of this final rule. However, the Department of Health and Human
Services previously agreed to exempt data processing equipment costing
no more than $5,000 from the depreciation requirements.
Regulatory Impact Analysis
Executive Order 12866 requires that regulations be reviewed to
ensure that they are consistent with the priorities and principles set
forth in the Executive Order. The Department has determined that this
rule is consistent with these priorities and principles. No costs are
associated with this rule as it merely decreases reporting burden on
States.
Regulatory Flexibility Act
Consistent with the Regulatory Flexibility Act (Pub. L. 96-354),
which requires the Federal Government to anticipate and reduce the
impact of rules and paperwork requirements on small businesses and
other small entities, the Secretary certifies that this rule has no
significant effect on a substantial number of small entities.
Therefore, a regulatory flexibility analysis is not required.
List of Subjects in 45 CFR Part 95
Claims, Computer technology, Grant programs--health, Grant
programs, Social programs, Social Security.
(Catalog of Federal Domestic Assistance Program 93.645 Child Welfare
Services--State Grants; 93.658, Foster Care Maintenance; 93.659,
Adoption Assistance; 93.563, Child Support Enforcement Program;
93.174, Medical Assistance Program; 93.570, Assistance Payments--
Maintenance Assistance)
Dated: January 23, 1996.
Mary Jo Bane,
Assistant Secretary for Children and Families.
Approved: April 18, 1996.
Donna E. Shalala,
Secretary.
For the reasons set forth in the preamble, 45 CFR Part 95 is
amended as follows:
PART 95--GENERAL ADMINISTRATION--GRANT PROGRAMS (PUBLIC ASSISTANCE
AND MEDICAL ASSISTANCE)
1. The authority citation for Part 95, Subpart F continues to read
as follows:
Authority: Secs. 402(a)(5), 452(a)(1), 1102, and 1902(a)(4) of
the Social Security Act, 42 U.S.C. 602(a)(5), 652(a)(1), 1302,
1396a(a)(4); 5 U.S.C. 301 and 8 U.S.C. 1521.
2. Section 95.611 is amended by removing paragraph (a)(3);
redesignating paragraphs (a)(4) through (a)(7) as (a)(3) through
(a)(6); revising paragraphs (a)(1), (a)(2), newly redesignated
paragraphs (a)(3), (a)(4) and (a)(6); paragraphs (b)(1)(iii),
(b)(1)(iv), (c)(1)(i), (c)(1)(ii)(A) and (d); and republishing newly
redesignated paragraph (a)(5) to read as follows:
Sec. 95.611 Specific Conditions for FFP.
(a) * * *
(1) A State shall obtain prior written approval from the Department
as specified in paragraph (b) of this section, when the State plans to
acquire ADP equipment or services with proposed FFP at the regular
matching rate that it anticipates will have total acquisition costs of
$5,000,000 or more in Federal and State funds.
(2) A State shall obtain prior written approval from the Department
as specified in paragraph (b) of this section, when the State plans to
acquire ADP equipment or services with proposed FFP at the enhanced
matching rate authorized by 45 CFR 205.35, 45 CFR part 307 or 42 CFR
part 433, subpart C, regardless of the acquisition cost.
(3) A State shall obtain prior written approval from the Department
of its justification for a sole source acquisition, when it plans to
acquire noncompetitively from a nongovernmental source ADP equipment or
services, with proposed FFP at the regular matching rate, that has a
total State and Federal acquisition cost of more than $1,000,000 but no
more than $5,000,000. Noncompetitive acquisitions of more than
$5,000,000 are subject to the provisions of paragraph (b) of this
section.
(4) Except as provided for in paragraph (a)(5) of this section, the
State shall submit requests for Department approval, signed by the
appropriate State official, to the Director, Administration for
Children and Families, Office of State Systems. The State shall send to
ACF one copy of the request for each HHS component, from which the
State is requesting funding, and one for the State Systems Policy
Staff, the coordinating staff for these requests. The State must also
send one copy of the request directly to each Regional program
component and one copy to the Regional Director.
(5) States shall submit requests for approval which involve solely
Title XIX funding (i.e., State Medicaid Systems), to HCFA for action.
(6) The Department will not approve any Planning or Implementation
APD that does not include all information required as defined in
Sec. 95.605.
(b) * * *
(1) * * *
(iii) For the Request for Proposal and Contract, unless
specifically exempted by the Department, prior to release of the RFP or
prior to the execution of the contract when the contract is anticipated
to or will exceed $5,000,000 for competitive procurement and $1,000,000
for noncompetitive acquisitions from nongovernmental sources. States
will be required to submit RFPs and contracts under these threshold
amounts on an exception basis or if the procurement strategy is not
adequately described and justified in an APD.
[[Page 39898]]
(iv) For contract amendments, unless specifically exempted by the
Department, prior to execution of the contract amendment involving
contract cost increases exceeding $1,000,000 or contract time
extensions of more than 120 days. States will be required to submit
contract amendments under these threshold amounts on an exception basis
or if the contract amendment is not adequately described and justified
in an APD.
* * * * *
(c) * * *
(1) * * *
(i) For an annual APDU for projects with a total acquisition cost
of more than $5,000,000, when specifically required by the Department.
(ii) For an ``As Needed APDU'' when changes cause any of the
following:
(A) A projected cost increase of $1,000,000 or more.
* * * * *
(d) Prompt action on requests for prior approval. The ACF will
promptly send to the approving components the items specified in
paragraph (b) of this section. If the Department has not provided
written approval, disapproval, or a request for information within 60
days of the date of the Departmental letter acknowledging receipt of a
State's request, the request will automatically be deemed to have
provisionally met the prior approval conditions of paragraph (b) of
this section.
3. Section 95.621 is amended by revising paragraph (f)(6) to read
as follows:
Sec. 95.621 APD reviews.
* * * * *
(f) * * *
(6) The State agency shall maintain reports of their biennial ADP
system security reviews, together with pertinent supporting
documentation, for HHS on-site review.
[FR Doc. 96-19488 Filed 7-30-96; 8:45 am]
BILLING CODE 4184-01-P
Complete official Federal Register PDF
FR Doc. 96-19487 Central Inmate Monitoring (CIM) System
[Federal Register Volume 61, Number 148 (Wednesday, July 31, 1996)]
[Rules and Regulations]
[Pages 40142-40144]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19487]
[[Page 40141]]
_______________________________________________________________________
Part V
Department of Justice
_______________________________________________________________________
Bureau of Prisons
_______________________________________________________________________
28 CFR Part 524
Central Inmate Monitoring (CIM) System; Final Rule
Federal Register / Vol. 61, No. 148 / Wednesday, July 31, 1996 /
Rules and Regulations
[[Page 40142]]
DEPARTMENT OF JUSTICE
Bureau of Prisons
28 CFR Part 524
[BOP-1043-F]
RIN 1120-AA43
Central Inmate Monitoring (CIM) System
AGENCY: Bureau of Prisons, Justice.
ACTION: Final rule.
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SUMMARY: In this document the Bureau of Prisons is revising its
regulations on the central inmate monitoring system for general
clarity, to remove obsolete categories, to update staff
responsibilities, and to make various changes in administrative
procedures. This revision is intended to provide for the continued
secure operation of Bureau institutions.
EFFECTIVE DATE: July 31, 1996.
ADDRESSES: Office of General Counsel, Bureau of Prisons, HOLC Room 754,
320 First Street, NW., Washington, DC 20534.
FOR FURTHER INFORMATION CONTACT: Roy Nanovic, Office of General
Counsel, Bureau of Prisons, phone (202) 514-6655.
SUPPLEMENTARY INFORMATION: The Bureau of Prisons is amending its
regulations on the central inmate monitoring (CIM) system. A final rule
on this subject was published in the Federal Register September 14,
1990 (55 FR 38007).
The CIM system is an administrative program which allows the Bureau
to monitor and control the transfer, temporary release, and community
activities of inmates who present special needs for management.
Examples of such inmates include participants in Witness Security
programs, members of gangs or disruptive groups, and inmates who, for
their own safety, need to be separated from other identified inmates.
The CIM system operates to protect such inmates. In keeping with the
regulatory goals of E.O. 12866, the Bureau is revising the entire
regulation for the sake of general clarity. The acronym CIM is used
more consistently throughout the regulations. Other specific changes
are discussed below.
Section 524.70 has been revised to remove redundancy and improve
readability. There is no change in the intent of this section.
Section 524.71 has been revised to specify the Case Management
Coordinator as the official responsible for oversight and coordination
of CIM activities at the institution.
Section 524.72 has been amended to remove the assignment category
of sophisticated criminal activity and to rename the assignment
category ``security threat groups'' as ``disruptive group''. In
addition, the provisions for separation in new paragraph (f) have been
amended to note the accommodation of separatees in institutions which
have the ability to prevent physical contact between separatees.
Former Secs. 524.73 and 524.74 have been combined in new
Sec. 524.73 covering classification procedures. Paragraph (a) of new
Sec. 524.73 covers procedures for the initial assignment of a CIM
classification. These provisions were previously contained in former
Secs. 524.73(a), and 524.74 (a) and (b). Paragraph (b) of new
Sec. 524.73 covers procedures for notification to inmates of CIM
classification actions. These provisions were previously contained in
former Sec. 524.73 (b), (c), and (d) and in Sec. 524.78. Paragraph (c)
of new Sec. 524.73 covers procedures for the initial review of a CIM
assignment. These provisions were previously contained in former
Sec. 524.74 (d) and (f).
The provisions of former Sec. 524.74(e) have been removed. New
Sec. 524.73(a) allows for classification of pretrial inmates, and
further specification as to appropriate assignments or procedures is
either unnecessary or redundant.
New Sec. 524.74 revises provisions for activities clearance which
were contained in former Sec. 524.75. These provisions have been
revised for the sake of administrative streamlining. The revised
provisions allow for approval by the Warden in all cases except for
non-medical emergency clearances of Witness Security cases.
New Sec. 524.75 revises the provisions for periodic review of CIM
status contained in former Sec. 524.76. These revisions have been made
for the sake of clarity and organization. Provisions on notification
contained in paragraph (a) of former Sec. 524.76 have been consolidated
into the general requirements for notification in new Sec. 524.73(b).
Provisions in paragraph (b) of former Sec. 524.76 for the removal of
Department of Justice Witness Security cases have been consolidated
into the general requirements for removal of a CIM classification in
new Sec. 524.73(d). Provisions in paragraph (c) of former Sec. 524.76
on State prisoner assignments have been consolidated into new
Sec. 524.73(a)(2).
New Sec. 524.76 revises the provisions in former Sec. 524.77 for
appeals of a CIM classification to conform to previously published
revisions in the Administrative Remedy Program (28 CFR part 542) which
allow for inmates housed in Community Corrections Centers to file a
request with the Community Corrections Manager.
The provisions in former Sec. 524.78 on classification of
recommitted offenders have been removed because these provisions have
been consolidated into new Sec. 524.73.
Because these provisions impose no further restrictions on inmates
and deal with agency procedures designed to help ensure the continued
protection of inmates, the Bureau finds good cause for exempting the
provisions of the Administrative Procedure Act (5 U.S.C. 553) requiring
notice of proposed rulemaking, the opportunity for public comment, and
delay in effective date. Members of the public may submit comments
concerning this rule by writing to the previously cited address. These
comments will be considered but will receive no response in the Federal
Register.
The Bureau of Prisons has determined that this rule is not a
significant regulatory action for the purpose of E.O. 12866, and
accordingly this rule was not reviewed by the Office of Management and
Budget. After review of the law and regulations, the Director, Bureau
of Prisons has certified that this rule, for the purpose of the
Regulatory Flexibility Act (5 U.S.C. 601 et seq.), does not have a
significant economic impact on a substantial number of small entities,
within the meaning of the Act. Because this rule pertains to the
correctional management of offenders committed to the custody of the
Attorney General or the Director of the Bureau of Prisons, its economic
impact is limited to the Bureau's appropriated funds.
List of Subjects in 28 CFR Part 524
Prisoners.
Kathleen M. Hawk,
Director, Bureau of Prisons.
Accordingly, pursuant to the rulemaking authority vested in the
Attorney General in 5 U.S.C. 552(a) and delegated to the Director,
Bureau of Prisons in 28 CFR 0.96(p), part 524 in subchapter B of 28
CFR, chapter V is amended as set forth below.
SUBCHAPTER B--INMATE ADMISSION, CLASSIFICATION, AND TRANSFER
PART 524--CLASSIFICATION OF INMATES
1. The authority citation for 28 CFR part 524 continues to read as
follows:
Authority: 5 U.S.C. 301; 18 U.S.C. 3521-3528, 3621, 3622, 3624,
4001, 4042, 4081, 4082 (Repealed in part as to offenses
[[Page 40143]]
committed on or after November 1, 1987), 5006-5024 (Repealed October
12, 1984 as to offenses committed after that date), 5039; 28 U.S.C.
509, 510; 28 CFR 0.95-0.99.
2. Subpart F is revised to read as follows:
Subpart F--Central Inmate Monitoring (CIM) System
Sec.
524.70 Purpose and scope.
524.71 Responsibility.
524.72 CIM assignment categories.
524.73 Classification procedures.
524.74 Activities clearance.
524.75 Periodic review.
524.76 Appeals of CIM classification.
Subpart F--Central Inmate Monitoring (CIM) System
Sec. 524.70 Purpose and scope.
The Bureau of Prisons monitors and controls the transfer, temporary
release (e.g., on writ), and community activities of certain inmates
who present special needs for management. Such inmates, known as
central inmate monitoring (CIM) cases, require a higher level of review
which may include Central Office and/or Regional Office clearance for
transfers, temporary releases, or community activities. This monitoring
is not to preclude a CIM case from such activities, when the inmate is
otherwise eligible, but rather is to provide protection to all
concerned and to contribute to the safe and orderly operation of
federal institutions.
Sec. 524.71 Responsibility.
Authority for actions relative to the CIM system is delegated to
the Assistant Director, Correctional Programs Division, to Regional
Directors, and to Wardens. The Assistant Director, Correctional
Programs Division, and Regional Directors shall assign a person
responsible for coordinating CIM activities. The Case Management
Coordinator (CMC) shall provide oversight and coordination of CIM
activities at the institutional level, and the Community Corrections
Manager shall assume these responsibilities for contract facilities.
Sec. 524.72 CIM assignment categories.
CIM cases are classified according to the following assignments:
(a) Witness Security cases. Individuals who agree to cooperate with
law enforcement, judicial, or correctional authorities, frequently
place their lives or safety in jeopardy by being a witness or intended
witness against persons or groups involved in illegal activities.
Accordingly, procedures have been developed to help ensure the safety
of these individuals. There are two types of Witness Security cases:
Department of Justice (authorized by the Attorney General under Title V
of Public Law 91-452, 84 Stat. 933); and Bureau of Prisons Witness
Security cases (authorized by the Assistant Director, Correctional
Programs Division).
(b) Threats to Government officials. Inmates who have made threats
to government officials or who have been identified, in writing, by the
United States Secret Service as requiring special surveillance.
(c) Broad publicity. Inmates who have received widespread publicity
as a result of their criminal activity or notoriety as public figures.
(d) Disruptive group. Inmates who belong to or are closely
affiliated with groups (e.g., prison gangs), which have a history of
disrupting operations and security in either state or federal penal
(which includes correctional and detention facilities) institutions.
This assignment also includes those persons who may require separation
from a specific disruptive group.
(e) State prisoners. Inmates, other than Witness Security cases,
who have been accepted into the Bureau of Prisons for service of their
state sentences. This assignment includes cooperating state witnesses
and regular state boarders.
(f) Separation. Inmates who may not be confined in the same
institution (unless the institution has the ability to prevent any
physical contact between the separatees) with other specified
individuals who are presently housed in federal custody or who may come
into federal custody in the future. Factors to consider in classifying
an individual to this assignment include, but are not limited to,
testimony provided by or about an individual (in open court, to a grand
jury, etc.), and whether the inmate has exhibited aggressive or
intimidating behavior towards other specific individuals, either in the
community or within the institution. This assignment also includes
those inmates who have provided authorities with information concerning
the unauthorized or illegal activities of others. This assignment may
also include inmates from whom there is no identifiable threat, but who
are to be separated from others at the request of the Federal Judiciary
or U.S. Attorneys.
(g) Special Supervision. Inmates who require special management
attention, but who do not ordinarily warrant assignment in paragraphs
(a) through (f) of this section. For example, this assignment may
include an inmate with a background in law enforcement or an inmate who
has been involved in a hostage situation. Others may include those who
are members of a terrorist group with a potential for violence.
Sec. 524.73 Classification procedures.
(a) Initial assignment. Except as provided for in paragraphs (a)
(1) through (4) of this section, an inmate (including pretrial inmates)
may be classified as a CIM case at any time by a Community Corrections
Manager or by appropriate staff at the Central Office, Regional Office,
or institution. This initial classification is effective upon
documentation in the inmate's record.
(1) Witness Security cases. Witness Security cases are designated
by the Central Office only. An inmate's participation in the Department
of Justice Witness Security Program is voluntary. A commitment
interview and an admission and orientation interview are to be
conducted with the Witness Security inmate to ensure that the inmate
understands the conditions of confinement within the Bureau of Prisons.
Central Office classification of an individual as a Witness Security
case, under either the Department of Justice or Bureau of Prisons, does
not require additional review, and overrides any other CIM assignment.
(2) State prisoners. Appropriate staff in the Central Office or
Regional Office designate state prisoners accepted into the Bureau of
Prisons from state or territorial jurisdictions. All state prisoners
while solely in service of the state sentence are automatically
included in the CIM system to facilitate designations, transfers, court
appearances, and other movements.
(3) Special supervision. Placement in this assignment may be made
only upon the authorization of a Regional Director or the Assistant
Director, Correctional Programs Division.
(4) Recommitted offenders. An inmate who is recommitted to federal
custody, who at the time of release was classified as a CIM case,
retains this classification pending a review of the CIM status in
accordance with paragraph (c) of this section.
(b) Notification. The case manager shall ensure that the affected
inmate is notified in writing as promptly as possible of the
classification and the basis for it. Witness Security cases will be
notified through a commitment interview. The notice of the basis may be
limited in the interest of security or safety. For example, in
separation cases under Sec. 524.72, notice will not include the names
of those from whom the inmate must be separated. The inmate shall sign
for and receive a copy of the notification form. If the inmate refuses
to sign the notification form, staff witnessing the refusal shall
indicate this
[[Page 40144]]
fact on the notification form and then sign the form. Notification is
not required for pretrial inmates. Any subsequent modification of a CIM
assignment or removal from the CIM system requires separate
notification to the inmate.
(c) Initial review. A classification may be made at any level to
achieve the immediate effect of requiring prior clearance for an
inmate's transfer, temporary release, or participation in community
activities. Except for Central Office or Regional Office classification
of an individual as a state prisoner in sole service of the state
sentence or for classification of pretrial inmates made by designated
staff at the institution, a review by designated staff (ordinarily
within 60 days of notification to the inmate) is required to determine
whether a sound basis exists for the classification. Staff making the
initial classification shall forward to the reviewing authority
complete information regarding the inmate's classification. An inmate
not notified of a change in the classification by the reviewing
authority within 60 days from the date of the initial notification may
consider the CIM classification final. Reviewing authorities for CIM
classification are:
(1) Central Office Inmate Monitoring Section--reviews
classification decisions for all future separation assignments
(including recommitments) for Witness Security cases and for any
combination of assignments involving Witness Security cases.
(2) Regional Office--reviews CIM classification decisions for
Disruptive Group, Broad Publicity, Threat to Government Officials,
Special Supervision, State Prisoners not in sole service of state
sentence and initial multiple assignments except Witness Security
Cases.
(3) Warden, or Designee--reviews CIM classification decisions for
all separation assignments.
(d) Removal. (1) Because participation in the Department of Justice
Witness Security Program is voluntary, such participants may request
removal from this assignment at any time. Such request shall be
forwarded to the Central Office Inmate Monitoring Section. Actual
removal of the CIM assignment will not occur until after approval from
the Department of Justice is received.
(2) The reviewing authority is responsible for determining if
removal or modification of any CIM classification other than a
Department of Justice Witness Security case is appropriate. The inmate
retains the CIM classification pending a decision by the reviewing
authority.
(3) When an inmate is removed for any reason from a CIM
classification (for example, because the reviewing authority either
disapproves the CIM classification or approves removal of a CIM
classification based on new information), the appropriate staff member
shall ensure that the relevant portions of the inmate central file are
either removed or, when part of a larger document, are amended to
clearly reflect removal of the CIM assignment. Staff shall notify the
inmate of the decision and document any change in the inmate's record,
and supportive documentation and the written basis for removal are to
be retained in the inmate privacy file.
Sec. 524.74 Activities clearance.
(a) Except as provided for in paragraph (b) of this section, the
Warden is the clearance authority on all transfers, temporary releases,
community activities, and escorted trips.
(b) Witness Security cases. Central Office Inmate Monitoring
Section staff shall be the clearance authority on all transfers,
temporary releases, community activities, and escorted trips for
Witness Security cases, except in a medical emergency. In a medical
emergency, the Warden may transfer a Witness Security case to a local
hospital for emergency medical care without prior clearance.
Sec. 524.75 Periodic review.
The Warden shall ensure that the status of an inmate's CIM
assignment is considered at each program review. When staff believe
that removal or modification of a CIM classification is appropriate,
the institution's CMC and the appropriate reviewing authority must be
notified. Only the reviewing authority shall determine if removal or
modification of the CIM classification is appropriate.
Sec. 524.76 Appeals of CIM classification.
An inmate may at any time appeal (through the Administrative Remedy
Program) the inmate's classification as a CIM case. Inmates identified
as Witness Security cases may choose to address their concerns directly
to the Inmate Monitoring Section, Central Office, rather than use the
Administrative Remedy Program.
[FR Doc. 96-19487 Filed 7-30-96; 8:45 am]
BILLING CODE 4410-05-P
Complete official Federal Register PDF
FR Doc. 96-19479 Drawbridge Operation Regulations; Red River, LA
[Federal Register Volume 61, Number 148 (Wednesday, July 31, 1996)]
[Rules and Regulations]
[Pages 39872-39873]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19479]
=======================================================================
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DEPARTMENT OF TRANSPORTATION
Coast Guard
33 CFR Part 117
[CGD08-96-025]
RIN 2115-AE47
Drawbridge Operation Regulations; Red River, LA
AGENCY: Coast Guard, DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This rule removes the regulation for the Kansas City Southern
Railroad Bridge across the Red River, mile 88.0 at Alexandria, Rapides
Parish, Louisiana because the swing span bridge has been removed.
EFFECTIVE DATE: This regulation is effective on July 31, 1996.
FOR FURTHER INFORMATION CONTACT:
Mr. Phil Johnson, Bridge Administration Branch, (504) 589-2965.
SUPPLEMENTARY INFORMATION:
Background and Purpose
The Kansas City Railroad Bridge was removed from service and
demolished on May 3, 1996. Since there is no longer a drawbridge at
this location, there is no longer a need for the drawbridge operation
regulation.
In accordance with 5 U.S.C. 553, a notice of proposed rulemaking
was not published for this regulation and good cause exists for making
the regulation effective less than 30 days after Federal Register
publication. Publishing a notice of proposed rulemaking and delaying
the effective date are impracticable and unnecessary because the swing
span of the bridge is no longer in existence.
Regulatory Evaluation
This rule is not a significant regulatory action under Executive
Order 12866 and is not significant under the DOT Regulatory Policies
and Procedures (44 FR 11040; February 26, 1979). The Coast Guard
expects the economic impact of this rule to be so minimal that
[[Page 39873]]
a full Regulatory Evaluation is unnecessary.
Small Entities
Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), the
Coast Guard must consider whether this rule will have a significant
economic impact on a substantial number of small entities. ``Small
entities'' include independently owned and operated small businesses
that are not dominant in their field and that otherwise qualify as
``small business concerns'' under section 3 of the Small Business Act
(15 U.S.C. 632). This rule will have little impact on either vehicular
or navigational traffic. Because it expects the impact of this final
rule to be minimal, the Coast Guard certifies under 5 U.S.C. 605(b)
that it will not have a significant economic impact on a substantial
number of small entities.
Collection of Information
This rule contains no collection of information requirements under
the Paperwork Reduction Act (44 U.S.C. 3501 et seq.).
Federalism
The Coast Guard has analyzed this rule under the principles and
criteria contained in Executive Order 12612 and has determined that
this rule does not have sufficient federalism implications to warrant
the preparation of a Federalism Assessment.
Environment
The Coast Guard considered the environmental impact of this rule
and concluded that, under section 2.B.2 of Commandant Instruction
M16475.1 (series), this proposal is categorically excluded from further
environmental documentation.
List of Subjects in 33 CFR Part 117
Bridges.
Regulations
In consideration of the foregoing, Part 117 of Title 33, Code of
Federal Regulations, is amended as follows:
PART 117--DRAWBRIDGE OPERATION REGULATIONS
1. The authority citation for Part 117 continued to read as
follows:
Authority: 33 U.S.C. 499; 49 CFR 1.46; 33 CFR 1.05-1(g); section
117.255 also issued under the authority of Pub. L. 102-587, 106
Stat. 5039.
Sec. 117.491 [Amended]
2. In Sec. 117.491, paragraph (b) is removed and (c), (d), (e) and
(f) are redesignated (b), (c), (d) and (e), respectively.
Dated: July 11, 1996.
T.W. Josian,
Rear Admiral, U.S. Coast Guard, Commander, Eighth Coast Guard District.
[FR Doc. 96-19479 Filed 7-30-96; 8:45 am]
BILLING CODE 4910-14-M
Complete official Federal Register PDF
FR Doc. 96-19477 Horses From Mexico; Quarantine Requirements
[Federal Register Volume 61, Number 148 (Wednesday, July 31, 1996)]
[Rules and Regulations]
[Pages 39852-39853]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19477]
-----------------------------------------------------------------------
DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection Service
9 CFR Part 92
[Docket No. 96-052-1]
Horses From Mexico; Quarantine Requirements
AGENCY: Animal and Plant Health Inspection Service, USDA.
ACTION: Interim rule and request for comments.
-----------------------------------------------------------------------
SUMMARY: We are amending the regulations regarding the importation of
horses from Mexico to require that such horses be quarantined for not
less than 7 days. We are also amending the regulations to provide that
quarantine and inspection of all horses imported into the United States
from Mexico through land border ports must be carried out in Mexico at
facilities approved by the Administrator and constructed so as to
prevent the entry of mosquitoes and other hematophagous insects. These
requirements would help ensure that horses imported into the United
States from Mexico are not infected with Venezuelan equine
encephalomyelitis and are necessary on an emergency basis to protect
horses in the United States from the disease.
DATES: Interim rule effective July 26, 1996. Consideration will be
given only to comments received on or before September 30, 1996.
ADDRESSES: Please send an original and three copies of your comments to
Docket No. 96-052-1, Regulatory Analysis and Development, PPD, APHIS,
suite 3C03, 4700 River Road Unit 118, Riverdale, MD 20737-1238. Please
state that your comments refer to Docket No. 96-052-1. Comments
received may be inspected at USDA, room 1141, South Building, 14th
Street and Independence Avenue SW., Washington, DC, between 8 a.m. and
4:30 p.m., Monday through Friday, except holidays. Persons wishing to
inspect comments are requested to call ahead on (202) 690-2817 to
facilitate entry into the comment reading room.
FOR FURTHER INFORMATION CONTACT: Dr. Gary Colgrove, Chief Staff
Veterinarian, National Center for Import and Export, VS, APHIS, 4700
River Road Unit 38, Riverdale, MD 20737-1231, (301) 734-3276.
SUPPLEMENTARY INFORMATION:
Background
The regulations in 9 CFR part 92 (referred to below as ``the
regulations'') govern the importation into the United States of
specified animals and animal products, including horses from Mexico, to
prevent the introduction into the United States of various animal
diseases.
Under the regulations prior to the effective date of this interim
rule, horses from Mexico, except those imported for immediate
slaughter, were required to be quarantined at a designated port until
they (1) Tested negative to an official test for dourine, glanders,
equine piroplasmosis, and equine infectious anemia; (2) tested negative
to such other tests that may have been required by the Administrator of
the Animal and Plant Health Inspection Service, U.S. Department of
Agriculture; and (3) were found free from any communicable disease and
fever-tick infestation upon inspection.
Recently, the government of Mexico reported that Venezuelan equine
encephalomyelitis (VEE) has been detected in horses in that country.
VEE is an equine viral disease, transmitted primarily by mosquitoes and
other hematophagous (blood-feeding) insects, particularly flying
insects, and results in a high mortality rate in animals infected with
the disease. Its introduction into the United States would pose a
significant health risk to horses in this country.
Although tests exist for the presence of VEE in horses, the tests
currently available may yield positive results for horses that have
been vaccinated for VEE but are not otherwise affected with the
disease. The most efficient method for initial identification of horses
that may be infected with VEE is observation of the horses for clinical
signs of the disease.
The clinical signs most commonly exhibited by horses affected by
VEE are marked fever, depression, and incoordination, followed by
death. A horse will usually exhibit signs of VEE within 2-5 days after
contracting the disease.
Prior to the effective date of this interim rule, horses intended
for importation into the United States from Mexico were not required to
be held in quarantine for any specified number of days. This was in
contrast to the 7-day quarantine period required for all other horses
intended for importation into the United States from other places in
the Western Hemisphere, except horses from Argentina, Bermuda, the
British Virgin Islands, and Canada. The 7-day quarantine period for
these other horses is necessary because VEE exists in the countries in
question, and 7 days is the length of time necessary to ensure that any
clinical signs of VEE manifest themselves. In order to ensure that
horses imported from Mexico are likewise quarantined for a sufficient
period of time, we are amending the regulations in Sec. 92.308(a)(1) to
provide that horses from Mexico must undergo the 7-day quarantine
period required of certain other horses from the Western Hemisphere.
Horses Imported for Immediate Slaughter
Prior to the effective date of this interim rule, horses could be
imported from Mexico for immediate slaughter without quarantine if they
(1) were accompanied by a health certificate and were inspected and
treated for cattle fever ticks at the port of entry; (2) were consigned
from the port of entry to a recognized slaughtering establishment where
they were slaughtered within 2 weeks from the date of entry; and (3)
were moved from the port of entry in conveyances sealed with seals of
the United States Government. These provisions were adequate to ensure
that the horses were not infected with, and did not transmit, exotic
equine diseases existing in Mexico, none of which were transmitted
through flying insects.
[[Page 39853]]
Because VEE is transmitted primarily through flying insects,
however, even horses moving to slaughter could potentially transmit the
disease via mosquitoes and other vectors. Therefore, it is necessary to
ensure that horses imported into the United States from Mexico that are
moving to slaughter are not infected with VEE. We are therefore
providing in Sec. 92.326 that, in addition to meeting the previous
requirements of that section (except as discussed below, under the
heading ``Location of Inspection and Quarantine Facilities''), horses
intended for importation into the United States from Mexico for
immediate slaughter must be quarantined for not less than 7 days.
Construction of Quarantine Facilities
Because flying insects had not been vectors of the exotic diseases
of concern of horses imported into the United States from Mexico, the
regulations did not require that the facilities used to quarantine
horses imported into the United States from Mexico through land border
ports be constructed so as to prevent the entry of these insects. As
noted above, however, VEE is transmitted primarily by flying insects,
particularly mosquitoes. If the quarantine facility were not required
to be constructed to prevent the entry of hematophagous insects, a
mosquito carrying the VEE virus could enter the facility during a
quarantine period and bite a horse scheduled for imminent release from
quarantine. The horse could then be released for entry into the United
States before it had time to develop any clinical signs of VEE. Also,
if hematophagous insects could get into the quarantine facility, and a
horse infected with VEE were in the quarantine facility, a mosquito not
previously carrying the VEE virus could enter, bite the infected horse,
and leave the facility carrying the virus. Because these facilities are
close to the U.S. border with Mexico, the mosquito could transmit the
virus to horses in the United States. Therefore, we are amending the
regulations in Sec. 92.324 to require that horses intended for
importation into the United States from Mexico through land border
ports be quarantined at a facility in Mexico constructed so as to
prevent the entry of mosquitoes and other hematophagous insects.
Emergency Action
The Administrator of the Animal and Plant Health Inspection Service
has determined that an emergency exists that warrants publication of
this interim rule without prior opportunity for public comment.
Immediate action is necessary to help ensure that horses imported into
the United States from Mexico do not transmit VEE to horses in the
United States.
Because prior notice and other public procedures with respect to
this action are impracticable and contrary to the public interest under
these conditions, we find good cause under 5 U.S.C. 553 to make it
effective upon signature. We will consider comments that are received
within 60 days of publication of this rule in the Federal Register.
After the comment period closes, we will publish another document in
the Federal Register. It will include a discussion of any comments we
receive and any amendments we are making to the rule as a result of the
comments.
Executive Order 12866 and Regulatory Flexibility Act
This rule has been reviewed under Executive Order 12866. For this
action, the Office of Management and Budget has waived its review
process required by Executive Order 12866.
This action amends the regulations regarding the importation of
horses from Mexico because of VEE. This emergency situation makes
compliance with section 603 and timely compliance with section 604 of
the Regulatory Flexibility Act (5 U.S.C. 603 and 604) impracticable.
This rule may have a significant economic impact on a substantial
number of small entities. If we determine this is so, then we will
discuss the issues raised by section 604 of the Regulatory Flexibility
Act in our Final Regulatory Flexibility Act Analysis.
Executive Order 12988
This rule has been reviewed under Executive Order 12988, Civil
Justice Reform. This rule: (1) Preempts all State and local laws and
regulations that are inconsistent with this rule; (2) has no
retroactive effect; and (3) does not require administrative proceedings
before parties may file suit in court challenging this rule.
Paperwork Reduction Act
This rule contains no new information collection or recordkeeping
requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
et seq.).
List of Subjects in 9 CFR Part 92
Animal disease, Imports, Livestock, Poultry and poultry products,
Quarantine, Reporting and recordkeeping requirements.
Accordingly, 9 CFR part 92 is amended as follows:
PART 92--IMPORTATION OF CERTAIN ANIMALS AND POULTRY AND CERTAIN
ANIMAL AND POULTRY PRODUCTS; INSPECTION AND OTHER REQUIREMENTS FOR
CERTAIN MEANS OF CONVEYANCE AND SHIPPING CONTAINERS THEREON
1. The authority citation for part 92 continues to read as follows:
Authority: 7 U.S.C. 1622; 19 U.S.C. 1306; 21 U.S.C. 102-105,
111, 114a, 134a, 134b, 134c, 134d, 134f, 135, 136, and 136a; 31
U.S.C. 9701; 7 CFR 2.22, 2.80, and 371.2(d).
Sec. 92.308 [Amended]
2. In Sec. 92.308, paragraph (a)(1) is amended by removing the
words ``Secs. 92.317 and 92.324'' and adding in their place the words
``Sec. 92.317''.
Sec. 92.324 [Amended]
3. Section 92.324 is amended by removing the words ``until they
qualify from release from such quarantine, either at an APHIS facility
designated in Sec. 92.303(a) or at a facility in Mexico'' and adding in
their place the words ``, for not less than 7 days and until they
qualify for release from such quarantine, either at an APHIS facility
designated in Sec. 92.303(a) or at a facility in Mexico approved by the
Administrator and constructed so as to prevent the entry of mosquitoes
and other hematophagous insects''.
Sec. 92.326 [Amended]
5. In Sec. 92.326, the first sentence is amended by removing the
words ``and 92.323'' and adding in their place the words ``92.323, and
92.324''.
Done in Washington, DC, this 26th day of July 1996.
Donald W. Luchsinger,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 96-19477 Filed 7-30-96; 8:45 am]
BILLING CODE 3410-34-P
Complete official Federal Register PDF
FR Doc. 96-19465 Fisheries of the Northeastern United States; Northeast Multispecies Fishery; Amendment 7; Open Access Nonregulated Multispecies Permit
[Federal Register Volume 61, Number 148 (Wednesday, July 31, 1996)]
[Rules and Regulations]
[Pages 39909-39910]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19465]
=======================================================================
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 648
[Docket No. 960216032-6197-06; I.D. 052196A]
RIN 0648-AH70
Fisheries of the Northeastern United States; Northeast
Multispecies Fishery; Amendment 7; Open Access Nonregulated
Multispecies Permit
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: NMFS issues this final rule to implement a measure that was
disapproved in the preliminary evaluation of Amendment 7 to the
Northeast Multispecies Fishery Management Plan (FMP) and has been
revised and resubmitted by the New England Fishery Management Council
(Council). This revision recreates and renames the possession limit
permit under Amendment 5 to the FMP and allows certain fisheries to
continue under this permit category that would otherwise be prohibited
by Amendment 7. The intended effect of this action is to continue to
allow fishing for nonregulated multispecies (silver hake, red hake and
ocean pout) by vessels that do not qualify for a limited access
multispecies permit.
EFFECTIVE DATE: July 31, 1996.
ADDRESSES: Copies of Amendment 7, its regulatory impact review (RIR)
and the initial regulatory flexibility analysis contained within the
RIR, the Final Supplemental Environmental Impact Statement, and copies
of the resubmitted measure and its supporting documents, are available
from Douglas Marshall, Executive Director, New England Fishery
Management Council, Suntaug Office Park, 5 Broadway (US Rte. 1),
Saugus, MA 01906-1097.
FOR FURTHER INFORMATION CONTACT: Peter W. Christopher, Fishery
Management Specialist, 508-281-9288.
SUPPLEMENTARY INFORMATION: The Council submitted Amendment 7 to the FMP
on February 5, 1996. After a preliminary evaluation, three measures in
the amendment were disapproved on February 14, 1996, including the
establishment of a limited access category for qualified vessels that
fished in the open access possession limit category under Amendment 5.
The remainder of Amendment 7, including the other two previously
disapproved measures, were resubmitted to NMFS and implemented,
pursuant to the Magnuson Fishery Conservation and Management Act
(Magnuson Act), by a final rule published on May 31, 1996 (61 FR
27710).
Pursuant to section 304(b)(3)(A) of the Magnuson Act, the Council
resubmitted the measure that would implement a possession limit permit
category by revising it to allow any vessel of the United States to
obtain the permit and fish for and possess nonregulated multispecies,
defined to be silver hake, red hake, and ocean pout.
Details of the resubmission are described in the proposed rule,
published on June 13, 1996 (61 FR 30029), and will not be repeated
here.
This final rule implements an open access permit category that is
now named the ``open access nonregulated multispecies permit.'' The new
permit category allows fishing for nonregulated multispecies by vessels
that do not qualify for a limited access multispecies permit and
eliminates any inequity or administrative burden associated with the
need to qualify for a limited access permit.
Comments and Responses
Written comments were submitted by two individuals. While both
individuals opposed the elimination of the Amendment 5 possession limit
permit category and/or the 500-lb (226.8-kg) allowance of regulated
species associated with this permit, they did support the
implementation of a nonregulated multispecies permit category.
Comment: Two individuals supported the implementation of a
nonregulated multispecies permit that would allow them to fish for,
possess, and land nonregulated multispecies on their vessels. One
individual requested immediate implementation of this rule, or an
extension of the possession limit permit, to prevent fish from being
discarded. Both individuals opposed elimination of the 500-lb (226.8-
kg) possession limit allowance of regulated species.
Response: This rule implements the nonregulated multispecies permit
that will allow these types of fishing operations to continue. In order
to implement this rule, NMFS must follow regulated rulemaking
procedures, including prior notice and an opportunity for public
comment. For this reason, the implementation of this resubmitted
measure could not have been implemented with the remainder of Amendment
7. Further, the possession limit permit could not have been extended
because of its explicit elimination under Amendment 7. However, to
relieve a restriction, the required 30-day delayed effectiveness period
has been waived and the new permit category is effective with today's
publication in the Federal Register.
The 500-lb (226.8-kg) regulated species possession allowance was
eliminated by the rule implementing Amendment 7. The control date for
entry into the multispecies fishery was February 21, 1991, at which
time the public was put on notice that future entry into the fishery
could be limited and that those investing in the fishery
[[Page 39910]]
after that date were doing so at risk. The condition of the stock
complex has continued to decline since that time and more restrictive
measures have been implemented in Amendments 5 and 6 to the FMP.
Amendment 7 eliminated the possession allowance in part because of its
open-access nature. While Amendment 7 imposed significant restrictions
on the directed multispecies fleet through days-at-sea reductions,
allowing a potentially unlimited number of vessels to land 500 lb
(226.8 kg) of regulated species per trip would be inconsistent with the
goals of the FMP.
Changes in the Final Rule from the Proposed Rule
The proposed rule would have amended the Amendment 7 final rule
published on May 31, 1996 (61 FR 27710). The provisions of the
Amendment 7 final rule have since been incorporated into consolidated
regulations for Fisheries of the Northeastern United States (50 CFR
part 648) published on July 3, 1996 (61 FR 34966). A prohibition
necessary to implement the management measures contained in this rule
inadvertently omitted from the proposed rule is added. The following
citations that had been in 50 CFR part 651 of the proposed rule are now
in 50 CFR part 648:
Sec. 651.2 Definitions is now Sec. 648.2.
Sec. 651.4 Vessel permits is now Sec. 648.4. Paragraph (c) in the
proposed rule under Sec. 651.4 is now paragraph (a)(1)(ii) under
Sec. 648.4.
Sec. 651.33 Open access permit restrictions is now Sec. 648.88.
Classification
The Northeast Regional Director determined that the FMP final rule
is necessary for the conservation and management of the Northeast
multispecies fishery and that it is consistent with the Magnuson Act
and other applicable laws.
This action has been determined to be not significant for purposes
of E.O. 12866.
The Assistant Administrator for Fisheries, NOAA (AA), finds that
under 5 U.S.C. 553(d)(1), because immediate implementation of this rule
relieves a restriction on fishing, there is no need to delay for 30
days the effectiveness of this regulation.
The Assistant General Counsel for Legislation and Regulation of the
Department of Commerce certified to the Chief Counsel for Advocacy of
the Small Business Administration that this rule would not have a
significant economic impact on a substantial number of small entities.
The reasons were discussed in the proposed rule published in the
Federal Register on June 13, 1996 (61 FR 30029). As a result, a
regulatory flexibility analysis was not prepared.
List of Subjects in 50 CFR Part 648
Fisheries, Fishing, Reporting and recordkeeping requirements.
Dated: July 25, 1996.
Charles Karnella,
Acting Deputy Assistant Administrator for Fisheries, National Marine
Fisheries Service.
For the reasons set out in the preamble, 50 CFR part 648 is amended
to read as follows:
PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES
1. The authority citation for part 648 continues to read as
follows:
Authority: 16 U.S.C. 1801 et seq.
2. In Sec. 648.2, the definition for ``nonregulated multispecies''
is added in alphabetical order to read as follows:
Sec. 648.2 Definitions.
* * * * *
Nonregulated multispecies means the subset of Northeast
multispecies that includes silver hake, red hake and ocean pout.
* * * * *
3. In Sec. 648.4, paragraph (a)(1)(ii) is revised to read as
follows:
Sec. 648.4 Vessel permits.
* * * * *
(a) * * *
(1) * * *
(ii) Open access permits. A vessel of the United States that has
not been issued a limited access multispecies permit is eligible for
and may be issued an open access multispecies handgear, charter/party
or nonregulated multispecies permit and may fish for, possess and land
multispecies finfish subject to the restrictions in Sec. 648.88. A
vessel that has been issued a valid limited access scallop permit, but
that has not been issued a limited access multispecies permit, is
eligible for and may be issued an open access scallop multispecies
possession limit permit and may fish for, possess and land multispecies
finfish subject to the restrictions in Sec. 648.88. The owner of a
vessel issued an open access permit may request a different open access
permit category by submitting an application to the Regional Director
at any time.
* * * * *
4. In Sec. 648.14, paragraph (t) is redesignated as paragraph (u)
and a new paragraph (t) is added to read as follows:
Sec. 648.14 Prohibitions.
* * * * *
(t) In addition to the general prohibitions specified in
Sec. 600.725 of this chapter and in paragraphs (a) through (h) of this
section, it is unlawful for any person owning or operating a vessel
issued a nonregulated multispecies permit to possess or land any
regulated species as defined in Sec. 648.2, or violate any applicable
provisions of Sec. 648.88.
* * * * *
5. In Sec. 648.88, paragraph (d) is added to read as follows:
Sec. 648.88 Open access permit restrictions.
* * * * *
(d) A vessel issued a valid open access nonregulated multispecies
permit may possess and land nonregulated multispecies. The vessel is
subject to restrictions on gear, area, and time of fishing specified in
Sec. 648.80 and any other applicable provisions of this part.
[FR Doc. 96-19465 Filed 7-30-96; 8:45 am]
BILLING CODE 3510-22-F
Complete official Federal Register PDF
FR Doc. 96-19458 Cypermethrin; Pesticide Tolerance
[Federal Register Volume 61, Number 148 (Wednesday, July 31, 1996)]
[Rules and Regulations]
[Pages 39889-39891]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19458]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR PART 180
[PP 4F4291/R2265; FRL-5387-5]
RIN 2070-AB78
Cypermethrin; Pesticide Tolerance
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This rule establishes a time limited tolerance for residues of
the insecticide Cypermethrin[()-alpha-cyano-(3
phenoxyphenyl)methyl ()cis,trans-3-(2,2-dichloroethyenyl)-
2,2-dimethylcyclopropane carboxylate] in or on the brassica crop
groups, head and stem brassica at 2.0 parts per million (ppm) and leafy
brassicas at 14.0 ppm. The regulation to establish a maximum
permissible level for residues of the insectide was requested in a
petition submitted by FMC Corp., Agricultural Chemicals Group, 1735
Market St., Philadelphia, PA 19103.
EFFECTIVE DATE: This regulation became effective July 25, 1996.
ADDRESSES: Written objections and hearing requests, identified by the
document control number, [PP 4F4291/R2265], may be submitted to:
Hearing Clerk (A-110), Environmental Protection Agency, Rm. M3708, 401
M St., SW., Washington, DC 20460. A copy of any objections and hearing
requests filed with the Hearing Clerk should be identified by the
document control number and submitted to: Public Response and Program
Resources Branch, Field Operations Division (7506C), Office of
Pesticide Programs, Environmental Protection Agency, 401 M St., SW.,
Washington, DC 20460. In person, bring copy of objections and hearing
requests to Rm. 1132, CM #2, 1921 Jefferson Davis Hwy., Arlington, VA
22202. Fees accompanying objections shall be labeled ``Tolerance
Petition Fees'' and forwarded to: EPA Headquarters Accounting
Operations Branch, OPP (Tolerance Fees), P.O. Box 360277M, Pittsburgh,
PA 15251. An electronic copy of objections and hearing requests filed
with the Hearing Clerk may be submitted to OPP by sending electronic
mail(e-mail) to: [email protected].
[[Page 39890]]
Copies of electronic objections and hearing requests must be
submitted as an ASCII file avoiding the use of special characters and
any form of encryption. Copies of electronic objections and hearing
requests will also be accepted on disks in WordPerfect 5.1 file format
or ASCII file format. All copies of electronic objections and hearing
requests must be identified by the docket number [PP4F4291/R2265]. No
Confidential Business Information (CBI) should be submitted through e-
mail. Copies of electronic objections and hearing requests on this rule
may be filed online at many Federal Depository Libraries. Additional
information on electronic submissions can be found below in this
document.
FOR FURTHER INFORMATION CONTACT: By mail: George LaRocca, Product
Manager (PM) 13, Registration Division (7505C), Office of Pesticide
Programs, Environmental Protection Agency, 401 M St., SW., Washington,
DC 20460. Office location, telephone number, and e-mail address: Rm.
204, CM #2, 1921 Jefferson Davis Highway, Arlington, VA 22202, (703)
305-6100, e-mail: [email protected].
SUPPLEMENTARY INFORMATION: EPA issued a notice published in the Federal
Register of July 13, 1994 (59 FR 35717), which announced that FMC
Corp., Agricultural Chemicals Group, 1735 Market St., Philadelphia, PA
19103, had submitted pesticide petition (PP) 4F4291 to EPA requesting
that the Administrator, pursuant to section 408(d) of the Federal Food,
Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a(d), establish tolerances
for the residues of the insecticide cypermethrin [()alpha-
cyano-(3-phenoxyphenyl) methyl()cis,trans-3-(2,2-
dichloroethenenyl)-2,2 dimethylcyclopropanecarboxylate], in or on the
brassica crop groups, head and stem brassicas at 2.0 parts per million
(ppm) and leafy brassicas at 14.0 ppm.
No comments were received in response to the notice of filing.
The data submitted in the petition and other relevant material have
been evaluated. The toxicological data considered in support of
tolerance for cypermethrin (PP 4F3011) are discussed in detail in the
Federal Register publication of October 20, 1993 (58 FR 54092).
A chronic dietary exposure analysis was performed using a Reference
Dose (RfD) of 0.01 mg/kg body weight/day based on a no-observed-effect-
level (NOEL) of 1.0 mg/kg body weight/day from an oral dosing study in
dogs and a 100-fold uncertainty factor. The endpoint of concern in this
study was gastrointestinal tract disturbance. Using tolerance level
residues and 100% crop treatment information, the Theoretical Maximum
Residue Contribution (TMRC) from established tolerances and the current
action is estimated at 3.7 x 10-3 mg/kg body weight/day and
utilizes 37% of the RfD for the US population. The TMRC for non-
hispanic others, the subgroup population most highly exposed, is
estimated at 7.2 x 10-3 mg/kg body weight/day and utilizes 72% of
the RfD. In general, EPA has no cause for concern if total chronic
dietary exposure for established and new tolerances is less than the
RfD.
The nature of cypermethrin residue in plants and animals for this
use is adequately understood. Since the available field residue studies
indicate that there will be low to non-detectable levels of the
metabolite DCVA (3-(2,2-dichloroethyenyl)-2,2 dimethyl-cyclopropane
carboxylic acid) in the terminal residues of some crops and the
toxicity of this metabolite is comparable to the parent compound, the
Agency has concluded that the tolerance expression regulate only the
parent compound cypermethrin and not the metabolite. This determination
is consistent with the International Codex Maximum Residue Limits for
cypermethrin, which includes only the parent compound and will
facilitate enforcement of the tolerance since the current FDA
Multiresidue Methods I and II can detect the parent compound but not
the metabolite. However, since there is a potential for low levels of
this metabolite in some crops, new crop field trials will be required
to include analyses for residues of the parent compound cypermethrin
and metabolite DCVA. The dietary risk assesment will be based on
residues of cypermethrin plus metabolite DCVA for crops with
quantifiable residues of the metabolite DCVA.
There is no reasonable expectation of secondary residues in animal
tissues and milk from this use, since no animal feed items are
associated with the brassica crop group. An adequate analytical method,
gas liquid chromatography with an electron capture detector, is
available for enforcement purposes. The enforcement methodology has
been submitted to the Food and Drug Administration and is published in
the Pesticide Analytical Manual Vol. II (PAM II).
There currently exists a separate tolerance in 40 CFR 180.418 for
cypermethrin on cabbage at 2.0 ppm. Since the current action is
establishing tolerances on the brassica crop group which includes
cabbage under the head and stem subgroup, the seperate cabbage
tolerance is being deleted.
The Agency issued a conditional registration for cypermethrin for
use on cotton with an expiration date of December 1, 1988 (see the
Federal Register of June 15, 1984 (49 FR 24684), January 9, 1985 (50 FR
1112), and September 27, 1985 (50 FR 39100)). This conditional
registration was subsequently amended to include pecans, lettuce,
cabbage and onions and extended to November 15, 1996. The conditional
registration was amended and extended to allow time for submission and
evaluation of additional environmental effects data. Due to the
conditional status of the registration, tolerances have been
established for cypermethrin on a temporary basis (until November 15,
1997) on cottonseed, pecans, lettuce, cabbage, onions, meat, fat and
meat byproducts of hogs, horses, cattle, goats, sheep and milk to cover
residues expected to be present from use during the period of
conditional registration. To be consistent with the current conditional
registration status for cypermethrin, the Agency is establishing
tolerances for the brassica crop groups with an expiration date of
November 15, 1997, to cover residues expected to be present during the
period of conditional registration.
Residues remaining in or on the above commodities after expiration
of these tolerances will not be considered actionable if the pesticide
is legally applied during the term of and in accordance with provisions
of the conditional registration.
There are presently no actions pending against the continued
registration of this chemical.
This pesticide is considered useful for the purposes for which the
tolerance is sought. Based on the information and data considered, the
Agency has determined that the tolerances established by amending 40
CFR part 180 will protect the public health. Therefore, these
tolerances are established as set forth below.
Any person adversely affected by this regulation may, within 30
days after publication of this document in the Federal Register, file
written objections to the regulation and may also request a hearing on
those objections. Objections and hearing requests must be filed with
the Hearing Clerk, at the address given above (40 CFR 178.20). A copy
of the objections and/or hearing requests filed with the Hearing Clerk
should be submitted to the OPP docket for this rulemaking. The
objections submitted must specify the provisions of the regulation
deemed objectionable and the grounds for the objections (40
[[Page 39891]]
CFR 178.25). Each objection must be accompanied by the fee prescribed
by 40 CFR 180.33(i). If a hearing is requested, the objections must
include a statement of the factual issue(s) on which a hearing is
requested, the requestor's contentions on such issues, and a summary of
any evidence relied upon by the objector (40 CFR 178.27). A request for
a hearing will be granted if the Administrator determines that the
material submitted shows the following: There is genuine and
substantial issue of fact; there is a reasonable possibility that
available evidence identified by the requestor would, if established,
resolve one or more of such issues in favor of the requestor, taking
into account uncontested claims or facts to the contrary; and
resolution of the factual issue(s) in the manner sought by the
requestor would be adequate to justify the action requested (40 CFR
178.32).
A record has been established for this rulemaking under the docket
number [PP4F4291/R2265] (including any comments and data submitted
electronically). A public version of this record, including printed,
paper versions of electronic comments, which does not include any
information claimed as CBI, is available for inspection from 8 a.m. to
4:30 p.m., Monday through Friday, excluding legal holidays. The public
record is located in Room 1132 of the Public Response and Program
Resources Branch, Field Operations Division (7505C), Office of
Pesticide Programs, Environmental Protection Agency, Crystal Mall #2,
1921 Jefferson Davis Highway, Arlington, VA.
The official record for this rulemaking, as well as the public
version, as described above will be kept in paper form. Accordingly,
EPA will transfer any copies of objections and hearing requests
received electronically into printed paper form as they are received
and will place the paper copies in the official rulemaking record which
will also include all comments submitted directly in writing. The
official rulemaking record is the paper record maintained at the
address in ``ADDRESSES'' at the beginning of this document.
Under Executive Order 12866 (58 FR 51735, October 4, 1993), the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to all the requirements of the Executive Order
(i.e., Regulatory Impact Analysis, review by the Office of Management
and Budget (OMB)). Under section 3(f), the order defines
``significant'' as those actions likely to lead to a rule: (1) Having
an annual effect on the economy of $100 million or more, or adversely
and materially affecting a sector of the economy, productivity,
competition, jobs, the environment, public health or safety, or State,
local or tribal governments or communities (also known as
``economically significant''); (2) creating serious inconsistency or
otherwise interfering with an action taken or planned by another
agency; (3) materially altering the budgetary impacts of entitlement,
grants, user fees, or loan programs; or (4) raising novel legal or
policy issues arising out of legal mandates, the President's
priorities, or the principles set forth in this Executive Order.
Pursuant to the terms of this Executive Order, EPA has determined
that this rule is not ``significant'' and is therefore not subject to
OMB review.
Pursuant to the requirements of the Regulatory Flexibility Act,
under section 801(a) (1) (A) of the Administrative Procedure Act (APA)
as amended by the Small Business Regulatory Enforcement Fairness Act of
1996, (Pub. L. 104-121, 110 Stat. 847), EPA submitted a report
containing this rule and other required information to the U.S. Senate,
the U.S House of Representatives and the Comptroller General of the
General Accounting Office prior to publication of the rule in today's
Federal Register. This rule is not a ``major rule'' as defined by
section 804(2) of the APA as amended (5 U.S.C. 601-612), the
Administrator has determined that regulations establishing new
tolerances or raising tolerance levels or establishing exemptions from
tolerance requirements do not have a significant economic impact on a
substantial number of small entities. A statement explaining the
factual basis for this certification was published in the Federal
Register of May 4, 1981 (46 FR 24950).
In addition, this action does not impose any enforceable duty, or
contain any ``unfunded mandates'' as described in Title II of the
Unfunded Reform Act of 1995 (Pub. L. 104-4), or require prior
consultation as specified by Executive Order 12875 (58 FR 58093,
October 28,1993), entitled Enhancing the Intergovernmental Partnership,
or special considerations as required by Executive Order 12898 (59 FR
7629, February 16, 1994).
List of Subjects in 40 CFR Part 180
Environmental protection, Administrative practice and procedure,
Agricultural commodities, Pesticides and pests, Reporting and
recordkeeping requirements.
Dated: July 25, 1996.
Daniel M. Barolo,
Director, Office of Pesticide Programs.
Therefore, 40 CFR part 180 is amended as follows:
PART 180--[AMENDED]
1. The authority citation for part 180 continues to read as
follows:
Authority: 21 U.S.C. 346a and 371.
2. By amending Sec. 180.418 in the table therein, by removing the
entry for cabbage and by adding and alphabetically inserting the
following raw agricultural commodities to read as follows:
Sec. 180.418 Cypermethrin; tolerances for residues.
* * * * *
------------------------------------------------------------------------
Parts per
Commodities million
------------------------------------------------------------------------
Brassica head and stem..................................... 2.0
* * * * *
Leafy brassica............................................. 14.0
* * * * *
------------------------------------------------------------------------
[FR Doc. 96-19458 Filed 7-30-96; 8:45 am]
BILLING CODE 6560-50-F
Complete official Federal Register PDF
FR Doc. 96-19452 Di-(2-ethylhexyl) Adipate; Toxic Chemical Release Reporting; Community Right-to-Know
[Federal Register Volume 61, Number 148 (Wednesday, July 31, 1996)]
[Rules and Regulations]
[Pages 39891-39894]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19452]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 372
[OPPTS-400095A; FRL-5389-6]
Di-(2-ethylhexyl) Adipate; Toxic Chemical Release Reporting;
Community Right-to-Know
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: EPA is deleting di-(2-ethylhexyl) adipate (DEHA) (CAS No. 103-
23-1), also known as bis(2-ethylhexyl) adipate, from the list of
chemicals subject to reporting requirements under section 313 of the
Emergency Planning and Community Right-to-Know Act of 1986 (EPCRA) and
section 6607 of the Pollution Prevention Act of 1990 (PPA).
Specifically, EPA is deleting DEHA because the Agency has concluded
that DEHA meets the deletion criteria of EPCRA section 313(d)(3). By
promulgating this rule, EPA is relieving facilities of their obligation
to report releases of and other waste management information on DEHA
that occurred during the 1995 reporting year, and for activities in the
future.
[[Page 39892]]
EFFECTIVE DATE: This rule is effective July 31, 1996.
FOR FURTHER INFORMATION CONTACT: Daniel R. Bushman, Acting Petitions
Coordinator, 202-260-3882, e-mail: [email protected], for
specific information on this final rule, or for more information on
EPCRA section 313, the Emergency Planning and Community Right-to-Know
Information Hotline, Environmental Protection Agency, Mail Stop 5101,
401 M St., SW., Washington, DC 20460, Toll free: 1-800-535-0202, in
Virginia and Alaska: 703-412-9877, or Toll free TDD: 1-800-553-7672.
SUPPLEMENTARY INFORMATION:
I. Introduction
A. Affected Entities
Entities potentially affected by this action are those which
manufacture, process, or otherwise use di-(2-ethylhexyl) adipate (DEHA)
and which are subject to the reporting requirements of section 313 of
the Emergency Planning and Community Right-to-Know Act of 1986 (EPCRA),
42 U.S.C. 11023 and section 6607 of the Pollution Prevention Act of
1990 (PPA), 42 U.S.C. 13106. Some of the affected categories and
entities include:
------------------------------------------------------------------------
Examples of affected
Category entities
------------------------------------------------------------------------
Industry Facilities that compound,
shape, or manufacture
plastic and rubber
products. Metal working
industries including
foundries, automotive
plants, coating and
engraving shops, and metal
products companies. Firms
that formulate or produce
adhesives and sealants;
lubricants for jet engines;
pharmaceuticals, perfumes,
and cosmetics; and other
organic chemicals.
------------------------------------------------------------------------
Federal Government Federal Agencies that
manufacture, process, or
otherwise use DEHA.
------------------------------------------------------------------------
This table is not meant to be exhaustive, but rather provides a
guide for readers regarding entities likely to be affected by this
action. This table lists the types of entities that EPA is now aware
could potentially be affected by this action. Other types of entities
not listed in the table could also be affected. To determine whether
your facility is affected by this action, you should carefully examine
the applicability criteria in part 372 subpart B of Title 40 of the
Code of Federal Regulations.
B. Statutory Authority
This action is taken under sections 313(d) and (e)(1) of EPCRA.
EPCRA is also referred to as Title III of the Superfund Amendments and
Reauthorization Act (SARA) of 1986 (Pub. L. 9909-499).
C. Background
Section 313 of EPCRA requires certain facilities manufacturing,
processing, or otherwise using listed toxic chemicals to report their
environmental releases of such chemicals annually. Beginning with the
1991 reporting year, such facilities must also report pollution
prevention and recycling data for such chemicals, pursuant to section
6607 of PPA. Section 313 of EPCRA established an initial list of toxic
chemicals that was comprised of more than 300 chemicals and 20 chemical
categories. DEHA was included in the initial list of chemicals and
chemical categories. Section 313(d) authorizes EPA to add chemicals to
or delete chemicals from the list, and sets forth criteria for these
actions. Under section 313(e)(1), any person may petition EPA to add
chemicals to or delete chemicals from the original statutory list.
Pursuant to EPCRA section 313(e)(1), EPA must respond to petitions
within 180 days either by initiating a rulemaking or by publishing an
explanation of why the petition has been denied.
EPA issued a statement of petition policy and guidance in the
Federal Register of February 4, 1987 (52 FR 3479), to provide guidance
regarding the recommended content and format for petitions. On May 23,
1991 (56 FR 23703), EPA issued a statement of policy and guidance
regarding the recommended content of petitions to delete individual
members of the section 313 metal compounds category. EPA has published
a statement clarifying its interpretation of the section 313(d)(2) and
(3) criteria for adding and deleting chemicals from the section 313
toxic chemical list (59 FR 61439, November 30, 1994) (FRL-4922-2).
II. Description of Petition and Proposed Action
On January 18, 1995, EPA received a petition from the Chemical
Manufacturers Association (CMA) to exclude DEHA from the EPCRA section
313 list of toxic chemicals. Specifically, the petition requests that
DEHA be deleted from the list of reportable chemicals and not be
subject to the annual reporting requirements under EPCRA section 313
and section 6607 of PPA. The petitioner contends that DEHA should be
deleted from the EPCRA section 313 list because it does not meet any of
the EPCRA section 313(d)(2) criteria.
Following a review of the petition, EPA granted the petition and
issued a proposed rule in the Federal Register of August 1, 1995 (60 FR
39132) (FRL-4958-8), proposing to delete DEHA from the list of toxic
chemicals subject to the reporting requirements under EPCRA section
313. EPA's proposal was based on its preliminary conclusion that DEHA
meets the EPCRA section 313(d)(3) criteria for deletion from the list.
With respect to deletions, EPCRA provides at section 313(d)(3) that
``[a] chemical may be deleted if the Administrator determines there is
not sufficient evidence to establish any of the criteria described in
paragraph [(d)(2)(A)-(C)].'' In the proposed rule, EPA preliminarily
concluded that the available toxicological data indicates that DEHA
does not cause adverse acute human health effects at concentration
levels that are reasonably likely to exist beyond facility site
boundaries, and causes systemic, developmental, and reproductive
toxicities only at relatively high doses and thus has low chronic
toxicity. Furthermore, EPA preliminarily concluded that DEHA does not
pose a significant hazard to the environment. EPA also preliminarily
concluded that releases of DEHA will not result in exposures of
concern. Therefore, EPA preliminarily concluded that based on the total
weight of available data, DEHA cannot reasonably be anticipated to
cause a significant adverse effect on human health or the environment.
III. Final Rule and Rationale for Delisting
In response to the petition from CMA, EPA is deleting DEHA from the
list of chemicals for which reporting is required under section 313 of
EPCRA and PPA section 6607. EPA is delisting this chemical because the
Agency has determined that DEHA satisfies the delisting criteria of
EPCRA section 313(d)(3).
A. Response to Comments
EPA received three comments in response to the proposed rule. All
three of the commenters noted their support for the deletion of DEHA
from the EPCRA section 313 list. EPA agrees with the commenters that
DEHA satisfies the criterion for delisting.
[[Page 39893]]
B. Rationale for Delisting and Conclusions
EPA has concluded that the assessment set out in the proposed rule
should be affirmed. Because of questions raised recently about the
ability of DEHA to produce hormone disruption, EPA has looked at this
issue. EPA is aware of limited and preliminary in vitro data indicating
that DEHA reduced the binding of the tritiated natural estrogen,
17-estradiol, to the rainbow trout estrogen receptor (Ref. 1).
However, these results were obtained only at high concentrations and
indicated that DEHA's potential binding activity is very weak compared
to the estradiol. In addition, EPA is not aware of any data that
demonstrate that DEHA produces estrogenic effects in vivo. The in vivo
toxicity data on DEHA, discussed below, also indicate that DEHA is a
weak developmental and reproductive toxicant. However, at this time,
there is no indication that these effects are due to binding to the
estrogen receptor. Accordingly, EPA has determined that there is
insufficient evidence, at this time, to demonstrate that DEHA causes
hormone disruption. In summary, based on the total weight of available
data, EPA has concluded that DEHA cannot reasonably be anticipated to
cause a significant adverse effect on human health or the environment,
and therefore DEHA meets the delisting criterion of section 313(d)(3).
A more detailed discussion of the rationale for delisting is given in
the proposed rule (August 1, 1995, 60 FR 39134) (FRL-4958-8).
Based on current data, EPA concludes that DEHA does not meet the
toxicity criterion of EPCRA section 313(d)(2)(A) because DEHA exhibits
acute oral toxicity only at levels that greatly exceed estimated
exposures outside the facility. Specifically, DEHA cannot reasonably be
anticipated to cause ``. . . significant adverse acute human health
effects at concentration levels that are reasonably likely to exist
beyond facility site boundaries as a result of continuous, or
frequently recurring, releases.''
EPA has concluded that there is not sufficient evidence to
establish that DEHA meets the criterion of EPCRA section 313(d)(2)(B).
The lowest-observed-adverse-effect-level (LOAEL) for systemic toxicity,
in rats, is 1,125 milligrams/kilogram/day (mg/kg/day) for both chronic
and 13-week studies. In mice, the LOAELs ranged from 2,800 mg/kg/day
(chronic study) to 900 mg/kg/day (13-week study). Also, based on
limited data, the LOAEL for developmental toxicity is 1,080 mg/kg/day
and the no-observed-adverse-effect-level (NOAEL) is 170 mg/kg/day.
Based on limited data, the LOAEL and NOAEL for reproductive toxicity
are 1,080 and 170 mg/kg/day. EPA has no information indicating that
DEHA causes any other section 313(d)(2)(B) effects. EPA considers the
above doses where DEHA caused adverse effects to be relatively high and
concludes that DEHA has low chronic toxicity. Therefore, EPA conducted
an exposure assessment for chronic human exposure and found that
exposures at the estimate levels are not likely to result in adverse
health risks in humans. EPA has estimated that releases of DEHA will
not result in exposures of concern. Therefore, EPA has concluded that
DEHA does not meet the EPCRA section 313(d)(2)(B) listing criterion.
EPA has also concluded that DEHA does not meet the toxicity
criterion of EPCRA section 313(d)(2)(C) because it cannot reasonably be
anticipated to cause adverse effects on the environment of sufficient
seriousness to warrant continued reporting. EPA considers DEHA to
exhibit low toxicity to aquatic organisms. Based on structure activity
relationships (SARs), no toxic effects are anticipated for both
freshwater and saltwater species at saturation. For sediment species,
acute and chronic toxicity are expected to occur only at high
concentrations: 1,000 and 100 mg/kg (dry weight), respectively.
Therefore, DEHA is not expected to pose a significant hazard to the
environment.
Thus, in accordance with EPCRA section 313(d)(3), EPA is deleting
DEHA from the section 313 list of toxic chemicals. Today's action is
not intended, and should not be inferred, to affect the status of DEHA
under any other statute or program other than the reporting
requirements under EPCRA section 313 and PPA section 6607.
IV. Effective Date
This action becomes effective July 31, 1996. Thus, the last year in
which facilities had to file a Toxics Release Inventory (TRI) report
for DEHA was 1995, covering releases and other activities that occurred
in 1994.
EPCRA section 313(d)(4) provides that ``[a]ny revision'' to the
section 313 list of toxic chemicals shall take effect on a delayed
basis. EPA interprets this delayed effective date provision to apply
only to actions that add chemicals to the section 313 list. For
deletions, EPA may, in its discretion, make such actions immediately
effective. An immediate effective date is authorized, in these
circumstances, under 5 U.S.C. section 553(d)(1) because a deletion from
the section 313 list relieves a regulatory restriction.
EPA believes that where the Agency had determined, as it has with
this chemical, that a chemical does not satisfy any of the criteria of
section 313(d)(2)(A)-(C), no purpose is served by requiring facilities
to collect data or file TRI reports for that chemical, or, therefore,
by leaving that chemical on the section 313 list for any additional
period of time. This construction of section 313(d)(4) is consistent
with previous rules deleting chemicals from the section 313 list. For
further discussion of the rationale for immediate effective dates for
EPCRA section 313 delistings, see 59 FR 33205 (June 28, 1994).
V. Rulemaking Record
The record supporting this final rule is contained in docket
control number OPPTS-400095A. All documents, including an index of the
docket and the reference listed in Unit VI. of this preamble, are
available in the TSCA Nonconfidential Information Center (NCIC), also
known as, TSCA Public Docket Office, from 12 noon to 4 p.m., Monday
through Friday, excluding legal holidays. TSCA NCIC is located at EPA
Headquarters, Rm. NE-B607, 401 M St., SW., Washington, DC 20460.
VI. References
1. Jobling, S., Reynolds, T., White, R., Parker, M. G., Sumpter, J.
P., ``A Variety of Environmentally Persistent Chemicals, Including Some
Phthalate Plasticizers Are Weakly Estrogenic,'' Environmental Health
Perspectives, 103, (1995), pp. 582-587.
VII. Regulatory Assessment Requirements
It has been determined that this action is not a ``significant
regulatory action'' within the meaning of Executive Order 12866 (58 FR
51735, October 4, 1993), because this action eliminates an existing
regulatory requirement. The Agency estimates the total cost savings to
industry from this action to be approximately $322,620 and the savings
to EPA would be approximately $8,664.
This action does not impose any Federal mandate on State, local or
tribal governments or the private sector within the meaning of the
Unfunded Mandates Reform Act of 1995 (Pub. L. 1041). Also, given its
deregulatory nature, I hereby certify pursuant to the Regulatory
Flexibility Act (5 U.S.C. 605(b)), that this action does not have a
significant economic impact on a substantial number of small entities.
As required, information to this effect has been
[[Page 39894]]
forwarded to the Small Business Administration.
This action does not have any information collection requirements
subject to the provisions of the Paperwork Reduction Act of 1980, 44
U.S.C. 3501 et seq. The elimination of the information collection
components for this action is expected to result in the elimination of
6,383 paperwork reduction hours.
In addition, pursuant to Executive Order 12898 (59 FR 7629,
February 16, 1994), entitled ``Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations,'' the
Agency has determined that there are no environmental justice-related
issues with regard to this action since this final rule simply
eliminates reporting requirements for a chemical that, under the
criteria of EPCRA section 313, does not pose a concern for human health
or the environment.
Under 5 U.S.C. 801(a)(1)(A) of the Administrative Procedure Act
(APA) as amended by the Small Business Regulatory Enforcement Fairness
Act of 1996 (Title II of Pub. L. 104-121, 110 Stat. 847), EPA submitted
a report containing this rule and other required information to the
U.S. Senate, the U.S. House of Representatives and the Comptroller
General of the General Accounting Office prior to publication of the
rule in today's Federal Register. This rule is not a ``major rule'' as
defined by 5 U.S.C. 804(2) of the APA as amended.
List of Subjects in 40 CFR Part 372
Environmental protection, Community right-to-know, Reporting and
recordkeeping requirements, and Toxic chemicals.
Dated: July 25, 1996.
Lynn R. Goldman,
Assistant Administrator for Prevention, Pesticides and Toxic
Substances.
Therefore, 40 CFR part 372 is amended as follows:
1. The authority citation for part 372 continues to read as
follows:
Authority: 42 U.S.C. 11023 and 11048.
Sec. 372.65 [Amended]
2. Sections 372.65(a) and (b) are amended by removing the entry for
bis(2-ethylhexyl) adipate under paragraph (a) and the entire CAS number
entry for 103-23-1 under paragraph (b).
[FR Doc. 96-19452 Filed 7-31-96; 8:45 am]
BILLING CODE 6560-50-F
Complete official Federal Register PDF
FR Doc. 96-19440 Clean Air Act Final Interim Approval Of Operating Permits Program: The U.S. Virgin Islands
[Federal Register Volume 61, Number 148 (Wednesday, July 31, 1996)]
[Rules and Regulations]
[Pages 39881-39883]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19440]
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[[Page 39882]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70
[VI001; FRL-5544-8]
Clean Air Act Final Interim Approval Of Operating Permits
Program: The U.S. Virgin Islands
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final interim approval.
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SUMMARY: The EPA is promulgating interim approval of the operating
permits program submitted by the U.S. Virgin Islands for the purpose of
complying with Federal requirements which mandate that States develop,
and submit to EPA, programs for issuing operating permits to all major
stationary sources, and to certain other sources.
EFFECTIVE DATE: This program will be effective August 30, 1996.
ADDRESSES: Copies of the State's submittal and other supporting
information used in developing the final interim approval as well as
the Technical Support Document are available for inspection during
normal business hours at the following locations:
EPA Region II, 290 Broadway, 25th Floor, New York, New York 10007-
1866, Attention: Steven C. Riva.
EPA Region II, Caribbean Field Office, Centro Europa Building,
Suite 417, 1492 Ponce de Leon Avenue, Stop 22, San Juan, Puerto Rico
00907-4127, Attention: Jose Ivan Guzman.
The U.S. Virgin Islands Department of Planning and Natural
Resources (VIDPNR), Division of Environmental Protection, Building 111,
Apartment 14A, Water Gut Homes, Christainsted, St. Croix, U.S. Virgin
Islands 00820, Attention: Leonard Reed.
FOR FURTHER INFORMATION CONTACT: Umesh Dholakia, Permitting and Toxics
Support Section, at the above EPA office in New York or at telephone
number (212) 637-4023. Jose Ivan Guzman of the Caribbean Field Office
can be reached at (809) 729-6951, extension 223.
SUPPLEMENTARY INFORMATION:
I. Background and Purpose
Title V of the Clean Air Act (``the Act''), and implementing
regulations at 40 Code of Federal Regulations (CFR) part 70 require
that States develop and submit operating permits programs to the EPA by
November 15, 1993, and that the EPA act to approve or disapprove each
program within one year after receiving the submittal. The EPA's
program review occurs pursuant to section 502 of the Act and the part
70 regulations, which together outline criteria for approval or
disapproval. If a state does not have an approved program by two years
after the November 15, 1993 date, EPA must establish and implement a
Federal program.
On January 25, 1996, the EPA proposed approval of the Operating
Permits Program submitted for the Virgin Islands. (See 61 FR 2216). No
comment was received on the Proposed Approval Notice. In this notice,
the EPA is taking final action to promulgate interim approval of the
Operating Permits Program for the Virgin Islands.
II. Final Action and Implications
A. Analysis of State Submission
On January 25, 1996, the EPA proposed full approval of VIDPNR's
Title V Operating Permits Program. The proposed approval required that
the VIDPNR correct the wording errors in its legislation prior to
receiving final full approval. The Virgin Islands has not corrected
those errors. However, EPA believes that these wording errors were
accidental and do not reflect the intent of the legislation. The Virgin
Islands' Rules and Regulations, Air Pollution Control, Title 12,
Chapter 9, Subchapters 204 and 206, are based on the intent reflected
in the legislation and in accordance with part 70. In addition, the
program elements discussed in the proposal notice are unchanged from
the analysis in the Final Interim Approval Notice and continue to fully
meet the requirements of 40 CFR part 70.
B. Options for Approval/Disapproval
1. Title V Operating Permit Program
The EPA is promulgating interim approval of the Operating Permits
Program submitted to the EPA by the VIDPNR on November 18, 1993 with
supplemental packages through June 9, 1995. Among other things, the
VIDPNR has demonstrated that the program substantially meets the
minimum requirements for a state operating permit program as specified
in 40 CFR part 70. This interim approval extends until August 31, 1998.
Under the approved interim operating permit program, VIDPNR is allowed
to issue federally enforceable operating permits to all major
stationary sources and to certain other sources for the duration of
this approval. During this interim approval period, the Virgin Islands
is protected from sanctions, and EPA is not obligated to promulgate,
administer and enforce a federal operating permit program in Virgin
Islands. Permits issued under a program with interim approval have full
standing with respect to part 70, and the 1-year time period for
submittal of permit applications by subject sources begins upon the
effective date of this interim approval, as does the 3-year time period
for processing the initial permit applications. In order to ensure that
a fully approved program will be in place by the expiration date of the
interim approval, Virgin Islands must submit a modified program to EPA
by February 27, 1998 that addresses the following wording errors in the
Virgin Islands' legislation (Act No. 6011 signed into law September 2,
1994):
(1) Section 212(a) states that ``No rule or regulation and no
amendment * * * shall take effect AFTER public comment and/or hearing
on due notice as provided herein''. The word ``after'' should be
replaced by the word ``without''.
(2) Section 205 (a), (b)(1) and (2)--replace ``chapter'' with
``with respect to Part 70 permit program''.
(3) Section 215 (a)--delete ``compliance order'' and replace with
``notice of violation'' after ``Commissioner is authorized to issue..''
(4) Section 215 (b)(3)--There should be an additional sentence
following ``$250,000''. ``The assessment of any administrative fine in
excess of $250,000 may be enforced by the commencement of a civil
action by the Attorney General pursuant to the Virgin Islands Law''.
If Virgin Islands (VI) fails to submit a complete corrective
program for full approval by February 27, 1998, EPA will start an 18-
month clock for mandatory sanctions. If VI then fails to submit a
complete corrective program before the expiration of that 18-month
period, EPA will apply sanctions as required by Section 502(d)(2) of
the Act, which will remain in effect until EPA determines that VI has
corrected the deficiencies by submitting a complete corrective program.
If EPA disapproves VI's complete corrected program, EPA will apply
sanctions as required by Section 502(d)(2) on the date 18 months after
the effective date of the disapproval, unless prior to that date, VI
has submitted a revised program and EPA has determined that it
corrected the deficiencies that prompted the disapproval.
In addition, discretionary sanctions may be applied where warranted
any time after the expiration of an interim approval period if VI has
not timely submitted a complete corrective program or EPA has
disapproved its submitted corrective program. Moreover, if EPA has not
granted full approval to the VI program by the
[[Page 39883]]
expiration of this interim approval, EPA must promulgate, administer
and enforce a federal operating permit program for the Virgin Islands
upon interim approval expiration.
2. Program for Delegation of Section 112 Standards as Promulgated
The requirements for approval, specified in 40 CFR 70.4(b),
encompass section 112(l)(5) requirements for approval of a program for
delegation of section 112 standards as promulgated by the EPA as they
apply to part 70 sources. Section 112(l)(5) requires that the State's
program contain adequate authorities, adequate resources for
implementation, an expeditious compliance schedule, and adequate
enforcement ability, which are also requirements under part 70. In a
letter dated May 30, 1995, VIDPNR requested delegation through 112(l)
of all existing 112 standards and all future 112 standards for both
part 70 and non-part 70 sources and infrastructure programs. In the
letter, VIDPNR demonstrated that they have sufficient legal
authorities, adequate resources, the capability for automatic
delegation of future standards, and adequate enforcement ability for
implementation of section 112 of the Act for both part 70 sources and
non-part 70 sources. Therefore, the EPA is also promulgating approval
under section 112(l)(5) and 40 CFR 63.91 to Virgin Islands for its
program mechanism for receiving delegation of all existing and future
section 112(d) standards for both part 70 and non-part 70 sources, and
section 112 infrastructure programs that are unchanged from Federal
rules as promulgated.
III. Administrative Requirements
A. Docket
Copies of the State's submittal and other information relied upon
for the final interim approval are contained in the docket maintained
at the EPA Regional Offices in New York and Puerto Rico and at VIDPNR.
The docket is an organized and complete file of all the information
submitted to, or otherwise considered by, EPA in the development of
this final interim approval. The docket is available for public
inspection at the location listed under the ADDRESSES section of this
document.
B. Executive Order 12866
The Office of Management and Budget has exempted this action from
Executive Order 12866 review.
C. Regulatory Flexibility Act
The EPA's actions under section 502 of the Act do not create any
new requirements, but simply address operating permits programs
submitted to satisfy the requirements of 40 CFR part 70. Because this
action does not impose any new requirements, it does not have a
significant impact on a substantial number of small entities.
D. Unfunded Mandates
Under Section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, the EPA
must prepare a budgetary impact statement to accompany any proposed or
final rule that includes a Federal mandate that may result in annual
estimated costs to State, local, or tribal governments in the
aggregate, or to the private sector, of $100 million or more. Under
Section 205, the EPA must select the most cost-effective and least
burdensome alternative that achieves the objectives of the rule and is
consistent with statutory requirements. Section 203 of the Unfunded
Mandates Act requires the EPA to establish a plan for informing and
advising any small governments that may be significantly or uniquely
impacted by the rule.
The EPA has determined that the approval action promulgated today
does not include a Federal mandate that may result in annual estimated
costs of $100 million or more to either State, local, or tribal
governments in the aggregate, or to the private sector. This Federal
action approves pre-existing requirements under State or local law, and
imposes no new Federal requirements. Accordingly, no additional costs
to State, local, or tribal governments, or to the private sector,
result from this action.
E. Submission to Congress and the General Accounting Office
Under section 801(a)(1)(A) of the Administrative Procedure Act
(APA) as amended by the Small Business Regulatory Enforcement Fairness
Act of 1996, EPA submitted a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives and the Comptroller General of the General Accounting
Office prior to publication of this rule in today's Federal Register.
This rule is not a ``major rule'' as defined by section 804(2) of the
APA as amended.
List of Subjects in 40 CFR Part 70
Environmental protection, Administrative practice and procedure,
Air pollution control, Intergovernmental relations, Operating permits,
Reporting and recordkeeping requirements.
Dated: July 16, 1996.
Jeanne M. Fox,
Regional Administrator.
40 CFR part 70 is amended as follows:
PART 70--[AMENDED]
1. The authority citation for part 70 continues to read as follows:
Authority: 42 U.S.C. 7401, et seq.
2. Appendix A to part 70 is amended by adding the entry for Virgin
Islands in alphabetical order to read as follows:
Appendix A to part 70--Approval Status of State and Local Operating
Permits Programs
* * * * *
Virgin Islands
(a) The Virgin Islands Department of Natural Resources submitted an
operating permits program on November 18, 1993 with supplements through
June 9, 1995; interim approval effective on August 30, 1996.
(b) (Reserved)
* * * * * *
[FR Doc. 96-19440 Filed 7-30-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-19420 State and Local Jurisdictions Where a Federal Operating Permits Program Is Effective on July 31, 1996
[Federal Register Volume 61, Number 148 (Wednesday, July 31, 1996)]
[Rules and Regulations]
[Pages 39877-39881]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19420]
=======================================================================
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 55 and 71
[FRL-5545-1]
State and Local Jurisdictions Where a Federal Operating Permits
Program Is Effective on July 31, 1996
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of States and local jurisdictions subject to 40 CFR
parts 55 and 71.
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SUMMARY: On July 1, 1996, pursuant to title V of the Clean Air Act
(Act) as amended in 1990, EPA published a new regulation at 61 FR 34202
(codified as 40 CFR part 71) setting forth the procedures and terms
under which the Administrator will issue operating permits to covered
stationary sources. This rule, called the ``Part 71 rule,'' becomes
effective on July 31, 1996. In general, the primary responsibility for
issuing operating permits to sources rests with State, local, and
Tribal air agencies. However, EPA will administer a Federal operating
permits program in areas that lack an EPA-approved or adequately
administered operating permits program and in other limited situations.
The Federal operating permits program will serve as a ``safety net'' to
ensure that sources of air pollution are meeting their permitting
requirements under the Act. Federally-issued permits will meet the same
title V requirements as do state-issued permits. The purpose of this
document is to provide the names of those State and local jurisdictions
where a Federal operating permits program is effective on July 31,
1996.
FOR FURTHER INFORMATION CONTACT: Scott Voorhees at (919) 541-5348.
SUPPLEMENTARY INFORMATION:
I. Background, Authority and Purpose
Title V of the Act as amended in 1990 (42 U.S.C. 7661 et seq.)
directs States to develop, administer, and enforce operating permits
programs that comply with the requirements of title V (section
502(d)(l)). Section 502(b) of the Act requires that EPA promulgate
regulations setting forth provisions under which States develop
operating permits programs and submit them to EPA for approval.
Pursuant to this section, EPA promulgated 40 CFR part 70 on July 21,
1992 (57 FR 32250), which specifies the minimum elements of approvable
State operating permits programs.
Sections 502(d)(3) and 502(i)(4) of the Act require EPA to
promulgate a Federal operating permits program when a State does not
obtain approval of its program within the timeframe set by title V or
when a State fails to adequately administer and enforce an approved
program. The part 71 rule published on July 1, 1996 establishes a
national template for a Federal operating permits program that EPA will
administer and enforce in those situations. Part 71 also establishes
the procedures for issuing Federal permits to sources for which States
do not have jurisdiction (e.g., Outer Continental Shelf sources outside
of State jurisdictions and sources located in Indian Country over which
EPA or Indian Tribes have jurisdiction). In addition, part 71
establishes the procedures to be used when EPA must take action on a
permit that has been proposed or issued by an approved part 70
permitting authority but that EPA determines is not in compliance with
the applicable requirements of the Act. Finally, part 71 provides for
delegation of certain duties that may provide for a smoother program
transition when part 70 programs are approved.
This notice makes frequent use of the term ``State.'' This term
includes a State or a local air pollution control agency that would be
the permitting authority for a part 70 permit program. The term
``permitting authority'' can refer to State, local, or Tribal agencies
and may also apply to EPA, where the Agency is the permitting authority
of record.
II. Description of Action
The EPA is, by this notice, providing a list of State and local
jurisdictions where EPA will assume responsibility to issue permits,
effective as of July 31, 1996. Included are three U.S. territories
where EPA is assuming responsibility to issue permits to major sources
of hazardous air pollutants (HAP) and solid waste incinerators. The EPA
has received submittals from all 56 State and Territorial Agencies and
all 60 local programs. The EPA has already approved the majority of
operating permits programs, including 42 State
[[Page 39878]]
and 56 local programs. As a result, EPA expects that the impact of the
Federal operating permits rule will be minimal, affecting only a few
States that do not yet have approved programs in place. Moreover, EPA
expects that several of the States identified in this notice will have
their programs approved before significant resources would need to be
expended in implementing Federal programs in those States.
The EPA has worked closely with stakeholders, including
representatives from industry and environmental groups, and State and
local agencies, over the past 2 years to streamline and improve the
title V operating permits program. The EPA has proposed a series of
initiatives, including revisions to its part 70 operating permits rule
and two important guidance documents (``White Papers''), that EPA
expects will significantly streamline and simplify the process for
revising operating permits and other provisions of the program, and
reduce recordkeeping and reporting requirements.
The Federal operating permits rule also provides a mechanism for
improving air quality management in areas in Indian Country under the
jurisdiction of EPA or Indian Tribes, where tribal resources may be
unavailable to implement operating permits programs.
Section 71.5(b)(1) of part 71 provides that a timely application is
one that is submitted within 12 months or an earlier date after the
source becomes subject to the part 71 program. Because part 71 is
effective on July 31, 1996, sources are required to submit part 71
permit applications no later than July 31, 1997. Sources required to
submit applications earlier than 12 months will be notified in advance
by the permitting authority (whether it is EPA or a State in the case
of a delegated part 71 program) and given a reasonable time to submit
their applications. In no case will this notice be given less than 180
days in advance of the deadline for submittal of the application.
III. List of States and Local Jurisdictions
Connecticut--Connecticut submitted a complete program implementing
part 70 on September 28, 1995. The EPA's Region I is currently
reviewing the State's program and expects to propose approval of the
State's program in the near future. The reason for the delay in
proposing approval of Connecticut's title V program is due to the
State's innovative approach toward addressing some of the core areas of
a part 70 program. Until Connecticut's program receives EPA approval,
part 71 is effective in the State. Sources should continue to work with
the State in developing their title V applications. Although part 71
applications are due to be submitted to the permitting authority by
July 31, 1997 (and some may be due earlier if sources are informed of
such by EPA, or by Connecticut if EPA delegates administration of part
71 to the State), the part 71 application deadline will be superceded
by the State's part 70 application deadline if EPA finalizes approval
of Connecticut's part 70 program prior to the part 71 application
deadline. For further information on application due dates and details
about how to obtain and submit part 71 applications, contact Mr. Donald
Dahl, U.S. Environmental Protection Agency, Air Permits Unit, Mail
Code: CAP, J.F.K. Federal Building, Boston, MA 02203. Telephone: (617)
565-4298.
Maine--Maine submitted a complete program implementing part 70 on
October 23, 1995. The EPA's Region I is currently reviewing the State's
program and expects to propose approval in the near future. The reason
for the delay in proposing approval of Maine's title V program is due
to the State's implementing regulations which merge the part 70
program, new source review program, and an existing state licensing
program, together into one regulation. Until Maine's program receives
EPA approval, part 71 is effective in the State. If EPA is unable to
approve Maine's program within a reasonable time, EPA expects that the
part 71 Federal operating permits program will be delegated to Maine
for implementation. Once a delegation agreement is signed, a notice
announcing the delegation of a part 71 program to Maine will be
published in the Federal Register and widely-circulated newspapers in
the State of Maine. Under a delegation, the State will be able to use
its own application forms provided EPA finds that the State's
application form substantially meets the application information
requirements of part 71. Sources should continue to develop and submit
their completed applications to the Maine Department of Environmental
Protection.
Similarly, sources should continue to expect to pay permit fees to
Maine according to the State statute. Although part 71 applications are
due to be submitted to the permitting authority by July 31, 1997 (and
some may be due earlier if sources are informed of such by EPA, or by
Maine if EPA delegates administration of part 71 to the State), the
part 71 application deadline will be superceded by the State's part 70
application deadline if EPA finalizes approval of Maine's part 70
program prior to the part 71 application deadline. For further details
about how to obtain and submit Maine permit applications, contact Mr.
Marc Cone, Bureau of Air Quality Control, Maine Department of
Environmental Protection, 17 State House Station, Augusta, Maine,
04333-0017. Telephone: (207) 287-2437. For general information
regarding approval of Maine's part 70 program and the applicability and
implementation of part 71 in the State, contact Mr. Donald Dahl, U.S.
Environmental Protection Agency, Air Permits Unit, Mail Code: CAP,
J.F.K. Federal Building, Boston, MA 02203. Telephone: (617) 565-4298.
New Hampshire--New Hampshire submitted a complete program
implementing part 70 on October 26, 1995. The EPA's Region I is
currently reviewing the State's program and expects to propose approval
in the near future. The reason for the delay in proposing approval of
New Hampshire's part 70 program is due to determining the impact on the
State's part 70 program from the recently adopted State legislation
regarding audits. Until New Hampshire's program receives EPA approval,
part 71 is effective in the State. If EPA's Region I is unable to
approve New Hampshire's program within a reasonable time, EPA expects
that the part 71 Federal operating permits program will be delegated to
New Hampshire for implementation. Once a delegation agreement is
signed, a notice announcing the delegation of a part 71 program to New
Hampshire will be published in the Federal Register and widely-
circulated newspapers in the State of New Hampshire. Under a
delegation, the State will be able to use its own application forms
provided EPA finds that the State's application form substantially
meets the application information requirements of part 71. Sources
should continue to submit their applications to New Hampshire and
should continue to expect to pay permit fees according to the State
requirements. Although part 71 applications are due to be submitted to
the permitting authority by July 31, 1997 (and some may be due earlier
if sources are informed of such by EPA, or by New Hampshire if EPA
delegates administration of part 71 to the State), the part 71
application deadline will be superceded by the State's part 70
application deadline if EPA finalizes approval of New Hampshire's part
70 program prior to the part 71 application deadline. For further
information on New Hampshire permit applications, contact Mr.
[[Page 39879]]
Andrew Bodnarik, New Hampshire Air Resources Division, Department of
Environmental Services, 64 North Maine Street, Concord, New Hampshire
03302-2033. Telephone: (603) 271-1370. For general information
regarding approval of New Hampshire's part 70 program and the
applicability and implementation of part 71 in the State, contact Ms.
Ida Gagnon, U.S. Environmental Protection Agency, One Congress Street,
John F. Kennedy Federal Building, Boston, MA 02203-0001. Telephone:
(617) 565-3500.
Vermont--Vermont submitted a complete program implementing part 70
on April 28, 1995. The EPA's Region I proposed to grant interim
approval of Vermont's title V program on May 24, 1996 (See 61 FR 26145)
and expects to grant final interim approval of Vermont's program within
a reasonable time. However, until Vermont's program receives EPA
approval, part 71 is effective in the State. The part 71 Federal
operating permits program is expected to be delegated to Vermont for
implementation. Once a delegation agreement is signed, a notice
announcing the delegation of a part 71 program to Vermont will be
published in the Federal Register and widely-circulated newspapers in
the State of Vermont. Under a delegation, the State will be able to use
its own application forms provided EPA finds that the State's
application form substantially meets the application information
requirements of part 71. Sources should continue to submit their title
V applications to the State and continue to pay permit fees to Vermont
according to the State statute. Although part 71 applications are due
to be submitted to the permitting authority by July 31, 1997 (and some
may be due earlier if sources are informed of such by EPA, or by
Vermont if EPA delegates administration of part 71 to the State), the
part 71 application deadline will be superceded by the State's
application deadline if EPA finalizes approval of Vermont's part 70
program prior to the part 71 application deadline. For further
information on Vermont permit applications contact Mr. Brian
Fitzgerald, Air Pollution Control Division, Agency of Natural
Resources, Building 3 South, 103 South Main Street, Waterbury, VT
05676-1596. Telephone: (802) 241-3840. For general information
regarding approval of Vermont's part 70 program and the applicability
and implementation of part 71 in the State, contact Mr. Donald Dahl,
U.S. Environmental Protection Agency, Air Permits Unit, Mail Code: CAP,
J.F.K. Federal Building, Boston, MA 02203. Telephone: (617) 565-4298.
New York--New York submitted its complete part 70 permit program on
June 17, 1996 and the Attorney General's Opinion on June 27, 1996. The
EPA's Region II currently expects to propose approval of New York's
part 70 program submittal in July 1996 and grant a final approval in
October 1996. However, until New York's program receives EPA approval,
part 71 is effective in the State. If EPA's Region II is unable to
approve New York's program consistent with this time schedule, EPA
expects that the part 71 Federal operating permits program will be
delegated to New York for implementation. Once a delegation agreement
is signed, a notice announcing the delegation of a part 71 program to
New York will be published in the Federal Register and widely-
circulated newspapers around New York State. Sources will then utilize
New York's application form (using the two-phase application approach
developed by New York) and submit completed applications to the New
York State Department of Environmental Conservation. Similarly, sources
should continue to expect to pay permit fees to New York under the New
York State Clean Air Compliance Act signed into law by the Governor on
August 19, 1993. Although part 71 applications are due to be submitted
to the permitting authority by July 31, 1997 (and some may be due
earlier if sources are informed of such by EPA, or by New York if EPA
delegates administration of part 71 to the State), the part 71
application deadline will be superceded by the State's application
deadline if EPA finalizes approval of New York's part 70 program prior
to the part 71 application deadline. For further details about how to
obtain and submit New York permit applications, contact Mr. John
Higgins, New York State Department of Environmental Conservation, 50
Wolf Road, Albany, New York, 12233. Telephone: (518) 457-7688. For
general information regarding approval of New York's part 70 program
and the applicability and implementation of part 71 in the State,
contact Ms. Christine Fazio, U.S. Environmental Protection Agency, 290
Broadway, 25th Floor, New York, NY 10007-1866. Telephone: (212) 637-
4015.
Virginia--Virginia submitted its initial part 70 program to EPA on
November 12, 1993, which it later supplemented. In a Federal Register
notice published December 5, 1994 (59 Fed. Reg. 62324), EPA disapproved
this program due in part to the issue of standing to challenge final
permits in state court and several other issues. In early 1995 Virginia
submitted amendments to its original part 70 submittal which did not
address the standing issue, but which did address the other disapproval
issues. Virginia argued that its standing provisions were adequate and
that it had adequately addressed all other issues, and it asked EPA to
approve its amended submittal. In a Federal Register notice published
on September 19, 1995 (60 FR 48435), EPA again proposed to disapprove
Virginia's submittal, again because of the issue of standing, and also
because of certain additional new issues. Virginia has informed EPA
that it will revise its standing provisions to meet EPA's requirements
if the Federal Courts rule that Virginia's current standing provisions
are inadequate, and that it will be submitting additional amendments to
its part 70 program in an attempt to correct the program's other
deficiencies.
Until EPA approves a part 70 program for Virginia, part 71 is
effective in the State. Virginia has informed EPA that it will be
requesting that EPA delegate to it the authority to implement the
required part 71 program. Virginia's proposal will be that EPA adopt as
part 71 regulations for Virginia all those portions of Virginia's part
70 regulations that meet applicable requirements, and that EPA then
delegate to Virginia the authority to implement those regulations. The
EPA will consider this proposal and expects to grant it if EPA finds
that it is appropriate to adopt Virginia's regulation as a part 71
program for the State and that Virginia is eligible to receive such a
delegation. If EPA adopts Virginia's regulations as the part 71 program
for Virginia, it will do so through notice and comment rulemaking in
the Federal Register. Similarly, if EPA delegates the authority to
implement the part 71 program to Virginia, EPA will announce the
delegation in a Federal Register notice and in newspapers widely
circulated in Virginia. If EPA delegates to Virginia the authority to
implement a part 71 program, Virginia's sources would be required to
submit their permit applications to the Virginia Department of
Environmental Quality (VADEQ). In addition, sources would be required
to pay title V permit fees to Virginia. Sources would submit their
applications using forms supplied by the VADEQ, provided EPA finds
these forms substantially meet the application information requirements
of part 71. Sources are required to submit their part 71 applications
to the permitting
[[Page 39880]]
authority by July 31, 1997 (though sources may be required to submit
their applications earlier if they are informed of such by EPA, or by
Virginia if EPA delegates administration of part 71 to the State).
Sources should note that the part 71 application deadline will be
superseded by the State's part 70 application deadline if EPA finalizes
approval of Virginia's part 70 program prior to the part 71 application
deadline. Those wishing to obtain copies of the VADEQ's title V
application forms, to obtain information on application submittal
deadlines, and/or to obtain information on permit fees may contact Mr.
Robert Beasley, Virginia Department of Environmental Quality, P.O. Box
10009, Richmond, Virginia 23240-0009, telephone number (804) 698-4115.
For general information regarding approval of Virginia's part 70
program and the applicability and implementation of part 71 in the
State, contact Mr. Ray Chalmers, U.S. Environmental Protection Agency,
841 Chestnut Building, Philadelphia, PA 19107, telephone number (215)
566-2061.
Michigan--Michigan submitted a complete operating permits program
to EPA on July 20, 1995. The EPA proposed interim approval of
Michigan's part 70 program on June 24, 1996, and expects to finalize
the approval as soon as possible. Several programmatic and regulatory
issues have delayed EPA's rulemaking action on Michigan's program,
including issues related to the State's startup, shutdown, and
malfunction regulations, environmental audit privilege and immunity
law, and potential to emit exemptions. See 61 FR 32391-32398. However,
until Michigan's program receives EPA approval, part 71 is effective in
the State.
If EPA encounters significant delays in finalizing approval of
Michigan's part 70 program, EPA intends to work with the State to
delegate the part 71 program to Michigan. Such a delegation would
mitigate any transition issues, such as duplicate permit application
submittals and payment of fees, arising between the State permit
program and the Federal part 71 program. Although part 71 applications
are due to be submitted to the permitting authority by July 31, 1997
(and some may be due earlier if sources are informed of such by EPA, or
by Michigan if EPA delegates administration of part 71 to the State),
the part 71 application deadline will be superceded by the State's part
70 application deadline if EPA finalizes approval of Michigan's part 70
program prior to the part 71 application deadline. Any such delegation
to the State will be noticed in the Federal Register, along with
additional details regarding permit application and permit fee
requirements. For information regarding the status of Michigan's part
70 program approval, and the part 71 program in Michigan, contact Ms.
Beth Valenziano, EPA Region 5, 77 West Jackson Boulevard (AR-18J),
Chicago, IL 60604. Telephone: (312) 886-2703. E-mail:
[email protected].
Territory of American Samoa--In response to a petition from the
governor of American Samoa, the EPA's Region IX expects to
conditionally exempt the requirement for a title V operating permits
program under section 325(a) of the Act for American Samoa. In
addition, EPA expects to grant a conditional exemption from the
requirement to apply for a Federal title V operating permit under part
71, except for major sources of HAP under 112 and solid waste
incinerators under section 129(e), by August, 1996. The EPA proposed
the conditional exemption on September 13, 1995 (60 FR 47515) in
response to a claim of economic hardship and pristine air quality on
the island. It contains the condition that American Samoa adopt and
implement an EPA approved alternate program to permit major stationary
sources and protect the National Ambient Air Quality Standards (NAAQS).
Applications for major sources of HAP and solid waste incinerators
under part 71 are due to be submitted to the permitting authority by
July 31, 1997. The EPA intends to use part 71 application forms for
major sources of HAP and solid waste incinerators. Permit fees will be
paid to the U.S. Treasury. For further information, contact Ms. Sara
Bartholomew at (415) 744-1250, Operating Permits Section (A-5-2), Air
and Toxics Division, U.S. EPA-Region IX, 75 Hawthorne Street, San
Francisco, California 94105.
Arizona (all Agencies)--The State of Arizona (all agencies)
submitted complete operating permits programs to EPA in November 1993.
The EPA's Region IX proposed interim approval of the part 70 program
submitted by the State of Arizona which comprises programs from the
Arizona Department of Environmental Quality, the Maricopa County
Environmental Services Department, the Pima County Department of
Environmental Quality, and the Pinal County Air Quality Control
District on July 13, 1995. See 60 FR 36083. The EPA has not yet taken
final action to approve the Arizona program because of outstanding
issues related to provisions for excess emissions during startups,
shutdowns, malfunctions, and scheduled maintenance. In addition, the
Arizona Attorney General's Office is to submit additional information
to resolve other issues identified in the proposal before EPA finalizes
approval of the program. The excess emissions issue has been resolved
sufficiently to move forward with final action and EPA expects to
receive an addendum to the Attorney General's statement shortly. The
EPA's Region IX therefore expects to finalize interim approval of the
Arizona part 70 program submittal by September, 1996. Until EPA acts to
approve Arizona's program, part 71 is effective in the State. Sources
should continue to work with the State and its local agencies in
developing their title V applications and pay permit fees to Arizona
according to State requirements. Although part 71 applications are due
to be submitted to the permitting authority by July 31, 1997 (and some
may be due earlier if sources are informed of such by EPA, or by
Arizona if EPA delegates administration of part 71 to the State), the
part 71 application deadline will be superceded by the State's part 70
application deadline if EPA finalizes approval of Arizona's part 70
program prior to the part 71 application deadline. For further
information regarding approval of Arizona's part 70 program and the
implementation of part 71 in the State, contact Ms. Regina Spindler at
(415) 744-1251, Operating Permits Section (A-5-2), Air and Toxics
Division, U.S. EPA-Region IX, 75 Hawthorne Street, San Francisco,
California 94105.
Commonwealth of the Northern Mariana Islands (CNMI)--In response to
a petition from the governor of CNMI, the EPA's Region IX expects to
conditionally exempt the requirement for a title V operating permits
program under section 325(a) of the Act for CNMI. In addition, EPA
expects to grant a conditional exemption from the requirement to apply
for a Federal title V operating permit under part 71, except for major
sources of HAP under 112 and solid waste incinerators under 129(e), by
August, 1996. The EPA proposed the conditional exemption on September
13, 1995 (60 FR 47515) in response to a claim of economic hardship and
pristine air quality on the islands. It contains the condition that
CNMI adopt and implement an EPA approved alternate program to permit
major stationary sources and protect the National Ambient Air Quality
Standards (NAAQS). Applications for major sources of HAP and solid
waste incinerators under part 71 are due to be submitted to the
permitting authority by
[[Page 39881]]
July 31, 1997. The EPA intends to use part 71 application forms for
major sources of HAP and solid waste incinerators. Permit fees will be
paid to the U.S. Treasury. For further information, contact Ms. Sara
Bartholomew at (415) 744-1250, Operating Permits Section (A-5-2), Air
and Toxics Division, U.S. EPA-Region IX, 75 Hawthorne Street, San
Francisco, California 94105.
Territory of Guam--In response to a petition from the governor of
Guam, the EPA's Region IX expects to conditionally exempt the
requirement for a title V operating permits program under section
325(a) of the Act for Guam. In addition, EPA expects to grant a
conditional exemption from the requirement to apply for a Federal title
V operating permit under part 71, except for major sources of HAP under
112 and solid waste incinerators under 129(e), by August, 1996. The EPA
proposed the conditional exemption on September 13, 1995 (60 FR 47515)
in response to a claim of economic hardship and pristine air quality on
the island. It contains the condition that Guam adopt and implement an
EPA approved alternate program to permit major stationary sources and
protect the National Ambient Air Quality Standards (NAAQS).
Applications for major sources of HAP and solid waste incinerators
under part 71 are due to be submitted to the permitting authority by
July 31, 1997, except for major perchloroethylene dry cleaning
facilities, which are due by April 1, 1997. The EPA intends to use part
71 application forms for major sources of HAP and solid waste
incinerators. Permit fees will be paid to the U.S. Treasury. For
further information, contact Ms. Sara Bartholomew at (415) 744-1250,
Operating Permits Section (A-5-2), Air and Toxics Division, U.S. EPA-
Region IX, 75 Hawthorne Street, San Francisco, California 94105.
South Coast Air Quality Management District--The South Coast Air
Quality Management District's (SCAQMD or District) part 70 regulation
was adopted by the District's Governing Board on August 11, 1995. The
EPA has not yet taken action on the South Coast program in part because
the District has not submitted acceptable permit application forms. The
EPA and the District have been working together to resolve issues
concerning the application forms and it appears approvable forms will
be submitted in the very near future. The EPA therefore expects to
propose interim approval of the District's part 70 program submittal in
August, 1996 and grant final interim approval as early as October, but
no later than December, 1996. However, until EPA approves the
District's program, part 71 is effective in the District. If EPA is
unable to approve the SCAQMD's program consistent with this time
schedule, EPA expects that part 71 will be delegated to the District.
Once a delegation agreement is signed, a notice announcing the
delegation of a part 71 program will be published in the Federal
Register and widely circulated newspapers around the District. Provided
acceptable forms are developed, sources will then utilize the SCAQMD's
application forms, otherwise, EPA intends to use the part 71
application form. Sources will then submit completed applications to
the SCAQMD. Similarly, sources should continue to pay permit fees to
the SCAQMD under the District's Regulation III--Permit Fees. Although
part 71 applications are due to be submitted to the permitting
authority by July 31, 1997 (and some may be due earlier if sources are
informed of such by EPA, or by SCAQMD if EPA delegates administration
of part 71 to the State), the part 71 application deadline will be
superceded by the State's part 70 application deadline if EPA finalizes
approval of SCAQMD's part 70 program prior to the part 71 application
deadline. For further information on application due dates and details
about how to pick up and submit applications, contact Ms. Pang Mueller,
South Coast Air Quality Management District, 21865 E. Copley Drive,
Diamond Bar, California 91765-4182. Telephone: (909) 396-2433. For
general information regarding approval of South Coast's part 70 program
and the applicability and implementation of part 71 in the District,
contact Ms. Ginger Vagenas, U.S. Environmental Protection Agency, 75
Hawthorne Street, A-5-2, San Francisco, CA 94105. Telephone: (415) 744-
1252.
Alaska--The EPA received a complete permit program from Alaska on
June 5, 1995. The program has not yet been granted final approval
because the State requested that EPA delay action until permit program
revisions could be submitted to EPA. These revisions were formally
submitted to EPA on July 5, 1996 and EPA is currently reviewing them.
The Agency expects to propose interim program approval in August 1996,
with a final interim approval in September 1996. However, until
Alaska's program receives EPA approval, part 71 is effective in the
State. Although part 71 applications are due to the permitting
authority by July 31, 1997 (and some may be due earlier if sources are
informed of such by EPA, or by Alaska if EPA delegates administration
of part 71 to the State), the part 71 application deadline will be
superceded by the State's part 70 application deadline if EPA finalizes
approval of Alaska's part 70 program prior to the part 71 application
deadline. For further information on application due dates and details
on obtaining and submitting applications, contact Ms. Joan Cabreza,
U.S. Environmental Protection Agency, Office of Air Quality, OAQ-108,
1200 Sixth Avenue, Seattle, WA 98101. Telephone: (206) 553-8505.
Idaho--The EPA received a complete permit program from Idaho on
January 20, 1995. On October 27, 1995, the Agency proposed disapproval
of Idaho's program and, in the alternative, interim approval if Idaho
were to correct the proposed disapproval issues before EPA takes final
action on Idaho's submittal. See 60 FR 54990. The State has resubmitted
portions of its program in response to the proposed disapproval issues.
On June 17, 1996, the Agency published a supplemental notice
identifying additional audit and immunity provisions as interim
approval issues and also proposed approval of the State's air toxics
program under section 112(l) of the Act and delegation of the existing
National Emission Standards for Hazardous Air Pollutants. See 61 FR
30570. The Agency expects to take final action on the Idaho program as
soon as possible after the end of the 30 day public comment period on
the supplemental proposal. However, until Idaho's program receives
approval, part 71 is effective in the State. Sources should continue to
work directly with the State in submitting applications and paying fees
according to State requirements. Although part 71 applications are due
to the permitting authority by July 31, 1997 (and some may be due
earlier if sources are informed of such by EPA, or by Idaho if EPA
delegates administration of part 71 to the State), the part 71
application deadline will be superceded by the State's part 70
application deadline if EPA finalizes approval of Idaho's part 70
program prior to the part 71 application deadline. For further
information, contact Ms. Joan Cabreza, U.S. Environmental Protection
Agency, Office of Air Quality, OAQ-108, 1200 Sixth Avenue, Seattle, WA
98101. Telephone: (206) 553-8505.
Dated: July 29, 1996.
Richard Wilson,
Acting Assistant Administrator.
[FR Doc. 96-19420 Filed 7-30-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-19413 Defense Federal Acquisition Regulation Supplement; Comprehensive Subcontracting Plans
[Federal Register Volume 61, Number 148 (Wednesday, July 31, 1996)]
[Rules and Regulations]
[Pages 39900-39901]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19413]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
48 CFR Parts 219 and 252
[DFARS Case 96-D304]
Defense Federal Acquisition Regulation Supplement; Comprehensive
Subcontracting Plans
AGENCY: Department of Defense (DoD).
ACTION: Interim rule with request for comments.
-----------------------------------------------------------------------
SUMMARY: The Director of Defense Procurement has amended the Defense
Federal Acquisition Regulation Supplement (DFARS) to reflect revisions
made to the DoD Test Program for Negotiation of Comprehensive Small
Business Subcontracting Plans. This action was subject to Office of
Management and Budget review under Executive Order 12866.
DATES: Effective Date: July 31, 1996.
Comment date: Comments on the interim rule should be submitted in
writing to the address shown below on or before September 30, 1996, to
be considered in the formulation of the final rule.
ADDRESSES: Interested parties should submit written comments to:
Defense Acquisition Regulations Council, Attn: Ms. Susan L. Schneider,
PDUSD (A&T) DP (DAR), IMD 3D139, 3062 Defense Pentagon, Washington, DC
20301-3062. Telefax number (703) 602-0350. Please cite DFARS Case 96-
D304 in all correspondence related to this issue.
FOR FURTHER INFORMATION CONTACT:
Ms. Susan L. Schneider, (703) 602-0131.
SUPPLEMENTARY INFORMATION:
A. Background
This interim rule amends DFARS Subpart 219.7 and the clause at
252.219-7004 to reflect revisions made to the DoD Test Program for
Negotiation of Comprehensive Small Business Subcontracting Plans. The
revisions to the test program implement Section 811 of the National
Defense Authorization Act for Fiscal Year 1996 (Pub. L. 104-106). The
revised test plan is published elsewhere in this issue of the Federal
Register.
This rule also contains editorial revisions to reflect changes to
Part 19 of the Federal Acquisition Regulation, published as Item V of
Federal Acquisition Circular 90-32 on September 18, 1995 (60 FR 48206).
B. Regulatory Flexibility Act
The interim rule is not expected to have a significant economic
impact on a substantial number of small entities within the meaning of
the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., because small
businesses are exempt from subcontracting plan requirements, and the
rule does not change the contractor's obligation to maximize
subcontracting opportunities for small business concerns. An initial
regulatory flexibility analysis has therefore not been performed.
Comments are invited from small businesses and other interested
parties. Comments from small entities concerning the affected DFARS
subparts will also be considered in accordance with Section 610 of the
Act. Such comments must be submitted separately and cite DFARS Case 96-
D304 in correspondence.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because this interim
rule does not impose any information collection requirements which
require approval of the Office of Management and Budget under 44 U.S.C.
3501, et seq.
D. Determination To Issue an Interim Rule
A determination has been made under the authority of the Secretary
of Defense to issue this rule as an interim rule. Compelling reasons
exist to promulgate this rule without prior opportunity for public
comment. This interim DFARS rule reflects changes to the Test Program
for Negotiation of Comprehensive Small Business Subcontracting Plans,
as required by Section 811 of the National Defense Authorization Act
for Fiscal Year 1996 (Pub. L. 104-106). Section 811, which amends
requirements that contractors must meet to participate in the test
program, was effective upon enactment on February 10, 1996. However,
comments received in response to the publication of this interim rule
will be considered in formulating the final rule.
List of Subjects in 48 CFR Parts 219 and 252
Government procurement.
Michele P. Peterson,
Executive Editor, Defense Acquisition Regulation Council.
Therefore, 48 CFR Parts 219 and 252 are amended as follows:
1. The authority citation for 48 CFR Parts 219 and 252 continues to
read as follows:
Authority: 41 U.S.C. 421 and 48 CFR Chapter 1.
2. Part 219 heading is revised to read as follows:
PART 219--SMALL BUSINESS PROGRAMS
3. Section 219.702 is amended by revising the introductory text of
paragraph (a) to read as follows:
219.702 Statutory and requirements.
(a) Section 834 of Public Law 101-189, as amended, requires the DoD
to establish a test program to determine whether comprehensive
subcontracting plans on a corporate, division, or plant-wide basis will
reduce administrative burdens while enhancing subcontracting
opportunities for small and small disadvantaged business concerns.
* * * * *
[[Page 39901]]
4. Section 219.708 is amended by revising paragraphs (b)(1)(A),
(b)(1)(B), and (c)(1)(A) to read as follows:
219.708 Solicitation provisions and contract clauses.
(b)(1) (A) Use the clause at 252.219-7003, Small, Small
Disadvantaged and Women-Owned Small Business Subcontracting Plan (DoD
Contracts), in solicitation and contracts that contain the clause at
FAR 52.219-9, Small, Small Disadvantaged and Women-Owned Small Business
Subcontracting Plan.
(B) In contracts with contractors which have comprehensive
subcontracting plans approved under the test program described in
219.702(a), use the clause at 252.219-7004, Small, Small Disadvantaged
and Women-Owned Small Business Subcontracting Plan (Test Program),
instead of the clauses at 252.219-7003, Small, Small Disadvantaged and
Women-Owned Small Business Subcontracting Plan (DoD Contracts), and FAR
52.219-9, Small, Small Disadvantaged and Women-Owned Small Business
Subcontracting Plan.
* * * * *
(c)(1) * * *
(A) When contracting by negotiation, use the clause at 252.219-
7005, Incentive for Subcontracting with Small Businesses, Small
Disadvantaged Businesses, Historically Black Colleges and Universities,
and Minority Institutions, in all solicitations and contracts that
contain the clause at FAR 52.219-9, Small, Small Disadvantaged and
Women-Owned Small Business Subcontracting Plan. Incentives for
exceeding SDB subcontracting goals shall be paid only if an SDB
subcontracting goal was exceeded as a result of actual subcontract
awards to SDBs, and not as a result of developmental assistant credit
under the Pilot Mentor-Protege Program (see subpart 219.71).
* * * * *
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
5. Section 252.219-7004 is amended by revising the section heading,
the clause title and date and paragraph (b), (c), and (d) to read as
follows:
252.219-7004 Small, Small Disadvantaged and Women-Owned Small Business
Subcontracting Plan (Test Program).
* * * * *
Small, Small Disadvantaged and Women-Owned Small Business
Subcontracting Plan (Test Program) (Jul 1996)
(a) * * *
(b) The Offeror's comprehensive small business subcontracting
plan and its successors, which are authorized by and approved under
the test program of Section 834 of Pub. L. 101-189, as amended,
shall be included in and made a part of the resultant contract. Upon
expulsion from the test program or expiration of the test program,
the Contractor shall negotiate an individual subcontracting plan for
all future contracts that meet the requirements of Section 211 of
Pub. L. 95-507.
(c) The Contractor shall submit Standard Form 295, Summary
Subcontract Report, in accordance with the instructions on the form,
except Item 14, Remarks, shall be completed to include semi-annual
cumulative (1) small business, small disadvantaged business, and
women-owned small business goals, and (2) small business and small
disadvantaged business goals, actual accomplishments, and
percentages for each of the two designated industry categories.
(d) The failure of the Contractor or subcontractor to comply in
good faith with (1) the clause of this contract entitled
``Utilization of Small, Small Disadvantaged and Women-Owned Small
Business Concerns,'' or (2) an approved plan required by this
clause, shall be a material breach of the contract.
(End of clause)
[FR Doc. 96-19413 Filed 7-30-96; 8:45 am]
BILLING CODE 5000-04-M
Complete official Federal Register PDF
FR Doc. 96-19412 Weather Service Modernization Criteria
[Federal Register Volume 61, Number 148 (Wednesday, July 31, 1996)]
[Rules and Regulations]
[Pages 39862-39867]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19412]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
15 CFR Part 946
[Docket No. 960418114-6201-03]
RIN: 0648-AF72
Weather Service Modernization Criteria
AGENCY: National Weather Service, National Oceanic and Atmospheric
Administration, Department of Commerce.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: In accordance with the Weather Service Modernization Act, 15
U.S.C. 313n. (the Act), the National Weather Service (NWS) is
publishing an amendment to its criteria for modernization actions
requiring certification. This amendment adds criteria unique to
automating a field office to ensure that automation actions will not
result in any degradation of service. Automating a field office occurs
after automated surface observing system (ASOS) equipment is installed
and commissioned at a field office and the News employees that were
performing surface observations at that office are removed or
reassigned.
EFFECTIVE DATE: July 31, 1996.
ADDRESSES: Requests for copies of documents stated in the preamble as
being available upon request should be sent to Julie Scanlon, NOAA/NWS,
SSMC2, Room 9332, 1325 East-West Highway, Silver Spring, Maryland
20910.
FOR FURTHER INFORMATION CONTACT:
Nicholas Scheller, 301-713-0454.
SUPPLEMENTARY INFORMATION: On May 2, 1996, the NWS published, for
comment, proposed modernization criteria unique to automating a field
office (see 61 FR 19594). In significant part, the proposed criteria
embodied the four levels of service contained in the Federal Aviation
Administration's (FAA) Weather Observation Service Standards for level
A, B, C and D airports (see 61 FR 32887). After consideration of the
public comments that were received and, after consultation with the
National Research Council's (NRC) NWS Modernization Committee and the
Modernization Transition Committee (MTC), the NWS is now establishing
the final modernization criteria for automating a field office only at
service level A, B and C airports. Establishment of final modernization
criteria for automating a field office at service level D airports is
being deferred pending further consultation with the MTC.
Consultation with the NRC's NWS Modernization Committee was
completed on June 10, 1996. During consultation with the MTC on June
27, 1996, the MTC offered the following:
The Modernization Transition Committee (MTC) has reviewed the
comments received in response to the notice in the Federal Register,
considered information provided through presentations and reports,
and thoroughly discussed the issue of level of service provided by
the modernized weather service as compared to on-site observers,
with the following conclusion:
The MTC approves the proposed automation criteria for airport
service level A, B and C airports believing that there will be no
degradation of service associated with these certifications.
However, the Committee has drawn no conclusion about degradation of
service at D service level airports that previously had an NWS
observer. The Committee will address the remaining portion of D
service level airports at their next scheduled meeting.
Peter R. Leavitt
Chair, Modernization Transition Committee.
A total of 44 public comments were received with postmarks by the
closing date for comments. Six additional comments were received with
postmarks after the closing date. The issues raised in these late
comments however, were similar to others raised in the timely comments.
All comments received were considered and are included in the numerical
totals below. The issues and concerns raised in the comments and the
Government's response follows. Most comments have to do with leaving
ASOS unattended, either generally or at specific airports. The number
of issues/concerns exceeds the total number of comments, since multiple
issues/concerns were raised in some comments. A list of persons
submitting comments is also included.
A. Comments related to leaving ASOS unattended:
1. Comment: 33 comments stated that service level D was inadequate
for their particular airport.
Response: Establishment of final criteria for service level D
airports has been deferred. The NWS will not take any action to
automate field offices at service level D airports, pending further
consultation with the MTC. Accordingly, the 27 airports proposed for
service level D have been deleted from Appendix B.
2. Comment: 10 comments expressed the following concerns about
ASOS: (a) ASOS can not be left in the unattended mode; (b) a human
presence is required at all ASOS sites; and (c) ASOS observation is
sometimes unrepresentative of actual conditions.
Response: Development and testing of automated weather observing
[[Page 39863]]
equipment has been in progress for nearly 20 years. Numerous studies
and evaluations were conducted on automated observation systems
beginning in the 1970s which included systems and technology similar to
that of ASOS. Assessments of representativeness were made by comparing
automated reports, specifically, ceiling and visibility to the human
observer. As a result of the more than two decades of development and
testing, ASOS has evolved into a highly accurate, consistent, and
reliable complement to meteorological observations.
The most recent testing effort was the ASOS Aviation Demonstration
that was carried out jointly by the NWS, the FAA, and the aviation
industry, from February 15, 1995 through August 15, 1995. During this
Demonstration, NWS observers were asked to record those cases when ASOS
observations did not represent the true meteorological situation. Based
on reports supplied by NWS observers, ASOS was found to report the
correct individual weather parameters at least 98% of the time under
all conditions combined.
From the beginning, ASOS was never intended to be the sole source
of surface weather data. ASOS data will be supplemented by products
derived from other remote automated systems including satellite, radar,
and lightning networks. Efforts to develop and refine these new sensors
and additional data products are underway. However, ASOS observations
will continue to be ``augmented'' by human observers, at those sites
required by the aviation community, until these additional sensors and
data products are available, and their use is fully understood.
The strength of ASOS is not that it is ``better'' than the
observer, but that the sensor suite can be put in the area most
sensitive to the weather that the pilot needs, that multiple sensors
can be used at those sites where required, and that ASOS observations
are consistent from station to station, day to night, and continuous 24
hours a day.
3. Comment: One comment stated that the FAA, NWS, aviation
community agreement on service level D included a requirement for both
freezing rain and lightning detection sensors.
Response: The deployment of freezing rain sensors as part of the
ASOS is underway. Funding has been allocated for acquisition of over
400 sensors. The freezing rain software and hardware upgrade deployment
will be deployed at NWS sites by winter 1996/1997.
Automated thunderstorm detection capability is presently being
acquired as part of the Automated Weather Observing System (AWOS) Data
Acquisition System and will provide an automated thunderstorm report in
the METAR format from the ASOS at all level A, B, C and D sites.
Deployment of this automated thunderstorm reporting capability will
begin in June 1997. Until that time, thunderstorms will be detected and
reported manually at all sites with implemented level A, B and C
Weather Observation Service Standards.
Pending automation of freezing rain and thunderstorm detection and
reporting, neither of these parameters will be manually augmented at
level D sites. This policy was clearly established during the extensive
discussions on Weather Observation Service Standards with the aviation
industry during the last 18 months.
4. Comment: Three comments regarding Astoria, Oregon, proposed as a
D level airport, requested that local public hearings be held before
ASOS implementation.
Response: The ASOS has already been ``implemented'' at Astoria,
Oregon to the extent that it was commissioned on March 1, 1993. The
second stage of implementation will be to ``automate'' this office and
the Weather Service Modernization Act already provides for extensive
public input at this stage in several ways. Criteria by which these
actions will be certified are made available for public comment through
publication in the Federal Register. Two independent committees are
consulted during the establishment of final criteria: The National
Research Council's NWS Modernization Committee which is composed of
scientific and technical experts, and the Modernization Transition
Committee (MTC) which represents users of weather services. During
these consultations, both Committees are apprised of all public
comments received. There are two other opportunities for public input
during the certification process. Each proposed certification is
published in the Federal Register for a 60-day public comment period.
The MTC is apprised of all public comments received and has the
opportunity to recommend a course of action to the Secretary of
Commerce with regard to the final certification of ``no degradation of
service''. Finally, the MTC is a Federal advisory committee and as
such, all MTC meetings are open to the public. As part of the
consultation with the MTC on certifications and preceding deliberations
by the MTC, there is a public comment period during which the public
may address the MTC.
B. Other comments:
1. Comment: Six comments were concerned that there might be a delay
in implementing service levels A and B due to lack of funds and that
the delay would result in a degradation of service. One comment
requested that a ban on further ASOS commissionings be instituted until
funds are available to implement service levels A and B.
Response: The FAA will fund full implementation of the Weather
Observation Service Standards, including all level A and B airports.
Accordingly, NWS has eliminated any funding contingency from criterion
4a.
2. Comment: Two comments indicated that the list of airports
published in the May 2 Federal Register notice was incomplete and/or
confusing.
Response: The airports in the May 2, 1996 Federal Register notice
list were the 143 ``field offices'' which require a certification prior
to automation under the Weather Service Modernization Act. The Act
defines a field office as a Weather Service Office (WSO) or a Weather
Service Forecast Office (WSFO). Beyond these 143 locations, there are
additional airports where NWS has surface observing responsibility that
either: (1) Are not field offices--Weather Service Meteorological
Observatories (WSMOs) and Weather Service Contract Meteorological
Observatories (WSCMOs); or (2) are field offices, but NWS will continue
to perform surface observing functions. There are also a number of
airports where the FAA has surface observing responsibility. On June
25, 1996, the FAA published in the Federal Register its Weather
Observation Service Standards and a more comprehensive list of all
airports where either NWS or FAA has had surface observing
responsibility (see 61 FR 32887). Not included in this June 25 notice
are the so called ``expansion sites'', which are sites that have not
had a Federally sponsored surface observation.
3. Comment: One comment stated that automation, as proposed, will
have an adverse impact on snowfall records.
Response: Snowfall data will continue to be recorded at 46 Weather
Forecast Offices (WFO) co-located with ASOS as well as new snowfall
climatologies will commence at 73 WFOs during the 1996-1997 winter
season. In addition, snow-depth observations will continue at 22 Tower
Level 5 airports next winter season. In addition, along the Washington
and Oregon coastline, there are over 30 NWS cooperative observer (COOP)
climate stations that will continue to report daily snowfall, snow
depth, and accurate precipitation amounts for climatologists. The
primary
[[Page 39864]]
purpose of this volunteer network is the taking of long-term climate
records. The NWS is now in the process of implementing a system that
will allow these observations to be disseminated to external users
once-a-day in near real-time.
Washington and Oregon contain about one dozen first-order airport
stations that historically reported snowfall information that will no
longer be available. However, data from COOP climate stations in both
states are actually considered to be the data of choice by most
climate-change researchers. The COOPs are located off airports at
locations where people live. COOPs with decades of records are found in
the temperate rain forests, Olympic mountains, and other ecologically
sensitive areas.
The volunteer COOP network will continue to provide high-quality
climate data for NWS and external users. The NWS is even considering
opening new COOP stations in areas where observations are scarce with
snowfall information unavailable and whereby no current COOP is located
in the surrounding vicinity.
In addition, the Supplementary Data Program (see 60 FR 64020),
became operational on October 1, 1995 at 119 WFOs, where staffing and
equipment permits. This includes the providing of event driven
supplementary data observations (i.e., ice pellets, snow increase
rapidly, size of hailstones) and routinely scheduled supplementary
climatological data (i.e., depth of new snow, duration of sunshine,
water equivalent of snow on ground).
4. Comment: One comment expressed concerns with ASOS's inability to
detect clouds above 12,000 feet, use of ``fair'' for sky conditions
when ASOS reports ``CLR below 12,000 ft.'', and ASOS not reporting
freezing rain.
Response: A few years ago, NOAA started generating a Satellite
Cloud Product (SCP) to complement ASOS above 12,000 ft. SCPs, generated
for a 50x50-km grid centered around ASOS sites, are available in
regional collectives through the Family of Services with the following
bulletin headings:
GOES-8
TCUS40 KWBC--Eastern US
TCUS41 KWBC--Central US
TCUS42 KWBC--Southern US
GOES-9
TCUS51 KWBC--Central US
TCUS52 KWBC--Southern US
TCUS53 KWBC--Western US
Among other things, the SCPs indicate the cloud category (CLR, SCT,
BKN, OVC) and the height of the cloud in 100's of feet.
NWS is sensitized to the ``FAIR'' issue and is working toward a
more representative depiction of sky conditions on the Hourly (State)
Weather Roundup (SWR). NWS sites which ``run'' the SWR can merge the
SCP data with the ASOS data, thereby producing a better combined sky
condition. Many NWS sites are already doing this and more will be doing
so in the future once SCPs are generated for all ASOS sites.
The issue of the ``FAIR'' on The Weather Channel (TWC) is a little
different. TWC gets its observational data from Weather Services
International (WSI) Corporation. WSI does not presently process NWS
SWRs. ``FAIR'' is a WSI term.
NWS has had discussions with both TWC and WSI about this issue.
Both are working on schemes to assimilate the SCP data, thereby making
a more representative sky condition. In lieu of utilizing the WSI
observational data stream, TWC is independently investigating the
feasibility of ``ingesting'' and displaying the NWS SWRs on their
``Weather on the 8's'' segment.
The concern about reporting of freezing rain is addressed in the
response to comment A3.
5. Comment: One comment stated that ASOS should be replaced by
METAR.
Response: The writer of this comment has misunderstood the
difference between METAR and ASOS.
The Aviation Routine Weather Report (METAR) does not replace ASOS.
ASOS is an automated and integrated group of sensors to collect surface
weather parameters.
METAR on the other hand is the reporting format in which the
weather elements are provided from the ASOS. Historically, there have
been two weather reporting formats. North American countries (United
States, Canada and Mexico) used a format referred to as a Surface
Aviation Observation (SAOP, and the rest of the world, with minor
differences, used a format called Aviation Routine Weather Report
(METAR) to report weather. For years discussions took place on
standardizing the reporting format. Agreement was reached in 1989 and
the resultant code, still referred to as METAR, represents a blend of
the existing SAO and METAR reports. Because countries were permitted to
file exceptions to the code format, not all METAR reports are
identical, and thus there will be slight differences among the codes.
Canada and Mexico have already implemented the METAR code format, and
the United States, in accordance with international agreements,
implemented the METAR code format on July 1, 1996.
6. Comment: One comment stated that the ASOS at Wheeling-Ohio
County Airport remains uncommissioned.
Response: The ASOS at Wheeling--Ohio County airport is an FAA-
sponsored ASOS and requires FAA long-line communications for
commissioning. Currently, plans are to install the communications lines
in the fall 1996 followed by commissioning in January/February 1997.
7. Comment: One comment stated that there is no radio transmission
from the ASOS at Marathon Airport (MTH), Florida.
Reponse: A ground-to-air radio was installed at Marathon in March
1994. Shortly after installation, radio frequency interference was
reported. That interference problem was corrected on May 14, 1996 and
the radio is now broadcasting.
8. Comment: Three comments raised concerns about specific public
forecast product, the quality of the forecasts, timeliness of NOAA
Weather Radio updates, elimination of the agricultural forecast program
and closure of the Astoria, Oregon Weather Service Office (WSO).
Response: These issues are not related to ASOS and/or automation
and are more appropriately addressed during the certification process
for actions involving the particular WSOs.
List of Persons Submitting Comments
Dean Jacobs, Executive Director, Valentine Chamber of Commerce,
Valentine, Nebraska
Dean Jacobs, Executive Director, Visitor Promotion Committee, Cherry
County, Valentine, Nebraska
concerned citizen, Freeland, Michigan
Jay Trobec, KELO-TV, Sioux Falls, South Dakota
Mike Boggs, Airport Manager, Eugene Airport, Eugene, Oregon
Kelly Kilmer, Quality Control Focal Point, Valentine ASOS Station,
Valentine, Nebraska
Troy Kimmel, Chief Meteorologist, KTBC-TV, Austin, Texas
Robert Kilmer, Airport Manager, Valentine, Nebraska (2 comments)
Evelyn Kilmer, Valentine, Nebraska (2 comments)
Gerald Ellison, Valentine Nebraska
Allan L. Jameson, Commercial Pilot, Valentine, Nebraska
Robert A. Peterson, Administrator, Valentine, Nebraska
Tim Bader, Valentine, Nebraska
Paul Joseph, Chief Meteorologist, WTMJ-TV, Milwaukee, Wisconsin
Thomas S. Tominack, Airport Manager, Wheeling-Ohio County Airport,
Wheeling West Virginia
[[Page 39865]]
A. Earl Cheal, Vice President and General Manager, The Flight
Department, Marathon Airport, Marathon, Florida
Timothy M. Kellett, Paso Robles, California (2 comments)
Leo D. Hollis, Director--Flight Control, America West Airlines,
Phoenix, Arizona
Joe Bakkensen, Chair, Board of Commissioners, Clatsop County,
Astoria, Oregon
Thomas G. Macklin, Paso Robles, California
Sean Boyd, KSEE-TV, Fresno, California
Ron Larsen, Director of Operations, Port of Astoria, Astoria, Oregon
(2 comments)
Melvin Christenson, Cherry County Sheriff, Valentine, Nebraska
John P. Raichl, Sheriff and Director of Emergency Services, Clatsop
County, Astoria, Oregon
Richard Carlson, Sequim, Washington
Steve Fick, President, Salmon for All, Astoria, Oregon
William N. Sears, Director, Air Traffic Capacity & Meteorology, Air
Transport Association, Washington, DC
Robert J. Massey, Chairman, Aviation Weather Committee, Air Line
Pilots Association, Herndon, Virginia
Warren L. Qualley, Manager--Weather Services, American Airlines, DFW
Airport, Texas
Tom Fahey, Manager, Northwest Airlines Meteorology, St. Paul,
Minnesota
Paul Gross, WDIV-TV, Detroit, Michigan
Barbara Balensifier, Mayor of Warrenton, Warrenton, Oregon
Brad Barclay, Contract Weather Observer, Paso Robles Airport,
Atascadero, California
Drs. Richard & Janet Laughlin, Astoria, Oregon
Robert D. DeLong, City Manager, Astoria, Oregon
Paul O'Connell, RN, Flight Supervisor, Good Samaritan Hospital,
Kearney, Nebraska
Robert Stratton, Templeton, California
Paul Levesque, Executive Assistant, Tillamook County Commissioners,
Tillamook, Oregon
Monte M. Eliason, Airport Manager, Glacier Park International
Airport, Kalispell, Montana
Pam Birmingham, Pete Anderson Realty, Inc., Seaside, Oregon
Tim Josi, State Representative, District 2, Salem, Oregon
Dennis Ernest, Program Director, KNEB AM/FM, Scottsbluff, Nebraska
William R. McDonald, Chairman, Columbia County Board of
Commissioners, St. Helens, Oregon
Oliver Vernor, Mayor, City of Seaside, Seaside, Oregon
Pat Hamilton, Chairperson, Pacific County Commissioners, South Bend,
Washington
William F. Shea, Commissioner, Port of Astoria, Astoria, Oregon
A. Classification Under Executive Order 12866
These regulations establish procedures and criteria for certifying
that certain actions to modernize NWS will not result in any
degradation of weather services to the affected service area. They will
not result in any direct or indirect economic impacts, and have been
determined not to be significant for purposes of E.O. 12866.
B. Regulatory Flexibility Act Analysis
These regulations set forth the criteria for certifying that
certain modernization actions will not result in a degradation of
service to the affected area. These criteria will be appended to the
Weather Service Modernization regulations. The Assistant General
Counsel for Legislation and Regulation of the Department of Commerce
has certified to the Chief Counsel for Advocacy of the Small Business
Administration when these criteria were proposed, that if adopted as
proposed, they will not have a significant economic impact on a
substantial number of small entities. These criteria are intended for
internal agency use, and the impact on small business entities will be
negligible. The proposed criteria do not directly affect ``small
government jurisdictions'' as defined by Pub. L. 96-354, the Regulatory
flexibility Act. Accordingly, no initial regulatory flexibility
analysis was prepared.
C. Paperwork Reduction Act of 1980
These regulations will impose no information collection
requirements of the type covered by Pub. L. 96-511, the Paperwork
Reduction Act of 1980.
D. Executive Order 12612
This rule does not contain policies with sufficient Federalism
implications to warrant preparation of a Federalism assessment under
Executive Order 12612.
E. National Environmental Policy Act
NOAA has concluded that issuance of this rule does not constitute a
major Federal action significantly affecting the quality of the human
environment. Therefore, an environmental impact statement is not
required. A programmatic Environmental Impact Statement (EIS) regarding
NEXRAD was prepared in November 1984, and an Environmental Assessment
to update the portion of the EIS dealing with the bioeffects of NEXRAD
non-ionizing radiation was issued in 1993.
List of Subjects in 15 CFR Part 946
Administrative practice and procedure, Certification,
Commissioning. Decommissioning, national Weather Service, Weather
service modernization.
Dated: July 26, 1996.
Elbert W. Friday, Jr.,
Assistant Administrator for Weather Services.
For the reasons set out in the preamble, 15 CFR part 946 is amended
as follows:
1. The authority citation for part 946 continues to read as
follows:
Authority: Title VII of Pub. L. 102-567, 106 Stat 4303 (15
U.S.C. 313n.)
2. Appendix A to part 946 is amended by adding a new Subsection (D)
under Section II. CRITERIA FOR MODERNIZATION ACTIONS REQUIRING
CERTIFICATION, to read as follows:
(D) Modernization Criteria Unique to Automation Certifications
1. Compliance with flight aviation rules (applies on airports
only): Consultation with the Federal Aviation Administration (FAA)
has verified that the weather services provided after the
commissioning of the relevant ASOS unit(s) will be in full
compliance with applicable Federal Aviation Regulations promulgated
by the FAA.
2. ASOS Commissioning: The relevant ASOS unit(s) have been
successfully commissioned in accordance with the criteria set forth
in section I.A.1 of Appendix A to the Weather Service Modernization
Regulations, 15 CFR part 946.
3. User Confirmation of Services: Any valid user complaints
related to actual system performance received since commissioning of
the ASOS have been satisfactorily resolved and the issues addressed
in the MIC's recommendation for certification.
4. Aviation Observation Requirement: At sites subject to
automation certification, all surface observations and reports
required for aviation services can be generated by an ASOS augmented
as necessary by non-NWS personnel.
a. The ASOS observation will be augmented/backed-up to the level
specified in Appendix B as described in the Summary Chart of the
FAA's Weather Observation Service Standards.
b. The transition checklist has been signed by the appropriate
Region Systems Operations Division Chief.
5. General Surface Observation Requirement: The total
observations available are adequate to support the required
inventory of services to users in the affected area. All necessary
hydrometeorological data and information are available through ASOS
as augmented in accordance with this section, through those elements
reported as supplementary data by the relevant Weather Forecast
Office(s), or through other complementary sources. The adequacy of
the total surface observation is addressed in the MIC's
recommendation for certification.
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[GRAPHIC] [TIFF OMITTED] TR31JY96.000
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[[Page 39867]]
Appendix B is added to Part 946 to read as follows:
Appendix B to Part 946--Airport Tables
``A'' Level Service Airports
*Akron, OH..........................................................CAK
*Albany, NY.........................................................ALB
*Atlanta, GA........................................................ATL
*Baltimore, MD......................................................BWI
*Boston, MA.........................................................BOS
Charlotte, NC.......................................................CLT
*Chicago-O'Hare (AV), IL............................................ORD
Cincinnati, OH......................................................CVG
Columbus, OH........................................................CMH
*Dayton, OH.........................................................DAY
*Des Moines, IA.....................................................DSM
*Detroit, MI........................................................DTW
*Fairbanks, AK......................................................FAI
*Fresno, CA.........................................................FAT
*Greensboro, NC.....................................................GSO
*Hartford, CT.......................................................BDL
*Indianapolis, IN...................................................IND
*Kansas City, MO....................................................MCI
*Lansing, MI........................................................LAN
Las Vegas, NV.......................................................LAS
Los Angeles (AV), CA................................................LAX
*Louisville, KY.....................................................SDF
*Milwaukee, WI......................................................MKE
*Minneapolis, MN....................................................MSP
*Newark, NJ.........................................................EWR
*Oklahoma City, OK..................................................OKC
Phoenix, AZ.........................................................PHX
*Portland, OR.......................................................PDX
*Providence, RI.....................................................PVD
*Raleigh, NC........................................................RDU
*Richmond, NC.......................................................RIC
*Rochester, NY......................................................ROC
*Rockford, IL.......................................................RFD
*San Antonio, TX....................................................SAT
San Diego, CA.......................................................SAN
*San Francisco, CA..................................................SFO
*Spokane, WA........................................................GEG
*Syracuse, NY.......................................................SYR
Tallahassee, FL.....................................................TLH
Tulsa, OK...........................................................TUL
``B'' Level Service Airports
*Baton Rouge, LA....................................................BTR
*Billings, MT.......................................................BIL
*Charleston, WV.....................................................CRW
*Chattanooga, TN....................................................CHA
Colorado Springs, CO................................................COS
Daytona Beach, FL...................................................DAB
El Paso, TX.........................................................ELP
Flint, MI...........................................................FNT
Fort Wayne, IN......................................................FWA
Honolulu, HI........................................................HNL
*Huntsville, AL.....................................................HSV
*Knoxville, TN......................................................TYS
*Lincoln, NE........................................................LNK
Lubbock, TX.........................................................LBB
*Madison, WI........................................................MSN
*Moline, IL.........................................................MLI
*Montgomery, AL.....................................................MGM
*Muskegon, MI.......................................................MKG
*Norfolk, VA........................................................ORF
Peoria, IL..........................................................PIA
*Savannah, GA.......................................................SAV
*South Bend, IN.....................................................SBN
Tucson, AZ..........................................................TUS
*West Palm Beach, FL................................................PBI
*Youngstown, OH.....................................................YNG
``C'' Level Service Airports
Abilene, TX.........................................................ABI
Allentown, PA.......................................................ABE
Asheville, NC.......................................................AVL
Athens, GA..........................................................AHN
Atlantic City, NJ...................................................ACY
Augusta, GA.........................................................AGS
Austin, TX..........................................................AUS
Bakersfield, CA.....................................................BFL
Bridgeport, CT......................................................BDR
Bristol, TN.........................................................TRI
Casper, WY..........................................................CPR
Columbia, MO........................................................COU
Columbus, GA........................................................CSG
Dubuque, IA.........................................................DBQ
Erie, PA............................................................ERI
Eugene, OR..........................................................EUG
Evansville, IN......................................................EVV
Fargo, ND...........................................................FAR
Fort Smith, AR......................................................FSM
Grand Island, NE....................................................GRI
Helena, MT..........................................................HLN
Huntington, WV......................................................HTS
Kahului, HI.........................................................OGG
Key West, FL........................................................EYW
Lewiston, ID........................................................LWS
Lexington, KY.......................................................LEX
Lynchburg, VA.......................................................LYH
Macon, GA...........................................................MCN
Mansfield, OH.......................................................MFD
Meridian, MS........................................................MEI
Olympia, WA.........................................................OLM
Port Arthur, TX.....................................................BPT
Portland, ME........................................................PWM
Rapid City, SD......................................................RAP
Redding, CA.........................................................RDD
Reno, NV............................................................RNO
Roanoke, VA.........................................................ROA
Rochester, MN.......................................................RST
Salem, OR...........................................................SLE
Santa Maria, CA.....................................................SMX
Sioux City, IA......................................................SUX
Springfield, IL.....................................................SPI
Stockton, CA........................................................SCK
Toledo, OH..........................................................TOL
Waco, TX............................................................ACT
Waterloo, IA........................................................ALO
Wilkes-Barre, PA....................................................AVP
Williamsport, PA....................................................IPT
Wilmington, DE......................................................ILG
Worcester, MA.......................................................ORH
Yakima, WA..........................................................YKM
*Long-line RVR designated site.
[FR Doc. 96-19412 Filed 7-30-96; 8:45 am]
BILLING CODE 3510-12-M
Complete official Federal Register PDF
FR Doc. 96-19411 Medical Devices; Medical Device Reporting; Baseline Reports; Stay of Effective Date
[Federal Register Volume 61, Number 148 (Wednesday, July 31, 1996)]
[Rules and Regulations]
[Pages 39868-39869]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19411]
-----------------------------------------------------------------------
DEPARTMENT OF HEALTH AND HUMAN SERVICES
21 CFR Part 803
RIN 0910-AA09
Docket No. [91N-0295]
Medical Devices; Medical Device Reporting; Baseline Reports; Stay
of Effective Date
AGENCY: Food and Drug Administration, HHS.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: In response to numerous requests for the Food and Drug
Administration (FDA) to further consider comments concerning
manufacturer medical device reporting (MDR) baseline reporting
requirements, FDA is staying the effective date of certain portions of
the baseline reporting requirements. The stay of these requirements
will allow FDA to further evaluate the issues raised by the comments
and to determine whether the requirements should be revised.
EFFECTIVE DATE: July 31, 1996.
FOR FURTHER INFORMATION CONTACT: Earl W. Robinson, Center for Devices
and Radiological Health (HFZ-530), Food and Drug Administration, 1350
Piccard Dr., Rockville, MD 20850, 301-594-2735.
SUPPLEMENTARY INFORMATION: In the Federal Register of December 11, 1995
(60 FR 63578) FDA published a final rule amending part 803 (21 CFR part
803) requiring medical device manufacturers to submit certain reports
relating to adverse events (hereinafter referred to as the December
1995 final rule). The effective date of this rule was initially to be
April 11, 1996. However, on April 11, 1996 (61 FR 16043), FDA extended
the effective date to July 31, 1996.
Under the December 1995 final rule, manufacturers were required to
submit individual reports of adverse events on a monthly basis, as well
as annual baseline reports. Section 803.55 requires that the baseline
reports include information specifically identifying a device for which
an adverse event has been submitted, the number of devices manufactured
and distributed in the last 12 months, an estimate of the number of
devices in current use, and a brief description of any methods used to
estimate the number of devices distributed and in current use. Among
the primary purposes of these baseline data requirements is to provide
information on population exposure to a particular device which
together with the number of adverse event reports would provide
relevant information about the rate of reported events for a particular
device to aid the agency in evaluating an adverse event's significance.
For example, information concerning the number of devices manufactured,
distributed or in current use (hereinafter referred to as denominator
data) is intended to enable the agency to determine how many people are
exposed to potential risk from a device and whether 100 malfunction
reports for a particular device represents a .001 percent (100 of
10,000,000) reported failure or a 10 (100 of 1,000) percent reported
failure.
After issuing the December 11, 1995, final rule, FDA received
numerous requests for reconsideration of the baseline reporting
requirements. Specifically, industry objected that the requirements for
denominator data were burdensome. These comments led FDA to meet with
the Health Industry Manufacturers Association (HIMA) and several other
industry representatives on April 19, May 23, June 13, and July 1,
1996. During these meetings and FDA internal meetings, issues
concerning industry burdens and FDA evaluation of data were put forth
that had previously not been considered.
Specifically, issues were raised about the ability to derive
accurate information about adverse event rates of devices by the
denominator data. The agency needs additional time to consider and
better understand methods used to derive denominator estimates. FDA
believes that a pilot program to analyze how certain variables affect
the denominator data and how that data is used would allow the agency
to implement denominator data requirements to evaluate the rate of and
relative impact of adverse events more accurately. FDA intends to
evaluate these issues further, and with the cooperation of industry in
the near future, to implement such a pilot program, and subsequently to
analyze these factors. Assuming that there is sufficient participation
in the program, FDA anticipates that the completion of a successful
pilot program would take from 12 to 18 months.
Because of the need for further analysis of variables affecting
denominator data, FDA believes that baseline denominator data
requirements should be stayed. The agency believes a pilot program may
allow FDA to analyze the best possible means to obtain denominator
data. At the completion of the pilot program, or a determination that
because of inadequate participation, the pilot program is not feasible,
FDA will either lift the stay of the December 1995 final rule baseline
denominator reporting requirements, retain the stay, or proceed to
revise these requirements.
The Administrative Procedure Act (Pub. L. 79-404) and FDA
regulations provide that the agency may issue a regulation without
notice and comment procedures when the agency for good cause finds (and
incorporates the finding and a brief statement of reasons thereof in
the rules issued) that notice and public comment procedures thereon are
impracticable, unnecessary, or contrary to the public interest (5
U.S.C. 553(b)(8); Sec. 10.40(e)(1)).) FDA finds that there is good
cause for dispensing with notice and comment procedures to stay the
effective date of the manufacturer baseline reporting requirements for
denominator data (Sec. 803.55((b)(9) and (10)) (corresponding with data
elements 15 and 16 on FDA Form 3417) because such notice and comment
procedures are impracticable and contrary to the public interest.
[[Page 39869]]
Notice and comment rulemaking on the postponement of baseline
reporting denominator data is impracticable. FDA was not aware of
significant issues relating to these requirements until after
publication of the December 1995 final rule. Since that time, FDA has
had numerous meetings with industry representatives and internal
meetings to decide the best approach to resolve issues concerning the
rule. The last such meeting occurred on July 1, 1996. Without the
issuance of a stay under good cause procedures, the baseline
denominator information reporting requirements would become effective
on July 31, 1996.
In addition, notice and comment rulemaking on the stay of the
baseline denominator reporting data would be contrary to the public
interest. Because there is not enough time to allow notice and comment
on the issue of staying the effective date before it occurs, the
baseline denominator data requirements would go into effect on July 31,
1996. Consequently, industry would be required to implement additional
procedures that may, after further evaluation, soon be replaced with
different procedures leading to more accurate information. This may
lead to unnecessary confusion and expense.
List of Subjects in 21 CFR Part 803
Imports, Medical devices, Reporting and recordkeeping requirements.
Therefore, under the Federal Food, Drug, and Cosmetic Act and under
authority delegated to the Commissioner of Food and Drugs, 21 CFR part
803 is amended as follows:
PART 803--MEDICAL DEVICE REPORTING
1. The authority citation for 21 CFR part 803 continues to read as
follows:
Authority: Secs. 502, 510, 519, 520, 701, 704 of the Federal
Food, Drug, and Cosmetic Act (21 U.S.C. 352, 360, 360i, 371, 374).
2. In the revision of part 803 which was published at 60 FR 63578
(December 11, 1995), the effective date of which was extended until
July 31, 1996, at 61 FR 16043 (April 11, 1996), the provisions of
Sec. 803.55(b)(9) and (10) are stayed until further notice.
Dated: July 25, 1996.
William K. Hubbard,
Associate Commissioner for Policy Coordination.
[FR Doc. 96-19411 Filed 7-30-96; 8:45 am]
BILLING CODE 4160-01-F
Complete official Federal Register PDF
FR Doc. 96-19410 Oral Dosage Form New Animal Drugs; Ivermectin Tables and Chewable Cubes
[Federal Register Volume 61, Number 148 (Wednesday, July 31, 1996)]
[Rules and Regulations]
[Pages 39867-39868]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19410]
=======================================================================
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Food and Drug Administration
21 CFR Part 520
Oral Dosage Form New Animal Drugs; Ivermectin Tables and Chewable
Cubes
AGENCY: Food and Drug Administration, HHS.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Food and Drug Administration (FDA) is amending the animal
drug regulations to reflect approval of two supplemental new animal
drug applications (NADA's) filed by Merck Research Laboratories,
Division of Merck & Co., Inc. The supplemental NADA's provide for label
changes including a revised indication and limitation for oral use of
ivermectin tablets and chewable cubes for dogs to prevent canine
heartworm disease.
EFFECTIVE DATE: July 31, 1996.
FOR FURTHER INFORMATION CONTACT: Marcia K. Larkins, Center for
Veterinary Medicine (HFV-112), Food and Drug Administration, 7500
Standish Pl., Rockville, MD 20855, 301-827-0137.
SUPPLEMENTARY INFORMATION: Merck Research Laboratories, Division of
Merck & Co., Inc., P.O. Box 2000, Rahway, NJ 07065, filed supplemental
NADA's 138-412 and 140-886, which provide for use of
Heartgard (ivermectin) Tablets and Heartgard
(ivermectin) Chewables for dogs. The supplemental NADA's amend the
approved indications for use to read ``To prevent canine heartworm
disease by eliminating the tissue stage of heartworm larvae
(Dirofilaria immitis) for 1 month (30 days) after infection.'' The
supplements also amend the limitations pertaining to puppies to state
``Recommended for dogs 6 weeks of age and older.'' These changes are
necessary to be consistent with the labeling for Heartgard-30
Plus (ivermectin and pyrantel pamoate) NADA 140-971, as published in
the Federal Register of April 15, 1996 (61 FR 15185 at 15186). The
supplemental NADA's 138-412 and 140-886 are approved as of June 14,
1996, and the regulations are amended in 21 CFR 520.1193(c)(2) and
(c)(3) to reflect the approval.
Approval of these supplements did not require submission of new
data and information. Therefore, freedom of information summaries under
part 20 (21 CFR part 20) and 21 CFR 514.11(e)(2)(ii) are not required.
Under section 512(c)(2)(F)(iii) of the Federal Food, Drug, and
Cosmetic Act (21 U.S.C. 360b(c)(2)(F)(iii)), these approvals do not
qualify for marketing exclusivity because the supplements do not
contain reports of new clinical or field investigations (other than
bioequivalence or residue studies) essential to the approvals and
conducted or sponsored by the applicant.
The agency has determined under 21 CFR 25.24(d)(1)(i) that this
action is of a type that does not individually or cumulatively have a
significant effect on the human environment. Therefore, neither an
environmental assessment nor an environmental impact statement is
required.
[[Page 39868]]
List of Subjects in 21 CFR Part 520
Animal drugs.
Therefore, under the Federal Food, Drug, and Cosmetic Act and
under authority delegated to the Commissioner of Food and Drugs and
redelegated to the Center for Veterinary Medicine, 21 CFR part 520 is
amended as follows:
PART 520--ORAL DOSAGE FORM NEW ANIMAL DRUGS
1. The authority citation for 21 CFR part 520 continues to read as
follows:
Authority: Sec. 512 of the Federal Food, Drug, and Cosmetic Act
(21 U.S.C. 360b).
2. Section 520.1193 is amended by revising paragraphs (c)(2) and
(c)(3) to read as follows:
Sec. 520.1193 Ivermectin tablets and chewable cubes.
* * * * *
(c) * * *
(2) Indications for use. To prevent canine heartworm disease by
eliminating the tissue stage of heartworm larvae (Dirofilaria immitis)
for 1 month (30 days) after infection.
(3) Limitations. Use once-a-month. Recommended for dogs 6 weeks of
age and older. Initial use within 1 month after first exposure to
mosquitoes. Final use within 1 month after last exposure to mosquitoes.
Federal law restricts this drug to use by or on the order of a licensed
veterinarian.
Dated: June 9, 1996.
Robert C. Livingston,
Director, Office of New Animal Drug Evaluation, Center for Veterinary
Medicine.
[FR Doc. 96-19410 Filed 7-30-96; 8:45 am]
BILLING CODE 4160-01-F
Complete official Federal Register PDF
FR Doc. 96-19401 Repeal of Certain Lobbyist Disclosure Provisions
[Federal Register Volume 61, Number 148 (Wednesday, July 31, 1996)]
[Rules and Regulations]
[Pages 39850-39852]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19401]
-----------------------------------------------------------------------
DEPARTMENT OF AGRICULTURE
Rural Housing Service
Rural Business-Cooperative Service
Rural Utilities Service
Farm Service Agency
7 CFR Parts 1940, 1944 and 1965
Repeal of Certain Lobbyist Disclosure Provisions
AGENCIES: Rural Housing Service, Rural Business-Cooperative Service,
Rural Utilities Service, and Farm Service Agency, USDA.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Rural Housing Service (RHS) (formerly Rural Housing and
Community Development Service (RHCDS)) is removing its regulations on
``Accountability Requirements of Persons Paid to Influence the Making
of an RHCDS Housing Loan and/or Grant,'' due to the repeal of the
statutory reporting and registration requirements (Sec. 24 of Pub. L.
104-65). The intended outcome is to remove imposed registration and
reporting requirements on any person engaged for pay or for any
consideration for the purpose of attempting to influence the making of
a RHS loan or grant, and removes the limitation of fees a person may
charge for this service.
EFFECTIVE DATE: July 31, 1996.
FOR FURTHER INFORMATION CONTACT: Cynthia L. Reese-Foxworth, Loan
Specialist, Rural Rental Housing Branch, Multi-Family Housing
Processing Division, Rural Housing Service, U.S. Department of
Agriculture, AgBox 0781, Washington, DC 20250-0700; telephone (202)
720-1604 (this is not a toll free number).
SUPPLEMENTARY INFORMATION:
Classification
This action is not subject to the provisions of Executive Order
12866 since it only involves internal agency management. Since this
rule relates only to Public Law (Pub. L.) 104-65, which repeals the
reporting and registration requirements of 7 CFR part 1940, subpart S,
this action is not published for proposed rulemaking. Therefore,
publication for advance notice and comment is unnecessary and contrary
to the public interest.
Paperwork Reduction Act
The information collection requirements contained in this
regulation have been previously approved by the Office of Management
and Budget (OMB) under the provisions of 44 U.S.C. chapter 35 and has
been assigned OMB control number 0575-0139 in accordance with the
Paperwork Reduction Act of 1980 (44 U.S.C. 3507).
Environmental Impact Statement
This document has been reviewed in accordance with 7 CFR part 1940,
subpart G, ``Environmental Program.'' It is the determination of RHS
that this action does not constitute a major Federal action
significantly affecting the quality of the human environment, and in
accordance with the National Environmental Policy Act of 1969, Pub. L.
91-190, an Environmental Impact Statement is not required.
National Performance Review
This regulatory action is being taken as part of the National
Performance Review program to eliminate unnecessary regulations and
improve those that remain in force.
Unfunded Mandate Reform Act of 1995
Title II of the Unfunded Mandate Reform Act of 1995 (UMRA), Pub. L.
104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, RHS
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules, with ``Federal mandates'' that
may result in expenditures to State, local, or tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. When such a statement is needed for a rule, section 205 of
the UMRA generally requires RHS to identify and consider a reasonable
number of regulatory alternatives and adopt the least costly, more
cost-effective or least burdensome alternative that achieves the
objectives of the rule.
This rule contains no Federal mandates (under the regulatory
provisions of Title II of the UMRA) for State, local, and tribal
governments or the private sector. Thus today's rule is not subject to
the requirements of section 202 and 205 of the UMRA.
Intergovernmental Consultation
This activity is not subject to Executive Order (EO) 12372 which
requires intergovernmental consultation with State and local officials
and is not listed in the Catalog of Federal Domestic Assistance,
however, affected programs 10.415, 10.420, and 10.433 are subject to
the provisions of EO 12372.
Program Affected
These programs or activities are listed in the Catalog of Federal
Domestic Assistance under the following numbers:
10.405 Farm Labor Housing Loans and Grants
10.410 Very Low to Moderate Income Housing Loans
10.415 Rural Rental Housing Loans
10.417 Very Low-Income Housing Repair Loans and Grants
10.420 Rural Self-Help Housing Technical Assistance
10.433 Rural Housing Preservation Grants
10.442 Housing Application Packaging Grants
Discussion of Final Rule
7 CFR part 1940, subpart S implemented Sec. 401(A) of the Housing
and Urban Development Reform Act of 1989, Pub. L. 101-235, (December
15, 1989) (``HUD Reform Act''), which added Sec. 536(d) to the Housing
Act of 1949. Pursuant to Sec. 24 of Pub. L. 104-65 (December 19, 1995),
Sec. 536(d) of the Housing Act of 1949 was repealed effective January
1, 1996. Therefore, 7 CFR part 1940, subpart S, ``Accountability
Requirements of Persons Paid to Influence the Making of an RHCDS
Housing Loan and/or Grant'', is being removed. However, all
requirements found in FmHA Instruction 1940-Q, ``Restrictions on
Lobbying,'' will still apply even though subpart S is deleted because
FmHA Instruction 1940-Q contains the Department's lobbying regulations
published in 7 CFR part 3018. Copies of FmHA Instruction 1940-Q are
available in all Rural Development offices. Some
[[Page 39851]]
outdated references are also being revised.
List of Subjects
7 CFR Part 1940
Accountability, Low and moderate income housing--Rental, Reporting
requirements.
7 CFR Part 1944
Administrative practice and procedure, Aged, Farm labor housing,
Grant programs--Housing and community development, Handicapped, Home
improvement, Loan programs--Housing and community development, Low and
moderate income housing--Rental, Migrant labor, Mobile homes,
Mortgages, Nonprofit organizations, Public housing, Rent subsidies,
Reporting requirements, Rural housing, subsidies.
7 CFR Part 1965
Administrative practice and procedure, Low and moderate income
housing--Rental, Mortgages.
Therefore, chapter XVIII, title 7, Code of Federal Regulations is
amended as follows:
PART 1940--GENERAL
1. The authority citation for part 1940 is amended to read as
follows:
Authority: 5 U.S.C. 301, 7 U.S.C. 1989 and 42 U.S.C. 1480.
Secs. 1940.901 through 1940.950 (Subpart S)--[Removed and Reserved]
2. Subpart S, consisting of Secs. 1940.901 through 1940.950 is
removed and reserved.
PART 1944--HOUSING
3. The authority citation for part 1944 continues to read as
follows:
Authority: 5 U.S.C. 301, 7 U.S.C. 1989, and 42 U.S.C. 1480.
Subpart A--Section 502 Rural Housing Loans Policies, Procedures,
and Authorizations
Sec. 1944.27 [Amended]
4. Section 1944.27 is amended by removing paragraph (i).
Sec. 1944.31 [Amended]
5. Section 1944.31, paragraphs (a) and (e), is amended by revising
the references to ``RHCDS'' to read ``RHS.''
Subpart B--Housing Application Packaging Grants
Sec. 1944.62 [Amended]
6. Section 1944.62 is amended by revising the reference to ``FmHA''
to read ``RHS.''
Sec. 1944.66 [Amended]
7. Section 1944.66 is amended by removing paragraph (b); by
redesignating paragraphs (c) through (g) as (b) through (f)
respectively; by amending newly redesignated paragraphs (b) and (c) to
revise the phrase ``FmHA or its successor agency under Public Law 103-
354 Office'' to read ``Agency Office,'' and by amending newly
redesignated paragraph (d) to revise the reference to ``FmHA or its
successor agency under Public Law 103-354'' to read ``RHS.''
Sec. 1944.67 [Amended]
8. Section 1944.67 is amended to revise the references to ``FmHA or
its successor agency under Public Law 103-354'' to read ``Agency.''
Sec. 1944.69 [Amended]
9. Section 1944.69 is amended to revise the references to ``FmHA or
its successor agency under Public Law 103-354'' to read ``Agency.''
Sec. 1944.70 [Amended]
10. Section 1944.70(b) is amended to revise the reference to ``FmHA
or its successor agency under Public Law 103-354'' to read ``Agency.''
Sec. 1944.72 [Amended]
11. Section 1944.72 is amended to revise the references to ``FmHA
or its successor agency under Public Law 103-354'' to read ``Agency.''
Subpart D--Farm Labor Housing Loan and Grant Policies, Procedures
and Authorizations
Sec. 1944.170 [Amended]
12. Section 1944.170 is amended by removing paragraph (d) and
revising the reference ``(c)(3)(ii)(B)'' in paragraph (c)(5)(ii)(C) to
read ``(c)(5)(ii)(A).''
Subpart E--Rural Rental and Rural Cooperative Housing Loan
Policies, Procedures, and Authorizations
Sec. 1944.215 [Amended]
13. Section 1944.215 is amended by removing paragraph (x) and by
revising the references ``FmHA or its successor agency under Public Law
103-354'' to read ``RHS in paragraphs (v) and (w).''
Subpart I--Self-Help Technical Assistance Grants
Sec. 1944.408 [Removed and Reserved]
14. Section 1944.408 is removed and reserved.
Sec. 1944.409 [Amended]
15. Section 1944.409 is amended to revise the first two references
to ``FmHA or its successor agency under Public Law 103-354'' to read
``Agency'' and to remove the last reference to ``FmHA or its successor
agency under Public Law 103-354.''
Sec. 1944.410 [Amended]
16. Section 1944.410 is amended to revise the reference to ``FmHA
or its successor agency under Public Law 103-354'' in the second
sentence of the introductory text of paragraph (a) to read ``RHS.''
Subpart J--Section 504 Rural Housing Loans and Grants
Sec. 1944.463 [Amended]
17. Section 1944.463(c) introductory text is amended to revise the
reference to ``FmHA or its successor agency under Public Law 103-354''
to read ``RHS.''
Sec. 1944.464 [Amended]
18. Section 1944.464 is amended to revise the references to ``FmHA
or its successor agency under Public Law 103-354'' in the introductory
paragraph to read ``RHS.''
Sec. 1944.466 [Removed and Reserved]
19. Section 1944.466 is removed and reserved.
Subpart N--Housing Preservation Grants
Sec. 1944.654 [Amended]
20. Section 1944.654 is amended to revise the phrase ``any FmHA or
its successor agency under Public Law 103-354 Office'' to read ``any
Agency office'' in paragraphs (a) and (b); to revise in the first
sentence of paragraph (a) the phrase ``all FmHA or its successor agency
under Public law 103-354 applicants'' to read ``all Rural Development
applicants;'' and to revise in the second sentence of paragraph (b) the
reference to ``FmHA or its successor agency under Public Law 103-354''
to read ``Rural Development.''
Sec. 1944.655 [Removed and Reserved]
21. Section 1944.655 is removed and reserved.
Sec. 1944.656 [Amended]
22. Section 1944.656 is amended to revise the references to ``FmHA
or its successor agency under Public Law 103-354'' in the introductory
paragraph to read ``Rural Development,'' and in the definitions of
``Grant agreement'' and ``Housing preservation'' to revise the
references to ``FmHA or its successor agency under Public Law 103-354''
to read ``Agency.''
[[Page 39852]]
PART 1965--REAL PROPERTY
23. The authority citation for part 1965 continues to read as
follows:
Authority: 5 U.S.C. 301, 7 U.S.C. 1989, and 42 U.S.C. 1480.
Subpart E--Prepayment and Displacement Prevention of Multi-Family
Housing Loans
Sec. 1965.217 [Amended]
24. Section 1965.217 is amended by revising the reference in
paragraph (d)(2)(i)(B) to ``FmHA or its successor agency under Public
Law 103-354'' to read ``The Agency''; by removing paragraph
(d)(2)(ii)(A), by redesignating paragraphs (d)(2)(ii) (B) through (D)
as (d)(2)(ii) (A) through (C) respectively; by revising the reference
in newly designated paragraph (d)(2)(ii)(B) to ``FmHA or its successor
agency under Public Law 103-354'' to read ``Agency;'' by revising the
reference in newly designated paragraph (d)(2)(C)(1) to ``7 CFR parts
3015 and 3016'' to read ``7 CFR parts 3015, 3016 and 3019;'' and by
removing the reference in paragraph (d)(2)(iii)(A) to ``FmHA or its
successor agency under Public Law 103-354.''
Dated: June 13, 1996.
Inga Smulkstys,
Deputy Under Secretary, Operations and Management.
[FR Doc. 96-19401 Filed 7-30-96; 8:45 am]
BILLING CODE 3410-07-U
Complete official Federal Register PDF
FR Doc. 96-19393 Supplemental Standards of Ethical Conduct for Employees of the Federal Mine Safety and Health Review Commission
[Federal Register Volume 61, Number 148 (Wednesday, July 31, 1996)]
[Rules and Regulations]
[Pages 39869-39872]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19393]
=======================================================================
-----------------------------------------------------------------------
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
5 CFR Chapter LXXIV
29 CFR Part 2703
RIN 3209-AA15
Supplemental Standards of Ethical Conduct for Employees of the
Federal Mine Safety and Health Review Commission
AGENCY: Federal Mine Safety and Health Review Commission (Commission).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Federal Mine Safety and Health Review Commission, with the
concurrence of the Office of Government Ethics (OGE), is issuing a
final rule for Commission employees that supplements the Standards of
Ethical Conduct for Employees of the Executive Branch issued by OGE.
This final rule is a necessary supplement to the Standards because it
addresses ethical issues unique to the Commission. The final rule
prohibits the acquisition or holding of certain financial interests and
requires certain employees to obtain prior approval for outside
employment. The Commission also is repealing, except for a regulatory
waiver provision, its old standards of conduct regulations that are
superseded by the Standards, OGE's executive branch-wide financial
disclosure regulations, and this final rule. In their place, the
Commission is adding a cross-reference section to the current ethics
provisions and a section specifying the Chairman's authority to appoint
the Commission's ethics officials.
EFFECTIVE DATE: These regulations are effective July 31, 1996.
FOR FURTHER INFORMATION CONTACT: Norman Gleichman, Designated Agency
Ethics Official, Federal Mine Safety and Health Review Commission, 1730
K Street, NW., 6th Floor, Washington, DC 20006; telephone: (202) 653-
5610 (202-566-2673 for TDD Relay). These are not toll-free numbers.
SUPPLEMENTARY INFORMATION:
I. Background
On August 7, 1992, the Office of Government Ethics (OGE) published
a final rule entitled Standards of Ethical Conduct for Employees of the
Executive Branch (Standards). See 57 FR 35006-35067, as corrected at 57
FR 48557, 57 FR 52583, and 60 FR 51667, with additional grace period
extensions at 59 FR 4779-4780, 60 FR 6390-6391, and 60 FR 66857-66858.
The Standards, codified at 5 CFR part 2635 and made effective February
3, 1993, establish uniform standards of ethical conduct that are
applicable to all executive branch employees.
With the concurrence of OGE, 5 CFR 2635.105 authorizes executive
branch agencies to publish agency-specific regulations supplementing 5
CFR part 2635 that are necessary to implement their respective ethics
programs. With OGE's concurrence, the Commission has determined that
the following supplemental regulations, being codified in new 5 CFR
chapter LXXIV, consisting of part 8401, are necessary for successful
implementation of the Commission's ethics program, in light of the
Commission's unique programs and operations.
II. Analysis of the Regulations
Section 8401.101 General
Section 8401.101 explains that the supplemental regulations apply
to Commission employees and supplement the Standards at 5 CFR part
2635. This section also cross-references the executive branch-wide
financial disclosure regulations at 5 CFR part 2634.
Section 8401.102 Prohibited Financial Interests
The Standards, at 5 CFR 2635.403(a), authorize an agency to issue a
supplemental regulation prohibiting or restricting the acquisition or
holding of a financial interest or a class of financial interests by
the agency's employees or any category of its employees, based on a
determination that the acquisition or holding of such interests would
cause a reasonable person to question the imparti ality and objectivity
with which agency programs are administered. Where it is necessary for
the agency to carry out its mission, such prohibitions or restrictions
may be extended to employees' spouses and minor children, since such
family members' financial interests are imputed to employees for
conflict of interest purposes.
Section 8401.102(a) expressly prohibits Commission employees (other
than special Government employees), as well as the spouses and minor
children of such employees, from having any financial interest,
including indebtedness or compensated employment, in any company or
other person who operates, controls, or supervises a mine subject to
the provisions of the Federal Mine Safety and Health Act of 1977, 30
U.S.C. 801 et seq., or any independent contractor performing services
or construction at such a mine. The prohibition has been made
applicable to employees' spouses
[[Page 39870]]
and minor children based on a determination that such application of
the prohibition is necessary to the ability of Commission employees to
fulfill their official duties and the ability of the Commission to
carry out its mission. Furthermore, the prohibition in this section,
including its applicability to employees' spouses and minor children,
is necessary to maintain public confidence in the impartiality and
objectivity with which the Commission conducts its adjudicatory
functions. The Commission believes it important to the success of its
mission that those affected by agency decisions have this additional
degree of assurance that agency decisions are not influenced by
considerations of personal gain on the part of Commission personnel.
A ``financial interest'' is defined in the Standards at 5 CFR
2635.403(c). In accordance with 5 CFR 2635.403(a), Sec. 8401.102(a)
generally prohibits such interests in mining enterprises subject to the
Commission's jurisdiction. This section is essentially a readoption of
29 CFR 2703.09(b), in which the Commission has prohibited employees
from having a financial interest in mining enterprises subject to the
Commission's jurisdiction. The Commission interpreted the provision to
also apply to spouses and minor children of Commission employees.
Section 8401.102(b) sets forth exceptions to the general financial
interest prohibition in Sec. 8401.102(a). The exceptions are intended
to permit the acquisition or holding of financial interests that are
unlikely to raise questions regarding the objective and impartial
performance of Commission employees' official duties or the possible
misuse of their positions.
Under Sec. 8401.102(b)(1), the prohibition in Sec. 8401.102(a) does
not apply to investments in a publicly traded or publicly available
investment fund which, in its prospectus, does not indicate the
objective or practice of concentrating its investments in the
securities of any company or other person who operates, controls, or
supervises a mine subject to the provisions of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. 801 et seq., or any independent
contractor performing services or construction at such a mine, if the
employee neither exercises control over the financial interests held in
the fund nor has the ability to exercise such control. Under
Sec. 8401.102(b)(2), unless there is a ``substantial conflict'' within
the meaning of 5 CFR 2635.403(b), an employee may own or control a
financial interest obtained prior to the employee's commencement of
employment, through a change in marital status, or through
circumstances beyond the employee's control, such as acquisition by
inheritance, gift, or merger. However, the employee must make full
written disclosure to the Designated Agency Ethics Official (DAEO) and
the employee will be disqualified from participating in any decision or
other particular matter having a direct and predictable effect on the
financial interest in question.
Under Sec. 8401.102(c), the DAEO may require divestiture of a
financial interest that would otherwise be allowed to be retained under
Sec. 8401.102(b)(2), using the standard of ``substantial conflict'' set
forth in 5 CFR 2635.403(b).
Under Sec. 8401.102(d), the DAEO may grant a waiver from the
financial interest prohibition in this section based on a determination
that the waiver is not inconsistent with 5 CFR part 2635 or otherwise
prohibited by law and that, under the particular circumstances,
application of the prohibition is not necessary to avoid the appearance
of misuse of position or loss or impartiality and objectivity with
which Commission programs are administered. An employee may be required
under the waiver to disqualify himself from a particular matter or take
other appropriate action.
Section 8401.103 Prior Approval for Outside Employment
Under 5 CFR 2635.803 an agency that determines it is necessary or
desirable for the purpose of administering its ethics program may, by
supplemental regulation, require employees to obtain prior written
approval before engaging in outside employment. The Commission's old
standards of conduct regulation at 29 CFR 2703.12 (which is now being
repealed) is a grace period (grandfathered) provision which has long
required Commission employees classified at GS-13 or above and
Commission attorneys at any grade level to obtain approval before
engaging in outside employment. The Commission has found this
requirement useful in ensuring that its employees avoid violations of
the standards of conduct and conflict of interest statutes.
In accordance with 5 CFR 2635.803, the Commission has determined
that it is necessary to the administration of its ethics program to
continue to require such prior approval. Accordingly, Sec. 8401.103(a)
provides that a Commission employee, other than a special Government
employee, must obtain the advance written approval from the employee's
immediate supervisor and the DAEO before engaging in any outside
employment. This section also sets forth the minimum information
required to be included in the request for prior approval.
Section 8401.103(b) provides that approval shall be granted only
upon a determination that the outside employment is not expected to
involve conduct prohibited by statute or Federal regulation, including
5 CFR part 2635 and the Commission's supplemental standards of ethical
conduct at this new part 8401 of 5 CFR.
``Employment'' is broadly defined in Sec. 8401.103(c)(1) to cover
services as an agent, contractor, general partner, teacher, trustee, or
writing when done under an arrangement with another person for
production or publication of the written product. It does not, however,
include participation in the activities of a nonprofit charitable,
religious, professional, or public service organization, unless such
activities involve providing professional services as defined in 5 CFR
2636.305(b)(1) or are for compensation other than reimbursement of
expenses.
III. Repeal and Revision of Commission Employee Responsibilities and
Conduct Regulations
The Commission is repealing its old employee responsibilities and
conduct regulations codified at 29 CFR part 2703 which have been
superseded by the new executive branch standards of ethical conduct and
financial disclosure regulations, 5 CFR parts 2634 and 2635, and the
Commission's supplemental standards of ethical conduct established by
this rulemaking. In place of its old standards, the Commission is
issuing a residual cross-reference provision at new 29 CFR 2703.1 to
refer to the executive branch-wide Standards and financial disclosure
regulations and to the Commission's new supplemental standards of
ethical conduct.
In addition, in accordance with the ethics program responsibility
of an agency head, at 5 CFR 2638.202(b), to select a DAEO and alternate
DAEO, the Commission is including in 29 CFR part 2703 a new
Sec. 2703.2, which provides that the Chairman of the Commission shall
appoint such officials to coordinate and manage the Commission's ethics
program. Finally, the Commission is retaining in 29 CFR part 2703 the
regulatory waiver at Sec. 2703.09(c) (now being redesignated as
Sec. 2703.3) which was issued under the prior version of 18 U.S.C.
208(b)(2) (1988) and which has remained in effect pending OGE's
issuance of superseding executive branch-wide regulatory waivers.
[[Page 39871]]
IV. Matters of Regulatory Procedure
Administrative Procedure Act
The Commission has determined that these rules relate solely to
agency organization, procedure, and practice. Therefore, the provisions
of the Administrative Procedure Act, as codified at 5 U.S.C. 553,
generally requiring notice of proposed rulemaking and other opportunity
for public participation, are not applicable. The Commission further
finds that there is good cause to make these rules, which are necessary
to the successful implementation of the Commission's ethics program,
effective upon publication in the Federal Register.
E.O. 12866, Regulatory Planning and Review
The Commission has determined that these rules are not subject to
Office of Management and Budget review under Executive Order 12866.
Regulatory Flexibility Act
The Commission has determined under the Regulatory Flexibility Act
(5 U.S.C. 601-611) that these rules will not have significant economic
impact on a substantial number of small entities because they affect
only Commission employees. Therefore, a Regulatory Flexibility
Statement and Analysis has not been prepared.
Paperwork Reduction Act
The Commission has determined that the Paperwork Reduction Act (44
U.S.C. chapter 35) does not apply because these rules do not contain
any information collection requirements that require the approval of
the Office of Management and Budget.
List of Subjects in 5 CFR Part 8401 and 29 CFR Part 2703
Conflict of interests, Executive branch standards of conduct,
Government employees.
Dated: July 18, 1996.
Mary Lu Jordan,
Chairman, Federal Mine Safety and Health Review Commission.
Approved: July 19, 1996.
Stephen D. Potts,
Director, Office of Government Ethics.
For the reasons set forth in the preamble, the Federal Mine Safety
and Health Review Commission, with the concurrence of the Office of
Government Ethics, is amending title 5 and title 29 of the Code of
Federal Regulations as follows:
TITLE 5--[AMENDED]
1. A new chapter LXXIV, consisting of part 8401, is added to title
5 of the Code of Federal Regulations to read as follows:
CHAPTER LXXIV--FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
PART 8401--SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES
OF THE FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
Sec.
8401.101 General.
8401.102 Prohibited financial interests.
8401.103 Prior approval for outside employment.
Authority: 5 U.S.C. 7301; 5 U.S.C. App. (Ethics in Government
Act of 1978); E.O. 12674, 54 FR 15159, 3 CFR, 1989 Comp., p. 215, as
modified by E.O. 12731, 55 FR 42547, 3 CFR, 1990 Comp. p. 306; 5 CFR
2635.105, 2635.403(a), 2635.802(a), 2635.803.
Sec. 8401.101 General.
In accordance with 5 CFR 2635.105, the regulations in this part
apply to the employees of the Federal Mine Safety and Health Review
Commission (Commission) and supplement the Standards of Ethical Conduct
for Employees of the Executive Branch at 5 CFR part 2635. Commission
employees also are subject to the executive branch financial disclosure
regulations at 5 CFR part 2634.
Sec. 8401.102 Prohibited financial interests.
(a) Prohibition. Except as provided in this section, no employee
(other than a special Government employee), or spouse or minor child of
such an employee, shall have a financial interest, including
compensated employment or indebtedness, in any company or other person
engaged in mining activities subject to the Federal Mine Safety and
Health Act of 1977 (Federal Mine Safety and Health Act), 30 U.S.C. 801
et seq.
(b) Exceptions. (1) This section does not prohibit an employee, or
the spouse or minor child of an employee, from investing in a publicly
traded or publicly available investment fund which, in its prospectus,
does not indicate the objective or practice of concentrating its
investments in the securities of any company or other person engaged in
mining activities subject to the Federal Mine Safety and Health Act,
provided that the employee neither:
(i) Exercises control over the financial interests held in the
fund; nor
(ii) Has the ability to exercise control over the financial
interests held in the fund.
(2)(i) Unless divestiture is required by paragraph (c) of this
section, this section does not prohibit an employee, or the spouse or
minor child of an employee, from owning or controlling securities of
any company or other person engaged in mining activities subject to the
Federal Mine Safety and Health Act, whenever:
(A) Ownership or control was acquired prior to the employee's
commencement of employment, through a change in marital status, or
through circumstances beyond the employee's control and without the
appearance of attempting to circumvent the prohibitions in this
section, such as acquisition by inheritance, gift, or merger,
acquisition or other change in corporate ownership, provided that: (1)
The employee makes full, written disclosure to the designated agency
ethics official within 30 days after the security is acquired or the
employment is commenced; and
(2) The employee is disqualified from participating in any
decision, examination, audit, or other particular matter having a
direct and predictable effect on such company or other person, in which
the employee holds a direct or indirect interest.
(B) The securities result from a stock split, stock dividend or the
exercise of preemptive rights arising out of securities permitted by
paragraph (b)(2)(i)(A) of this section. This paragraph does not permit
the holding of stocks purchased through voluntary reinvestment of cash
dividends.
(ii) For purposes of this section, the term ``securities'' includes
all interests in debt or equity instruments. The term includes, without
limitation, secured and unsecured bonds, debentures, notes, securitized
assets and commercial paper, as well as all types of preferred and
common stock. The term encompasses both current and contingent
ownership interests, including any beneficial or legal interest derived
from a trust. It extends to any right to acquire or dispose of any long
or short position in such securities and includes, without limitation,
interests convertible into such securities, as well as options, rights,
warrants, puts, calls, and straddles with respect thereto.
(c) Divestiture. The designated agency ethics official may require
an employee to divest a security the employee is otherwise authorized
to retain under paragraph (b)(2) of this section, based on a
determination of substantial conflict under Sec. 2635.403(b) of this
title.
(d) Waivers. The designated agency ethics official may grant a
written
[[Page 39872]]
waiver from the prohibition contained in this section based on a
determination that the waiver is not inconsistent with 5 CFR part 2635
or otherwise prohibited by law and that, under the particular
circumstances, application of the prohibition is not necessary to avoid
the appearance of misuse of position or loss of impartiality, or
otherwise to ensure confidence in the impartiality and objectivity with
which Commission programs are administered. A waiver under this
paragraph may be accompanied by appropriate conditions, such as
requiring execution of a written statement of disqualification.
Notwithstanding the grant of any waiver, an employee remains subject to
the disqualification requirements of 5 CFR 2635.402 and 2635.502.
Sec. 8401.103 Prior approval for outside employment.
(a) Prior approval requirement. (1) Before engaging in any outside
employment, whether or not for compensation, a Commission employee who
is classified at GS-13 or above, as well a Commission attorney at any
grade level, must obtain the written approval of the employee's
immediate supervisor and the designated agency ethics official. This
requirement does not apply to a special Government employee of the
Commission.
(2) Requests for approval shall be forwarded through the employee's
immediate supervisor to the designated agency ethics official and shall
include at a minimum the name of the person, group, or organization for
whom the work is to be performed; the type of work to be performed; and
the proposed hours of work and approximate dates of employment.
(b) Standard for approval. Approval shall be granted only upon a
determination that outside employment is not expected to involve
conduct prohibited by statute or Federal regulation, including 5 CFR
2635 and this part.
(c) Definitions. For purposes of this section:
(1) Employment means any form of non-Federal employment or business
relationship involving the provision of personal services by the
employee. It includes but is not limited to personal services as an
officer, director, employee, agent, attorney, consultant, contractor,
general partner, trustee or teacher. It also includes writing when done
under an arrangement with another person for production or publication
of the written product. It does not, however, include participation in
the activities of a nonprofit charitable, religious, professional,
social, fraternal, educational, recreational, public service or civic
organization, unless such activities involve the provision of
professional services or advice or are for compensation other than
reimbursement expenses.
(2) Professional services means the provision of personal services
by an employee, including the rendering of advice or consultation,
which involves application of the skills of a profession as defined in
5 CFR 2636.305(b)(1).
TITLE 29--[AMENDED]
CHAPTER XXVII--FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
2. Part 2703 of 29 CFR chapter XXVII is revised to read as follows:
PART 2703--EMPLOYEE RESPONSIBILITIES AND CONDUCT
Sec.
2703.1 Cross-reference to employee ethical conduct standards and
financial disclosure regulations.
2703.2 Designated Agency Ethics Official and Alternate Designated
Agency Ethics Official.
2703.3 Conflict of interest exemption.
Authority: 5 U.S.C. 7301; 18 U.S.C. 208; 5 CFR 2638.202.
Sec. 2703.1 Cross-reference to employee ethical conduct standards and
financial disclosure regulations.
Members and employees of the Federal Mine Safety and Review
Commission are subject to the executive branch-wide Standards of
Ethical Conduct at 5 CFR part 2635; the Commission's regulations at 5
CFR part 8401, which supplement the executive branch-wide standards;
and the executive branch-wide financial disclosure regulations at 5 CFR
part 2634.
Sec. 2703.2 Designated Agency Ethics Official and Alternate Designated
Agency Ethics Official.
The Chairman shall appoint an individual to serve as the designated
agency ethics official, and an individual to serve in an acting
capacity in the absence of the primary designated agency ethics
official (alternate designated agency ethics official), to coordinate
and manage the Commission's ethics program.
Sec. 2703.3 Conflict of interest exemption.
The financial interests hereinafter described are, to the extent
indicated, exempted from application of the financial conflict of
interest prohibition at 18 U.S.C. 208(a) because they have been
determined to be too remote or inconsequential to affect the integrity
of a Commission employee's services in any matter in which he may act
in an official capacity:
Ownership of shares of stock, bonds, other corporate securities, or
shares in a mutual fund or regulated fund or regulated investment
company, so long as the current aggregate fair market value of such
holdings in a single enterprise does not exceed $5,000.
[FR Doc. 96-19393 Filed 7-30-96; 8:45 am]
BILLING CODE 6735-01-P
Complete official Federal Register PDF
FR Doc. 96-19387 Labeling of Sausages Made With Natural Casings
[Federal Register Volume 61, Number 148 (Wednesday, July 31, 1996)]
[Rules and Regulations]
[Pages 39853-39854]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19387]
-----------------------------------------------------------------------
DEPARTMENT OF AGRICULTURE
Food Safety and Inspection Service
9 CFR Parts 317 and 381
[Docket No. 96-020N]
Labeling of Sausages Made With Natural Casings
AGENCY: Food Safety and Inspection Service, USDA.
ACTION: Notice of policy statement.
-----------------------------------------------------------------------
SUMMARY: FSIS is clarifying its policy on the labeling of meat or
poultry sausages made with natural casings. The casings of such
sausages must be derived from the animal species indicated by the
product labeling. A sausage made with natural casings derived from a
different
[[Page 39854]]
species is misbranded unless the product name is appropriately
qualified or unless the statement of ingredients indicates the species
from which the casings are derived.
FOR FURTHER INFORMATION CONTACT: Ms. Cheryl Wade, Director, Food
Labeling Division, FSIS, West End Court Building, Washington, DC; (202)
254-2590.
SUPPLEMENTARY INFORMATION: Sausages are prepared using single or
multiple species of meat or poultry. Some sausages are made with non-
edible casings that must be removed before eating. Others are made with
edible casings, such as those made from cellulose or collagen. Still
others are made with natural casings, also referred to as animal
casings, which are prepared from various sections of the viscera. Some
sausages prepared in natural casings may have the species identified in
the product name or statement of ingredients on the product label.
However, sausages may also be made with natural casings derived from a
species that is not identified on the label. For example, a combination
beef-and-lamb sausage may be made with a pork casing.
The use of any particular type of casing is commonly determined by
the price and availability of the casings and the size and shape of the
sausage product. Natural casings are not prepared from poultry because
poultry intestines are not the appropriate size for sausages
customarily consumed in this country. More importantly, FSIS has only
recently determined poultry intestines to be edible.
FSIS believes that consumers of sausages made with natural casings
expect the casings to be derived from the same species as the species
indicated on the product label, whether in the product name or in the
ingredients statement. For example, the natural casing of a sausage
labeled ``beef sausage'' should be derived from cattle. Similarly, FSIS
believes that consumers of poultry sausage, e.g., chicken sausage,
expect the sausage to be made from poultry and would not necessarily
expect the casing to be derived from a red meat source.
Therefore, FSIS considers a sausage made with natural casings
derived from a different species to be a misbranded product, unless the
species from which the casings are derived is indicated in the product
name or listed in the ingredients statement, or is in both places on
the product label.
Done, at Washington, D.C., on: July 23, 1996.
Michael R. Taylor,
Acting Under Secretary for Food Safety.
[FR Doc. 96-19387 Filed 7-30-96; 8:45 am]
BILLING CODE 3410-DM-P
Complete official Federal Register PDF
FR Doc. 96-19386 Schedule for Rating Disabilities; Infectious Diseases, Immune Disorders and Nutritional Deficiencies (Systemic Conditions)
[Federal Register Volume 61, Number 148 (Wednesday, July 31, 1996)]
[Rules and Regulations]
[Pages 39873-39877]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19386]
=======================================================================
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 4
RIN 2900-AE95
Schedule for Rating Disabilities; Infectious Diseases, Immune
Disorders and Nutritional Deficiencies (Systemic Conditions)
AGENCY: Department of Veterans Affairs.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This document amends that portion of the Department of
Veterans Affairs (VA) Schedule for Rating Disabilities concerning
Infectious Diseases, Immune Disorders and Nutritional Deficiencies
(formerly entitled Systemic Conditions). The effect of this action is
to update this portion of the rating schedule to ensure that it uses
current medical terminology, unambiguous criteria, and that it reflects
medical advances that have occurred since the last review.
EFFECTIVE DATE: This amendment is effective August 30, 1996.
FOR FURTHER INFORMATION CONTACT: Caroll McBrine, M.D., Consultant,
Regulations Staff, Compensation and Pension Service, Veterans Benefits
Administration, Department of Veterans Affairs, 810 Vermont Ave. NW,
Washington DC, 20420, (202) 273-7230.
SUPPLEMENTARY INFORMATION: As part of the first comprehensive review of
its Schedule for Rating Disabilities since 1945, VA published in the
Federal Register of April 30, 1993 (58 FR 26083-87) a proposal to amend
the portion of the Schedule for Rating Disabilities concerning Systemic
Conditions. This document has renamed that portion of the rating
schedule as Infectious Diseases, Immune Disorders and Nutritional
Deficiencies. Interested persons were invited to submit written
comments on or before June 29, 1993. We received comments from the
Disabled American Veterans and the Paralyzed Veterans of America.
The final rule includes a diagnostic code (DC 6354) and diagnostic
criteria (38 CFR 4.88a) for chronic fatigue syndrome. These provisions
for chronic fatigue syndrome were added to the portion of the rating
schedule then titled Systemic Conditions by a final rule published in
the Federal Register of July 19, 1995 (60 FR 37012-13).
We proposed to reduce or eliminate the convalescence periods for
several infectious diseases, and both commenters disagreed with those
proposals.
We proposed to change the convalescent periods for Asiatic cholera
(DC 6300), Bartonellosis (DC 6306), and scrub typhus (DC 6317) from six
months to three months, noting that when treated in a straightforward
manner, the active phase of the diseases resolves quickly, and need for
convalescence is typically much less than six months. One commenter
questioned what ``treated in a straightforward manner'' means. A second
commenter felt that a shorter convalescent period for Bartonellosis is
not justified because convalescence is slow, and gradual normalization
of red blood cell mass begins three to six weeks after onset of
disease.
The six-month periods of convalescence for these conditions were
established prior to the modern antibiotic era, and were appropriate at
the time. However, with modern therapy, the course of these infectious
diseases has dramatically improved. Scrub typhus deaths are rare, and
convalescence is short (``Harrison's Principles of Internal Medicine''
760 (Jean D. Wilson, M.D., et al., eds., 12th ed. 1991)); with specific
therapy, recovery is prompt and uneventful (``The Merck Manual'' 173
16th ed. 1992). Similarly, treatment for Asiatic cholera is simple, and
the condition is self-limited to a few days (Harrison, 632).
Bartonellosis responds rapidly to antibiotics and the red blood cells
stabilize in about six weeks (Harrison, 634). While the characteristic
severe anemia that occurs in an individual with Bartonellosis may
require time after treatment to resolve, three months is an adequate
period of convalescence in the average person. We have therefore
adopted the proposed provisions, which provide for a three-month
convalescent evaluation for these conditions.
The previous schedule called for a 100 percent evaluation for
leprosy (DC 6302) as active disease and for one year's convalescence.
We proposed to remove the one-year period of convalescence. One
commenter said that a convalescent period should be retained because of
the serious nature of the disease, and another questioned whether there
is a medical basis for the change.
On further consideration, VA agrees that a continued 100 percent
evaluation
[[Page 39874]]
for convalescence of leprosy is warranted because the disease is
debilitating, sometimes extremely so, and a period of convalescence is
warranted to allow recovery of strength. Accordingly, we have amended
DC 6302 to continue the 100 percent evaluation indefinitely when the
disease is no longer active. Further, the final rule amends DC 6302 to
require an examination six months after the date that an examining
physician has determined the leprosy is inactive. Any change in
evaluation will be carried out under the provisions of Sec. 3.105(e).
This will assure that a total evaluation will continue long enough to
allow recovery from the debilitating effects of the disease, and will
also assure that the extent of any residual impairment is documented by
examination. This method of determining the duration of the period of
convalescence is consistent with the method we have used following
treatment of malignancies, in previously published rules that revised
other sections of the rating schedule.
The previous schedule provided a 100 percent evaluation for
visceral leishmaniasis (DC 6301) as active disease and for one year's
convalescence. We proposed to remove the one-year period of
convalescence. One commenter questioned whether there is any medical
basis for the change. Another commenter said that visceral
leishmaniasis is still a debilitating disease and warrants a reasonable
convalescent period.
In view of the frequency of debilitation in visceral leishmaniasis,
with findings such as hepatosplenomegaly, emaciation, and pancytopenia,
we have determined that a period of convalescence for DC 6302 similar
to that for leprosy is appropriate. We have added a note to continue
the 100 percent evaluation indefinitely when treatment for active
leishmaniasis has been completed, and to require an examination six
months after cessation of treatment. Any change in evaluation will be
carried out under the provisions of Sec. 3.105(e). This will assure
that a total evaluation will continue long enough to allow recovery
from the debilitating effects of the disease, and will also assure that
the extent of any residual impairment is documented by examination.
Another commenter stated that any reduction in the convalescence
period exceeds the Congressional mandate that ratings be based upon
``average impairment.''
VA does not concur. The convalescence periods adopted in this
change, as discussed above, represent, in our judgment, neither the
longest nor the shortest periods that any individual patient might
require for recovery, but the usual or normal periods during which an
average patient, under normal circumstances, would be expected to
recover from a specific condition.
Although the proposed regulation made only editorial changes to the
evaluation criteria for beriberi, DC 6314, both commenters argued that
the evaluation criteria at the 30 and 60 percent and 60 and 100 percent
levels for beriberi were nearly identical and therefore unrealistic.
We agree and have revised the evaluation criteria for beriberi to
reflect the different levels of disability with specific clinical
symptoms. A 100 percent evaluation requires congestive heart failure,
anasarca, or Wernicke-Korsakoff syndrome. The 60 percent level requires
cardiomegaly or peripheral neuropathy with footdrop or atrophy of thigh
or calf muscles. The 30 percent level requires peripheral neuropathy
with absent knee or ankle jerk and loss of sensation or weakness,
fatigue, anorexia, dizziness, heaviness and stiffness of legs, headache
or sleep disturbance. The revised criteria establish clear distinctions
between the evaluation levels and will allow for more realistic and
consistent evaluations.
We proposed to delete the previous evaluation formula for
filariasis, DC 6305, which provided a 100 percent evaluation for the
initial infection or severe recurrences, 60 and 30 percent evaluations
for the chronic form of the disease with beginning permanent deformity
or while symptomatic, and a zero percent evaluation if the disease
subsided after a single attack. A second set of evaluation criteria for
permanent deformities of an extremity or of the genitalia provided
levels of 60 percent for ``severe,'' 30 percent for ``moderate,'' and
10 percent for ``mild,'' and these evaluations for permanent
deformities could be combined among themselves to cover multiple
involvements. We proposed to provide a 100 percent evaluation while the
disease is active, and to rate the residuals of the disease under the
appropriate body system. One commenter felt that deleting the formula
does not improve the schedule because the peculiarities of the disease
require more detailed evaluation criteria.
We do not agree. The previous dual formula, plus the subjectivity
of criteria such as ``mild'', may have resulted in inconsistent
evaluations.
Any time the disease is active, it produces total disability, and
this is reflected in the new criteria. The most equitable and
consistent way to evaluate chronic residuals such as lymphadenitis or
deformities of an extremity or of the genitalia, however, is to use
evaluation criteria specifically intended for the body system affected.
While allowing for the broadest possible scope of evaluations, this
method will also assure more consistent evaluations because they will
be based on more objective criteria.
One commenter felt that the criteria for evaluation of HIV-Related
Illness, DC 6351, should be based on the 1993 revised classification
system for the disease issued by the Center for Disease Control (CDC).
VA's Schedule for Rating Disabilities is designed to evaluate
functional impairment (See 38 CFR 4.10), whereas the CDC classification
system for HIV infection is designed to guide the medical management of
persons infected with HIV and for HIV infection surveillance. Under the
CDC classification system, an individual is placed in one of three
categories based on the presence of clinical conditions associated with
HIV infection and on T4 cell counts. The condition is always classified
at the most advanced category it has reached even though the specific
complication or infection warranting the classification subsequently
resolves. That system is clearly not compatible with VA's Schedule for
Rating Disabilities because the severity of the functional impairment
caused by the conditions used to categorize the HIV infection under the
CDC system varies significantly.
One commenter, noting that there were no zero percent evaluations
proposed for any conditions other than HIV-Related Illness, suggested
that we add zero percent evaluations for every diagnostic code in this
section.
On October 6, 1993, VA revised its regulation addressing the issue
of zero percent evaluations (38 CFR 4.31) to authorize assignment of a
zero percent evaluation for any disability in the rating schedule when
minimum requirements for a compensable evaluation are not met. In
general, that regulatory provision precludes the need for zero percent
evaluation criteria unless the predictable effects of a particular
condition are likely to result in a situation where a rating agency
must determine whether a commonly occurring finding more nearly
approximates the requirements for a ten percent or zero percent
evaluation. (See 38 CFR 4.7.) Such a situation is the presence of
lymphadenopathy in an otherwise asymptomatic individual who is HIV
positive. In our judgment, lymphadenopathy does not warrant a ten
percent evaluation, and in order to
[[Page 39875]]
ensure that rating agencies consistently assign a zero percent
evaluation, we have included zero percent evaluation criteria under DC
6351. For the five other conditions in this section where we have
provided multiple evaluation levels, in our judgment there are no
commonly occurring effects that would make it unclear as to whether a
zero or higher evaluation would be warranted.
The proposed rule, which would require stomatitis, persistent
diarrhea and symmetrical dermatitis for a 40 percent evaluation for
pellagra, DC 6315, was substantially unchanged from the previous rule.
One commenter felt that the requirement of ``persistent diarrhea''
is too stringent. He noted that the term ``persistent'' is qualitative
and suggested that it be replaced with a more reasonable, quantifiable
alternative, but offered no alternate language for us to consider.
We agree in principle and have revised the criteria for both
pellagra and avitaminosis (DC 6313), which have the same evaluation
formula. While retaining the five evaluation levels, we have removed
the adjectives modifying diarrhea in the 40 and 20 percent levels, and
deleted the requirement for diarrhea at the 10 percent level. Without
changing the essence of the criteria, this will give the rater clear
instructions as to how to evaluate the disability and eliminate
qualitative adjectives from the evaluation criteria.
The previous evaluation formula for brucellosis, DC 6316, provided
a 100 percent evaluation for the active febrile disease with
complications such as arthritis; 50, 30 and 10 percent evaluations for
the chronic form of the disease; and a Note instructing the rating
specialist to rate complications separately. We proposed to revise this
formula to provide a 100 percent evaluation while the disease is
active, and to rate the residuals of the disease under the appropriate
body system. One commenter felt that unless the previous evaluation
criteria for brucellosis are retained, recurrent febrile undulation
cannot be properly evaluated.
We disagree. The criteria in the previous rating schedule could
lead to inconsistency in evaluations because arthritis and other
complications were included as part of a 100 percent evaluation, but
were also identified in the note as complications to be rated
separately. By providing clear instructions to evaluate the active form
of the disease as totally disabling and to rate residuals under the
appropriate body system, any ambiguity is removed from this evaluation
formula. The undulating or intermittent fever form of this disease is
rare (Cecil, Textbook of Medicine, 19th edition, p.1727-8), but, in any
event, it would be evaluated as the active incapacitating febrile stage
and would be assigned a 100 percent evaluation.
We have revised the note proposed under DC 6350 (lupus
erythematosus), to make it more clear that lupus erythematosus is
evaluated either by combining the evaluations for residuals or by
evaluating under the DC 6350 criteria, whichever method results in a
higher evaluation.
VA appreciates the comments submitted in response to the proposed
rule, which is now adopted as a final rule with the changes noted
above.
The Secretary hereby certifies that this regulatory amendment will
not have a significant economic impact on a substantial number of small
entities as they are defined in the Regulatory Flexibility Act, 5
U.S.C. 601-612. The reason for this certification is that this
amendment would not directly affect any small entities. Only VA
beneficiaries could be directly affected. Therefore, pursuant to 5
U.S.C. 605(b), this amendment is exempt from the initial and final
regulatory flexibility analysis requirements of sections 603 and 604.
This regulatory action has been reviewed by the Office of
Management and Budget under Executive Order 12866, Regulatory Planning
and Review, dated September 30, 1993.
The Catalog of Federal Domestic Assistance numbers are 64.104
and 64.109.
List of Subjects in 38 CFR Part 4
Disability benefits, Individuals with disabilities, Pensions,
Veterans.
Approved: March 7, 1996.
Jesse Brown,
Secretary of Veterans Affairs.
For the reasons set out in the preamble, 38 CFR part 4 is amended
as set forth below:
PART 4--SCHEDULE FOR RATING DISABILITIES
1. The authority citation for part 4 continues to read as follows:
Authority: 38 U.S.C. 1155.
Subpart B--Disability Ratings
2. The undesignated center heading appearing before Sec. 4.88 is
revised to read as follows:
Infectious Diseases, Immune Disorders and Nutritional Deficiencies
4.88 [Removed and reserved]
3. Section 4.88 is removed and that section is reserved.
4. Section 4.88b is revised to read as follows:
Sec. 4.88b Schedule of ratings--infectious diseases, immune disorders
and nutritional deficiencies.
------------------------------------------------------------------------
Rating
------------------------------------------------------------------------
6300 Cholera, Asiatic:
As active disease, and for 3 months convalescence...... 100
Thereafter rate residuals such as renal necrosis under the
appropriate system
6301 Visceral Leishmaniasis:
During treatment for active disease.................... 100
Note: A 100 percent evaluation shall continue beyond the cessation
of treatment for active disease. Six months after discontinuance of
such treatment, the appropriate disability rating shall be
determined by mandatory VA examination. Any change in evaluation
based upon that or any subsequent examination shall be subject to
the provisions of Sec. 3.105(e) of this chapter. Rate residuals
such as liver damage or lymphadenopathy under the appropriate
system
6302 Leprosy (Hansen's Disease):
As active disease...................................... 100
Note: A 100 percent evaluation shall continue beyond the date that
an examining physician has determined that this has become
inactive. Six months after the date of inactivity, the appropriate
disability rating shall be determined by mandatory VA examination.
Any change in evaluation based upon that or any subsequent
examination shall be subject to the provisions of Sec. 3.105(e) of
this chapter. Rate residuals such as skin lesions or peripheral
neuropathy under the appropriate system
6304 Malaria:
As active disease...................................... 100
[[Page 39876]]
Note: The diagnosis of malaria depends on the identification of the
malarial parasites in blood smears. If the veteran served in an
endemic area and presents signs and symptoms compatible with
malaria, the diagnosis may be based on clinical grounds alone.
Relapses must be confirmed by the presence of malarial parasites in
blood smears
Thereafter rate residuals such as liver or spleen damage under the
appropriate system
6305 Lymphatic Filariasis:
As active disease...................................... 100
Thereafter rate residuals such as epididymitis or lymphangitis under
the appropriate system
6306 Bartonellosis:
As active disease, and for 3 months convalescence...... 100
Thereafter rate residuals such as skin lesions under the appropriate
system
6307 Plague:
As active disease...................................... 100
Thereafter rate residuals such as lymphadenopathy under the
appropriate system
6308 Relapsing Fever:
As active disease...................................... 100
Thereafter rate residuals such as liver or spleen damage or central
nervous system involvement under the appropriate system
6309 Rheumatic fever:
As active disease...................................... 100
Thereafter rate residuals such as heart damage under the appropriate
system
6310 Syphilis, and other treponemal infections:
Rate the complications of nervous system, vascular system, eyes or
ears. (See DC 7004, syphilitic heart disease, DC 8013,
cerebrospinal syphilis, DC 8014, meningovascular syphilis, DC 8015,
tabes dorsalis, and DC 9301, dementia associated with central
nervous system syphilis)
6311 Tuberculosis, miliary:
As active disease...................................... 100
Inactive: See Secs. 4.88c and 4.89.
6313 Avitaminosis:
Marked mental changes, moist dermatitis, inability to
retain adequate nourishment, exhaustion, and cachexia. 100
With all of the symptoms listed below, plus mental
symptoms and impaired bodily vigor.................... 60
With stomatitis, diarrhea, and symmetrical dermatitis.. 40
With stomatitis, or achlorhydria, or diarrhea.......... 20
Confirmed diagnosis with nonspecific symptoms such as:
decreased appetite, weight loss, abdominal discomfort,
weakness, inability to concentrate and irritability... 10
6314 Beriberi:
As active disease:
With congestive heart failure, anasarca, or Wernicke-
Korsakoff syndrome.................................... 100
With cardiomegaly, or; with peripheral neuropathy with
footdrop or atrophy of thigh or calf muscles.......... 60
With peripheral neuropathy with absent knee or ankle
jerks and loss of sensation, or; with symptoms such as
weakness, fatigue, anorexia, dizziness, heaviness and
stiffness of legs, headache or sleep disturbance...... 30
Thereafter rate residuals under the appropriate body
system.
6315 Pellagra:
Marked mental changes, moist dermatitis, inability to
retain adequate nourishment, exhaustion, and cachexia. 100
With all of the symptoms listed below, plus mental
symptoms and impaired bodily vigor.................... 60
With stomatitis, diarrhea, and symmetrical dermatitis.. 40
With stomatitis, or achlorhydria, or diarrhea.......... 20
Confirmed diagnosis with nonspecific symptoms such as:
decreased appetite, weight loss, abdominal discomfort,
weakness, inability to concentrate and irritability... 10
6316 Brucellosis:
As active disease...................................... 100
Thereafter rate residuals such as liver or spleen damage or
meningitis under the appropriate system
6317 Typhus, scrub:
As active disease, and for 3 months convalescence...... 100
Thereafter rate residuals such as spleen damage or skin conditions
under the appropriate system
6318 Melioidosis:
As active disease...................................... 100
Thereafter rate residuals such as arthritis, lung lesions or
meningitis under the appropriate system
6319 Lyme Disease:
As active disease...................................... 100
Thereafter rate residuals such as arthritis under the appropriate
system
6320 Parasitic diseases otherwise not specified:
As active disease...................................... 100
Thereafter rate residuals such as spleen or liver damage under the
appropriate system
6350 Lupus erythematosus, systemic (disseminated):
Not to be combined with ratings under DC 7809 Acute,
with frequent exacerbations, producing severe
impairment of health.................................. 100
Exacerbations lasting a week or more, 2 or 3 times per
year.................................................. 60
Exacerbations once or twice a year or symptomatic
during the past 2 years............................... 10
Note: Evaluate this condition either by combining the evaluations
for residuals under the appropriate system, or by evaluating DC
6350, whichever method results in a higher evaluation
6351 HIV-Related Illness:
AIDS with recurrent opportunistic infections or with
secondary diseases afflicting multiple body systems;
HIV-related illness with debility and progressive
weight loss, without remission, or few or brief
remissions............................................ 100
Refractory constitutional symptoms, diarrhea, and
pathological weight loss, or; minimum rating following
development of AIDS-related opportunistic infection or
neoplasm.............................................. 60
[[Page 39877]]
Recurrent constitutional symptoms, intermittent
diarrhea, and on approved medication(s), or; minimum
rating with T4 cell count less than 200, or Hairy Cell
Leukoplakia, or Oral Candidiasis...................... 30
Following development of definite medical symptoms, T4
cell of 200 or more and less than 500, and on approved
medication(s), or; with evidence of depression or
memory loss with employment limitations............... 10
Asymptomatic, following initial diagnosis of HIV
infection, with or without lymphadenopathy or
decreased T4 cell count............................... 0
Note (1): The term ``approved medication(s)'' includes medications
prescribed as part of a research protocol at an accredited medical
institution.
Note (2): Psychiatric or central nervous system manifestations,
opportunistic infections, and neoplasms may be rated separately
under appropriate codes if higher overall evaluation results, but
not in combination with percentages otherwise assignable above
6354 Chronic Fatigue Syndrome (CFS):
Debilitating fatigue, cognitive impairments (such as inability to
concentrate, forgetfulness, confusion), or a combination of other
signs and symptoms:
Which are nearly constant and so severe as to restrict
routine daily activities almost completely and which
may occasionally preclude self-care................... 100
Which are nearly constant and restrict routine daily
activities to less than 50 percent of the pre-illness
level, or; which wax and wane, resulting in periods of
incapacitation of at least six weeks total duration
per year.............................................. 60
Which are nearly constant and restrict routine daily
activities to 50 to 75 percent of the pre-illness
level, or; which wax and wane, resulting in periods of
incapacitation of at least four but less than six
weeks total duration per year......................... 40
Which are nearly constant and restrict routine daily
activities by less than 25 percent of the pre-illness
level, or; which wax and wane, resulting in periods of
incapacitation of at least two but less than four
weeks total duration per year......................... 20
Which wax and wane but result in periods of
incapacitation of at least one but less than two weeks
total duration per year, or; symptoms controlled by
continuous medication................................. 10
Note: For the purpose of evaluating this disability, the condition
will be considered incapacitating only while it requires bed rest
and treatment by a physician.
------------------------------------------------------------------------
[FR Doc. 96-19386 Filed 7-30-96; 8:45 am]
BILLING CODE 8320-01-P
Complete official Federal Register PDF
FR Doc. 96-19377 Almonds Grown in California; Assessment Rate
[Federal Register Volume 61, Number 148 (Wednesday, July 31, 1996)]
[Rules and Regulations]
[Pages 39841-39842]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19377]
-----------------------------------------------------------------------
DEPARTMENT OF AGRICULTURE
7 CFR Part 981
[Docket No. FV96-981-2 IFR]
Almonds Grown in California; Assessment Rate
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Interim final rule with request for comments.
-----------------------------------------------------------------------
SUMMARY: This interim final rule establishes an assessment rate for the
Almond Board of California (Board) under Marketing Order No. 981 for
the 1996-97 and subsequent crop years. The Board is responsible for
local administration of the marketing order which regulates the
handling of almonds grown in California. Authorization to assess almond
handlers enables the Board to incur expenses that are reasonable and
necessary to administer the program.
DATES: Effective July 1, 1996. Comments received by August 30, 1996,
will be considered prior to issuance of a final rule.
ADDRESSES: Interested persons are invited to submit written comments
concerning this rule. Comments must be sent in triplicate to the Docket
Clerk, Fruit and Vegetable Division, AMS, USDA, P.O. Box 96456, room
2523-S, Washington, DC 20090-6456, FAX # (202) 720-5698. Comments
should reference the docket number and the date and page number of this
issue of the Federal Register and will be available for public
inspection in the Office of the Docket Clerk during regular business
hours.
FOR FURTHER INFORMATION CONTACT: Tershirra Yeager, Marketing Assistant,
Marketing Order Administrative Branch, Fruit and Vegetable Division,
AMS, USDA, P.O. Box 96456, room 2522-S, Washington, DC 20090-6456,
telephone (209) 720-5127, or FAX # (202) 720-5698; or Kathleen M. Finn,
Marketing Specialist, Marketing Order Administration Branch, Fruit and
Vegetable Division, AMS, USDA, P.O. Box 96456, room 2522-S, Washington,
DC 20090-6456, telephone (202) 720-1509 or FAX # (202) 720-5698. Small
businesses may request information on compliance with this regulation
by contacting: Jay Guerber, Marketing Order Administration Branch,
Fruit and Vegetable Division, AMS, USDA, P.O. Box 96456, Room 2523-S,
Washington, DC 20090-6456; telephone: (202) 720-2491, Fax# (202) 720-
5698.
SUPPLEMENTARY INFORMATION: This rule is issued under Marketing
Agreement and Order No. 981 (7 CFR part 981), regulating the handling
of almonds grown in California. The marketing agreement and order are
effective under the Agricultural Marketing Agreement Act of 1937, as
amended (7 U.S.C. 601-674), hereinafter referred to as the ``Act.''
The Department of Agriculture (Department) is issuing this rule in
conformance with Executive Order 12866.
This rule has been reviewed under Executive Order 12988, Civil
Justice Reform. Under the marketing order now in effect, California
almonds are subject to assessments. Funds to administer the order are
derived from such assessments. It is intended that the assessment rate
as issued herein will be applicable to all assessable almonds beginning
July 1, 1996, and continuing until amended, suspended or terminated.
This rule will not preempt any State or local laws, regulations, or
policies, unless they present an irreconcilable conflict with this
rule.
The Act provides that administrative proceedings must be exhausted
before parties may file suit in court. Under section 608c(15)(A) of the
Act, any handler subject to an order may file with the Secretary a
petition stating that the order, any provision of the order, or any
obligation imposed in connection with the order is not in accordance
with law and request a modification of the order or to be exempted
therefrom. Such handler is afforded the opportunity for a hearing on
the petition. After the hearing the Secretary would rule on the
petition. The Act provides that the district court of the United States
in any district in which the handler is an inhabitant, or has his or
her principal place of business, has jurisdiction to review the
Secretary's ruling on the petition, provided an action is filed not
later than 20 days after the date of the entry of the ruling.
Pursuant to the requirements set forth in the Regulatory
Flexibility Act (RFA), the Agricultural Marketing Service (AMS) has
considered the economic impact of this rule on small entities.
The purpose of the RFA is to fit regulatory actions to the scale of
business subject to such actions in order that small businesses will
not be unduly or disproportionately burdened. Marketing orders issued
pursuant to the Act, and the rules issued thereunder, are unique in
that they are brought about through group action of essentially small
entities acting on their own behalf. Thus, both statutes have small
entity orientation and compatibility.
There are approximately 7,000 producers of California almonds under
this marketing order, and approximately 115 handlers. Small
agricultural producers have been defined by the Small Business
Administration (13 CFR 121.601) as those having annual receipts of less
than $500,000, and small agricultural service firms are defined as
those whose annual receipts are less than $5,000,000. The majority of
California almond producers and handlers may be classified as small
entities.
The California almond marketing order provides authority for the
Board, with the approval of the Department, to formulate an annual
budget of expenses
[[Page 39842]]
and collect assessments from handlers to administer the program. The
members of the Board are producers and handlers of California almonds.
They are familiar with the Board's needs and with the costs of goods
and services in their local area and are thus in a position to
formulate an appropriate budget. The assessment rate is formulated and
discussed in a public meeting. Thus, all directly affected persons have
had an opportunity to participate and provide input.
The Board met on May 10, 1996, and unanimously recommended 1996-97
crop year expenditures of $6,426,500 and an assessment rate of $0.01
per pound of almonds. In comparison, last year's budgeted expenditures
were $4,952,591 with the assessment rate of $0.75 per pound. Major
expenditures recommended by the Board for the 1996-97 crop year include
$3,333,500 for information and research, $731,534 for salaries,
$660,500 for international programs, $558,131, production research,
$97,470 for travel, and $91,160 for crop estimate.
Of the $3,333,500 budgeted for information and research, the Board
allotted $1.553 million for a ``coupon'' promotion project to be
conducted on a national scale. In the 1995-96 crop year, $250,000 was
budgeted for a similar project on a smaller scale. The Board will only
conduct the 1996-97 budgeted project if the 1995-96 smaller scale
project proves to be beneficial to the industry. The success of this
program will be determined after the 1995-96 crop year is completed. In
the event the Board decides not to undertake this project, appropriate
adjustments will be made when billing handlers.
The assessment rate recommended by the Board was derived by
dividing anticipated expenses by expected receipts of California
almonds. Almond shipments for the year are estimated at 504.4 million
pounds which should provide $5.044 million in assessment income. Income
derived from handler assessments, interest, a production research
conference, Market Access Program, along with funds derived from the
Board's authorized reserve will be adequate to cover budgeted expenses.
Any unexpended funds from the 1996-97 crop year may be carried over to
cover expenses during the first four months of the 1997-98 crop year.
While this rule may impose some additional costs on handlers, the
costs are in the form of uniform assessments on all handlers. Some of
the additional costs may be passed on to producers. However, these
costs will be offset by the benefits derived by the operation of the
marketing order. Therefore, the AMS has determined that this rule will
not have a significant economic impact on a substantial number of small
entities. Interested persons are invited to submit information on the
regulatory and informational impacts of this action on small
businesses.
The assessment rate established in this rule will continue in
effect indefinitely unless modified, suspended, or terminated by the
Secretary upon recommendation and information submitted by the Board or
other available information.
Although this assessment rate is effective for an indefinite
period, the Board will continue to meet prior to or during each fiscal
period to recommend a budget of expenses and consider recommendations
for modification of the assessment rate. The dates and times of Board
meetings are available from the Board or the Department. Board meetings
are open to the public and interested persons may express their views
at these meetings. The Department will evaluate Board recommendations
and other available information to determine whether modification of
the assessment rate is needed. Further rulemaking will be undertaken as
necessary. The Board's 1996-97 budget and those for subsequent fiscal
periods will be reviewed and, as appropriate, approved by the
Department.
After consideration of all relevant material presented, including
the information and recommendations submitted by the Board and other
available information, it is hereby found that this rule, as
hereinafter set forth, will tend to effectuate the declared policy of
the Act.
Pursuant to 5 U.S.C. 553, it is also found and determined upon good
cause that it is impracticable, unnecessary, and contrary to the public
interest to give preliminary notice prior to putting this rule into
effect and that good cause exists for not postponing the effective date
of this action until 30 days after publication in the Federal Register
because: (1) The Board needs to have sufficient funds to pay its
expenses which are incurred on a continuous basis; (2) the crop year
began on July 1, 1996, and the marketing order requires that the rate
of assessment for the crop year apply to all assessable California
almonds handled during the crop year; (3) handlers are aware of this
action which was unanimously recommended by the Board at a public
meeting and is similar to other budget actions issued in past years;
and (4) this interim final rule provides a 30-day comment period, and
all comments timely received will be considered prior to finalization
of this rule.
List of Subjects in 7 CFR Part 981
Almonds, Marketing agreements, Nuts, Reporting and recordkeeping
requirements.
For the reasons set forth in the preamble, 7 CFR part 981 is
amended as follows:
PART 981--ALMONDS GROWN IN CALIFORNIA
1. The authority citation for 7 CFR part 981 continues to read as
follows:
Authority: 7 U.S.C. 601-674.
Note: This section will appear in the Code of Federal
Regulations.
2. In part 981, a new subpart is added consisting of section
981.343 to read as follows:
Subpart--Assessment rates.
Sec. 981.343 Assessment rate.
On and after July 1, 1996, an assessment rate of $0.01 cent per
pound of assessable almonds is established for California almonds.
Dated: July 25, 1996.
Sharon Bomer Lauritsen,
Acting Director, Fruit and Vegetable Division.
[FR Doc. 96-19377 Filed 7-30-96; 8:45 am]
BILLING CODE 3410-02-P
Complete official Federal Register PDF
FR Doc. 96-19376 Dried Prunes Produced in California; Assessment Rate
[Federal Register Volume 61, Number 148 (Wednesday, July 31, 1996)]
[Rules and Regulations]
[Pages 39842-39844]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19376]
-----------------------------------------------------------------------
DEPARTMENT OF AGRICULTURE
7 CFR Part 993
[Docket No. FV96-993-1 IFR]
Dried Prunes Produced in California; Assessment Rate
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Interim final rule with request for comments.
-----------------------------------------------------------------------
SUMMARY: This interim final rule establishes an assessment rate for the
Prune Marketing Committee (Committee) under Marketing Order No. 993 for
the 1996-97 and subsequent crop years. The Committee is responsible for
local administration of the marketing order which regulates the
handling of dried prunes produced in California. Authorization to
assess prune handlers enables the Committee to incur expenses that are
reasonable and necessary to administer the program.
DATES: Effective on August 1, 1996. Comments received by August 30,
1996, will be considered prior to issuance of a final rule.
ADDRESSES: Interested persons are invited to submit written comments
[[Page 39843]]
concerning this rule. Comments must be sent in triplicate to the Docket
Clerk, Fruit and Vegetable Division, AMS, USDA, P.O. Box 96456, room
2523-S, Washington, DC 20090-6456, FAX 202-720-5698. Comments should
reference the docket number and the date and page number of this issue
of the Federal Register and will be available for public inspection in
the Office of the Docket Clerk during regular business hours.
FOR FURTHER INFORMATION CONTACT: Mary Kate Nelson, Marketing Assistant,
Marketing Order Administration Branch, California Marketing Field
Office, Fruit and Vegetable Division, AMS, USDA, suite 102B, 2202
Monterey Street, Fresno, California 93721, telephone 209-487-5901, FAX
209-487-5906, or Martha Sue Clark, Program Assistant, Marketing Order
Administration Branch, Fruit and Vegetable Division, AMS, USDA, P.O.
Box 96456, room 2523-S, Washington, DC 20090-6456, telephone 202-720-
9918, FAX 202-720-5698. Small businesses may request information on
compliance with this regulation by contacting: Jay Guerber, Marketing
Order Administration Branch, Fruit and Vegetable Division, AMS, USDA,
P.O. Box 96456, room 2523-S, Washington, DC 20090-6456, telephone 202-
720-2491, FAX 202-720-5698.
SUPPLEMENTARY INFORMATION: This rule is issued under Marketing
Agreement and Order No. 993, both as amended (7 CFR part 993),
regulating the handling of dried prunes produced in California,
hereinafter referred to as the ``order.'' The order is effective under
the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C.
601-674), hereinafter referred to as the ``Act.''
The Department of Agriculture (Department) is issuing this rule in
conformance with Executive Order 12866.
This rule has been reviewed under Executive Order 12988, Civil
Justice Reform. Under the marketing order now in effect, California
prune handlers are subject to assessments. Funds to administer the
order are derived from such assessments. It is intended that the
assessment rate as issued herein will be applicable to all assessable
prunes beginning August 1, 1996, and continuing until amended,
suspended, or terminated. This rule will not preempt any State or local
laws, regulations, or policies, unless they present an irreconcilable
conflict with this rule.
The Act provides that administrative proceedings must be exhausted
before parties may file suit in court. Under section 608c(15)(A) of the
Act, any handler subject to an order may file with the Secretary a
petition stating that the order, any provision of the order, or any
obligation imposed in connection with the order is not in accordance
with law and request a modification of the order or to be exempted
therefrom. Such handler is afforded the opportunity for a hearing on
the petition. After the hearing the Secretary would rule on the
petition. The Act provides that the district court of the United States
in any district in which the handler is an inhabitant, or has his or
her principal place of business, has jurisdiction to review the
Secretary's ruling on the petition, provided an action is filed not
later than 20 days after the date of the entry of the ruling.
Pursuant to requirements set forth in the Regulatory Flexibility
Act (RFA), the Agricultural Marketing Service (AMS) has considered the
economic impact of this rule on small entities.
The purpose of the RFA is to fit regulatory actions to the scale of
business subject to such actions in order that small businesses will
not be unduly or disproportionately burdened. Marketing orders issued
pursuant to the Act, and the rules issued thereunder, are unique in
that they are brought about through group action of essentially small
entities acting on their own behalf. Thus, both statutes have small
entity orientation and compatibility.
There are approximately 1,400 producers of dried prunes in the
production area and approximately 21 handlers subject to regulation
under the marketing order. Small agricultural producers have been
defined by the Small Business Administration (13 CFR 121.601) as those
having annual receipts less than $500,000, and small agricultural
service firms are defined as those whose annual receipts are less than
$5,000,000. The majority of California dried prune producers and
handlers may be classified as small entities.
The California prune marketing order provides authority for the
Committee, with the approval of the Department, to formulate an annual
budget of expenses and collect assessments from handlers to administer
the program. The members of the Committee are producers and handlers of
California dried prunes. They are familiar with the Committee's needs
and with the costs of goods and services in their local area and are
thus in a position to formulate an appropriate budget and assessment
rate. The assessment rate is formulated and discussed in a public
meeting. Thus, all directly affected persons have an opportunity to
participate and provide input.
The Committee met on June 27, 1996, and unanimously recommended
1996-97 expenditures of $283,500 and an assessment rate of $1.50 per
salable ton of dried prunes. In comparison, last year's budgeted
expenditures were $275,280. The assessment rate of $1.50 per salable
ton is $0.05 lower than last year's established rate. Major
expenditures recommended by the Committee for the 1996-97 crop year
include $142,120 for salaries and wages, $30,000 for research and
development, $22,000 for office rent, $20,000 for travel, $11,000 for
an acreage survey, $8,430 for the reserve for contingency, and $6,500
each for office supplies and data processing. Budgeted expenses for
these items in 1995-96 were $131,320, $30,000, $22,000, $20,000,
$10,500, $19,310, $5,000, and $3,500, respectively.
The assessment rate recommended by the Committee was derived by
dividing anticipated expenses by expected shipments of California dried
prunes. Dried prune shipments for the year are estimated at 189,000
salable tons which should provide $283,500 in assessment income. Income
derived from handler assessments will be adequate to cover budgeted
expenses. Any funds not expended by the Committee during a crop year
may be used, pursuant to Sec. 993.81(c), for a period of five months
subsequent to that crop year. At the end of such period, the excess
funds are returned or credited to handlers.
This action will reduce the assessment obligation imposed on
handlers. While this rule will impose some additional costs on
handlers, the costs are in the form of uniform assessments on all
handlers. Some of the additional costs may be passed on to producers.
However, these costs will be offset by the benefits derived from the
operation of the marketing order. Therefore, the AMS has determined
that this rule will not have a significant economic impact on a
substantial number of small entities. Interested persons are invited to
submit information on the regulatory and informational impacts of this
action on small businesses.
The assessment rate established in this rule will continue in
effect indefinitely unless modified, suspended, or terminated by the
Secretary upon recommendation and information submitted by the
Committee or other available information.
Although this assessment rate is effective for an indefinite
period, the Committee will continue to meet prior to or during each
crop year to recommend a budget of expenses and
[[Page 39844]]
consider recommendations for modification of the assessment rate. The
dates and times of Committee meetings are available from the Committee
or the Department. Committee meetings are open to the public and
interested persons may express their views at these meetings. The
Department will evaluate Committee recommendations and other available
information to determine whether modification of the assessment rate is
needed. Further rulemaking will be undertaken as necessary. The
Committee's 1996-97 budget and those for subsequent crop years will be
reviewed and, as appropriate, approved by the Department.
After consideration of all relevant material presented, including
the information and recommendation submitted by the Committee and other
available information, it is hereby found that this rule, as
hereinafter set forth, will tend to effectuate the declared policy of
the Act.
Pursuant to 5 U.S.C. 553, it is also found and determined upon good
cause that it is impracticable, unnecessary, and contrary to the public
interest to give preliminary notice prior to putting this rule into
effect, and that good cause exists for not postponing the effective
date of this rule until 30 days after publication in the Federal
Register because: (1) The Committee needs to have sufficient funds to
pay its expenses which are incurred on a continuous basis; (2) the
1996-97 crop year begins on August 1, 1996, and the marketing order
requires that the rate of assessment for each crop year apply to all
assessable dried prunes handled during such crop year; (3) handlers are
aware of this action which was unanimously recommended by the Committee
at a public meeting and is similar to other assessment rate actions
issued in past years; and (4) this interim final rule provides a 30-day
comment period, and all comments timely received will be considered
prior to finalization of this rule.
List of Subjects in 7 CFR Part 993
Marketing agreements, Plums, Prunes, Reporting and recordkeeping
requirements.
For the reasons set forth in the preamble, 7 CFR part 993 is
amended as follows:
PART 993--DRIED PRUNES PRODUCED IN CALIFORNIA
1. The authority citation for 7 CFR part 993 continues to read as
follows:
Authority: 7 U.S.C. 601-674.
Note: This section will appear in the Code of Federal
Regulations.
2. A new Subpart--Assessment Rates and a new Sec. 993.347 are added
to read as follows:
Subpart--Assessment Rates
Sec. 993.347 Assessment rate.
On and after August 1, 1996, an assessment rate of $1.50 per
salable ton is established for California dried prunes.
Dated: July 25, 1996.
Sharon Bomer Lauritsen,
Acting Director, Fruit and Vegetable Division.
[FR Doc. 96-19376 Filed 7-30-96; 8:45 am]
BILLING CODE 3410-02-P
Complete official Federal Register PDF
FR Doc. 96-19375 Onions Grown in Certain Designated Counties in Idaho, and Malheur County, Oregon; Relaxation of Pack and Marking Requirements
[Federal Register Volume 61, Number 148 (Wednesday, July 31, 1996)]
[Rules and Regulations]
[Pages 39839-39841]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19375]
========================================================================
Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
Prices of new books are listed in the first FEDERAL REGISTER issue of each
week.
========================================================================
Federal Register / Vol. 61, No. 148 / Wednesday, July 31, 1996 /
Rules and Regulations
[[Page 39839]]
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 958
[Docket No. FV96-958-3 IFR]
Onions Grown in Certain Designated Counties in Idaho, and Malheur
County, Oregon; Relaxation of Pack and Marking Requirements
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Interim final rule with request for comments.
-----------------------------------------------------------------------
SUMMARY: This interim final rule permits bulk shipments of U.S.
Commercial and U.S. No. 2 grade onions which contain more than 30
percent U.S. No. 1 grade onions. A bulk shipment is one in which the
onions are packed in containers weighing 60 pounds or more. This rule
also removes the requirement that bulk containers of onions packed as
U.S. Commercial grade shall have the grade marked permanently and
conspicuously on the containers. These changes are intended to improve
the marketing of such onions, reduce handler packing costs, and
increase returns to growers. These changes were recommended by the
Idaho-Eastern Oregon Onion Committee (committee), the agency
responsible for the local administration of the marketing order for
onions grown in certain designated counties in Idaho, and Malheur
County, Oregon.
DATES: Effective August 1, 1996; comments received by August 30, 1996
will be considered prior to issuance of a final rule.
ADDRESSES: Interested persons are invited to submit written comments
concerning this rule. Comments must be sent in triplicate to the Docket
Clerk, Fruit and Vegetable Division, AMS, USDA, room 2525-S, P.O. Box
96456, Washington, DC 20090-6456; FAX (202) 720-5698. All comments
should reference the docket number and the date and page number of this
issue of the Federal Register and will be made available for public
inspection in the Office of the Docket Clerk during regular business
hours.
FOR FURTHER INFORMATION CONTACT: Gary D. Olson, Northwest Marketing
Field Office, Marketing Order Administration Branch, Fruit and
Vegetable Division, AMS, USDA, 1220 SW Third Avenue, room 369,
Portland, Oregon 97204-2807; Telephone: (503) 326-2724, FAX: (503) 326-
7440; or Robert F. Matthews, Marketing Order Administration Branch,
Fruit and Vegetable Division, AMS, USDA, room 2525, South Building,
P.O. Box 96456, Washington, DC 20090-6456; Telephone: (202) 690-0464,
Fax: (202) 720-5698. Small businesses may request information on
compliance with this regulation by contacting: Jay Guerber, Marketing
Order Administration Branch, Fruit and Vegetable Division, AMS, P.O.
Box 96456, Room 2523-S, Washington, D.C. 20090-6456; telephone (202)
720-2491, Fax No. (202) 720-5698.
SUPPLEMENTARY INFORMATION: This rule is issued under Marketing
Agreement No. 130 and Marketing Order No. 958 (7 CFR part 958), as
amended, regulating the handling of onions grown in certain designated
counties in Idaho and Malheur County, Oregon, hereinafter referred to
as the ``order.'' The order is effective under the Agricultural
Marketing Agreement Act of 1937, as amended (7 U.S.C 601-674),
hereinafter referred to as the ``Act.''
The Department of Agriculture (Department) is issuing this rule in
conformance with Executive Order 12866.
This rule has been reviewed under Executive Order 12988, Civil
Justice Reform. This rule is not intended to have retroactive effect.
This rule will not preempt any State or local laws, regulations, or
policies, unless they present an irreconcilable conflict with this
rule.
The Act provides that administrative proceedings must be exhausted
before parties may file suit in court. Under section 608c(15)(A) of the
Act, any handler subject to an order may file with the Secretary a
petition stating that the order, any provision of the order, or any
obligation imposed in connection with the order is not in accordance
with law and request a modification of the order or to be exempted
therefrom. A handler is afforded the opportunity for a hearing on the
petition. After the hearing the Secretary would rule on the petition.
The Act provides that the district court of the United States in any
district in which the handler is an inhabitant, or has his or her
principal place of business, has jurisdiction to review the Secretary's
ruling on the petition, provided an action is filed not later than 20
days after date of the entry of the ruling.
Pursuant to requirements set forth in the Regulatory Flexibility
Act (RFA), the AMS has considered the economic impact of this action on
small entities.
The purpose of the RFA is to fit regulatory actions to the scale of
business subject to such actions in order that small businesses will
not be unduly or disproportionately burdened. Marketing orders issued
pursuant to the Act, and rules issued thereunder, are unique in that
they are brought about through group action of essentially small
entities acting on their own behalf. Thus, both statutes have small
entity orientation and compatibility.
There are approximately 34 handlers who are subject to regulation
under the order and approximately 550 producers in the production area.
Small agricultural service firms, which includes handlers of Idaho-
Eastern Oregon onions, have been defined by the Small Business
Administration (13 CFR 121.601) as those having annual receipts of less
than $5,000,000, and small agricultural producers are defined as those
whose annual receipts are less than $500,000. The majority of Idaho-
Eastern Oregon onion handlers and producers may be classified as small
entities.
This interim final rule removes pack and container marking
requirements for shipments of bulk containers. Bulk containers contain
60 pounds or more of onions. Currently, shipments of all varieties of
onions (except red) which grade U.S. Commercial or U.S. No. 2 may not
contain more then 30 percent U.S. No. 1 grade onions, regardless of
container size. The intent of this requirement is to lessen the chances
of market confusion by providing a clear distinction between onions
packed as U.S. No. 1, the highest grade shipped from the production
area, and those onions packed at the U.S. Commercial
[[Page 39840]]
or U.S. No. 2 grade levels. Also, containers of onions of the U.S.
Commercial grade must be prominently and conspicuously marked to
further achieve the distinction between the various grades packed and
shipped from the production area.
Industry experience indicates that it is not important to limit the
percentage of U.S. No. 1 onions in marketing bulk containers, because
such onions normally go to firms that peel, slice, dice, chop, or
otherwise prepare them for use in salad bars, fast food, or similar
retail outlets. Shipments for the wholesale, retail, repacker, and
export trade generally are made in containers weighing less than 60
pounds. Thus, the risk of confusion among buyers as to the quality of
onions for traditional bulk shipment market outlets is quite low.
Absent these changes, bulk shipments of onions containing more than 30
percent U.S. No. 1 grade onions would require handlers to repack the
onions to meet the 30 percent tolerance and thereby incur additional
expenses. This rule will especially benefit small handlers shipping
bulk containers because such handlers normally operate with fewer
packing lines and pack fewer onions. This makes it more difficult for
small handlers to repack lots to meet the 30 percent U.S. No. 1
tolerance compared to larger handlers.
With the reduced packing costs, and greater marketing flexibility
expected to result from these changes, small and large handlers in the
Idaho-Eastern Oregon onion industry will be able to compete more
effectively in the marketplace. Therefore, the AMS has determined that
this action will not have a significant economic impact on a
substantial number of small entities. Interested persons are invited to
submit information on the regulatory and informational impacts of this
action on small businesses.
Section 958.52 of the order authorizes the issuance of grade, size,
quality, container markings, pack, and container regulations for any
variety or varieties of onions grown in the production area. Section
958.51 authorizes the modification, suspension, or termination of
regulations issued under section 958.52.
This rule amends paragraphs (a)(1)(ii) and (a)(3)(i) of section
958.328 by removing, for onions packed in containers weighing 60 pounds
or greater, the current requirement that all varieties of onions
(except red) which grade U.S. No. 2 or U.S. Commercial may not be
shipped if more than 30 percent of the lot is comprised of onions of
U.S. No. 1 quality. This rule also amends paragraph (b) of section
958.328 by removing, for onions packed in containers weighing 60 pounds
or greater, the current requirement that onions packed as U.S.
Commercial grade shall have the grade marked permanently and
conspicuously on such containers. These requirements would continue for
onions shipped in containers weighing less than 60 pounds.
The committee unanimously recommended these changes at its June 18,
1996, meeting. The committee meets prior to and during each season to
consider recommendations for modification, suspension, or termination
of the regulatory requirements for Idaho-Eastern Oregon onions which
have been issued on a continuing basis. Committee meetings are open to
the public and interested persons may express their views at these
meetings. The Department reviews committee recommendations and
information submitted by the committee and other available information,
and determines whether modification, suspension, or termination of the
regulatory requirements would tend to effectuate the declared policy of
the Act.
The current requirement that all varieties of onions (except red)
which grade U.S. No. 2 or U.S. Commercial may not be shipped if more
than 30 percent of the lot is comprised of onions of U.S. No. 1 quality
is intended to reduce market confusion by providing a clear distinction
between onions packed as U.S. No. 1 and those packed at the U.S. No. 2
and U.S. Commercial grade levels. The goal of providing a clear
distinction between packs in the marketplace is further achieved by
requiring that onions packed as U.S. Commercial grade shall have the
grade marked permanently and conspicuously on the container. Preventing
market confusion is important to the industry in maintaining orderly
marketing, and maximizing industry shipments.
The committee reports that this distinction is of little value for
bulk shipments of onions, which normally are used for peeling,
chopping, slicing, or repacking, and that these requirements have
placed an undue regulatory burden on handlers and unnecessarily
increased packing costs for such shipments. The committee reports that
requiring the grade marking on bulk containers of U.S. Commercial grade
onions is not necessary because the chance of market confusion between
handlers and buyers of bulk containers is small.
The current requirement which prohibits the bulk shipment of a lot
of onions that grades U.S. No. 2 or U.S. Commercial because it is
comprised of more than 30 percent U.S. No. 1 quality grade sometimes
forces handlers to resort such onions, or blend them with poorer
quality onions to bring the lots into conformance with the 30 percent
tolerance. Rather than incur these additional costs, handlers sometimes
send such onions to lower value, secondary outlets, such as processing;
e.g., canning, freezing, dehydration, or similar outlets. Removing the
30 percent commingling requirement for bulk onion shipments is expected
to provide handlers with greater marketing flexibility, reduce packing
costs, and increase returns to growers. Removing the U.S. Commercial
grade marking requirement for bulk containers is expected to reduce
handler packing costs and remove an unnecessary regulatory burden on
handlers of such containers.
The 30 percent commingling and marking requirements for containers
with less than 60 pounds of onions will continue in effect to maintain
the distinction between the various grades shipped into non-bulk
markets. As mentioned earlier, this is necessary to prevent market
confusion and to maintain orderly marketing conditions.
After consideration of all relevant material presented, including
the committee's recommendation, and other available information, it is
found that this interim final rule, as hereinafter set forth, will tend
to effectuate the declared policy of the Act.
Pursuant to 5 U.S.C. 553, it is also found and determined upon
good cause that it is impracticable, unnecessary, and contrary to the
public interest to give preliminary notice prior to putting this rule
into effect and that good cause exists for not postponing the effective
date of this rule until 30 days after publication in the Federal
Register because: (1) This rule relaxes the current pack and container
marking requirements for bulk shipments of Idaho-Eastern Oregon onions;
(2) this rule was unanimously recommended at a public meeting and all
interested persons had an opportunity to express their views and
provide input; (3) Idaho-Eastern Oregon onion handlers are aware of
this rule and need no additional time to comply with the relaxed
requirements; (4) Idaho-Eastern Oregon onions are shipped throughout
the year, and this rule should be in effect by August 15, the date 1996
crop shipments are expected to begin; and (5) this rule provides a 30-
day comment period and any comments received will be considered prior
to finalization of this rule.
[[Page 39841]]
List of Subjects in 7 CFR Part 958
Marketing agreements, Onions, Reporting and recordkeeping
requirements.
For the reasons set forth in the preamble, 7 CFR part 958 is
amended as follows:
PART 958--ONIONS GROWN IN CERTAIN DESIGNATED COUNTIES IN IDAHO, AND
MALHEUR COUNTY, OREGON
1. The authority citation for 7 CFR part 958 continues to read as
follows:
Authority: 7 U.S.C. 601-674.
2. Section 958.328 is amended by revising paragraphs
(a)(1)(ii),(a)(3)(i), and (b) to read as follows:
Sec. 958.328 Handling regulation.
* * * * *
(a) * * *
(1) * * *
(ii) U.S. No. 2 or U.S. Commercial grade, at least 1\1/2\ inches
minimum diameter but not more than 30 percent of the lot shall be
comprised of onions of U.S. No. 1 quality when packed in containers
weighing less than 60 pounds; or
* * * * *
(3) * * *
(i) U.S. No. 2 or U.S. Commercial grade, at least 3 inches minimum
diameter, but not more than 30 percent of the lot shall be comprised of
onions of U.S. No. 1 quality when packed in containers weighing less
than 60 pounds; or
* * * * *
(b) Pack. Onions packed as U.S. Commercial grade in containers
weighing less than 60 pounds shall have the grade marked permanently
and conspicuously on the container.
* * * * *
Dated: July 25, 1996.
Sharon Bomer Lauritsen,
Acting Director, Fruit and Vegetable Division.
[FR Doc. 96-19375 Filed 7-30-96; 8:45 am]
BILLING CODE 3410-02-P
Complete official Federal Register PDF
FR Doc. 96-19357 Advanced Simulation Plan Revisions
[Federal Register Volume 61, Number 148 (Wednesday, July 31, 1996)]
[Rules and Regulations]
[Pages 39859-39860]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19357]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 121
[Docket No. 28072; Amendment No. 121-258]
RIN 2120-AF29
Advanced Simulation Plan Revisions
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Final rule; correcting amendments.
-----------------------------------------------------------------------
SUMMARY: These correcting amendments clarify a final rule published
Monday, June 17, 1996 (61 FR 30726). That final rule revised the
Advanced Simulation Plan to update terminology used to describe
simulators, to eliminate the requirement that the minimum of 1 year of
employment as an instructor or check airman be with the operator of the
simulator, and to authorize the use of Level C simulators for initial
and upgrade training and checking for second-in-command duties.
EFFECTIVE DATE: July 31, 1996.
FOR FURTHER INFORMATION CONTACT:
Mr. Gary E. Davis, Telephone: (202) 267-3747.
SUPPLEMENTARY INFORMATION:
Need for Correction
As published, the final rule did not modify the title or remove
references to obsolete ``phrases'' of simulation contained in the
introductory text of Appendix H to 14 CFR part 121, ``Advanced
Simulation Plan.'' Therefore, the June 17, 1996, final rule may prove
to be misleading and is in need of correction.
List of Subjects in 14 CFR Part 121
Air carriers, Aircraft, Federal Aviation Administration.
Accordingly, 14 CFR part 121 is corrected by making the following
correcting amendments:
PART 121--OPERATING REQUIREMENTS: DOMESTIC, FLAG, AND SUPPLEMENTAL
OPERATIONS
1. The authority citation for part 121 continues to read as
follows:
Authority: 49 U.S.C. 106(g), 40113, 40119, 44101, 44701-44702,
44705, 44709-44711, 44713, 44716-44717, 44722, 44901, 44903-44904,
44912, 46105.
Appendix H to Part 121--[Corrected]
2. The heading and the introductory text of Appendix H are revised
to read as follows:
Appendix H to Part 121--Advanced Simulation
This appendix provides guidelines and a means for achieving
flightcrew training in advanced airplane simulators. This appendix
describes the simulator and visual system requirements which must be
achieved to obtain approval of certain types of training in the
simulator. The requirements in this appendix are in addition to the
simulator approval requirements in Sec. 121.407. Each simulator
which is used under this appendix must be approved as a Level B, C,
or D simulator, as appropriate.
To obtain FAA approval of the simulator for a specific level,
the following must be demonstrated to the satisfaction of the
Administrator:
1. Documented proof of compliance with the appropriate
simulator, visual system, and additional training requirements of
this appendix for the level for which approval is requested.
2. An evaluation of the simulator to ensure that its ground,
flight, and landing performance matches the type of airplane
simulated.
3. An evaluation of the appropriate simulator and visual system
requirements of the level for which approval is requested.
* * * * *
[[Page 39860]]
Issued in Washington, DC, on July 25, 1996.
Donald P. Byrne,
Assistant Chief Counsel, Regulations Division.
[FR Doc. 96-19357 Filed 7-30-96; 8:45 am]
BILLING CODE 4910-13-M
Complete official Federal Register PDF
FR Doc. 96-19354 Federal Motor Vehicle Safety Standards; Door Locks and Door Retention Components
[Federal Register Volume 61, Number 148 (Wednesday, July 31, 1996)]
[Rules and Regulations]
[Pages 39904-39909]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19354]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
49 CFR Part 571 and 590
[Docket No. 94-70, Notice 4]
RIN 2127-AF35
Federal Motor Vehicle Safety Standards; Door Locks and Door
Retention Components
AGENCY: National Highway Traffic Safety Administration (NHTSA),
Department of Transportation (DOT).
ACTION: Final rule; response to petitions for reconsideration.
-----------------------------------------------------------------------
SUMMARY: This document grants in part and denies in part petitions for
reconsideration of a final rule of this agency that extended the
performance requirements applicable to vehicle side door latches,
hinges, and locks to the back doors of passenger cars and multipurpose
passenger vehicles with a gross vehicle weight rating (GVWR) of 4,536
kilograms (10,000 pounds) or less.
The agency is granting two of the requests in the petitions. First,
the agency is granting a request for a phase-in of the compliance date
of the new requirements and establishing the usual reporting and
recordkeeping requirements necessary for enforcement of a phase-in.
Secondly, the agency is clarifying the definition of ``trunk lid'' with
respect to vehicles in which the seatbacks of rear seats fold down to
provide additional cargo space. NHTSA is denying the other two requests
in the petitions.
DATES: This final rule is effective September 2, 1997.
Any petition for reconsideration of this rule must be received by
NHTSA not later than September 16, 1996.
ADDRESSES: Petitions for reconsideration should refer to the docket and
notice numbers noted above for this rule and be submitted to the Docket
Section, National Highway Traffic Safety Administration, 400 Seventh
Street, SW., Room 5109, Washington, DC 20590; telephone (202) 366-4949.
Docket room hours are from 9:30 a.m. to 4:00 p.m., Monday through
Friday.
FOR FURTHER INFORMATION CONTACT: For technical issues: Dr. William Fan,
Light Duty Vehicle Division, Office of Crashworthiness Standards,
National Highway Traffic Safety Administration, 400 Seventh Street SW,
Washington, DC 20590; telephone (202) 366-4922; FAX (202) 366-4329. For
legal issues: Walter Myers, Office of the Chief Counsel, National
Highway Traffic Safety Administration, 400 Seventh Street SW,
Washington, DC 20590; telephone (202) 366-2992; FAX (202) 366-3820.
SUPPLEMENTARY INFORMATION:
Background
Federal motor vehicle safety standard (Standard) No. 206, Door
locks and door retention components (49 CFR 571.206), specifies
performance requirements for side door latches, hinges, locks, and
other supporting means. The requirements of the standard, applicable to
all passenger cars, multipurpose passenger vehicles (MPV), and trucks,
are intended to minimize occupant ejection from the vehicle in the
event of a crash.
On September 28, 1995, NHTSA published a final rule in the Federal
Register (60 FR 50124) extending the requirements of the standard to
the back doors of passenger cars and MPVs that are so equipped and that
have a GVWR of 4,536 kilograms (10,000 pounds) or less, including
hatchbacks, station wagons, sport utility vehicles, and passenger vans.
The effective date of the new requirements was specified in the rule as
September 1, 1997.
The final rule defined ``back door'' as follows:
[A] door or door system on the back end of a vehicle through
which passengers can enter of depart the vehicle, or cargo can be
loaded or unloaded, except--
(1) The trunk lid of a passenger car whose trunk is separated
from the passenger compartment by a partition; and
(2) a door or window composed entirely of glazing material whose
latches and/or hinges are attached directly onto the glazing
material.
The rule required that each back door system have at least one
primary latch and that each primary latch not separate when a load of
11,000 Newtons (2,500 pounds) is applied perpendicular to the face of
the latch (Load Test One); when a load of 8,900 Newtons (2,000 pounds)
is applied in the direction of fork-bolt opening parallel to the face
of the latch (Load Test Two); and when a load of 8,900 Newtons (2,000
pounds) is applied in a direction orthogonal to the other two
directions (Load Test Three). The rule further specified that auxiliary
latches in multiple-latch back door systems must meet the same strength
requirements as primary latches on those doors.
The primary latches of the back doors are required by the rule to
have both the fully latched and the secondary latched positions.
Auxiliary latches are not required to have a secondary latched
position.
[[Page 39905]]
The Petitions
(a) The American Automobile Manufacturers Association (AAMA)
submitted a petition for reconsideration on behalf of its members,
Chrysler Corporation (Chrysler), Ford Motor Company (Ford), and General
Motors (GM), urging the deletion of ``unnecessary and design
restrictive requirements'' and extension of the effective date.
Specifically, the AAMA requested reconsideration of the following
requirements:
(1) Auxiliary latch performance requirements. AAMA asserted that
auxiliary latches should not be required to meet the same strength
requirements as primary latches. AAMA argued that since the standard
does not require auxiliary latches, a door equipped with only a primary
latch that met requirements would comply with the standard, while a
door with a complying primary latch and an auxiliary latch that did not
meet the primary latch strength requirements would not. The AAMA stated
that such a situation is neither reasonable nor appropriate since the
addition of an auxiliary latch, whatever its performance level, would
provide a level of security over and above that required by the
standard. In addition, the current requirement could result in a
reduction in door system performance if it causes manufacturers not to
add auxiliary latches to doors because of the additional costs
involved. Finally, AAMA argued that auxiliary latches are often added
to prevent water leaks, wind noise, squeaks, and rattles, and the
deletion of such latches could cause customer dissatisfaction.
Accordingly, when a door system contains multiple latches, only one
should be required to meet the requirements of the standard.
(2) Secondary latching position for hatches. AAMA stated that
requiring a secondary latching position for the hatches of hatchback
cars is unnecessary and provides no benefit to customers. AAMA asserted
that the benefits of a secondary latching position for side doors are
derived from the presence of a seated occupant near those doors. Thus,
in the event of occupant misuse, such as a door not fully closed by the
occupant, the secondary latch position can retain a door in a closed
position until it can be secured in the fully latched position. AAMA
stated that in addition to forcing redesign of the latch, requiring a
secondary latching position on the back doors of hatchback cars will
require redesign of the latch release mechanism because hatch release
mechanisms may be key-controlled only. Further, ergonomics may require
installation of an exterior release handle where one does not presently
exist, thus further increasing resource expenditure with no
commensurate safety benefit. Thus, AAMA asked that the latch releases
on hatchback cars be required to meet requirements prohibiting
component separation in the fully latched position only.
(3) Lead time. In the Notice of Proposed Rulemaking (NPRM) of
August 30, 1994 (59 FR 44691) in which NHTSA proposed extending the
side door requirements to back doors, the proposed effective date was
``the first September 1 that occurs following a two year period
beginning with the publication of a final rule.'' AAMA stated that that
proposed lead time would have provided a lead time of slightly less
than 3 years to slightly more than 2 years, but that the lead time
specified in the final rule was less than that proposed in the NPRM.
Since some AAMA members' back door and hatch systems do not comply with
the new requirements, new latches and locks may have to be designed,
tested and validated, then production tooling must be designed and
built, all requiring approximately 2 to 3 years lead time. In addition,
some members are planning certain phase-outs in model year (MY) 1997
and introduction of new models in MY 1998. Thus, phasing-in the new
requirements would allow manufacturers the flexibility to direct
resources to products which offer long term impact and be more in
accordance with the lead time proposed in the NPRM. AAMA therefore
requested a phase-in of 60 percent of production by MY 1998 (September
1, 1997) and 100 percent by MY 1999 (September 1, 1998).
(b) General Motors. GM stated that it participated in and supported
the petition of AAMA. GM further commented that a lead time of less
than 2 years is unreasonable and requested a 2-model year phasing-in of
the new requirements commencing September 1, 1997.
(c) Chrysler Corporation. Chrysler also stated that it participated
in and supported the petition of AAMA, and reiterated AAMA's request
for a 2-model year phase-in of the new requirements.
(d) Ford Motor Company. Ford stated that it, too, participated in
and supported the petition of the AAMA. In addition, Ford stated that
the definition of ``back door'' in the rule (quoted above) is ambiguous
in that passenger sedans equipped with fold-down rear seats could be
construed as not having a trunk ``separated from the passenger
compartment by a partition'' since there would be no partition when the
seats are folded down.
Agency Analysis and Decision
(a) Clarifying the definition of ``back door.'' NHTSA recognizes
that certain models of passenger sedans are equipped with rear seats on
which the seatbacks fold down to provide additional cargo space. Thus,
to eliminate any possibility that the exclusion of trunk lids from the
definition of ``back door'' might be misapplied with respect to
vehicles with fold-down rear seats, the agency is clarifying the
exclusion by adding a definition of ``trunk lid.''
(b) Phase-in of requirements. The petitioners were unanimous in
their assertions that an effective date of September 1, 1997 did not
provide sufficient lead time to design, test, and produce new latch
systems and to accommodate planned business cycles. Accordingly, to
provide manufacturers sufficient time to redesign, build, test, and
validate latches that may need to be changed to meet the new
requirements, petitioners requested a phase-in of the new requirements
so that compliance of 60 percent of production is required beginning
September 1, 1997 (MY 1998) and 100 percent beginning September 1, 1998
(MY 1999).
NHTSA proposed an effective date of the first September 1 following
2 years after publication of the final rule in the Federal Register.
NHTSA believed that a lead time of 2 to 3 years would be needed by
manufacturers to make necessary latch design and tooling changes for
some of their vehicles. In addition, the agency was aware of the
ability of manufacturers to replace certain add-on components with
upgraded parts without having to change existing vehicle body
structures. Thus, the agency did not believe it likely that a latch
upgrade operation would involve significant vehicle sheet metal or body
structure changes. NHTSA believed that the lead time provided in the
final rule, a period that is 4 weeks short of 2 years, would be
adequate.
As noted above, the petitioners reiterated the arguments they made
in response to the NPRM that 2 years was insufficient lead time for
certifying the compliance of all vehicles. They also alleged that the
agency failed to provide even the minimum lead time (2 years) that it
had proposed in the NPRM. Further, some petitioners provided
confidential information concerning the time necessary to design new
latches, build and test prototypes, assure quality and durability, and
conduct certification tests. Based on this new information, as
[[Page 39906]]
well as other confidential data submitted regarding product plans,
NHTSA has concluded that the short phase-in requested by the
petitioners would provide manufacturers with the necessary time needed
to comply with the new requirements, while minimizing compliance costs.
Compared with requiring 100 percent compliance beginning September 1,
1997, as specified in the final rule, adopting the petitioners' request
would result in a compliance delay of a maximum of 40 percent of
production for a 1-year period. In view of the agency's belief that
many back door latch, hinge, and lock assemblies already comply with
the new requirements and that many more manufacturers will comply with
the new requirements by the original effective date, the agency
believes that the actual difference in the implementation delay between
the original effective date and the petitioners' requested phase-in of
the effective date would be less than 40 percent of total vehicle
production. Accordingly, the effective date of the requirements of the
final rule will be phased-in to require 60 percent of affected vehicles
to comply with the new requirements by September 1, 1997 (MY 1998), and
to require all such vehicles manufactured after September 1, 1998 (MY
1999) to comply with the new requirements.
NHTSA is also establishing the usual reporting and recordkeeping
requirements necessary for agency enforcement of a phase-in. These
requirements are necessary to enable the agency to identify which
vehicles are certified to be in compliance with the new back door
requirements. In general, each manufacturer must submit a report to
NHTSA within 60 days after the end of the production year ending August
31, 1998 detailing its 60 percent compliance with the back door latch,
hinge, and lock requirements of its passenger cars and MPVs produced
that production year. The information required for each report is also
specified. Finally, each manufacturer must maintain records of the
vehicle identification numbers of each passenger car and MPV for which
information is reported under this standard until December 31, 1999.
(c) Auxiliary Latch Performance Requirements. For the first time,
``auxiliary latch'' was defined in the standard as a latch or latches
other than the primary latch (which was also defined in the standard
for the first time) installed on a door equipped with more than one
latch. The final rule specified that the primary latch is required to
have both fully latched and secondary latched positions, while
auxiliary latches are required to have only a fully latched position.
Although the amendments to the standard specifically address
auxiliary latches, they did not require installation of auxiliary
latches on back door systems. There is too much variation in the
configurations and designs of those door systems for the agency to be
able to specify a practicable and broadly-worded requirement for
auxiliary latches that would appropriately distinguish between those
door systems needing auxiliary latches and those that do not. More
importantly, adopting such a requirement is not necessary to ensure
that auxiliary latches are provided on multiple door systems since the
vehicle manufacturers already do so. The agency believes, however, that
if auxiliary latches are installed, there is a need to ensure that they
perform properly.
The agency believes that, in the interest of motor vehicle safety,
auxiliary latches on back doors must meet the same strength
requirements that primary latches must meet in the fully latched
position. While primary and auxiliary latches serve a common purpose in
holding the door system closed, they are usually in different
locations, oriented in different directions, and subjected to different
loading conditions in a crash. In a typical double cargo door system,
for example, if the auxiliary latch that attaches a door part to the
vehicle floor fails in a crash, the door parts would tend to rotate
outward, creating a pulling and twisting loading on the primary latch.
Since the primary latch is not required to meet such a rotational load
requirement, it may not perform well in such a loading condition. In
fact, NHTSA data show that in a rotational load test, many production
door latches, whether primary or auxiliary, fail at a much lower load
level than the load limits specified in S4.1.1.1 and S4.1.1.2 of the
standard. If auxiliary latches meet the same strength requirements as
primary latches, however, such additional strength would reduce the
likelihood of primary latch failure due to the rotational loading of a
crash, thereby reducing the risk of unintentional door opening and
consequent occupant ejection.
NHTSA does not agree with AAMA's argument that applying strength
requirements to auxiliary latches could cause manufacturers to delete
auxiliary latches, thus resulting in reductions in door system
performance. As AAMA pointed out in its petition, manufacturers add
auxiliary latches for purposes related to consumer satisfaction, such
as prevention of water leaks, wind noise, squeaks, rattles, and the
like. NHTSA believes that vehicle manufacturers will remain responsive
to motor vehicle safety and consumer satisfaction, and that the number
of latches fitted to a door system will continue to reflect the
manufacturer's assessment of the actual safety needs of the system.
Further, the technology of door latch design is well established and
commonly used throughout the auto industry. Thus, NHTSA is confident
that manufacturers will not delete auxiliary latches merely to avoid
making some minor modifications to some latch designs, assuming that
any are in fact necessary.
For the reasons discussed above, the agency is convinced that in
order to reduce the safety risk of inadvertent door openings in crashes
and potential occupant ejection as a result of those openings, all door
latches, whether primary or auxiliary, must meet the strength
requirements of the standard. Accordingly, this request of the
petitioners is denied.
(d) Secondary latching position requirement for hatchbacks. AAMA
suggested that the secondary latching position is not necessary for the
back door latches of hatchback cars since such doors are designed
solely for loading and unloading cargo. AAMA contended that the
secondary latching requirement for such doors serves no safety purpose
and provides no benefits to occupants. AAMA further contended that such
a requirement will require redesign of the latch release mechanisms
since hatch release mechanisms may be key-controlled only. AAMA stated
that ergonomics may require the addition of an outside door handle
where one does not now exist, thus increasing costs without any
commensurate safety benefit.
NHTSA disagrees with AAMA on this issue. The purpose of the
secondary latching position requirement is to prevent door opening in
the event that the fully latched position fails, for whatever reason,
to retain the door in the closed position. Latch disengagement from the
fully latched position can occur from many dynamic factors, notably
impact or inertia forces generated in a crash. Although the hatches of
hatchback cars are typically designed for the loading and unloading of
cargo and have no interior door handle that can inadvertently cause the
door to open, they are particularly susceptible to opening in crashes.
NHTSA pointed out in the final rule that agency data show that hatches
on hatchback cars have a significantly
[[Page 39907]]
higher opening rate in crashes than back doors in other types of
vehicles, making them a major source of occupant ejections.
Accordingly, requiring a secondary latching position on these latches
is an added element of security in preventing door opening and
consequent occupant ejection in crashes.
The agency also does not agree that requiring a secondary latching
position for latches on hatchbacks will necessitate extensive redesign
of those latches. The agency believes that key-controlled latches can
be designed to have secondary latching positions, with perhaps only
very minor modifications. Further, the agency continues to believe that
a large variety of such latches, whether key-controlled or otherwise,
already comply with the requirements of the standard. The agency
pointed out in the final rule that the production cost of a latch is
nearly the same with or without the secondary latching position, and
that the incremental cost for latch improvement, if needed, is not more
than $1.00 per latch. The final rule referred to a 1994 engineering
evaluation of the back door latches of 8 minivans conducted by the
agency in which it was found that 7 of those vehicles already had 2
latching positions on their back door latches. The agency also
considers it likely that many existing side or back door latch systems
that now comply with the standard can be used for hatch doors.
Accordingly, this request in the AAMA petition for reconsideration is
denied.
Rulemaking Analyses and Notices
(a) Executive Order No. 12866 and DOT Regulatory Policies and
Procedures.
This rulemaking document was not reviewed under E.O. 12866,
Regulatory Planning and Review. NHTSA has considered the impact of this
rulemaking action under the DOT's regulatory policies and procedures
and has determined that it is not ``significant'' within the meaning of
those policies and procedures.
The amendments promulgated by this document are intended to clarify
the applicability of Standard No. 206 in terms of what latches, hinges
and locks are not covered by the requirements of the standard (trunk
lids), and to permit a phase-in of the effective date of the amendments
to the standard published in the final rule of September 28, 1995 (60
FR 50124). The cost impacts of the amendments to the standard were
analyzed at length in the 1995 final rule and determined to be so minor
as not to require a final regulatory evaluation. The petitioners
submitted no data or information showing any cost impacts not
considered in the 1995 final rule. Further, slight delay in the
implementation of the 1995 final rule does not alter the agency's
conclusions about the rule's cost impacts. Accordingly, NHTSA reaffirms
the cost estimates discussed in the 1995 final rule and has not
prepared a full regulatory evaluation for this response to the
petitions for reconsideration.
(b) Regulatory Flexibility Act.
NHTSA has considered the effects of this rulemaking action under
the Regulatory Flexibility Act. For the reasons explained above, I
hereby certify that the amendments promulgated by this rule will not
have a significant impact on a substantial number of small entities.
Accordingly, a regulatory flexibility analysis was not prepared.
(c) Executive Order 12612 (Federalism).
NHTSA has analyzed this rulemaking action in accordance with the
principles and criteria contained in E.O. 12612, Federalism, and has
determined that this rule does not have sufficient federalism
implications to warrant preparation of a Federalism Assessment.
(d) National Environmental Policy Act.
NHTSA has analyzed this rulemaking action for the purposes of the
National Environmental Policy Act and has determined that
implementation of this rulemaking action will not have any significant
impact on the quality of the human environment.
(e) Paperwork Reduction Act.
The reporting requirements associated with this rule will be
submitted to the Office of Management and Budget for approval in
accordance with Chapter 35 of Title 44, United States Code, prior to
the effective date of such reporting requirements. Administration:
National Highway Traffic Safety Administration; Title: Back Door Latch,
Hinge, and Lock Phase- in Reporting Requirements; Need for Information:
To report manufacturers' production for the first year of the phase-in
period; Proposed Use of Information: To determine compliance with
`phase-in requirements; Frequency: One report; Burden Estimate: 1,260
hours; Respondents: 35; Forms(s): Written reports; Average Burden Hours
Per Respondent: 24.
(f) Executive Order 12778 (Civil Justice Reform).
This final rule does not have any retroactive effect. Under 49
U.S.C. 30103(b), whenever a Federal motor vehicle safety standard is in
effect, a state or political subdivision thereof may prescribe or
continue in effect a standard applicable to the same aspect of
performance of a motor vehicle only if such standard is identical to
the Federal standard. A state may, however, prescribe a standard for a
motor vehicle or item of equipment obtained for its own use that
imposes a higher performance requirement than the Federal standard. 49
U.S.C. 30161 sets forth a procedure for judicial review of final rules
establishing, amending or revoking Federal motor vehicle safety
standards. A petition for reconsideration or other administrative
proceeding is not required before parties may file suit in court.
List of Subjects
49 CFR Part 571
Imports, Motor vehicle safety, Motor vehicles, Rubber and rubber
products, Tires.
49 CFR Part 590
Reporting and recordkeeping requirements.
PART 571--FEDERAL MOTOR VEHICLE SAFETY STANDARDS
1. The authority citation for part 571 continues to read as
follows:
Authority: 49 U.S.C. sec. 322, 30111, 30115, 30117, and 30166;
delegations of authority at 49 CFR 1.50.
2. Section 571.206 is amended in S.3 by revising the definition of
``back door'' first published at 60 FR 50124, September 28, 1995, to
become effective September 1, 1997; by adding the definition of ``trunk
lid;'' and by revising S4 to read as follows:
Sec. 571.206 Standard No. 206, Door locks and door retention
components.
* * * * *
S3. * * *
Back door means a door or door system on the back end of a motor
vehicle through which passengers can enter or depart the vehicle, or
cargo can be loaded or unloaded; but does not include:
(a) A trunk lid; or
(b) A door or window that is composed entirely of glazing material
and whose latches and/or hinges are attached directly to the glazing
material.
* * * * *
Trunk lid means a movable body panel that provides access from
outside the vehicle to a space wholly partitioned from the occupant
compartment by a permanently attached partition or a fixed or fold-down
seat back.
* * * * *
S4. Requirements.
[[Page 39908]]
(a) Components on side doors. Components on any side door that
leads directly into a compartment that contains one or more seating
accommodations shall conform to this standard.
(b) Components on back doors. Components on any back door of a
passenger car or multipurpose passenger vehicle with a gross vehicle
weight rating (GVWR) of 4,536 kilograms (10,000 pounds) or less that
leads directly into a compartment that contains one or more seating
accommodations shall conform to this standard, subject to the following
compliance schedule:
(1)(i) For those affected passenger cars and multipurpose passenger
vehicles manufactured on or after September 1, 1997, and before
September 1, 1998, the amount of such vehicles complying with this
standard shall be not less than 60 percent of the combined total
production of passenger cars and multipurpose passenger vehicles, based
on:
(A) The manufacturer's average annual production of such vehicles
manufactured on or after September 1, 1996 and before September 1,
1998; or
(B) The manufacturer's production of such vehicles on or after
September 1, 1997 and before September 1, 1998.
(ii) For calculating average annual production of affected
passenger cars and multipurpose passenger vehicles for each
manufacturer and the number of such vehicles manufactured by each
manufacturer, a vehicle produced by more than one manufacturer shall be
attributed to a single manufacturer as follows:
(A) A vehicle that is imported shall be attributed to the importer;
(B) A vehicle manufactured in the United States by more than one
manufacturer, one of which also markets the vehicle, shall be
attributed to the manufacturer that markets the vehicle.
(C) A vehicle produced by more than one manufacturer shall be
attributed to any one of the vehicle's manufacturers specified by an
express written contract between the manufacturer so specified and the
manufacturer to which the vehicle would otherwise be attributed under
paragraph (b)(1)(ii) (A) or (B) of this section.
(2) Components on the back doors of affected passenger cars and
multipurpose passenger vehicles manufactured on and after September 1,
1998 shall conform to all applicable requirements of this standard.
(c) Components on folding doors, roll-up doors, doors that are
designed to be easily attached to or detached from motor vehicles
manufactured for operation without doors, and doors that are equipped
with wheelchair lifts and that are linked to an alarm system consisting
of either a flashing visible signal located in the driver's compartment
or an alarm audible to the driver that is activated when the door is
open, need not conform to this standard.
(d) A particular latch or hinge assembly utilized as a test
specimen need not meet further requirements after having been subjected
to and having met any one of the requirements of S4 or S5.1 through
S5.4.
* * * * *
1. Part 590 is added to read as follows:
PART 590--BACK DOOR LATCH, HINGE, AND LOCK PHASE-IN REPORTING
REQUIREMENTS
Sec.
590.1 Scope.
590.2 Purpose.
590.3 Applicability.
590.4 Definitions.
590.5 Response to inquiries.
590.6 Reporting Requirements.
590.7 Records.
590.8 Petition to extend period to file report.
Authority: 49 U.S.C. 322, 30111, 30115, 30117, and 30166;
delegation of authority at 49 CFR 1.50.
Sec. 590.1 Scope.
This part establishes requirements for manufacturers of passenger
cars and multipurpose passenger vehicles with a gross vehicle weight
rating of 4,536 kilograms (10,000 pounds) or less to respond to NHTSA
inquiries, to submit reports, and maintain records related to such
reports, concerning the number of such vehicles that meet the back door
latch, hinge, and lock requirements of Standard No. 206, Door locks and
door retention components (49 CFR 571.206).
Sec. 590.2 Purpose.
The purpose of these reporting requirements is to aid the NHTSA in
determining whether a manufacturer of passenger cars and multipurpose
passenger vehicles with a gross vehicle weight rating of 4,536
kilograms (10,000 pounds) or less has complied with the back door
latch, hinge, and lock requirements of Standard No. 206.
Sec. 590.3 Applicability.
This part applies to manufacturers of passenger cars and
multipurpose passenger vehicles with a gross vehicle weight rating of
4,536 kilograms (10,000 pounds) or less. However, this part does not
apply to those motor vehicles excluded from the requirements of
Standard No. 206.
Sec. 590.4 Definitions.
(a) All terms defined in 49 U.S.C. 30102 are used in their
statutory meanings.
(b) Gross vehicle weight rating, multipurpose passenger vehicle,
and passenger car are used as defined in Sec. 571.3 of this chapter.
(c) Production year means the 12-month period between September 1
of one year and August 31 of the following year, inclusive.
Sec. 590.5 Response to inquiries.
During the production year ending August 31, 1998, each
manufacturer shall, upon request from the Office of Vehicle Safety
Compliance, this agency, provide information regarding which vehicle
makes/models are certified as complying with the provisions of S4 and
S5, Standard No. 206.
Sec. 590.6 Reporting requirements.
(a) General reporting requirements. Within 60 days after the end of
the production year ending August 31, 1998, each manufacturer shall
submit a report to NHTSA concerning the manufacturer's compliance with
the latch, hinge, and lock requirements of this standard for the back
doors of its passenger cars and multipurpose passenger vehicles with a
gross vehicle weight rating of 4,536 kilograms (10,000 pounds or less)
produced in that year. Each report shall:
(1) Identify the manufacturer;
(2) State the full name, title, and address of the official
responsible for preparation of the report;
(3) Identify the production year being reported on;
(4) Contain a statement regarding whether or not the manufacturer
complied with the back door latch, hinge, and lock requirements of this
standard in the percentages specified in S4 for the period covered by
the report and the basis for that statement;
(5) Provide the information specified in Sec. 590.7;
(6) Be written in the English language; and
(7) Be submitted to: Administrator, National Highway Traffic Safety
Administration, ATTN: NSA-01, 400 Seventh Street, SW., Washington, DC
20590.
(b) Report content.--(1) Basis for phase-in production goals. Each
manufacturer shall provide the number of passenger cars and
multipurpose passenger vehicles with a GVWR of 4,536 kilograms (10,000
pounds) or less manufactured for sale in the United States for each of
the two previous production years or, at the manufacturer's option, for
the current
[[Page 39909]]
production year. A new manufacturer that has not previously
manufactured passenger cars and multipurpose passenger vehicles with a
GVWR of 4,536 kilograms (10,000 pounds) or less for sale in the United
States must report the number of such vehicles manufactured during the
current production year.
(2) Production. Each manufacturer shall report for the production
year for which the report is filed the number of passenger cars and
multipurpose passenger vehicles with a gross vehicle weight rating of
4,536 kilograms (10,000 pounds) or less that meet the back door latch,
hinge, and lock requirements of this standard.
Sec. 590.7 Records.
Each manufacturer shall maintain records of the vehicle
identification number of each passenger car and multipurpose passenger
vehicle for which information is reported in accordance with Sec. 590.6
until December 31, 1999.
Sec. 590.8 Petition to extend period to file reports.
A petition for extension of time to file a report required by S6.1
must be received not later than 15 days before expiration of the time
specified in Sec. 590.5(a). The petition must be submitted to:
Administrator, National Highway Traffic Safety Administration, ATTN:
NSA-01, 400 Seventh Street, SW., Washington, DC 20590. The filing of a
petition does not automatically extend the time for filing a report. A
petition will be granted only if the petitioner shows good cause for
the extension and the extension is consistent with motor vehicle
safety.
Issued on July 23, 1996.
Ricardo Martinez,
Administrator.
[FR Doc. 96-19354 Filed 7-30-96; 8:45 am]
BILLING CODE 4910-59-P
Complete official Federal Register PDF
FR Doc. 96-19350 Community Development Block Grants for Indian Tribes and Alaska Native Villages
[Federal Register Volume 61, Number 148 (Wednesday, July 31, 1996)]
[Rules and Regulations]
[Pages 40084-40113]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19350]
[[Page 40083]]
_______________________________________________________________________
Part II
Department of Housing and Urban Development
_______________________________________________________________________
Office of the Secretary
_______________________________________________________________________
24 CFR Part 953
Community Development Block Grants for Indian Tribes and Alaska Native
Villages; Final Rule
Federal Register / Vol. 61, No. 148 / Wednesday, July 31, 1996 /
Rules and Regulations
[[Page 40084]]
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
Office of the Secretary
24 CFR Part 953
[Docket No. FR-2880-F-11]
RIN 2577-AB31
Community Development Block Grants for Indian Tribes and Alaska
Native Villages
AGENCY: Office of the Secretary, HUD.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This rule makes final the requirements for the Community
Development Block Grant Program for Indian tribes and Alaska native
villages. Several revisions have been made to the previously published
interim rule by this final rule. These revisions have been made in
response to public comments, to correct errors and unintentional
omissions in the interim rule, and to include in this part those
applicable sections of subparts C, J, and K of part 570 which were
included by reference in the interim rule.
EFFECTIVE DATE: August 30, 1996.
FOR FURTHER INFORMATION CONTACT: Robert Barth, Office of Native
American Programs, Room 6728, Department of Housing and Urban
Development, 450 Golden Gate Avenue, San Francisco, CA 94102. (415)
436-8121. TTY (415) 436-6594. (These are not toll-free numbers.)
SUPPLEMENTARY INFORMATION:
Paperwork Reduction Act
The information collection requirements contained in this rule have
been approved by the Office of Management and Budget (OMB) in
accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-
3520), and assigned OMB control number 2577-0191. An agency may not
conduct or sponsor, and a person is not required to respond to, a
collection of information unless the collection displays a valid
control number.
Background
This final rule represents the culmination of a process which
commenced with the publication of a proposed rule on June 21, 1991 (56
FR 28666). This was followed by the first interim rule on April 7, 1992
and the second and last interim rule which was published in the Federal
Register of July 27, 1994 (59 FR 38326). The last interim rule became
effective on October 1, 1994, and invited public comments for a five
month period ending December 27, 1994. The principal impetus for this
rule making process was the need to implement various statutory
mandates included in Section 105 of the Department of Housing and Urban
Development Reform Act (Pub. L. 101-235) as amended by the National
Affordable Housing Act of 1990. In addition, the transfer of the
authority for the Community Development Block Grant Program for Indian
Tribes and Alaska Native Villages to the Office of Public and Indian
Housing, and specifically the Office of Native American Programs within
that office, occasioned a re-evaluation of various policy
determinations reflected or embodied in previously issued program
regulations.
Public Comments
The Department of Housing and Urban Development (HUD) received 18
individual comments from 5 sources on the interim rule published on
July 27, 1994. HUD received 3 letters from tribes and 2 from
representative associations. General comments are discussed below and
are followed by specific comments. The specific comments and the
Department's responses are discussed under ``Specific Comments,''
according to the section where they appear in the interim rule.
General Comments
Comment: One comment was received which stated that the 1994
revision of the 1992 rule is a ``long step in the wrong direction'' in
that the entire thrust of this rule is the centralization of decision
making in the HUD Central Office to the ultimate detriment of the
Indian tribes. This perception is apparently based upon the removal of
specific application procedures and detailed selection criteria from
the rule. As stated in the rule, this information would be included in
the Notices of Funding Availability (NOFAs) published for specific
funding cycles. The commenter is of the opinion that this change would
significantly, if not completely, remove the opportunity for public
comment on these items. The commenter also states that the application
kits provided by HUD for the last two funding rounds (presumably FY
1993 and FY 1994) contained requirements which went beyond NOFA
requirements. This statement is apparently provided as additional
support for the commenter's opinion that the centralization of decision
making with little or no opportunity for public comment is the intent
of this rule.
Response: It is the position of the Department that centralizing
decision making and restricting opportunity for public comment on this
process certainly is not the intent nor the result of this rule. The
inclusion of the specifics of application procedures and the detailed
selection criteria in the NOFA rather than in the rule does not
increase the centralization of decision making; application review and
funding decisions will continue to be made at the Area ONAPs. With
respect to the effect of these changes on the opportunity for public
comment, at best such opportunity would be increased by moving in this
direction and in no conceivable circumstance would such opportunity be
diminished as compared to that afforded under the previous interim
rule. The implementing regulations (24 CFR part 4) for section 103 of
the HUD Reform Act provide a significant window of opportunity for
public comment on the content of a NOFA. The Department encourages
tribes and other interested parties to take advantage of the
opportunity to impact the process during this period. It is
considerably easier to change the content of a NOFA from one funding
cycle to the next as compared with the process required to amend
program regulations.
Regarding the relationship between the NOFA and the application kit
issued by the Department, the purpose of the kit is to assist the
applicant in understanding NOFA and regulatory requirements and, if
necessary, to supplement NOFA instructions regarding form use and
completion. The purpose of the kit is not to impose additional
requirements on the applicant. The application kit issued for the FY
1995 ICDBG funding cycle was very closely reviewed to ensure that none
of the information provided established requirements beyond the NOFA or
Program Regulations.
Comment: One comment was received which stated that renaming the
Phoenix Office of Native American Programs as the Southwest Office of
Native American Programs works to the detriment of the tribes in the
jurisdiction of that office. The commenter also questions the source of
the funds necessary to raise the base allocation to each Area ONAP from
Sec. 500,000 to Sec. 1,000,000.
Response: The Department does not believe that changing the name of
the Area ONAP located in Phoenix will work to the detriment of any
tribes; the name change does not signify anything other than a change
in the name so that it better reflects the jurisdiction of this office;
the names of all other Area ONAPs have also been changed for the same
reason. With respect to the source of funds necessary to increase the
base
[[Page 40085]]
allocation to each Area ONAP, it is to be noted that the change from
$500,000 to $1,000,000 in the base allocation represents the second
such change since the inception of the ICDBG program in 1978; the
original base allocation was $250,000. In making these changes it has
been the intent of the Department to increase the nation-wide equitable
availability of ICDBG funds.
Comment: One commenter raised an objection to moving the imminent
threat program from the Area ONAPs to Headquarters. It is the
observation of the commenter that Headquarters staff could not be as
knowledgeable about imminent threats in a specific area of the country
as the Area ONAP staff would be for that area.
Response: The Department agrees with the observation of the
commenter. However, the objection appears to be based on a misreading
of the changes made to subpart E--Imminent Threat Grants. These changes
were not intended to move the decision making process for such grants
from the Area ONAP to the Headquarters level nor is there such a
resultant effect. A clarifying memorandum was issued by ONAP on
February 9, 1995, to all Area ONAPs to make certain that this is
understood by all ONAP staff involved in this program. The changes were
to ensure that any eligible applicant would have potential access to
imminent threat funds. Before these changes, the establishment of an
Imminent Threat Set Aside was left to the determination of each Area
ONAP; some offices established such set asides and others did not.
Under this rule, all eligible applicants have the same potential access
to funds.
Comment: One commenter raised a strong objection to the elimination
of the provisions for correcting procedural errors. This commenter is
also of the opinion that HUD should have a uniform appeal procedure for
all competitive programs which would allow the redress of errors by the
raters in mathematical calculations or in the interpretation of program
requirements.
Response: Although the provisions for correcting procedural errors
have been removed from the rule, it was not the intent of the
Department to eliminate such a process; language identical to that in
the previous rule was published as part of the FY 1995 ICDBG NOFA.
Unless changed through a subsequent process of consultation, it will be
published as part of all subsequent NOFAs.
The argument made by the commenter for a uniform appeals process is
not related to the need to change the subject rule; it will, however,
be taken under advisement. It should however be noted that the
interpretation of program requirements is within the purview and
responsibility of the Department and, therefore, any appeals process
would be limited, as it always has been limited, to perceived errors of
compliance with procedural requirements.
Comment: One commenter (representing an association of housing
authorities) supports the resolution passed at the National American
Indian Housing Council's 1994 annual meeting that 1.5 percent of the
national appropriation for CDBG be reserved for the ICDBG.
Response: Increasing the percentage of the national CDBG
appropriation that is provided for the ICDBG program to 1.5 percent
from the current 1 percent would require a statutory change and it is,
therefore, outside the scope of rule making.
Comment: One commenter (representing an association of housing
authorities) strongly urges the allowance of comprehensive planning as
an eligible activity under the ICDBG program.
Response: Comprehensive planning is an eligible activity under the
ICDBG program (Sec. 953.205(a)). Funding for such activities could
however be affected by the statutory limitation (reiterated at
Secs. 953.205(c) and 953.206) which provides that no more than 20
percent of the funds of any ICDBG program may be used for planning and
administrative activities.
Specific Comments
Section 953.6--Technical Assistance
Comment: One commenter recommends that expanded technical
assistance should be made available to tribes/villages and that the
Department should provide in-depth regulations regarding the technical
assistance role of the field staff.
Response: On January 5, 1994, HUD's General Counsel issued a
memorandum to all HUD staff in which he clearly describes the type and
form of technical assistance which may be provided by HUD staff to
potential applicants for assistance under the restrictions imposed by
Section 102 of the HUD Reform Act. As it is described in this
memorandum, permissible technical assistance activities include
explaining and responding to questions concerning program regulations,
defining terms in an application package, and providing other forms of
technical guidance that may be described in the NOFA. In addition,
before the deadline for the submission of applications, HUD employees
may assist applicants by reviewing draft applications and identifying
those parts of the applications that need substantive improvement. HUD
employees may not, however, advise applicants on how to make the
improvements. The provision of technical assistance of a type and in a
manner inconsistent with that described by the General Counsel would
not be allowed by the Reform Act and, therefore, would require a
statutory change to be possible.
The Department encourages potential applicants to take advantage of
the extensive technical assistance available from the staff of the
various Area ONAPs. One of the principal reasons behind the recent
reorganization of the Area ONAPs was to improve the ability of the
organization to meet the technical assistance needs of its customers
within the parameters established by the HUD Reform Act.
Section 953.100(b)(1)--Ceilings
Comment: Two comments were made regarding the establishment of
grant ceilings. One commenter stated that the method of setting grant
ceilings is inequitable because in certain Area ONAP jurisdictions,
smaller tribes are allowed to compete for the same amount as larger
tribes. The other commenter stated that there should not be a policy of
allowing Area ONAPs to establish different ceilings for different size
tribes/villages as is done by certain of these offices.
Response: Each Area ONAP has the ability to recommend the ceiling
or ceilings for its jurisdiction. The Assistant Secretary for Public
and Indian Housing has the final authority to determine these ceilings.
The Department has determined that the present procedure for
establishing ceilings is the most appropriate method and, therefore,
has made no change to this section other than to eliminate a sentence
which was merely descriptive of one option available to Area ONAPs.
Section 953.101--Allocation of Funds
Comment: One commenter supports the increase in the base amount
allocation to each Area ONAP but strongly disagrees with the formula
for allocating the remaining funds and contends that it is unfair and
detrimental to the Alaska native villages. It is the position of the
commenter that using the total eligible Native American population in
an Area ONAP's jurisdiction as a factor in this allocation process is
not equitable. The commenter provides three suggestions for changing
the formula, all of which are based upon using the number of eligible
applicants in an Area ONAP's
[[Page 40086]]
jurisdiction rather than the eligible Native American population in
each jurisdiction.
Response: It is the position of the Department that the present
procedure used to allocate funds to each Area ONAP after the base
amount is allocated is the most appropriate method to use to ensure
that the allocations reflect the relative community development needs
of eligible applicants in each area. The number of eligible applicants
in each area is not an accurate measure of the relative community
development needs of the eligible applicants in that area compared to
another area.
Comment: One commenter states that the U.S. Census population data
is not a true and accurate count of Native populations and that HUD
should therefore allow each Area ONAP to request and use more accurate
data from the tribes/villages in its area.
Response: The Department recognizes that census data on Indian and
Alaska Native populations may be incomplete or inaccurate. Census data
is, however, the only such information which is consistently available
and which is reasonably accurate when aggregated by Area ONAP
jurisdiction. It has been the experience of the Department that census
data inaccuracies tend to affect each area equally and, therefore, do
not impact the relative distribution of Native American population
characteristics such as poverty and substandard housing conditions.
Based on these considerations, the Department will continue to use U.S.
census data in the formula for allocating funds to the Area ONAPs.
In order to eliminate any possible confusion or misunderstanding
regarding the source of data used to allocate funds to the Area ONAPs,
paragraph (a)(2) of this section has been revised to include explicit
reference to the U.S. Bureau of the Census. A corresponding clarifying
revision has been made to the definition of eligible Indian population
in Sec. 953.4.
These revisions are not substantial changes to the rule since data
provided by the U. S. Bureau of the Census has been used to allocate
funds to field offices since the inception of the ICDBG program in
1978.
Please be advised, however, that the Department intends to schedule
a series of consultation sessions throughout the country. During these
sessions, the type and source of data used by the Department for funds
allocation and other purposes will be agenda items. The hope is that an
identification and discussion of the availability and applicability of
other sources of data which could more accurately reflect the relative
and absolute community development needs in Native American communities
will occur.
Section 953.300--Application Requirements
Comment: One commenter states that this section is agreeable in
that it does not allow multiple project applications.
Response: The commenter has misread this section since it does not
address the issue of multiple project applications. However, it is to
be noted that an applicant could include as many projects as it wishes
in an application as long as the total ICDBG cost for all projects does
not exceed the applicable grant ceiling. Given the apparent
misunderstanding of this policy, it will be clearly stated in the NOFA
published for this program.
Comment: One comment was received which indicates that paragraphs
(b) and (c) of this section (953.300) are in direct contradiction.
Response: These two paragraphs do not contradict each other.
Paragraph (b) addresses the recognition and reimbursement of costs
incurred by an applicant before the submission of an application.
Paragraph (c) addresses the recognition and reimbursement of costs
incurred by an applicant after the submission of an application but
before HUD approval. To eliminate any possible misunderstanding, these
two paragraphs have been rewritten.
Section 953.302--Selection Process
Comment: One commenter expresses concerns over the meaning of the
language in Sec. 953.302(b) (Application rating system) and
Sec. 953.302(c) (Periodic NOFAs) and asks for clarification of the
phrases ``rated competitively within each field office's jurisdiction''
and ``will rate applications on the basis of their responsiveness.''
The commenter supports allowing each Area ONAP to establish its own
rating system for the NOFAs based upon the responses of the tribes in
its jurisdiction, but does not support the establishment of a generic
rating system for all tribes.
Response: The first phrase for which clarification is requested
should be construed to mean that all applications submitted for funding
consideration by applicants in the jurisdiction of a specific Area ONAP
are in competition for the ICDBG funds allocated to that Area ONAP. The
second phrase means that the Area ONAPs will rate applications on the
basis of their responsiveness to the criteria identified in the Program
Regulations and further detailed in the NOFA. In all of the ICDBG
funding cycles that have taken place since the implementation of the
HUD Reform Act, a NOFA has been published which contains the detailed
rating criteria and the specifics of the application procedures to be
used; the interim rule does not change this process. Each of these
NOFAs has contained items which vary from one Area ONAP jurisdiction to
another, e.g., rehabilitation grant limits, tie breaking
considerations, etc. These variations were included to reflect real
differences between the circumstances found in the various
jurisdictions. It is important that eligible applicants provide
specific feedback to their Area ONAPs so that the need for additional
jurisdictional variations can be analyzed and, if supported,
incorporated into the NOFA.
Comment: Another commenter believes that Sec. 953.302(b) is too
wide open in that each Area ONAP is afforded too much judgmental
discretion, i.e., one office could determine a project to have
unreasonable costs and be inappropriate for the intended use and reject
it from further consideration. Another office could determine that a
similar project does not fail these threshold requirements and proceed
to rate and rank the project. The commenter recommends that the
selection process be made consistent nationally so that each applicant
has an equal chance of funding.
Response: It is expected and required of each Area ONAP that
reasonable and responsible judgement be exercised in implementing all
aspects of the selection system. The specific aspects of the selection
process referenced by commenter are two of the community development
appropriateness thresholds which have been in the Program Regulations
since the March 18, 1983 interim rule was published for effect.
Guidance has been provided and will continue to be provided to the Area
ONAPs by the Headquarters ONAP to ensure equitable and consistent
implementation of these threshold requirements. It is the position of
the Department that no change is necessary in this section.
Section 953.303--Housing Rating Category
Comment: It is the position of one commenter that the threshold
requirement that an applicant shall assure that it will use project
funds to rehabilitate units only when the homeowner's payments are
current may raise issues of confidentiality.
Response: It is necessary to note that this specific threshold
applies to homeownership and not rental situations. As such, this
specific requirement for a homeowner who
[[Page 40087]]
wishes to participate in an ICDBG funded rehabilitation project should
be viewed as a reasonable condition for participation. It is also to be
noted that in all single family housing rehabilitation funded with
ICDBG funds, the households to be assisted must be of low or moderate
income status. The requirement that the household document this status
could also be viewed by some as raising issues of confidentiality, but
it is the position of the Department that it is also a reasonable
prerequisite for assistance.
Section 953.304--Community Facilities Rating Category
Comment: One commenter notes that the definition of the ``neediest
segment of the population'' has been removed from the interim rule and
asks what replaces it.
Response: Included among the details of the rating criterion of
project need which are now found in the NOFA is the definition of
``neediest segment of the population''.
Section 953.400--Criteria for Funding (Imminent Threat Grants)
Comment: One commenter states that the requirement that these funds
may only be used for imminent threats which impact an entire service
area is too restrictive.
Response: The ICDBG program was enacted by Congress to address
community development needs and was not enacted to provide assistance
grants to individuals. Therefore, it is the position of the Department
that the requirement that a threat to health or safety must impact an
entire service area and not just an individual or household is
consistent with congressional mandate and intent. The rule has not been
changed. It is to be noted, however, that the specific language of the
comment indicates that the commenter may be defining ``service area''
in a manner which is more restrictive than the definition provided in
Sec. 953.4 and the commenter is urged to review that definition.
Subpart F--Grant Administration
Comment: One commenter requests that income generated by economic
development activities funded with ICDBG funds should be able to be
retained and used at the grantee's discretion. It is the opinion of the
commenter that the requirements in the previous interim rule at
Sec. 571.505 (c) were more flexible in this regard.
Response: When the current interim rule was developed, the language
of Sec. 953.505 was written to incorporate the language of 24 CFR
570.504 which had previously only been referenced in the previous
interim rule in Sec. 571.504. However, the current and previous interim
rules were both in error. Section 913 of the National Affordable
Housing Act of 1990 included a number of technical corrections and
clarifications regarding the applicability of various sections of Title
I of the Act of 1974, as amended, to the CDBG program for Indian
tribes. Among the clarifications listed in this section was a statement
regarding the applicability of the various subsections of Section 104
of Title I of the 1974 Act. It is stated that only subsections (f),
(g), and (k) of that section apply to the ICDBG program. The
significance of this statement is that the statutory basis in the 1974
Act for the regulatory program income requirements and restrictions
specified in Sec. 570.504 is subsection (j) of Section 104. Given the
inapplicability of this subsection to the ICDBG program, the Department
has determined that 24 CFR 85.25--Program income (with the
modifications stated in a revised Sec. 953.503), will apply to the
ICDBG program. Specifically with respect to the commenter's concerns,
it is to be noted that as defined in Sec. 85.25 (b), program income
does not include income generated by the grant supported activity after
grant close-out. Given the nature of economic development activities
funded with ICDBG funds, it is most likely that any income generated by
these types of projects would occur after the grant period and
therefore its use would not be subject to regulatory restrictions.
Other Changes Made by This Rule
Subpart A--General Provisions
Section 953.1--Applicability and scope. The term ``Indian tribes
and Alaska native villages'' has been changed to ``applicants'' since,
as defined in Sec. 953.5, eligible applicants include entities, i.e.,
certain tribal organizations, other than Indian tribes and Alaska
native villages.
Section 953.4--Definitions. Six new definitions have been added--a
definition of Area ONAP, Assistant Secretary, Buildings for the General
Conduct of Government, Imminent treat, Microenterprise, and Small
Business. Please note that the definition of Area ONAP replaces that of
Field office.
The definition of Tribal government, Tribal governing body or
Tribal council has been modified to clarify that the Federal entity
providing recognition is the Bureau of Indian Affairs.
The definition of Subrecipient has been included in this section
rather than in subpart F--Grant Administration. In the interim rule
this definition was included in that subpart by virtue of the inclusion
(by reference) of subpart J of 24 CFR part 570 in that subpart.
Section 953.6--Technical assistance. This section has been deleted
since it did not address a matter or issue of program regulation; it
was a statement of Departmental policy. The deletion of this section in
no way diminishes the commitment of the Department to the provision of
technical assistance to eligible applicants. The response to the
comment submitted on this section reflects Departmental policy on this
matter.
Section 953.6--Waivers. This section (formerly Sec. 953.7) has been
revised to better state the policy of the Department regarding a waiver
of a regulatory requirement. The revised language also describes
procedural requirements for such waivers.
Subpart B--Allocation of Funds
Section 953.101--Field Office allocation of funds. This section has
been re-titled Area ONAP allocation of funds and has been changed to
clearly state that any amount retained by Headquarters to fund imminent
threat grants pursuant to Sec. 953.402 of this part will not be
available for allocation to the Area ONAPs.
Section 953.102--Use of recaptured and unawarded funds. The title
of this section has been changed so that it more accurately reflects
its content. The language of the section has also been revised so that
it more clearly states the requirements for the use of funds recaptured
or those which may remain unawarded after the completion of a funding
competition by an Area ONAP. The term ``unawarded'' replaces the term
``undistributed'' which was used in the interim rule; the term
``undistributed'' is not a term which satisfactorily describes
allocated funds which may remain with an Area ONAP after the completion
of a funding competition.
Subpart C--Eligible Activities
To improve the ease of use of the ICDBG rule for program applicants
and grantees, subpart C of part 570 has been incorporated in this
subpart with the exception of those provisions which apply only to the
Entitlement Cities or HUD-administered Small Cities programs and with
the additional exceptions or modifications discussed below. In the
interim rule, subpart C of part 570 was incorporated by reference.
Those sections of subpart C in the interim rule which were listed
as modifications to subpart C of part 570 (Sec. 953.201 through
Sec. 953.203) have been
[[Page 40088]]
incorporated in the appropriate sections of the revised subpart C.
In the process of reviewing the various sections of subpart C of
part 570 prior to their incorporation into subpart C of part 953, it
was determined that certain of these sections either included language
which was duplicative of language contained in other sections of the
rule or which was excessively descriptive or, that certain sections
included paragraphs which should be relocated to other sections or
subparts to facilitate ease of use and understanding of the rule.
Based on these determinations, the following modifications or
revisions have been made:
Section 570.200--General policies. 1. The language contained in
paragraph (a)(3)--Compliance with the primary objective (as modified to
meet the requirements of the ICDBG program) has been incorporated in
Sec. 953.208.
2. Paragraph (a)(4) Compliance with environmental review procedures
has not been incorporated since it duplicated the requirements included
in Sec. 953.605--Environment.
3. The language of paragraph (a)(5)--Cost principles was made part
of Sec. 953.501 which has been titled Applicability of uniform
administrative requirements and cost principles.
4. The language of paragraphs (b)--Special policies governing
facilities and paragraph (c)--Special assessments under the CDBG
program has been incorporated in Sec. 953.201(c)--Public facilities.
5. The introductory language of paragraph (d)--Consultant
activities has been eliminated since it was determined to be
superfluous.
6. The language of paragraph (d)(1) regarding the limitation on the
rate of compensation in employer-employee relationships has been
incorporated in the revised Sec. 953.501 as paragraph (c)(2) of that
section.
7. Both paragraph (e)--Recipient determinations required as a
condition of eligibility and (f)--Means of carrying out eligible
activities have not been included in the rule since it was determined
that the language in these paragraphs was either duplicated in other
sections of the rule or it was exemplary and not expository and did not
address a matter or issue of program regulation.
8. The language of paragraph (g)--Limitation on planning and
administrative costs has been incorporated in Sec. 953.206--Program
administration costs.
9. The language in paragraph (h)--Constitutional prohibition was
incorporated into subpart G--Other Program Requirements as
Sec. 953.600-- Constitutional prohibition.
Section 570.205--Eligible planning, urban environmental design and
policy-planning-management capacity building activities. The review of
subpart C of part 570 discussed above revealed that much of the
language included in this section was more exemplary or descriptive of
the types of activities possibly eligible under this section and did
not address a matter or issue of program regulation. The resultant
Sec. 953.205 is, therefore, more concise than Sec. 570.205, but it
affords the same degree of flexibility in the use of ICDBG funds for
planning and management capacity improvement types of activities
authorized by section 105(a)(12) of the 1974 Act, as amended.
Subpart D--Single Purpose Grant Application and Selection Process
Section 953.301--Screening and review of applications. This section
has been removed from the rule since it was determined to be
superfluous. All subsequent sections in this subpart have been re-
numbered.
Section 953.301--Selection process.
This section (formerly numbered 953.302) has been re-formatted to
clarify threshold requirements and the role of the NOFA with respect to
this process. No substantive changes have been made in the
requirements.
Section 953.303--Housing rating category, section 953.304--
Community. facilities rating category, and section 953.305--Economic
development rating category. These three sections have been
consolidated into two new sections Sec. 953.303-- Project specific
threshold requirements and Sec. 953.304--Project rating categories.
This consolidation process did not involve or include any substantial
changes in requirements. It however is to be noted that independent of
this consolidation, changes were made which affect project specific
threshold requirements for economic development projects. The threshold
requirement that ``an applicant shall demonstrate the need for grant
assistance by providing documentation to support a determination that
the assistance is appropriate to implement an economic development
project'' has been deleted. This requirement has proven to be an
unnecessary complication for potential applicants for assistance.
One of the two remaining threshold requirements for economic
development projects, i.e., that an analysis demonstrates that public
benefit commensurate with the assistance requested can reasonably be
expected, has been expanded in scope and revised. The expansion/
revision of this threshold was done to state this requirement in a
manner consistent with the objectives for the evaluation and selection
of economic development projects which were set forth in Section 806 of
the Housing and Community Development Act of 1992. As was indicated in
the Supplementary Information section of the January 5, 1995 Final Rule
and guidelines (24 CFR part 570), that rule would not apply to the
ICDBG Program; necessary compliance with the requirements of the 1992
Act would be established as part of a future rule. The Department has
reviewed the need to establish such compliance as part of a future rule
and has determined that the rating criteria for economic development
projects set forth in this rule, as explained and reified in all future
NOFAs, will be adequate to achieve general compliance with the
guidelines set forth in the 1992 Act.
The rating requirements for economic development projects have also
been changed to include a rating criterion ``additional
considerations'' which was inadvertently left out of the interim rule.
Section 953.304--Funding process. The language of
Sec. 953.304(b)(2) [formerly Sec. 953.307(b)(2)] has been changed to
delete an incorrect reference to 24 CFR part 58 made in the interim
rule and to more concisely state the applicable requirements of part
58.
Section 953.305--Program amendments. The language of this section
(formerly Sec. 953.308) has been changed since paragraph (b) of this
section in the interim rule referenced application component
requirements which were no longer specified anywhere in the rule. This
paragraph now references application component requirements now
specified in the NOFA. In addition, this paragraph has been revised to
raise the dollar amount of a program amendment request which must be
rated from $25,000 to $100,000. This change is consistent with the
Departmental policy of increasing program flexibility for clients and
customers while ensuring compliance with statutory requirements and
congressional intent.
Section 953.306--Public services. This section has been deleted
since it duplicates the language in Sec. 953.201(e) --Public services.
Subpart E--Imminent Threat Grants
Section 953.401--Application process. Paragraph (b) of this section
has been changed since the interim rule referenced application
requirements which were no longer specified anywhere in the rule. This
paragraph
[[Page 40089]]
now indicates that the form and content requirements for imminent
threat grant applications will be specified in the NOFA.
Section 953.402--Environmental review. This section has been
eliminated and the language of the section has been relocated to
Sec. 953.605 (b).
Section 953.402--Availability of Funds. This section (formerly
Sec. 953.403) has been changed to indicate that the amount which may be
retained by HUD for imminent threat grants will be determined by the
Assistant Secretary. It is the determination of the Department that
this discretion will provide for necessary flexibility. The amount to
be retained will be published in the NOFA and will be based upon an
anticipated level of demand which will take into consideration historic
funding levels and other relevant factors.
Subpart F--Grant Administration
To improve the ease of use of the ICDBG rule by program applicants
and grantees, those applicable sections of subpart J of part 570--
Program Administration--have been incorporated into subpart F of the
ICDBG rule; the interim rule incorporated these sections by reference.
Section 570.508--Public access to program records and Section 570.509--
Grant closeout procedures have been incorporated without substantial
modification as Sec. 953.507 and Sec. 953.508, respectively.
The following sections or provisions were either not incorporated
or they were incorporated but modified as discussed below.
Section 570.500--Definitions. This section has not been
incorporated. The definition of program income applicable to the ICDBG
program is set forth in Sec. 953.503. As discussed above, the
definition of subrecipient is set forth in Sec. 953.4.
Section 570.501--Responsibility for grant administration. This
section, with appropriate modifications to meet the requirements of the
ICDBG program, has been incorporated as Sec. 953.500.
Section 570.502--Applicability of uniform administrative
requirements. This section, with the following modifications, has been
incorporated into Sec. 953.501.
1. Reference to the program income requirements of 24 CFR 85.25 (as
modified by Sec. 953.503) is included in Sec. 953.501 as paragraph (7).
Reference to this section of part 85 is not included in Sec. 570.501
since there are different statutory program income requirements for the
CDBG program, as discussed above in the response to the comment
submitted regarding these requirements. Given the inclusion of a
paragraph referencing Sec. 85.25, the number of paragraphs in
Sec. 953.501 is 21 as compared to 20 in Sec. 570.502.
2. The language of paragraph (a)(12) has been incorporated in
Sec. 953.501(a)(13) and additional language has been added so that the
alternatives to the payment and performance bonding requirements of
Sec. 85.36(b) which are acceptable to HUD for the ICDBG program are
stated. These acceptable alternatives will allow grantees increased
flexibility to adequately ensure performance and payment by a
contractor while at the same time allowing the grantee to more easily
meet its other obligations and responsibilities under the rule.
3. The language of paragraph (a)(16) has been incorporated in
Sec. 953.501(a)(17) and has been added to by stating the starting date
for record retention requirements.
Section 570.504--Program income. This section has not been
incorporated in Sec. 953.501.
Section 570.505--Records to be maintained. This section has been
incorporated, in a highly modified form, in Sec. 953.505. Section
953.505 merely states that each grantee shall establish and maintain
sufficient records to enable HUD to determine whether or not it has met
the requirements of this part. A grantee guidance document which will
recommend specific records to be maintained will be issued by HUD in
the near future.
Section 570.507--Reports. This section has been incorporated, in a
modified form, as Sec. 953.506. The modifications include the deletion
of inapplicable performance reporting requirements and the relocation
to this section of the requirements of Sec. 953.700--Reports to be
submitted of the interim rule. In addition to this relocation, specific
timing requirements for the submission of the status and evaluation
reports has been added.
Section 570.510--Transferring projects from urban counties to
metropolitan cities. Section 570.513--Lump sum drawdown for financing
of property rehabilitation. These two sections have not been
incorporated. It is to be noted that lump sum drawdowns are authorized
under subsection (h) of section 104 of Title I of the 1974 Act. This
subsection was not stated in section 913 of the National Affordable
Housing Act of 1990 as being applicable to the CDBG Program for Indian
tribes.
The provisions of the following sections of subpart F of the
interim rule (with modifications discussed below) have been
incorporated into the final rule as follows.
------------------------------------------------------------------------
Interim rule Final rule
------------------------------------------------------------------------
Sec. 953.502--Force account construction.................. Sec. 953.5
09
Sec. 953.503--Indian preference........................... Sec. 953.5
10
Sec. 953.505--Program income.............................. Sec. 953.5
03
------------------------------------------------------------------------
The following modifications have been made to these sections.
Force account construction--The last sentence in paragraph (e)
regarding the approval of alternative requirements in lieu of bonding
has been deleted. As discussed above, acceptable alternatives to
performance and payment bonding are set forth in Sec. 953.501(a)(13).
Indian preference--This section has been revised in the following
ways.
1. Inaccuracies in certain referenced definitions in the interim
rule have been corrected.
2. A definition of ``Indian'' as this word is defined in the Indian
Self-Determination and Education Assistance Act (25 U.S.C. 450 b) has
been included.
3. Paragraph (e), Additional Indian preference requirements is
being deleted since its provisions have never been used and, upon
analysis, it did not appear to be meaningful or necessary.
4. A new paragraph (e) Complaint procedures in which the specific
process to be followed is clarified and in which the grantee is
identified as the final arbiter has been added.
Program income--The basis for the changes to this section and the
changes themselves are addressed above in the section Specific
Comments.
Subpart G--Other Program Requirements
In Sec. 953.600 of the interim rule it is stated that the following
requirements of 24 CFR Part 570, subpart K apply to grants under the
ICDBG Program:
Sec. 570.605--National Flood Insurance Program
Sec. 570.608--Lead-based paint
Sec. 570.609--Use of debarred, suspended or ineligible contractors
or subrecipients
Sec. 570.610--Uniform administrative cost principles
A review of these requirements with the intent of incorporating
them in their entirety into the ICDBG rule resulted in the following
determinations.
Section 570.605--National flood insurance program. This section was
not incorporated into the final rule since it duplicates the
requirements of 24 CFR 58.6(a) in which grantee responsibilities under
the Flood Disaster Protection Act of 1973 (42 U.S.C. 4001--4128) are
set forth.
[[Page 40090]]
Section 570.608--Lead-based paint. The language of this section was
modified prior to incorporation to reflect the current policies of the
Department. The modifications were based on recommendations from HUD's
Office of Lead-Based Paint Abatement and Poisoning Prevention. These
requirements are set forth in Sec. 953.607. The Department, however,
has published a proposed regulation to implement the Residential Lead-
Based Paint Hazard Reduction Act of 1992, Title X of the Housing and
Community Development Act of 1992 (Pub. L. 102-550). The June 7, 1996
regulation will substantially alter the lead-based paint requirements
for all HUD programs including the CDBG Program for Indian Tribes and
Alaska Native Villages.
Section 570.609--Use of debarred, suspended or ineligible
contractors or subrecipients. It was determined that the incorporation
of this section would not be completely appropriate without significant
modifications. Instead of modifying this section so that its provisions
better fit the ICDBG Program, the provisions and requirements from the
Indian HOME Program regulations which address these responsibilities
will be incorporated into the final rule since the requirements for
both programs are the same. Therefore, the requirements which govern
the use of debarred, suspended or ineligible contractors or
subrecipients in the final rule (now Sec. 953.608) are the same as
those for the Indian HOME Program.
Section 570.610--Uniform administrative cost principles. This
section was not incorporated into the final rule. It was determined
that it duplicated the requirements set forth in Sec. 953.501--
Applicability of uniform administrative requirements and cost
principles.
Section 953.602--Relocation and real property acquisition. The
language of this section was revised to reflect current policies and
terminology used by the Department with respect to relocation and real
property acquisition activities related to or funded by programs under
the Act.
Section 953.605--Environment. This section was revised to
explicitly reference the flood insurance, coastal barrier resource and
airport clear zone requirements found at 24 CFR 58.6 and to correctly
identify the title of 24 CFR part 58.
Section 953.606--Conflict of interest. The references in subsection
(a) to the applicability of OMB Circular A-110 have been deleted and
replaced with a reference to 24 CFR 84.42; part 84 has superseded OMB
Circular A-110.
Subpart H--Program Performance
Section 953.700--Reports to be submitted by grantee. As stated
above, reporting requirements for ICDBG grantees have been consolidated
under Sec. 953.507. With the deletion of this section, all subsequent
sections in this subpart have been re-numbered.
Section 953.701--Corrective and remedial actions. Paragraph (b)(3)
of this section (formerly Sec. 953.702) has been deleted since
certifications of compliance are no longer used in the ICDBG program.
Other Matters
Executive Order 12866
This final rule was reviewed by the Office of Management and Budget
(OMB) under Executive Order 12866 on Regulatory Planning and Review,
issued by the President on September 30, 1993. Any changes made in this
final rule as a result of that review are clearly identified in the
docket file, which is available for public inspection in the office of
the Department's Rules Docket Clerk, Room 10276, 451 Seventh Street
SW., Washington, DC.
National Environmental Policy Act
A Finding of No Significant Impact with respect to the environment
was made in accordance with HUD regulations at 24 CFR Part 50, which
implement Section 102(2)(C) of the National Environmental Policy Act of
1969, when the July 27, 1994 interim rule was issued. Because no
significant changes have been made that would pertain to the
environment, that finding applies to this final rule. The Finding of No
Significant Impact is available for public inspection between 7:30 a.m.
and 5:30 p.m. weekdays in the Office of the Rules Docket Clerk at the
above address.
Regulatory Flexibility
The Secretary, in accordance with the Regulatory Flexibility Act (5
U.S.C. 605(b)), has reviewed this rule before publication and by
approving it certifies that this rule does not have a significant
economic impact on a substantial number of small entities. The rule
establishes criteria for funding eligible grantees among Indian Tribes/
Villages and has no impact on small entities.
Executive Order 12612, Federalism
The General Counsel, as the Designated Official under Section 6(a)
of Executive Order 12612, Federalism, has determined that the policies
contained in this rule would not have substantial direct effects on
States or their political subdivisions, or the relationship between the
federal government and the States, or on the distribution of power and
responsibilities among the various levels of government. As a result,
the rule is not subject to review under the Order. While the rule has
some direct effects on States and political subdivisions, those effects
are limited to direct implementation of instructions contained in
statutes governing the grant program. Given the lack of discretion in
the Department to refrain from implementing these statutory
instructions, further analysis of federalism concerns would serve no
useful purpose.
Executive Order 12606, The Family
The General Counsel, as the Designated Official under Executive
Order 12606, The Family, has determined that this rule would not have
potential for significant impact on family formation, maintenance, and
general well-being, and, thus, is not subject to review under the
Order.
Catalog of Federal Domestic Assistance
The Catalog of Federal Domestic Assistance program number is
14.862.
List of Subjects in 24 CFR Part 953
Alaska, Community development block grants, Grant programs--housing
and community development, Indians, Reporting and recordkeeping
requirements.
Accordingly, 24 CFR Part 953 is revised to read as follows:
PART 953--COMMUNITY DEVELOPMENT BLOCK GRANTS FOR INDIAN TRIBES AND
ALASKA NATIVE VILLAGES
Subpart A--General Provisions
Sec.
953.1 Applicability and scope.
953.2 Program objective.
953.3 Nature of program.
953.4 Definitions.
953.5 Eligible applicants.
953.6 Waivers.
Subpart B--Allocation of Funds
953.100 General.
953.101 Area ONAP allocation of funds.
953.102 Use of recaptured and unawarded funds.
Subpart C--Eligible Activities
953.200 General policies.
953.201 Basic eligible activities.
953.202 Eligible rehabilitation and preservation activities.
953.203 Special economic development activities.
953.204 Special activities by Community-Based Development
Organizations (CBDOs).
[[Page 40091]]
953.205 Eligible planning, urban environmental design and policy-
planning-management-capacity building activities.
953.206 Program administration costs.
953.207 Ineligible activities.
953.208 Criteria for compliance with the primary objective.
Subpart D--Single Purpose Grant Application and Selection Process
953.300 Application requirements.
953.301 Selection process.
953.302 Project specific threshold requirements.
953.303 Project rating categories.
953.304 Funding process.
953.305 Program amendments.
Subpart E--Imminent Threat Grants
953.400 Criteria for funding.
953.401 Application process.
953.402 Availability of funds.
Subpart F--Grant Administration
953.500 Responsibility for grant administration.
953.501 Applicability of uniform administrative requirements and
cost principles.
953.502 Agreements with subrecipients.
953.503 Program income.
953.504 Use of real property.
953.505 Records to be maintained.
953.506 Reports.
953.507 Public access to program records.
953.508 Grant closeout procedures.
953.509 Force account construction.
953.510 Indian preference requirements.
953.511 Use of escrow accounts for rehabilitation of privately
owned residential property.
Subpart G--Other Program Requirements
953.600 Constitutional prohibition.
953.601 Nondiscrimination.
953.602 Relocation and real property acquisition.
953.603 Labor standards.
953.604 Citizen participation.
953.605 Environment.
953.606 Conflict of interest.
953.607 Lead-based paint.
953.608 Debarment and suspension.
Subpart H--Program Performance
953.700 Review of grantee's performance.
953.701 Corrective and remedial actions.
953.702 Reduction or withdrawal of grant.
953.703 Other remedies for noncompliance.
Authority: 42 U.S.C. 3535(d) and 5301 et seq.
Subpart A--General Provisions
Sec. 953.1 Applicability and scope.
The policies and procedures described in this part apply to grants
to eligible applicants under the Community Development Block Grant
(CDBG) program for Indian tribes and Alaska native villages.
Sec. 953.2 Program objective.
The primary objective of the Indian CDBG (ICDBG) Program and of the
community development program of each grantee covered under the Act is
the development of viable Indian and Alaska native communities,
including decent housing, a suitable living environment, and economic
opportunities, principally for persons of low and moderate income. The
Federal assistance provided in this part is not to be used to reduce
substantially the amount of tribal financial support for community
development activities below the level of such support before the
availability of this assistance.
Sec. 953.3 Nature of program.
The selection of single purpose grantees under subpart B of this
part is competitive in nature. Therefore, selection of grantees for
funds will reflect consideration of the relative adequacy of
applications in addressing tribally determined need. The selection of
grantees of imminent threat grants under the provisions of subpart B of
this part is not competitive in nature. However, applicants for funding
under either subpart must have the administrative capacity to undertake
the community development activities proposed, including the systems of
internal control necessary to administer these activities effectively
without fraud, waste, or mismanagement.
Sec. 953.4 Definitions.
Act means Title I of the Housing and Community Development Act of
1974, as amended (42 U.S.C. 5301 et seq.)
Area ONAPs mean the HUD Offices of Native American Programs having
field office responsibility for the ICDBG Program.
Assistant Secretary means the Assistant Secretary for Public and
Indian Housing.
Buildings for the general conduct of government mean office
buildings and other facilities in which the legislative, judicial or
general administrative affairs of the government are conducted. This
term does not include such facilities as neighborhood service centers
or special purpose buildings located in low and moderate income areas
that house various non-legislative functions or services provided by
the government at decentralized locations.
Chief executive officer means the elected official or legally
designated official who has the prime responsibility for the conduct of
the affairs of an Indian tribe or Alaska native village.
Eligible Indian population means the most accurate and uniform
population data available from data compiled and published by the
United States Bureau of the Census available from the latest census
referable to the same point or period of time for Indian tribes and
Alaska native villages eligible under this part.
Extent of overcrowded housing means the number of housing units
with 1.01 or more persons per room, based on data compiled and
published by the United States Bureau of the Census available from the
latest census referable to the same point or period of time.
Extent of poverty means the number of persons whose incomes are
below the poverty level, based on data compiled and published by the
United States Bureau of the Census referable to the same point or
period in time and the latest reports from the Office of Management and
Budget.
HUD means the Department of Housing and Urban Development.
ICDBG Program means the Indian Community Development Block Grant
Program.
Identified service area means:
(1) A geographic location within the jurisdiction of a tribe (but
not the entire jurisdiction) designated in comprehensive plans,
ordinances, or other tribal documents as a service area;
(2) The Bureau of Indian Affairs (BIA) service area, including
residents of areas outside the geographic jurisdiction of the tribe; or
(3) The entire area under the jurisdiction of a tribe which has a
population of members of under 10,000.
Imminent threat means a problem which if unresolved or not
addressed will have an immediate negative impact on public health or
safety.
Low and moderate income beneficiary means a family, household, or
individual whose income does not exceed 80 percent of the median income
for the area, as determined by HUD, with adjustments for smaller and
larger households or families. However, HUD may establish income
ceilings higher or lower than 80 percent of the median for the area on
the basis of HUD's findings that such variations are necessary because
of unusually high or low household or family incomes. In reporting
income levels to HUD, the applicant must include and identify the
distributions of tribal or village income to families, households, or
individuals.
Microenterprise means a business that has five or fewer employees,
one or more of whom owns the enterprise.
Secretary means the Secretary of HUD.
Small business means a business that meets the criteria set forth
in section 3(a) of the Small Business Act (15 U.S.C. 631, 636, and
637).
Subrecipient means a public or private nonprofit agency, authority
or organization, or a for-profit entity
[[Page 40092]]
described in Sec. 953.201(o), receiving ICDBG funds from the grantee or
another subrecipient to undertake activities eligible for assistance
under subpart C of this part. The term excludes a CBDO receiving ICDBG
funds from the grantee under the authority of Sec. 953.204, unless the
grantee explicitly designates it as a subrecipient. The term does not
include contractors providing supplies, equipment, construction or
services subject to the procurement requirements in 24 CFR 85.36 or in
24 CFR Part 84, as applicable.
Tribal government, Tribal governing body or Tribal council means
the governing body of an Indian tribe or Alaska native village as
recognized by the Bureau of Indian Affairs.
Tribal resolution means the formal manner in which the tribal
government expresses its legislative will in accordance with its
organic documents. In the absence of such organic documents, a written
expression adopted pursuant to tribal practices will be acceptable.
URA means the Uniform Relocation and Real Property Acquisition
Policies Act of 1970, as amended (42 U.S.C. 4601 et. seq.).
Sec. 953.5 Eligible applicants.
(a) Eligible applicants are any Indian tribe, band, group, or
nation, including Alaska Indians, Aleuts, and Eskimos, and any Alaska
native village of the United States which is considered an eligible
recipient under Title I of the Indian Self-Determination and Education
Assistance Act (25 U.S.C. 450) or which had been an eligible recipient
under the State and Local Fiscal Assistance Act of 1972 (31 U.S.C.
1221). Eligible recipients under the Indian Self-Determination and
Education Assistance Act will be determined by the Bureau of Indian
Affairs and eligible recipients under the State and Local Fiscal
Assistance Act of 1972 are those that have been determined eligible by
the Department of Treasury, Office of Revenue Sharing.
(b) Tribal organizations which are eligible under Title I of the
Indian Self-Determination and Education Assistance Act may apply on
behalf of any Indian tribe, band, group, nation, or Alaska native
village eligible under that act for funds under this part when one or
more of these entities have authorized the tribal organization to do so
through concurring resolutions. Such resolutions must accompany the
application for funding. Eligible tribal organizations under Title I of
the Indian Self-Determination and Education Assistance Act will be
determined by the Bureau of Indian Affairs or the Indian Health
Service, as appropriate.
(c) To apply for funding in a given fiscal year, an applicant must
be eligible as an Indian tribe or Alaska native village, as provided in
paragraph (a) of this section, or as a Tribal organization, as provided
in paragraph (b) of this section, by the application submission date.
(Approved by the Office of Management and Budget under control
number 2577-0191)
Sec. 953.6 Waivers.
Upon determination of good cause, HUD may waive any provision of
this part not required by statute. Each waiver must be in writing and
must be supported by documentation of the pertinent facts and grounds.
Subpart B--Allocation of Funds
Sec. 953.100 General.
(a) Types of grants. Two types of grants are available under the
Indian CDBG Program.
(1) Single purpose grants provide funds for one or more single
purpose projects consisting of an activity or set of activities
designed to meet a specific community development need. This type of
grant is awarded through competition with other single purpose
projects.
(2) Imminent threat grants alleviate an imminent threat to public
health or safety that requires immediate resolution. This type of grant
is awarded only after an Area ONAP determines that such conditions
exist and if funds are available for such grants.
(b) Size of grants.--(1) Ceilings. Each Area ONAP may recommend
grant ceilings for single purpose grant applications. Single purpose
grant ceilings for each Area ONAP shall be established in the NOFA
(Notice of Funding Availability).
(2) Individual grant amounts. An Area ONAP may approve a grant
amount less than the amount requested. In doing so, the Area ONAP may
take into account the size of the applicant, the level of demand, the
scale of the activity proposed relative to need and operational
capacity, the number of persons to be served, the amount of funds
required to achieve project objectives and the administrative capacity
of the applicant to complete the activities in a timely manner.
Sec. 953.101 Area ONAP allocation of funds.
(a) Except as provided in paragraph (b) of this section, funds will
be allocated to the Area ONAPs responsible for the program on the
following basis:
(1) Each Area ONAP will be allocated $1,000,000 as a base amount,
to which will be added a formula share of the balance of the ICDBG
Program funds, as provided in paragraph (a)(2) of this section.
(2) The amount remaining after the base amount is allocated and any
amount retained by the Headquarters ONAP to fund imminent threat grants
pursuant to the provisions of Sec. 953.402 is subtracted, will be
allocated to each Area ONAP based on the most recent data complied and
published by the United States Bureau of the Census referable to the
same point or period in time, as follows:
(i) Forty percent (40%) of the funds will be allocated based upon
each Area ONAP's share of the total eligible Indian population;
(ii) Forty percent (40%) of the funds will be allocated based upon
each Area ONAP's share of the total extent of poverty among the
eligible Indian population; and
(iii) Twenty percent (20%) of the funds will be allocated based
upon each Area ONAP's share of the total extent of overcrowded housing
among the eligible Indian population.
(b) HUD will use other criteria to determine an allocation formula
for distributing funds to the Area ONAPs if funds are set aside by
statute for a specific purpose in any fiscal year if it is determined
that the formula in paragraph (a) of this section is inappropriate to
accomplish the purpose. HUD will use other criteria if it is determined
that, based on a limited appropriation of funds, the use of the formula
in paragraph (a) of this section is inappropriate to obtain an
equitable allocation of funds.
(c) Data used for the allocation of funds will be based upon the
Indian population of those tribes and villages that are determined to
be eligible ninety (90) days before the beginning of each fiscal year.
Sec. 953.102 Use of recaptured and unawarded funds.
(a) The Assistant Secretary will determine on a case-by-case basis
the use of grant funds which are:
(1) Recaptured by HUD under the provisions of Sec. 953.703 or
Sec. 953.704;
(2) Recaptured by HUD at the time of the closeout of a program; or
(3) Unawarded after the completion by an Area ONAP of a funding
competition.
(b) The recaptured or unawarded funds will remain with the Area
ONAP to which they were originally allocated unless the Assistant
Secretary determines that there is an overriding
[[Page 40093]]
reason to redistribute these funds outside of the Area ONAP's
jurisdiction. The recaptured funds may be used to fund the highest
ranking unfunded project from the most recent funding competition, an
imminent threat, or other uses. Unawarded funds may be used to fund an
imminent threat or other uses.
Subpart C--Eligible Activities
Sec. 953.200 General policies.
An activity may be assisted in whole or in part with ICDBG funds
only if the activity meets the eligibility requirements of section 105
of the Act as further defined in this subpart and if the criteria for
compliance with the primary objective of the Act set forth under
Sec. 953.208 have been met. The requirements for compliance with the
primary objective of the Act do not apply to imminent threat grants
funded under subpart E of this part.
Sec. 953.201 Basic eligible activities.
ICDBG funds may be used for the following activities:
(a) Acquisition. Acquisition in whole or in part by the grantee, or
other public or private nonprofit entity, by purchase, long-term lease,
donation, or otherwise, of real property (including air rights, water
rights, rights-of-way, easements, and other interests therein) for any
public purpose, subject to the limitations of Sec. 953.207.
(b) Disposition. Disposition, through sale, lease, donation, or
otherwise, of any real property acquired with ICDBG funds or its
retention for public purposes, including reasonable costs of
temporarily managing such property or property acquired under urban
renewal, provided that the proceeds from any such disposition shall be
program income subject to the requirements set forth in Sec. 953.503.
(c) Public facilities and improvements. Acquisition, construction,
reconstruction, rehabilitation or installation of public facilities and
improvements, except as provided in Sec. 953.207(a), carried out by the
grantee or other public or private nonprofit entities. In undertaking
such activities, design features and improvements which promote energy
efficiency may be included. [However, activities under this paragraph
may be directed to the removal of material and architectural barriers
that restrict the mobility and accessibility of elderly or severely
disabled persons to publicly owned and privately owned buildings,
facilities, and improvements including those provided for in
Sec. 953.207(a)(1).] Such activities may also include the execution of
architectural design features, and similar treatments intended to
enhance the aesthetic quality of facilities and improvements receiving
ICDBG assistance. Facilities designed for use in providing shelter for
persons having special needs are considered public facilities and not
subject to the prohibition of new housing construction described in
Sec. 953.207(b)(3). Such facilities include shelters for the homeless;
convalescent homes; hospitals, nursing homes; battered spouse shelters;
halfway houses for run-away children, drug offenders or parolees; group
homes for mentally retarded persons and temporary housing for disaster
victims. In certain cases, nonprofit entities and subrecipients
including those specified in Sec. 953.204 may acquire title to public
facilities. When such facilities are owned by nonprofit entities or
subrecipients, they shall be operated so as to be open for use by the
general public during all normal hours of operation. Public facilities
and improvements eligible for assistance under this paragraph (c) are
subject to the following policies in paragraphs (c)(1) through (c)(3)
of this section:
(1) Special policies governing facilities. The following special
policies apply to:
(i) Facilities containing both eligible and ineligible uses. A
public facility otherwise eligible for assistance under the ICDBG
program may be provided with ICDBG funds even if it is part of a
multiple use building containing ineligible uses, if:
(A) The facility which is otherwise eligible and proposed for
assistance will occupy a designated and discrete area within the larger
facility; and
(B) The grantee can determine the costs attributable to the
facility proposed for assistance as separate and distinct from the
overall costs of the multiple-use building and/or facility. Allowable
costs are limited to those attributable to the eligible portion of the
building or facility.
(ii) Equipment purchase. As stated in Sec. 953.207(b)(1), the
purchase of equipment with ICDBG funds is generally ineligible.
However, the purchase of construction equipment for use as part of a
solid waste facility is eligible. In addition, the purchase of fire
protection equipment is considered to be an integral part of a public
facility, and, therefore, the purchase of such equipment is also
eligible.
(2) Fees for use of facilities. Reasonable fees may be charged for
the use of the facilities assisted with ICDBG funds, but charges such
as excessive membership fees, which will have the effect of precluding
low and moderate income persons from using the facilities, are not
permitted.
(3) Special assessments under the ICDBG program. The following
policies relate to special assessments under the ICDBG program:
(i) Definition of special assessment. The term special assessment
means the recovery of the capital costs of a public improvement, such
as streets, water or sewer lines, curbs, and gutters, through a fee or
charge levied or filed as a lien against a parcel of real estate as a
direct result of benefit derived from the installation of a public
improvement, or a one-time charge made as a condition of access to a
public improvement. This term does not relate to taxes, or the
establishment of the value of real estate for the purpose of levying
real estate, property, or ad valorem taxes, and does not include
periodic charges based on the use of a public improvement, such as
water or sewer user charges, even if such charges include the recovery
of all or some portion of the capital costs of the public improvement.
(ii) Special assessments to recover capital costs. Where ICDBG
funds are used to pay all or part of the cost of a public improvement,
special assessments may be imposed as follows:
(A) Special assessments to recover the ICDBG funds may be made only
against properties owned and occupied by persons not of low and
moderate income. Such assessments constitute program income.
(B) Special assessments to recover the non-ICDBG portion may be
made provided that ICDBG funds are used to pay the special assessment
on behalf of all properties owned and occupied by low and moderate
income persons; except that ICDBG funds need not be used to pay the
special assessments on behalf of properties owned and occupied by
moderate income persons if the grantee certifies that it does not have
sufficient ICDBG funds to pay the assessments in behalf of all of the
low and moderate income owner-occupant persons. Funds collected through
such special assessments are not program income.
(iii) Public improvements not initially assisted with ICDBG funds.
The payment of special assessments with ICDBG funds constitutes ICDBG
assistance to the public improvement. Therefore, ICDBG funds may be
used to pay special assessments provided:
(A) The installation of the public improvements was carried out in
compliance with requirements applicable to activities assisted under
this part including environmental and citizen participation
requirements; and
[[Page 40094]]
(B) The installation of the public improvement meets a criterion
for the primary objective in Sec. 953.208; and,
(C) The requirements of Sec. 953.201(c)(3)(ii))(B) are met.
(d) Clearance activities. Clearance, demolition, and removal of
buildings and improvements, including movement of structures to other
sites. Demolition of HUD-assisted housing units may be undertaken only
with the prior approval of HUD.
(e) Public services. Provision of public services (including labor,
supplies, materials, and the purchase of personal property and
furnishings) which are directed toward improving the community's public
services and facilities, including but not limited to those concerned
with employment, crime prevention, child care, health, drug abuse,
education, fair housing counseling, energy conservation, welfare (but
excluding the provision of income payments identified under
Sec. 953.207(b)(4)), homebuyer downp
FR Doc. 96-19350 Community Development Block Grants for Indian Tribes and Alaska Native Villages
ayment assistance or recreational
needs. To be eligible for ICDBG assistance, a public service must be
either a new service, or a quantifiable increase in the level of an
existing service above that which has been provided by or on behalf of
the grantee through funds raised by the grantee, or received by the
grantee from the Federal government in the twelve calendar months
before the submission of the application for ICDBG assistance. (An
exception to this requirement may be made if HUD determines that any
decrease in the level of a service was the result of events not within
the control of the grantee.) The amount of ICDBG funds used for public
services shall not exceed 15 percent of the grant. Such projects must
therefore be submitted with one or more other projects, which must
comprise at least 85 percent of the total requested ICDBG grant amount.
(f) Interim assistance. (1) The following activities may be
undertaken on an interim basis in areas exhibiting objectively
determinable signs of physical deterioration where the grantee has
determined that immediate action is necessary to arrest the
deterioration and that permanent improvements will be carried out as
soon as practicable:
(i) The repairing of streets, sidewalks, parks, playgrounds,
publicly owned utilities, and public buildings; and
(ii) The execution of special garbage, trash, and debris removal,
including neighborhood cleanup campaigns, but not the regular curbside
collection of garbage or trash in an area.
(2) In order to alleviate emergency conditions threatening the
public health and safety in areas where the chief executive officer of
the grantee determines that such an emergency condition exists and
requires immediate resolution, ICDBG funds may be used for:
(i) The activities specified in paragraph (f)(1) of this section,
except for the repair of parks and playgrounds;
(ii) The clearance of streets, including snow removal and similar
activities; and
(iii) The improvement of private properties.
(3) All activities authorized under paragraph (f)(2) of this
section are limited to the extent necessary to alleviate emergency
conditions.
(g) Payment of non-Federal share. Payment of the non-Federal share
required in connection with a Federal grant-in-aid program undertaken
as part of ICDBG activities, provided, that such payment shall be
limited to activities otherwise eligible and in compliance with
applicable requirements under this subpart.
(h) Relocation. Relocation payments and other assistance for
permanently and temporarily relocated individuals families, businesses,
nonprofit organizations, and farm operations where the assistance is:
(1) Required under the provisions of Sec. 953.602 (b) or (c); or
(2) Determined by the grantee to be appropriate under the
provisions of Sec. 953.602(d).
(i) Loss of rental income. Payments to housing owners for losses of
rental income incurred in holding, for temporary periods, housing units
to be used for the relocation of individuals and families displaced by
program activities assisted under this part.
(j) Housing services. Housing services, as provided in section
105(a)(21) of the Housing and Community Development Act of 1974 [42
U.S.C. 5305(a)(21)].
(k) Privately owned utilities. ICDBG funds may be used to acquire,
construct, reconstruct, rehabilitate, or install the distribution lines
and facilities of privately owned utilities, including the placing
underground of new or existing distribution facilities and lines.
(l) The provision of assistance to facilitate economic development.
(1) The provision of assistance either through the grantee directly or
through public and private organizations, agencies, and other
subrecipients (including nonprofit and for-profit subrecipients) to
facilitate economic development by:
(i) Providing credit, including, but not limited to, grants, loans,
loan guarantees, and other forms of financial support, for the
establishment, stabilization, and expansion of microenterprises;
(ii) Providing technical assistance, advice, and business support
services to owners of microenterprises and persons developing
microenterprises; and
(iii) Providing general support, including, but not limited to,
peer support programs, counseling, child care, transportation, and
other similar services, to owners of microenterprises and persons
developing microenterprises.
(2) Services provided under paragraph (l)(1) of this section shall
not be subject to the restrictions on public services contained in
Sec. 953.201(e).
(3) For purposes of this paragraph (l), persons developing
microenterprises means such persons who have expressed interest and who
are, or after an initial screening process are expected to be, actively
working toward developing businesses, each of which is expected to be a
microenterprise at the time it is formed.
(m) Technical assistance. Provision of technical assistance to
public or nonprofit entities to increase the capacity of such entities
to carry out eligible neighborhood revitalization or economic
development activities. Capacity building for private or public
entities (including grantees) for other purposes may be eligible as a
planning cost under Sec. 953.205.
(n) Assistance to institutions of higher education. Provision of
assistance by the grantee to institutions of higher education where the
grantee determines that such an institution has demonstrated a capacity
to carry out eligible activities under this subpart.
(o) Homeownership assistance. ICDBG funds may be used to provide
direct homeownership assistance to low- and moderate-income households
to:
(1) Subsidize interest rates and mortgage principal amounts for
low-and moderate-income homebuyers;
(2) Finance the acquisition by low-and moderate-income homebuyers
of housing that is occupied by the homebuyers;
(3) Acquire guarantees for mortgage financing obtained by low-and
moderate-income homebuyers form private lenders (except that ICDBG
funds may not be used to guarantee such mortgage financing directly,
and grantees may not provide such guarantees directly);
(4) Provide up to 50 percent of any downpayment required from a
low-and moderate-income homebuyer; or
(5) Pay reasonable closing costs (normally associated with the
purchase of a home) incurred by a low-or moderate-income homebuyer.
[[Page 40095]]
Sec. 953.202 Eligible rehabilitation and preservation activities.
(a) Types of buildings and improvements eligible for rehabilitation
or reconstruction assistance. ICDBG funds may be used to finance the
rehabilitation of:
(1) Privately owned buildings and improvements for residential
purposes; improvements to a single-family residential property which is
also used as a place of business, which are required in order to
operate the business, need not be considered to be rehabilitation of a
commercial or industrial building, if the improvements also provide
general benefit to the residential occupants of the building;
(2) Low-income public housing and other publicly owned residential
buildings and improvements;
(3) Publicly or privately owned commercial or industrial buildings,
except that the rehabilitation of such buildings owned by a private
for-profit business is limited to improvements to the exterior of the
building and the correction of code violations (further improvements to
such buildings may be undertaken pursuant to Sec. 953.203(b)); and
(4) Nonprofit-owned nonresidential buildings and improvements not
eligible under Sec. 953.201(c);
(5) Manufactured housing when such housing constitutes part of the
community's permanent housing stock.
(b) Types of assistance. ICDBG funds may be used to finance the
following types of rehabilitation or reconstruction activities, and
related costs, either singly, or in combination, through the use of
grants, loans, loan guarantees, interest supplements, or other means
for buildings and improvements described in paragraph (a) of this
section, except that rehabilitation of commercial or industrial
buildings is limited as described in paragraph (a)(3) of this section.
(1) Assistance to private individuals and entities, including
profit making and nonprofit organizations, to acquire for the purpose
of rehabilitation, and to rehabilitate properties, for use or resale
for residential purposes;
(2) Labor, materials, and other costs of rehabilitation of
properties, including repair directed toward an accumulation of
deferred maintenance, replacement of principal fixtures and components
of existing structures, installation of security devices, including
smoke detectors and dead bolt locks, and renovation through
alterations, additions to, or enhancement of existing structures, which
may be undertaken singly, or in combination;
(3) Loans for refinancing existing indebtedness secured by a
property being rehabilitated with ICDBG funds if such financing is
determined by the grantee to be necessary or appropriate to achieve the
grantee's community development objectives;
(4) Improvements to increase the efficient use of energy in
structures through such means as installation of storm windows and
doors, siding, wall and attic insulation, and conversion, modification,
or replacement of heating and cooling equipment, including the use of
solar energy equipment;
(5) Improvements to increase the efficient use of water through
such means as water saving faucets and shower heads and repair of water
leaks;
(6) Connection of residential structures to water distribution
lines or local sewer collection lines;
(7) For rehabilitation carried out with ICDBG funds, costs of:
(i) Initial homeowner warranty premiums;
(ii) Hazard insurance premiums, except where assistance is provided
in the form of a grant; and
(iii) Flood insurance premiums for properties covered by the Flood
Disaster Protection Act of 1973, pursuant to 24 CFR 58.6(a).
(iv) Procedures concerning inspection and testing for and treatment
and abatement of defective paint surfaces and lead-based paint,
pursuant to Sec. 953.607.
(8) Costs of acquiring tools to be lent to owners, tenants, and
others who will use such tools to carry out rehabilitation;
(9) Rehabilitation services, such as rehabilitation counseling,
energy auditing, preparation of work specifications, loan processing,
inspections, and other services related to assisting owners, tenants,
contractors, and other entities, participating or seeking to
participate in rehabilitation activities authorized under this section;
(10) Improvements designed to remove material and architectural
barriers that restrict the mobility and accessibility of elderly or
severely disabled persons to buildings and improvements eligible for
assistance under paragraph (a) of this section.
(c) Code enforcement. Code enforcement in deteriorating or
deteriorated areas where such enforcement together with public or
private improvements, rehabilitation, or services to be provided, may
be expected to arrest the decline of the area.
(d) Historic preservation. ICDBG funds may be used for the
rehabilitation, preservation or restoration of historic properties,
whether publicly or privately owned. Historic properties are those
sites or structures that are either listed in or eligible to be listed
in the National Register of Historic Places, listed in a State or local
inventory of historic places, or designated as a State or local
landmark or historic district by appropriate law or ordinance. Historic
preservation, however, is not authorized for buildings for the general
conduct of government.
(e) Renovation of closed buildings. ICDBG funds may be used to
renovate closed buildings, such as closed school buildings, for use as
an eligible public facility or to rehabilitate such buildings for
housing.
Sec. 953.203 Special economic development activities.
A grantee may use ICDBG funds for special economic development
activities in addition to other activities authorized in this subpart
which may be carried out as part of an economic development project.
Special activities authorized under this section do not include
assistance for the construction of new housing. Special economic
development activities include:
(a) The acquisition, construction, reconstruction, rehabilitation
or installation of commercial or industrial buildings, structures, and
other real property equipment and improvements, including railroad
spurs or similar extensions. Such activities may be carried out by the
grantee or public or private nonprofit subrecipients.
(b) The provision of assistance to a private for-profit business,
including, but not limited to, grants, loans, loan guarantees, interest
supplements, technical assistance, and other forms of support, for any
activity where the assistance is necessary or appropriate to carry out
an economic development project, excluding those described as
ineligible in Sec. 953.207(a). In order to ensure that any such
assistance does not unduly enrich the for-profit business, the grantee
shall conduct an analysis to determine that the amount of any financial
assistance to be provided is not excessive, taking into account the
actual needs of the business in making the project financially feasible
and the extent of public benefit expected to be derived from the
economic development project. The grantee shall document the analysis
as well as any factors it considered in making its determination that
the assistance is necessary or appropriate to carry out the project.
The requirement for making such a determination applies whether the
business is to receive assistance from the grantee or through a
subrecipient.
[[Page 40096]]
(Approved by the Office of Management and Budget under control
number 2577-0191)
Sec. 953.204 Special activities by Community-Based Development
Organizations (CBDOs).
(a) Eligible activities. The grantee may provide ICDBG funds as
grants or loans to any CBDO qualified under this section to carry out a
neighborhood revitalization, community economic development, or energy
conservation project. The funded project activities may include those
listed as eligible under this subpart, and, except as described in
paragraph (b) of this section, activities not otherwise listed as
eligible under this subpart. For purposes of qualifying as a project
under paragraphs (a)(1), (a)(2), and (a)(3) of this section, the funded
activity or activities may be considered either alone or in concert
with other project activities either being carried out or for which
funding has been committed. For purposes of this section:
(1) Neighborhood revitalization project includes activities of
sufficient size and scope to have an impact on the decline of a
geographic location within the jurisdiction of a grantee (but not the
entire jurisdiction) designated in comprehensive plans, ordinances, or
other local documents as a neighborhood, village, or similar
geographical designation; or the entire jurisdiction of a grantee which
is under 25,000 population;
(2) Community economic development project includes activities that
increase economic opportunity, principally for persons of low- and
moderate-income, or that stimulate or retain businesses or permanent
jobs, including projects that include one or more such activities that
are clearly needed to address a lack of affordable housing accessible
to existing or planned jobs;
(3) Energy conservation project includes activities that address
energy conservation, principally for the benefit of the residents of
the grantee's jurisdiction; and
(4) To carry out a project means that the CBDO undertakes the
funded activities directly or through contract with an entity other
than the grantee, or through the provision of financial assistance for
activities in which it retains a direct and controlling involvement and
responsibilities.
(b) Ineligible activities. Notwithstanding that CBDOs may carry out
activities that are not otherwise eligible under this subpart, this
section does not authorize:
(1) Carrying out an activity described as ineligible in
Sec. 953.207(a);
(2) Carrying out public services that do not meet the requirements
of Sec. 953.201(e), except services carried out under this section that
are specifically designed to increase economic opportunities through
job training and placement and other employment support services,
including, but not limited to, peer support programs, counseling, child
care, transportation, and other similar services;
(3) Carrying out an activity that would otherwise be eligible under
Sec. 953.205 or Sec. 953.206, but that would result in the grantee's
exceeding the spending limitation in Sec. 953.206.
(c) Eligible CBDOs. (1) A CBDO qualifying under this section is an
organization which has the following characteristics:
(i) Is an association or corporation organized under State or local
law to engage in community development activities (which may include
housing and economic development activities) primarily within an
identified geographic area of operation within the jurisdiction of the
grantee; and
(ii) Has as its primary purpose the improvement of the physical,
economic or social environment of its geographic area of operation by
addressing one or more critical problems of the area, with particular
attention to the needs of persons of low and moderate income; and
(iii) May be either non-profit or for-profit, provided any monetary
profits to its shareholders or members must be only incidental to its
operations; and
(iv) Maintains at least 51 percent of its governing body's
membership for low- and moderate-income residents of its geographic
area of operation, owners or senior officers of private establishments
and other institutions located in and serving its geographic area of
operation, or representatives of low- and moderate-income neighborhood
organizations located in its geographic area of operation; and
(v) Is not an agency or instrumentality of the grantee and does not
permit more than one-third of the membership of its governing body to
be appointed by, or to consist of, elected or other public officials or
employees or officials of an ineligible entity (even though such
persons may be otherwise qualified under paragraph (c)(1)(iv) of this
section); and
(vi) Except as otherwise authorized in paragraph (c)(1)(v) of this
section, requires the members of its governing body to be nominated and
approved by the general membership of the organization, or by its
permanent governing body; and
(vii) Is not subject to requirements under which its assets revert
to the grantee upon dissolution; and
(viii) Is free to contract for goods and services from vendors of
its own choosing.
(2) A CBDO that does not meet the criteria in paragraph (c)(1) of
this section may also qualify as an eligible entity under this section
if it meets one of the following requirements:
(i) Is an entity organized pursuant to section 301(d) of the Small
Business Investment Act of 1958 (15 U.S.C. 681(d)), including those
which are profit making; or
(ii) Is an SBA-approved Section 501 State Development Company or
Section 502 Local Development Company, or an SBA Certified Section 503
Company under the Small Business Investment Act of 1958, as amended; or
(iii) Is a Community Housing Development Organization (CHDO) under
24 CFR 92.2, designated as a CHDO by the HOME Investment Partnerships
program participating jurisdiction, with a geographic area of operation
of no more than one neighborhood, and has received HOME funds under 24
CFR 92.300 or is expected to receive HOME funds as described in and
documented in accordance with 24 CFR 92.300(e); or
(iv) Is a tribal-based nonprofit organization. Such organizations
are associations or corporations duly organized to promote and
undertake community development activities on a not-for-profit basis
within an identified service area.
(3) A CBDO that does not qualify under paragraphs (c)(1) or (2) of
this section may also be determined to qualify as an eligible entity
under this section if the grantee demonstrates to the satisfaction of
HUD, through the provision of information regarding the organization's
charter and by-laws, that the organization is sufficiently similar in
purpose, function, and scope to those entities qualifying under
paragraphs (c)(1) or (2) of this section.
Sec. 953.205 Eligible planning, urban environmental design and
policy-planning-management capacity building activities.
(a) Planning activities which consist of all costs of data
gathering, studies, analysis, and preparation of plans and the
identification of actions that will implement such plans, including,
but not limited to comprehensive plans, community development plans and
functional plans in areas such as housing and economic development. In
addition, other plans and studies such as capital improvements
programs, individual project plans, general
[[Page 40097]]
environmental studies, and strategies and action programs to implement
plans, including the development of codes and ordinances are also
eligible activities. With respect to the costs of individual project
plans, engineering and design costs related to a specific activity are
eligible as part of the cost of such activity under Secs. 953.201
through 953.204 and are not considered planning costs. Also, costs
necessary to comply with the requirements of 24 CFR part 58, including
project specific environmental assessments and clearances for
activities eligible under this part are eligible as part of the cost of
such activities under Secs. 953.201 through 953.204.
(b) Policy--planning--management--capacity building activities
including those which will enable the grantee to determine its needs,
set long term goals and short term objectives, devise programs to meet
these goals and objectives, evaluate the progress being made in
accomplishing the goals and objectives. In addition, actions necessary
to carry out management, coordination and monitoring of activities
necessary for effective planning implementation are eligible planning
activities, however the costs necessary to implement the plans are not.
Sec. 953.206 Program administration costs.
ICDBG funds may be used for the payment of reasonable
administrative costs and carrying charges related to the planning and
execution of community development activities assisted in whole or in
part with funds provided under this part. No more than 20 percent of
the sum of any grant plus program income received shall be expended for
activities described in this section and in Sec. 953.205--Eligible
planning, urban environmental design and policy-planning-management
capacity building activities. This does not include staff and overhead
costs directly related to carrying out activities eligible under
Secs. 953.201 through 953.204, since those costs are eligible as part
of such activities. In addition, technical assistance costs associated
with developing the capacity to undertake a specific funded activity
are also not considered program administration costs. These costs must
not, however, exceed 10% of the total grant award.
(a) General management, oversight and coordination. Reasonable
costs of overall program management, coordination, monitoring, and
evaluation. Such costs include, but are not necessarily limited to,
necessary expenditures for the following:
(1) Salaries, wages, and related costs of the grantee's staff, the
staff of local public agencies, or other staff engaged in program
administration. In charging costs to this category the grantee may
either include the entire salary, wages, and related costs allocable to
the program of each person whose primary responsibilities with regard
to the program involve program administration assignments, or the pro
rata share of the salary, wages, and related costs of each person whose
job includes any program administration assignments. The grantee may
use only one of these methods during the grant period. Program
administration includes the following types of assignments:
(i) Providing tribal officials and citizens with information about
the program;
(ii) Preparing program budgets and schedules, and amendments
thereto;
(iii) Developing systems for assuring compliance with program
requirements;
(iv) Developing interagency agreements and agreements with
subrecipients and contractors to carry out program activities;
(v) Monitoring program activities for progress and compliance with
program requirements;
(vi) Preparing reports and other documents related to the program
for submission to HUD;
(vii) Coordinating the resolution of audit and monitoring findings;
(viii) Evaluating program results against stated objectives; and
(ix) Managing or supervising persons whose primary responsibilities
with regard to the program include such assignments as those described
in paragraph (a)(1) (i) through (viii) of this section.
(2) Travel costs incurred for official business in carrying out the
program;
(3) Administrative services performed under third party contracts
or agreements, including such services as general legal services,
accounting services, and audit services; and
(4) Other costs for goods and services required for administration
of the program, including such goods and services as rental or purchase
of equipment, furnishings, or other personal property (or the payment
of depreciation or use allowances for such items in accordance with OMB
Circulars A-21, A-87 or A-122, as applicable), insurance, utilities,
office supplies, and rental and maintenance (but not purchase) of
office space. (OMB Circulars are available from the Executive Office of
the President, Publication Service, 725 17th Street, N.W., Suite G-
2200, Washington, DC 20503, Telephone, 202-395-7332.)
(b) Public information. The provisions of information and other
resources to residents and citizen organizations participating in the
planning, implementation, or assessment of activities being assisted
with ICDBG funds.
(c) Indirect costs. Indirect costs may be charged to the ICDBG
program under a cost allocation plan prepared in accordance with OMB
Circular A-21, A-87, or A-122 as applicable.
(d) Submission of applications for Federal programs. Preparation of
documents required for submission to HUD to receive funds under the
ICDBG program. In addition, ICDBG funds may be used to prepare
applications for other Federal programs where the grantee determines
that such activities are necessary or appropriate to achieve its
community development objectives.
Sec. 953.207 Ineligible activities.
The general rule is that any activity that is not authorized under
the provisions of Secs. 953.201 through 953.206 is ineligible to be
assisted with ICDBG funds. This section identifies specific activities
that are ineligible and provides guidance in determining the
eligibility of other activities frequently associated with housing and
community development.
(a) The following activities may not be assisted with ICDBG funds:
(1) Buildings or portions thereof used for the general conduct of
government as defined at Sec. 953.4 cannot be assisted with ICDBG
funds. This does not include, however, the removal of architectural
barriers under Sec. 953.201(c) involving any such building. Also, where
acquisition of real property includes an existing improvement which is
to be used in the provision of a building for the general conduct of
government, the portion of the acquisition cost attributable to the
land is eligible, provided such acquisition meets the primary objective
described in Sec. 953.208.
(2) General government expenses. Except as otherwise specifically
authorized in this subpart or under OMB Circular A-87, expenses
required to carry out the regular responsibilities of the grantee are
not eligible for assistance under this part.
(3) Political activities. ICDBG funds shall not be used to finance
the use of facilities or equipment for political purposes or to engage
in other partisan political activities, such as candidate forums, voter
transportation, or voter registration. However, a facility originally
assisted with ICDBG funds may be used on an incidental basis to hold
political meetings, candidate
[[Page 40098]]
forums, or voter registration campaigns, provided that all parties and
organizations have access to the facility on an equal basis, and are
assessed equal rent or use charges, if any.
(b) The following activities may not be assisted with ICDBG funds
unless authorized under provisions of Sec. 953.203 or as otherwise
specifically noted herein, or when carried out by a CBDO under the
provisions of Sec. 953.204.
(1) Purchase of equipment. The purchase of equipment with ICDBG
funds is generally ineligible.
(i) Construction equipment. The purchase of construction equipment
is ineligible, but compensation for the use of such equipment through
leasing, depreciation, or use allowances pursuant to OMB Circular A-21,
A-87 or A-122 as applicable for an otherwise eligible activity is an
eligible use of ICDBG funds.
(ii) Furnishings and personal property. The purchase of equipment,
fixtures, motor vehicles, furnishings, or other personal property not
an integral structural fixture is generally ineligible. Exceptions to
this general prohibition are set forth in Sec. 953.201(o).
(2) Operating and maintenance expenses. The general rule is that
any expense associated with repairing, operating or maintaining public
facilities, improvements and services is ineligible. Specific
exceptions to this general rule are operating and maintenance expenses
associated with public service activities, interim assistance, and
office space for program staff employed in carrying out the ICDBG
program. For example, the use of ICDBG funds to pay the allocable costs
of operating and maintaining a facility used in providing a public
service would be eligible under Sec. 953.201(e), even if no other costs
of providing such a service are assisted with such funds. Examples of
ineligible operating and maintenance expenses are:
(i) Maintenance and repair of streets, parks, playgrounds, water
and sewer facilities, neighborhood facilities, senior centers, centers
for persons with a disability, parking and similar public facilities;
and
(ii) Payment of salaries for staff, utility costs and similar
expenses necessary for the operation of public works and facilities.
(3) New housing construction. ICDBG funds may not be used for the
construction of new permanent residential structures or for any program
to subsidize or assist such new construction, except:
(i) As provided under the last resort housing provisions set forth
in 24 CFR part 42; or
(ii) When carried out by a CBDO pursuant to Sec. 953.204(a);
(4) Income payments. The general rule is that ICDBG funds may not
be used for income payments. For purposes of the ICDBG program, income
payments means a series of subsistence-type grant payments made to an
individual or family for items such as food, clothing, housing (rent or
mortgage) or utilities, but excludes emergency payments made over a
period of up to three months to the provider of such items or services
on behalf of an individual or family.
Sec. 953.208 Criteria for compliance with the primary objective.
The Act establishes as its primary objective the development of
viable communities by providing decent housing and a suitable living
environment and expanding economic opportunities, principally for
persons of low and moderate income. Consistent with this objective, not
less than 70 percent of the expenditures of each single purpose grant
shall be for activities which meet the criteria set forth in paragraphs
(a), (b), (c) and (d) of this section. Activities meeting these
criteria as applicable will be considered to benefit low and moderate
income persons unless there is substantial evidence to the contrary. In
assessing any such evidence, the full range of direct effects of the
assisted activity will be considered. (The grantee shall appropriately
ensure that activities that meet these criteria do not benefit moderate
income persons to the exclusion of low income persons.)
(a) Area benefit activities. (1) An activity, the benefits of which
are available to all the residents in a particular area, where at least
51 percent of the residents are low and moderate income persons. Such
an area need not be coterminous with census tracts or other officially
recognized boundaries but must be the entire area served by the
activity. An activity that serves an area that is not primarily
residential in character shall not qualify under this criterion.
(2) For purposes of determining qualification under this criterion,
activities of the same type that serve different areas will be
considered separately on the basis of their individual service area.
(3) In determining whether there is a sufficiently large percentage
of low and moderate income persons residing in the area served by an
activity to qualify under paragraph (a) (1) or (2) of this section, the
most recently available decennial census information shall be used to
the fullest extent feasible, together with the Section 8 income limits
that would have applied at the time the income information was
collected by the Census Bureau. Grantees that believe that the census
data does not reflect current relative income levels in an area, or
where census boundaries do not coincide sufficiently well with the
service area of an activity, may conduct (or have conducted) a current
survey of the residents of the area to determine the percent of such
persons that are low and moderate income. HUD will accept information
obtained through such surveys, to be used in lieu of the decennial
census data, where it determines that the survey was conducted in such
a manner that the results meet standards of statistical reliability
that are comparable to that of the decennial census data for areas of
similar size. Where there is substantial evidence that provides a clear
basis to believe that the use of the decennial census data would
substantially overstate the proportion of persons residing there that
are low and moderate income, HUD may require that the grantee rebut
such evidence in order to demonstrate compliance with section 105(c)(2)
of the Act.
(b) Limited clientele activities. (1) An activity which benefits a
limited clientele, at least 51 percent of whom are low or moderate
income persons. (The following kinds of activities may not qualify
under paragraph (b) of this section: Activities, the benefits of which
are available to all the residents of an area; activities involving the
acquisition, construction or rehabilitation of property for housing; or
activities where the benefit to low and moderate income persons to be
considered is the creation or retention of jobs except as provided in
paragraph (b)(4) of this section.) To qualify under paragraph (b) of
this section, the activity must meet one of the following tests:
(i) Benefit a clientele who are generally presumed to be
principally low and moderate income persons. Activities that
exclusively serve a group of persons in any one of the following
categories may be presumed to benefit persons, 51 percent of whom are
low-and moderate-income: abused children, battered spouses, elderly
persons, adults meeting the Bureau of the Census' current Population
Reports definition of ``severely disabled'', homeless persons,
illiterate adults, persons living with AIDS, and migrant workers; or
(ii) Require information on family size and income so that it is
evident that at least 51 percent of the clientele are
[[Page 40099]]
persons whose family income does not exceed the low and moderate income
limit; or
(iii) Have income eligibility requirements which limit the activity
exclusively to low and moderate income persons; or
(iv) Be of such nature and be in such location that it may be
concluded that the activity's clientele will primarily be low and
moderate income persons.
(2) An activity that serves to remove material or architectural
barriers to the mobility or accessibility of elderly persons or adults
meeting the Bureau of the Census' Current Population Reports definition
of ``severely disabled'' will be presumed to qualify under this
criterion if it is restricted, to the extent practicable, to the
removal of such barriers by assisting:
(i) The reconstruction of a public facility or improvement, or
portion thereof, that does not qualify under Sec. 953.208(a); or
(ii) The rehabilitation of a privately-owned nonresidential
building or improvement that does not qualify under Sec. 953.208 (a) or
(d); or
(iii) The rehabilitation of the common areas of a residential
structure that contains more than one dwelling unit.
(3) A microenterprise assistance activity carried out in accordance
with the provisions of Sec. 953.201(l) with respect to those owners of
microenterprises and persons developing microenterprises assisted under
the activity during the grant period who are low and moderate income
persons. For purposes of this paragraph, persons determined to be low
and moderate income may be presumed to continue to qualify for up to a
three year period.
(4) An activity designed to provide job training and placement and/
or other employment support services, including but not limited to,
peer support programs, counseling, child care, transportation, and
other similar services, in which the percentage of low and moderate
income persons assisted is less than 51 percent may qualify under this
paragraph in the following limited circumstance:
(i) In such cases where such training or provision of supportive
services assists business(es), the only use of ICDBG assistance for the
project is to provide the job training and/or supportive services; and
(ii) The proportion of the total cost of the project borne by ICDBG
funds is no greater than the proportion of the total number of persons
assisted who are low or moderate income.
(c) Housing activities. An eligible activity carried out for the
purpose of providing or improving permanent residential structures
which, upon completion, will be occupied by low and moderate income
households. This would include, but not necessarily be limited to, the
acquisition or rehabilitation of property, conversion of non-
residential structures, and new housing construction. Funds expended
for activities which qualify under the provisions of this paragraph
shall be counted as benefiting low and moderate income persons but
shall be limited to an amount determined by multiplying the total cost
(including ICDBG and non-ICDBG costs) of the acquisition, construction
or rehabilitation by the percent of units in such housing to be
occupied by low and moderate income persons. If the structure assisted
contains two dwelling units, at least one must be occupied by low and
moderate income households, and if the structure contains more than two
dwelling units, at least 51 percent of the units must be so occupied.
Where two or more rental buildings being assisted are or will be
located on the same or contiguous properties, and the buildings will be
under common ownership and management, the grouped buildings may be
considered for this purpose as a single structure. For rental housing,
occupancy by low and moderate income households must be at affordable
rents to qualify under this criterion. The grantee shall adopt and make
public its standards for determining ``affordable rents'' for this
purpose. The following shall also qualify under this criterion:
(1) When less than 51 percent of the units in a structure will be
occupied by low and moderate income households, ICDBG assistance may be
provided in the following limited circumstances:
(i) The assistance is for an eligible activity to reduce the
development cost of the new construction of a multifamily, non-elderly
rental housing project;
(ii) Not less than 20 percent of the units will be occupied by low
and moderate income households at affordable rents; and
(iii) The proportion of the total cost of developing the project to
be borne by ICDBG funds is no greater than the proportion of units in
the project that will be occupied by low and moderate income
households.
(2) When ICDBG funds are used for housing services eligible under
Sec. 953.201(j), such funds shall be considered to benefit low-and
moderate-income persons if the housing for which the services are
provided is to be occupied by low-and moderate-income households.
(d) Job creation or retention activities. An activity designed to
create or retain permanent jobs where at least 51 percent of the jobs,
computed on a full time equivalent basis, involve the employment of low
and moderate persons. For purposes of determining whether a job is held
by or made available to a low or moderate income person, the person may
be presumed to be a low or moderate income person if: he/she resides
within a census tract (or block numbering area) where not less than 70
percent of the residents have incomes at or below 80 percent of the
area median; or, if he/she resides in a census tract (or block
numbering area) which meets the Federal Empowerment Zone or Enterprise
Community eligibility criteria; or, if the assisted business is located
in and the job under consideration is to be located in such a tract or
area. As a general rule, each assisted business shall be considered to
be a separate activity for purposes of determining whether the activity
qualifies under this paragraph. However, in certain cases such as where
ICDBG funds are used to acquire, develop or improve a real property
(e.g., a business incubator or an industrial park) the requirement may
be met by measuring jobs in the aggregate for all the businesses which
locate on the property, provided such businesses are not otherwise
assisted by ICDBG funds. Where ICDBG funds are used to pay for the
staff and overhead costs of a CBDO under the provisions of Sec. 953.204
making loans to businesses from non-ICDBG funds, this requirement may
be met by aggregating the jobs created by all of the businesses
receiving loans during any one year period. For an activity that
creates jobs, the grantee must document that at least 51 percent of the
jobs will be held by, or will be available to, low and moderate income
persons. For an activity that retains jobs, the grantee must document
that the jobs would actually be lost without the ICDBG assistance and
that either or both of the following conditions apply with respect to
at least 51 percent of the jobs at the time the ICDBG assistance is
provided: The job is known to be held by a low or moderate income
person; or the job can reasonably be expected to turn over within the
following two years and that steps will be taken to ensure that it will
be filled by, or made available to, a low or moderate income person
upon turnover. Jobs will be considered to be available to low and
moderate income persons for these purposes only if:
(1) Special skills that can only be acquired with substantial
training or
[[Page 40100]]
work experience or education beyond high school are not a prerequisite
to fill such jobs, or the business agrees to hire unqualified persons
and provide training; and
(2) The grantee and the assisted business take actions to ensure
that low and moderate income persons receive first consideration for
filling such jobs.
(e) Additional criteria. (1) Where the assisted activity is
acquisition of real property, a preliminary determination of whether
the activity addresses the primary objective may be based on the
planned use of the property after acquisition. A final determination
shall be based on the actual use of the property, excluding any short-
term, temporary use.
(2) Where the assisted activity is relocation assistance that the
grantee is required to provide, such relocation assistance shall be
considered to address the primary objective as addressed by the
displacing activity.
(3) In any case where the activity undertaken for the purpose of
creating or retaining jobs is a public improvement and the area served
is primarily residential, the activity must meet the requirements of
paragraph (a) of this section as well as those of paragraph (d) of this
section in order to qualify as benefiting low and moderate income
persons.
(4) Expenditures for activities meeting the criteria for benefiting
low and moderate income persons shall be used in determining the extent
to which the grantee's overall program benefits such persons. In
determining the percentage of funds expended for such activities:
(i) Costs of administration and planning, eligible under
Sec. 953.205 and Sec. 953.206 respectively, will be assumed to benefit
low and moderate income persons in the same proportion as the remainder
of the ICDBG funds and, accordingly, shall be excluded from the
calculation.
(ii) Funds expended for the acquisition, new construction or
rehabilitation of property for housing those qualified under
Sec. 953.208(c) shall be counted for this purpose, but shall be limited
to an amount determined by multiplying the total cost (including ICDBG
and non-ICDBG costs) of the acquisition, construction, or
rehabilitation by the percent of units in such housing occupied by low
and moderate income persons.
(iii) Funds expended for any other activity which qualifies under
Sec. 953.208 shall be counted for this purpose in their entirety.
Subpart D--Single Purpose Grant Application and Selection Process
Sec. 953.300 Application requirements.
(a) Application information. A Notice of Funding Availability
(NOFA) shall be published in the Federal Register not less than 30 days
before the deadline for application submission. The NOFA will provide
information relating to the date and time for application submission,
the form and content requirements of the application, specific
information regarding the rating and ranking criteria to be used, and
any other information pertinent to the application process.
(b) Costs incurred by applicant. Costs incurred by an applicant
prior to the submission of the single purpose grant application to HUD
will not be recognized by HUD as eligible ICDBG expenses.
(c) HUD will not normally reimburse or recognize costs incurred
before HUD approval of the application for funding. However, under
unusual circumstances, the Area ONAP may consider and approve written
requests to recognize and reimburse costs incurred after submission of
the application where failure to do so would impose undue hardship on
the applicant. Such written authorization will be made only before the
costs are incurred and where the requirements for reimbursement have
been met in accordance with 24 CFR 58.22 and with the understanding
that HUD has no obligation whatsoever to approve the application or to
reimburse the applicant should the application be disapproved.
(Approved by the Office of Management and Budget under control
number 2577-0191)
Sec. 953.301 Selection process.
(a) Threshold requirements. In order for applications that have
passed the initial screening tests listed in the NOFA to be rated and
ranked, Area ONAPs must determine that the following requirements have
been met:
(1) Community development appropriateness. (i) The project costs
are reasonable;
(ii) The project is appropriate for the intended use; and
(iii) The project is usable or achievable (generally within a two-
year period).
If in the judgment of the Area ONAP, available data indicate that
the proposed project does not meet these requirements, the Area ONAP
shall reject the project from further consideration.
(2) Capacity. The applicant possesses, or will acquire, the
managerial, technical, or administrative staff necessary to carry out
the proposed program. If the Area ONAP determines that the applicant
does not have or cannot obtain the capacity to undertake the proposed
program, the application will be rejected from further consideration.
(3) Performance.--(i) Community development. Performance
determinations are made through the Area ONAP's assessment process.
Applicants that have been advised in writing of negative findings on
previous grants, for which a schedule of corrective actions has been
established, will not be considered for funding if they are behind
schedule as of the deadline date for filing applications.
(ii) Housing assistance. The applicant must not have been found
taking actions to impede the provision or operation of assisted housing
for the low- and moderate-income members of the tribe or village. If
inadequate performance is found, and the applicant has been notified in
writing, they may be rejected from further consideration. Performance
determinations are made through the Area ONAP's assessment process.
(iii) Audits. An applicant that has an outstanding ICDBG obligation
to HUD that is in arrears, or one that has not agreed to a repayment
schedule, will be disqualified from the current and subsequent
competitions until the obligations are current. An applicant whose
response to an audit finding is overdue or unsatisfactory will be
disqualified from the current and subsequent competitions until the
applicant has taken final action necessary to close the audit
finding(s). The Area ONAP administrator may provide exceptions to this
disqualification requirement in cases where the applicant has made a
good faith effort to clear non-monetary audit findings. In no instance,
however, shall an exception be provided when funds are due HUD, unless
a satisfactory arrangement for repayment of the debt has been made, and
payments are current.
(b) Application rating system. Applications that meet the threshold
requirements established in paragraph (a) of this section will be rated
competitively within each Area ONAP's jurisdiction.
(c) NOFAs will define and establish weights for the selection
criteria for each rating category contained in this subpart, will
specify the maximum points available, and will describe how point
awards will be made. Each Area ONAP will rate applications on the basis
of their responsiveness to the criteria contained in this subpart as
defined in the periodic NOFAs.
[[Page 40101]]
(d) Set-aside selection of projects. If funds have been set aside
by statute for a specific purpose in any fiscal year, other criteria
pertinent to the set-aside may be used to select projects for funding
from the set-aside.
Sec. 953.302 Project specific threshold requirements.
(a) Housing rehabilitation projects. All applicants for housing
rehabilitation projects shall adopt rehabilitation standards and
rehabilitation policies before submitting an application. The applicant
shall assure that it will use project funds to rehabilitate units only
when the homeowner's payments are current or the homeowner is current
in a repayment agreement that is subject to approval by the Area ONAP.
The Area ONAP administrator may grant exceptions to this requirement on
a case-by-case basis.
(b) New housing construction projects. New housing construction can
only be implemented through a nonprofit organization that is eligible
under Sec. 953.204 or is otherwise eligible under Sec. 953.207(b)(3).
All applicants for new housing construction projects shall adopt, by
current tribal resolution, construction standards before submitting an
application. All applications which include new housing construction
projects must document that:
(1) No other housing is available in the immediate reservation area
that is suitable for the household(s) to be assisted; and
(2) No other sources can meet the needs of the household(s) to be
assisted; and
(3) Rehabilitation of the unit occupied by the household(s) to be
assisted is not economically feasible; or
(4) The household(s) to be housed currently is in an overcrowded
housing unit (sharing with another household); or
(5) The household(s) to be assisted has no current residence.
(c) Economic development projects. All applicants for economic
development projects must provide an analysis which shows public
benefit commensurate with the ICDBG assistance requested will result
from the assisted project. This analysis should also establish that to
the extent practicable: reasonable financial support will be committed
from non-Federal sources prior to disbursement of Federal funds; any
grant amount provided will not substantially reduce the amount of non-
Federal financial support for the activity; not more than a reasonable
rate of return on investment is provided to the owner; and, that grant
funds used for the project will be disbursed on a pro rata basis with
amounts from other sources. In addition, it must be established that
the project is financially feasible and that it has a reasonable chance
of success.
Sec. 953.303 Project rating categories.
(a) There are three project rating categories: housing, community
facilities, and economic development. The housing rating category
consists of three components: Housing rehabilitation, land to support
new housing, and new housing construction. The community facility
category consists of two components: Infrastructure and buildings. The
economic development category has only one component. With the
exceptions indicated in paragraph (b) of this section, the following
criteria will be used to rate projects.
(1) Project need and design.
(2) Planning and implementation.
(3) Leverage.
(b) Exceptions. (1) Projects for the acquisition of land to support
new housing will not be rated under the leverage criterion.
(2) Economic development projects will be not be rated under the
project need and design and planning and implementation criteria. These
projects will be rated under the leverage criterion and the following
additional criteria.
(i) Organization.
(ii) Project success.
(iii) Jobs.
(iv) Additional considerations consisting of the following:
(A) Use, improvement, or expansion of tribal members' special
skills.
(B) Provision of spin-off benefits.
(C) Provision of special opportunities for residents of Indian
housing.
(D) Provision of benefits to other businesses owned by Indians or
Alaska natives.
(E) Commitment to loan repayment or reuse of ICDBG funds.
Sec. 953.304 Funding process.
(a) Notification. Area ONAPs will notify applicants of the approval
or disapproval of their applications. Grant amounts offered may reflect
adjustments made by the Area ONAPs in accordance with Sec. 953.100
(b)(2).
(b) Grant award. (1) As soon as the Area ONAP determines that the
applicant has complied with any pre-award requirements and absent
information which would alter the threshold determinations under
Sec. 953.302, the grant will be awarded. The regulations become part of
the grant agreement.
(2) All grants shall be conditioned upon the completion of all
environmental obligations and approval of release of funds by HUD in
accordance with the requirements of part 58 of this title and, in
particular, subpart J of part 58 of this title, except as otherwise
provided in part 58 of this title.
(3) HUD may impose other grant conditions where additional actions
or approvals are required before the use of funds.
(Approved by the Office of Management and Budget under OMB Control
No. 2577-0191.)
Sec. 953.305 Program amendments.
(a) Grantees shall request prior HUD approval for program
amendments which will significantly change the scope, location,
objective, or class of beneficiaries of the approved activities, as
originally described in the application.
(b) Amendment requests of $100,000 or more shall include all
application components required by the NOFA published for the last
application cycle; those requests of less than $100,000 do not have to
include the components which address the selection criteria.
(c) Approval of an amendment request is subject to the following:
(1) A rating equal to or greater than the lowest rating received by
a funded project during the most recent funding competition must be
attained by the amended project if the request is for $100,000 or more;
(2) Demonstration by the grantee of the capacity to promptly
complete the modified or new activities;
(3) Demonstration by the grantee of compliance with the
requirements of Sec. 953.604 for citizen participation; and
(4) The preparation of an amended or new environmental review in
accordance with part 58 of this title, if there is a significant change
in the scope or location of approved activities.
(d) Amendments which address imminent threats to health and safety
shall be reviewed and approved in accordance with the requirements of
subpart E of this part.
(e) If a program amendment fails to be approved and the original
project is no longer feasible, the grant funds proposed for amendment
shall be recaptured by HUD.
Subpart E--Imminent Threat Grants
Sec. 953.400 Criteria for funding.
The following criteria apply to requests for assistance under this
subpart:
(a) In response to requests for assistance, HUD may make funds
[[Page 40102]]
available under this subpart to applicants to alleviate or remove
imminent threats to health or safety. The urgency and immediacy of the
threat shall be independently verified before the approval of an
application. Funds may only be used to deal with imminent threats that
are not of a recurring nature and which represent a unique and unusual
circumstance, and which impact on an entire service area.
(b) Funds to alleviate imminent threats may be granted only if the
applicant can demonstrate to the satisfaction of HUD that other tribal
or Federal funding sources cannot be made available to alleviate the
threat.
(c) HUD will establish grant ceilings for imminent threat
applications.
Sec. 953.401 Application process.
(a) Letter to proceed. The Area ONAP may issue the applicant a
letter to proceed to incur costs to alleviate imminent threats to
health and safety only if the assisted activities do not alter
environmental conditions and are for temporary or permanent
improvements limited to protection, repair, or restoration actions
necessary only to control or arrest the effects of imminent threats or
physical deterioration. Reimbursement of such costs is dependent upon
HUD approval of the application.
(b) Applications. Applications shall include the information
specified in the Notice of Funding Availability (NOFA).
(c) Application approval. Applications which meet the requirement
of this section may be approved by the Area ONAP without competition in
accordance with the applicable requirements of Sec. 953.304.
(Approved by the Office of Management and Budget under control
number 2577-0191)
Sec. 953.402 Availability of funds.
Of the funds made available by the NOFA for the ICDBG program, an
amount to be determined by the Assistant Secretary may be reserved by
HUD for grants under this subpart. The amount of funds reserved for
imminent threat funding during each funding cycle will be stated in the
NOFA. If any of the reserved funds are not used to fund imminent threat
grants during a fiscal year, they will be added to the allocation of
ICDBG funds for the subsequent fiscal year and will be used as if they
were a part of the new allocation.
Subpart F--Grant Administration
Sec. 953.500 Responsibility for grant administration.
(a) One or more tribal departments or authorities, including
existing tribal public agencies, may be designated by the chief
executive officer of the grantee to undertake activities assisted by
this part. A public agency so designated shall be subject to the same
requirements as are applicable to subrecipients.
(b) The grantee is responsible for ensuring that ICDBG funds are
used in accordance with all program requirements. The use of designated
public agencies, subrecipients, or contractors does not relieve the
grantee of this responsibility. The grantee is also responsible for
determining the adequacy of performance under subrecipient agreements
and procurement contracts, and for taking appropriate action when
performance problems arise, such as the actions described in
Sec. 953.701.
Sec. 953.501 Applicability of uniform administrative requirements and
cost principles.
(a) Grantees and subrecipients which are governmental entities
(including public agencies) shall comply with the requirements and
standards of OMB Circular No. A-87, ``Principles for Determining Costs
Applicable to Grants and Contracts with State, Local and Federally
recognized Indian Tribal Governments'', OMB Circular A-128, ``Audits of
State and Local Governments'' (implemented at 24 CFR part 44) and with
the following sections of 24 CFR part 85 ``Uniform Administrative
Requirements for Grants and Cooperative Agreements to State and Local
Governments''.
(1) Section 85.3, ``Definitions''.
(2) Section 85.6, ``Exceptions''.
(3) Section 85.12, ``Special grant or subgrant conditions for
`high-risk' grantees''.
(4) Section 85.20, ``Standards for financial management systems,''
except paragraph (a).
(5) Section 85.21, ``Payment''.
(6) Section 85.22, ``Allowable costs''.
(7) Section 85.25, ``Program income,'' except as modified by
Sec. 953.503.
(8) Section 85.26, ``Non-federal audits''.
(9) Section 85.32, ``Equipment,'' except in all cases in which the
equipment is sold, the proceeds shall be program income.
(10) Section 85.33, ``Supplies''.
(11) Section 85.34, ``Copyrights''.
(12) Section 85.35, ``Subawards to debarred and suspended
parties''.
(13) Section 85.36, ``Procurement,'' except paragraphs (a) States,
(i)(5) Compliance with the Davis Bacon Act (40 U.S.C. 276a to a-7) and
(i)(6) Compliance with sections 103 and 107 of the Contract Work Hours
and Safety Standards Act (40 U.S.C. 327-330). There may be
circumstances under which the bonding requirements of Sec. 85.36(h) are
inconsistent with other responsibilities and obligations of the
grantee. In such circumstances, acceptable methods to provide
performance and payment assurance may include:
(i) Deposit with the grantee of a cash escrow of not less than 20
percent of the total contract price, subject to reduction during the
warranty period, commensurate with potential risk; or
(ii) Letter of credit for 25 percent of the total contract price,
unconditionally payable upon demand of the grantee, subject to
reduction during the warranty period commensurate with potential risk.
(14) Section 85.37, ``Subgrants''.
(15) Section 85.40, ``Monitoring and reporting program
performance,'' except paragraphs (b) through (d) and paragraph (f).
(16) Section 85.41, ``Financial reporting,'' except paragraphs (a),
(b), and (e).
(17) Section 85.42, ``Retention and access requirements for
records''. The retention period referenced in Sec. 85.42(b) pertaining
to individual ICDBG activities starts from the date of the submission
of the final status and evaluation report as prescribed in
Sec. 953.506(a) in which the specific activity is reported.
(18) Section 85.43, ``Enforcement''.
(19) Section 85.44, ``Termination for convenience''.
(20) Section 85.51 ``Later disallowances and adjustments''.
(21) Section 85.52, ``Collection of amounts due''.
(b) Subrecipients, except subrecipients that are governmental
entities, shall comply with the requirements and standards of OMB
Circular No. A-122, ``Cost Principles for Nonprofit Organizations,'' or
OMB Circular No. A-21, ``Cost Principles for Educational
Institutions,'' as applicable, and OMB Circular A-133, ``Audits of
Institutions of Higher Education and Other Nonprofit Institutions''
(implemented at 24 CFR part 45). Audits shall be conducted annually.
Such subrecipients shall also comply with the following provisions of
24 CFR part 84 ``Uniform Administrative Requirements for Grants and
Agreements With Institutions of Higher Education, Hospitals and Other
Non-Profit Organizations'').
(1) Subpart A--``General''.
(2) Subpart B--``Pre-Award Requirements,'' except for Sec. 84.12,
``Forms for Applying for Federal Assistance''.
[[Page 40103]]
(3) Subpart C--``Post-Award Requirements,'' except for Sec. 84.22,
``Payment Requirements,'' grantees shall follow the standards of
Secs. 85.20(7) and 85.21 in making payments to subrecipients.
(4) Section 84.23, ``Cost Sharing and Matching''.
(5) Section 84.24, ``Program Income'', as modified by Sec. 953.503.
(6) Section 84.25, ``Revision of Budget and Program Plans''.
(7) Section 84.32, ``Real Property.'' In lieu of Sec. 84.32, ICDBG
subrecipients shall follow Sec. 953.504 of the ICDBG regulations.
(8) Section 84.34(g) ``Equipment,'' except that in lieu of the
disposition provisions of this paragraph:
(i) In all cases in which equipment is sold during the grant period
as defined in 24 CFR 85.25, the proceeds shall be program income; and
(ii) Equipment not needed by the subrecipient for ICDBG activities
shall be transferred to the grantee for the ICDBG program or shall be
retained after compensating the grantee.
(9) Section 84.51, ``Monitoring and Reporting Program
Performance.'' Only Sec. 84.51(a) applies to ICDBG subrecipients.
(10) Section 84.52, ``Financial Reporting''.
(11) Section 84.53(b), ``Retention and access requirements for
records.'' The retention period referenced in Sec. 84.53(b) pertaining
to individual ICDBG activities starts from the date of the submission
of the final status and evaluation report as prescribed in
Sec. 953.506(a), in which the specific activity is reported.
(12) Section 84.61, ``Termination.'' In lieu of the provisions of
this section, ICDBG subrecipients shall comply with Sec. 953.502 (b)(7)
of the ICDBG regulations.
(13) Subpart D--``After-the-Award Requirements,'' except for
Sec. 84.71, ``Closeout Procedures''.
(c) Cost principles. (1) All items of cost listed in Attachment B
of OMB Circulars A-21, A-87, or A-123, as applicable, which require
prior Federal agency approval are allowable without the prior approval
of HUD to the extent that they comply with the general policies and
principles stated in Attachment A of such circulars and are otherwise
eligible under subpart C of this part, except for the following:
(i) Depreciation methods for fixed assets shall not be changed
without specific approval of HUD or, if charged through a cost
allocation plan, the Federal cognizant agency.
(ii) Fines and penalties are unallowable costs to the ICDBG
program.
(2) No person providing consultant services in an employer-employee
type of relationship shall receive more than a reasonable rate of
compensation for personal services paid with ICDBG funds. In no event,
however, shall such compensation exceed the equivalent of the daily
rate paid for Level IV of the Executive Schedule.
(Approved by the Office of Management and Budget under control
number 2577-0191)
Sec. 953.502 Agreements with subrecipients.
(a) Before disbursing any ICDBG funds to a subrecipient, the
grantee shall sign a written agreement with the subrecipient. The
agreement shall remain in effect during any period that the
subrecipient has control over ICDBG funds, including program income.
(b) At a minimum, the written agreement with the subrecipient shall
include provisions concerning the following items:
(1) Statement of work. The agreement shall include a description of
the work to be performed, a schedule for completing the work, and a
budget. These items shall be in sufficient detail to provide a sound
basis for the grantee effectively to monitor performance under the
agreement.
(2) Records and reports. The grantee shall specify in the agreement
the particular records the subrecipient must maintain and the
particular reports the subrecipient must submit in order to assist the
grantee in meeting its recordkeeping and reporting requirements.
(3) Program income. The agreement shall include the program income
requirements set forth in Sec. 85.25 as modified by Sec. 953.503.
(4) Uniform administrative requirements. The agreement shall
require the subrecipient to comply with applicable administrative
requirements, as described in Sec. 953.501.
(5) Other program requirements. The agreement shall require the
subrecipient to carry out each activity in compliance with all Federal
laws and regulations described in subpart G of this part, except that
the subrecipient does not assume the grantee's environmental
responsibilities described at Sec. 953.605.
(6) Conditions for religious organizations. Where applicable, the
conditions prescribed by HUD for the use of ICDBG funds by religious
organizations shall be included in the agreement.
(7) Suspension and termination. The agreement shall specify that,
in accordance with 24 CFR 85.43, suspension or termination may occur if
the subrecipient materially fails to comply with any term of the award,
and that the award may be terminated for convenience in accordance with
24 CFR 85.44.
(8) Reversion of assets. The agreement shall specify that upon its
expiration the subrecipient shall transfer to the grantee any ICDBG
funds on hand at the time of expiration and any accounts receivable
attributable to the use of ICDBG funds. It shall also include
provisions designed to ensure that any real property under the
subrecipient's control that was acquired or improved in whole or in
part with ICDBG funds (including ICDBG funds provided to the
subrecipient in the form of a loan) in excess of $25,000 is either:
(i) Used to meet the primary objective as stated in Sec. 953.208
until five years after expiration of the agreement, or for such longer
period of time as determined to be appropriate by the grantee; or
(ii) Not used in accordance with paragraph (b)(8)(i) of this
section, in which event the subrecipient shall pay to the grantee an
amount equal to the current market value of the property less any
portion of the value attributable to expenditures of non-ICDBG funds
for the acquisition of, or improvement to, the property. The payment is
program income to the grantee if it is received during the grant
period. (No payment is required after the period of time specified in
paragraph (b)(8)(i) of this section.)
(Approved by the Office of Management and Budget under control
number 2577-0191)
Sec. 953.503 Program income.
(a) Program income requirements for ICDBG grantees are set forth in
24 CFR 85.25, as modified by this section.
(b) Program income means gross income received by the grantee or a
subrecipient directly generated from the use of ICDBG funds during the
grant period, except as provided in paragraph (b)(4) of this section.
When program income is generated by an activity that is only partially
assisted with ICDBG funds, the income shall be prorated to reflect the
percentage of ICDBG funds used.
(1) Program income includes, but is not limited to, the following:
(i) Proceeds from the disposition by sale or long-term lease of
real property purchased or improved with ICDBG funds;
(ii) Proceeds from the disposition of equipment purchased with
ICDBG funds;
(iii) Gross income from the use or rental of real or personal
property
[[Page 40104]]
acquired by the grantee or by a subrecipient with ICDBG funds, less
costs incidental to generation of the income;
(iv) Gross income from the use or rental of real property, owned by
the grantee or by a subrecipient, that was constructed or improved with
ICDBG funds, less costs incidental to generation of the income;
(v) Payments of principal and interest on loans made using ICDBG
funds, except as provided in paragraph (b)(3) of this section;
(vi) Proceeds from the sale of loans made with ICDBG funds except
as provided in paragraph (b)(4) of this section;
(vii) Proceeds from sale of obligations secured by loans made with
ICDBG funds;
(viii) Interest earned on funds held in a revolving fund account;
(ix) Interest earned on program income pending its disposition; and
(x) Funds collected through special assessments made against
properties owned and occupied by households not of low and moderate
income, where the assessments are used to recover all or part of the
ICDBG portion of a public improvement.
(2) Program income does not include income earned on grant advances
from the U.S. Treasury. The following items of income earned on grant
advances must be remitted to HUD for transmittal to the U.S. Treasury
and will not be reallocated:
(i) Interest earned from the investment of the initial proceeds of
a grant advance by the U.S. Treasury;
(ii) Income (e.g., interest) earned on loans or other forms of
assistance provided with ICDBG funds that are used for activities
determined by HUD either to be ineligible or that fail substantially to
meet any other requirement of this part.
(3) The calculation of the amount of program income for the
grantee's ICDBG program as a whole (i.e., comprising activities carried
out by a grantee and its subrecipients) shall exclude payments made by
subrecipients of principal and/or interest on loans received from
grantees where such payments are made from program income received by
the subrecipient. (By making such payments, the subrecipient shall be
deemed to have transferred program income to the grantee.) The amount
of program income derived from this calculation shall be used for
reporting purposes and in determining limitations on planning and
administration and pu
FR Doc. 96-19350 Community Development Block Grants for Indian Tribes and Alaska Native Villages
blic services activities to be paid for with ICDBG
funds.
(4) Program income does not include any income received in a single
year by the grantee and all its subrecipients if the total amount of
such income does not exceed $25,000.
(5) Examples of other receipts that are not considered program
income are proceeds from fundraising activities carried out by
subrecipients receiving ICDBG assistance; funds collected through
special assessments used to recover the non-ICDBG portion of a public
improvement; and proceeds from the disposition of real property
acquired or improved with ICDBG funds when the disposition occurs after
the applicable time period specified in Sec. 953.502(b)(8) for
subrecipient-controlled property, or in Sec. 953.504 for grantee-
controlled property.
(6) For purposes of determining the applicability of the program
income requirements included in this part and in 24 CFR 85.25, the
grant period is the time between the effective date of the grant
agreement and the close-out of the grant pursuant to the requirements
of Sec. 953.508.
(7) As provided for in 24 CFR 85.25(g)(2), program income received
will be added to the funds committed to the grant agreement and shall
be used for purposes and under the conditions of the grant agreement.
(8) Recording program income. The receipt and expenditure of
program income as defined in Sec. 953.503(b) shall be recorded as part
of the financial transactions of the grant program.
(Approved by the Office of Management and Budget under control
number 2577-0191)
Sec. 953.504 Use of real property.
The standards described in this section apply to real property
within the grantee's control which was acquired or improved in whole or
in part using ICDBG funds in excess of $25,000. These standards shall
apply from the date ICDBG funds are first spent for the property until
five years after the closeout of the grant from which the assistance to
the property was provided.
(a) A grantee may not change the use or planned use of any such
property (including the beneficiaries of such use) from that for which
the acquisition or improvement was made unless the grantee provides
affected citizens with reasonable notice of, and opportunity to comment
on, any proposed change, and either:
(1) The new use of such property qualifies as meeting the primary
objective set forth in Sec. 953.208 and is not a building for the
general conduct of government; or
(2) The requirements in paragraph (b) of this section are met.
(b) If the grantee determines, after consultation with affected
citizens, that it is appropriate to change the use of the property to a
use which does not qualify under paragraph (a)(1) of this section, it
may retain or dispose of the property for the changed use if the
grantee's ICDBG program is reimbursed in the amount of the current fair
market value of the property, less any portion of the value
attributable to expenditures of non-ICDBG funds for acquisition of, and
improvements to, the property.
(c) If the change of use occurs after program closeout, the
proceeds from the disposition of the real property shall be used for
activities which meet the eligibility requirements set forth in subpart
C of this part and the primary objective set forth in Sec. 953.208.
(d) Following the reimbursement of the ICDBG program in accordance
with paragraph (b) of this section, the property no longer will be
subject to any ICDBG requirements.
Sec. 953.505 Records to be maintained.
Each grantee shall establish and maintain sufficient records to
enable the Secretary to determine whether the grantee has met the
requirements of this part.
(Approved by the Office of Management and Budget under control
number 2577-0191)
Sec. 953.506 Reports.
(a) Status and evaluation report. Grantees shall submit a status
and evaluation report on previously funded open grants 45 days after
the end of the Federal fiscal year and at the time of grant close-out.
The report shall be in a narrative form addressing these areas.
(1) Progress. The progress made in completing approved activities
should be described. This description should include a listing of work
remaining together with a revised implementation schedule, if
necessary.
(2) Expenditure of funds. A breakdown of funds spent on each major
project activity or category should be provided.
(3) Grantee assessment. If the project has been completed, an
evaluation of the effectiveness of the project in meeting the community
development needs of the grantee should be provided.
(Approved by the Office of Management and Budget under Control No.
2577-0191.)
(b) Minority business enterprise reports. Grantees shall submit to
HUD, by April 10, a report on contract and subcontract activity during
the first half of the fiscal year and by October 10 a report on such
activity during the second half of the year.
[[Page 40105]]
(Approved by the Office of Management and Budget under control
number 2577-0191)
Sec. 953.507 Public access to program records.
Notwithstanding the provisions of 24 CFR 85.42(f), grantees shall
provide citizens with reasonable access to records regarding the past
use of ICDBG funds, consistent with applicable State and tribal laws
regarding privacy and obligations of confidentiality.
Sec. 953.508 Grant closeout procedures.
(a) Criteria for closeout. A grant will be closed out when the Area
ONAP determines, in consultation with the grantee, that the following
criteria have been met:
(1) All costs to be paid with ICDBG funds have been incurred, with
the exception of closeout costs (e.g., audit costs) and costs resulting
from contingent liabilities described in the closeout agreement
pursuant to paragraph (c) of this section. Contingent liabilities
include, but are not limited to, third-party claims against the
grantee, as well as related administrative costs.
(2) With respect to activities which are financed by means of
escrow accounts, loan guarantees, or similar mechanisms, the work to be
assisted with ICDBG funds has actually been completed.
(3) Other responsibilities of the grantee under the grant agreement
and applicable laws and regulations appear to have been carried out
satisfactorily or there is no further Federal interest in keeping the
grant agreement open for the purpose of securing performance.
(b) Closeout actions. (1) Within 90 days of the date it is
determined that the criteria for closeout have been met, the grantee
shall submit to the Area ONAP a copy of the final status and evaluation
report described in Sec. 953.506(a) and a completed Financial Status
Report (SF-269). If acceptable reports are not submitted, an audit of
the grantee's program activities may be conducted by HUD.
(2) Based on the information provided in the status report and
other relevant information, the grantee, in consultation with the Area
ONAP, will prepare a closeout agreement in accordance with paragraph
(c) of this section.
(3) The Area ONAP will cancel any unused portion of the awarded
grant, as shown in the signed grant closeout agreement. Any unused
grant funds disbursed from the U.S. Treasury which are in the
possession of the grantee shall be refunded to HUD.
(4) Any costs paid with ICDBG funds which were not audited
previously shall be subject to coverage in the grantee's next single
audit performed in accordance with 24 CFR part 44. The grantee may be
required to repay HUD any disallowed costs based on the results of the
audit, or on additional HUD reviews provided for in the closeout
agreement.
(c) Closeout agreement. Any obligations remaining as of the date of
the closeout shall be covered by the terms of a closeout agreement. The
agreement shall be prepared by the grantee in consultation with the
Area ONAP. The agreement shall identify the grant being closed out, and
include provisions with respect to the following:
(1) Identification of any closeout costs or contingent liabilities
subject to payment with ICDBG funds after the closeout agreement is
signed;
(2) Identification of any unused grant funds to be canceled by HUD;
(3) Identification of any program income on deposit in financial
institutions at the time the closeout agreement is signed;
(4) Description of the grantee's responsibility after closeout for:
(i) Compliance with all program requirements, certifications and
assurances in using program income on deposit at the time the closeout
agreement is signed and in using any other remaining ICDBG funds
available for closeout costs and contingent liabilities;
(ii) Use of real property assisted with ICDBG funds in accordance
with the principles described in Sec. 953.504; and
(iii) Ensuring that flood insurance coverage for affected property
owners is maintained for the mandatory period;
(5) Other provisions appropriate to any special circumstances of
the grant closeout, in modification of or in addition to the
obligations in paragraphs (c) (1) through (4) of this section. The
agreement shall authorize monitoring by HUD, and shall provide that
findings of noncompliance may be taken into account by HUD as
unsatisfactory performance of the grantee in the consideration of any
future grant award under this part.
(d) Termination of grant for convenience. Grant assistance provided
under this part may be terminated for convenience in whole or in part
before the completion of the assisted activities, in accordance with
the provisions of 24 CFR 85.44. The grantee shall not incur new
obligations for the terminated portions after the effective date, and
shall cancel as many outstanding obligations as possible. HUD shall
allow full credit to the grantee for those portions of obligations
which could not be canceled and which had been properly incurred by the
grantee in carrying out the activities before the termination. The
closeout policies contained in this section shall apply in such cases,
except where the approved grant is terminated in its entirety.
Responsibility for the environmental review to be performed under 24
CFR part 50 or 24 CFR part 58, as applicable, shall be determined as
part of the closeout process.
(e) Termination for cause. In cases in which HUD terminates the
grantee's grant under the authority of subpart H of this part, or under
the terms of the grant agreement, the closeout policies contained in
this section shall apply, except where the approved grant is canceled
in its entirety. The provisions in 24 CFR 85.43(c) on the effects of
termination shall also apply. HUD shall determine whether an
environmental review is required, and if so, HUD shall perform it in
accordance with 24 CFR part 50.
Sec. 953.509 Force account construction.
(a) The use of tribal work forces for construction or renovation
activities performed as part of the activities funded under this part
shall be approved by the Area ONAP before the start of project
implementation. In reviewing requests for an approval of force account
construction or renovation, the area ONAP may require that the grantee
provide the following:
(1) Documentation to indicate that it has carried out or can carry
out successfully a project of the size and scope of the proposal;
(2) Documentation to indicate that it has obtained or can obtain
adequate supervision for the workers to be used;
(3) Information showing that the workers to be used are, or will
be, listed on the tribal payroll and are employed directly by a unit,
department or other governmental instrumentality of the tribe or
village.
(b) Any and all excess funds derived from the force account
construction or renovation activities shall accrue to the grantee and
shall be reprogrammed for other activities eligible under this part in
accordance with Sec. 953.305 or returned to HUD promptly.
(c) Insurance coverage for force account workers and activities
shall, where applicable, include worker's compensation, public
liability, property damage, builder's risk, and vehicular liability.
(d) The grantee shall specify and apply reasonable labor
performance, construction, or renovation standards to work performed
under the force account.
(e) The contracting and procurement standards set forth in 24 CFR
85.36
[[Page 40106]]
apply to material, equipment, and supply procurement from outside
vendors under this section.
(Approved by the Office of Management and Budget under control
number 2577-0191)
Sec. 953.510 Indian preference requirements.
(a) Applicability. HUD has determined that grants under this part
are subject to Section 7(b) of the Indian Self-Determination and
Education Assistance Act (25 U.S.C. 450b). Section 7(b) provides that
any contract, subcontract, grant or subgrant pursuant to an act
authorizing grants to Indian organizations or for the benefit of
Indians shall require that, to the greatest extent feasible:
(1) Preference and opportunities for training and employment shall
be given to Indians; and
(2) Preference in the award of contracts and subcontracts shall be
given to Indian organizations and Indian-owned economic enterprises as
defined in section 3 of the Indian Financing Act of 1974 (25 U.S.C.
1452).
(b) Definitions. (1) The Indian Self-Determination and Education
Assistance Act [25 U.S.C. 450b] defines ``Indian'' to mean a person who
is a member of an Indian tribe and defines ``Indian tribe'' to mean any
Indian tribe, band, nation, or other organized group or community
including any Alaska native village or regional or village corporation
as defined or established pursuant to the Alaska Native Claims
Settlement Act, which is recognized as eligible for the special
programs and services provided by the United States to Indians because
of their status as Indians.
(2) In section 3 of the Indian Financing Act of 1974 (25 U.S.C.
1452) economic enterprise is defined as any Indian--owned commercial,
industrial, or business activity established or organized for the
purpose of profit, except that Indian ownership must constitute not
less than 51 percent of the enterprise. This act defines Indian
organization to mean the governing body of any Indian tribe or entity
established or recognized by such governing body.
(c) Preference in administration of grant. To the greatest extent
feasible, preference and opportunities for training and employment in
connection with the administration of grants awarded under this part
shall be given to Indians.
(d) Preference in contracting. To the greatest extent feasible,
grantees shall give preference in the award of contracts for projects
funded under this part to Indian organizations and Indian-owned
economic enterprises.
(1) Each grantee shall:
(i) Advertise for bids or proposals limited to qualified Indian
organizations and Indian-owned enterprises; or
(ii) Use a two-stage preference procedure, as follows:
(A) Stage 1. Invite or otherwise solicit Indian-owned economic
enterprises to submit a statement of intent to respond to a bid
announcement or request for proposals limited to Indian-owned firms.
(B) Stage 2. If responses are received from more than one Indian
enterprise found to be qualified, advertise for bids or proposals
limited to Indian organizations and Indian-owned economic enterprises;
or
(iii) Develop, subject to Area ONAP one-time approval, the
grantee's own method of providing preference.
(2) If the grantee selects a method of providing preference that
results in fewer than two responsible qualified organizations or
enterprises submitting a statement of intent, a bid or a proposal to
perform the contract at a reasonable cost, then the grantee shall:
(i) Re-advertise the contract, using any of the methods described
in paragraph (d)(1) of this section; or
(ii) Re-advertise the contract without limiting the advertisement
for bids or proposals to Indian organizations and Indian-owned economic
enterprises; or
(iii) If one approvable bid or proposal is received, request Area
ONAP review and approval of the proposed contract and related
procurement documents, in accordance with 24 CFR 85.36, in order to
award the contract to the single bidder or offeror.
(3) Procurements that are within the dollar limitations established
for small purchases under 24 CFR 85.36 need not follow the formal bid
or proposal procedures of paragraph (d) of this section, since these
procurements are governed by the small purchase procedures of 24 CFR
85.36. However, a grantee's small purchase procurement shall, to the
greatest extent feasible, provide Indian preference in the award of
contracts.
(4) All preferences shall be publicly announced in the
advertisement and bidding or proposal solicitation documents and the
bidding and proposal documents.
(5) A grantee, at its discretion, may require information of
prospective contractors seeking to qualify as Indian organizations or
Indian-owned economic enterprises. Grantees may require prospective
contractors to include the following information prior to submitting a
bid or proposal, or at the time of submission:
(i) Evidence showing fully the extent of Indian ownership and
interest;
(ii) Evidence of structure, management and financing affecting the
Indian character of the enterprise, including major subcontracts and
purchase agreements; materials or equipment supply arrangements; and
management salary or profit-sharing arrangements; and evidence showing
the effect of these on the extent of Indian ownership and interest; and
(iii) Evidence sufficient to demonstrate to the satisfaction of the
grantee that the prospective contractor has the technical,
administrative, and financial capability to perform contract work of
the size and type involved.
(6) The grantee shall incorporate the following clause (referred to
as the Section 7(b) clause) in each contract awarded in connection with
a project funded under this part:
(i) The work to be performed under this contract is on a project
subject to Section 7(b) of the Indian Self-Determination and Education
Assistance Act (25 U.S.C. 450b) (Indian Act). Section 7(b) requires
that to the greatest extent feasible:
(A) Preferences and opportunities for training and employment shall
be given to Indians; and
(B) Preferences in the award of contracts and subcontracts shall be
given to Indian organizations and Indian-owned economic enterprises.
(ii) The parties to this contract shall comply with the provisions
of Section 7(b) of the Indian Act.
(iii) In connection with this contract, the contractor shall, to
the greatest extent feasible, give preference in the award of any
subcontracts to Indian organizations and Indian-owned economic
enterprises, and preferences and opportunities for training and
employment to Indians.
(iv) The contractor shall include this Section 7(b) clause in every
subcontract in connection with the project, and shall, at the direction
of the grantee, take appropriate action pursuant to the subcontract
upon a finding by the grantee or HUD that the subcontractor has
violated the Section 7(b) clause of the Indian Act.
(e) Complaint procedures. The following complaint procedures are
applicable to complaints arising out of any of the methods of providing
for Indian preference contained in this part, including alternate
methods enacted and approved in a manner described in this section:
(1) Each complaint shall be in writing, signed, and filed with the
grantee.
(2) A complaint must be filed with the grantee no later than 20
calendar days
[[Page 40107]]
from the date of the action (or omission) upon which the complaint is
based.
(3) Upon receipt of a complaint, the grantee shall promptly stamp
the date and time of receipt upon the complaint, and immediately
acknowledge its receipt.
(4) Within 20 calendar days of receipt of a complaint, the grantee
shall either meet, or communicate by mail or telephone, with the
complainant in an effort to resolve the matter. The grantee shall make
a determination on a complaint and notify the complainant, in writing,
within 30 calendar days of the submittal of the complaint to the
grantee. The decision of the grantee shall constitute final
administrative action on the complaint.
(Approved by the Office of Management and Budget under control
number 2577-0191)
Sec. 953.511 Use of escrow accounts for rehabilitation of privately
owned residential property.
(a) Limitations. A grantee may withdraw funds from its line of
credit for immediate deposit into an escrow account for use in funding
loans and grants for the rehabilitation of privately owned residential
property under Sec. 953.202(a)(1). The following additional limitations
apply to the use of escrow accounts for residential rehabilitation
loans and grants closed after September 7, 1990:
(1) The use of escrow accounts under this section is limited to
loans and grants for the rehabilitation of primarily residential
properties containing no more than four dwelling units (and accessory
neighborhood-scale non-residential space within the same structure, if
any, e.g., a store front below a dwelling unit).
(2) An escrow account shall not be used unless the contract between
the property owner and the contractor selected to do the rehabilitation
work specifically provides that payment to the contractor shall be made
through an escrow account maintained by the grantee, by a subrecipient
as defined in Sec. 953.4, by a public agency designated under
Sec. 953.500(a), or by an agent under a procurement contact governed by
the requirements of 24 CFR 85.36. No deposit to the escrow account
shall be made until after the contract has been executed between the
property owner and the rehabilitation contractor.
(3) All funds withdrawn under this section shall be deposited into
one interest earning account with a financial institution. Separate
bank accounts shall not be established for individual loans and grants.
(4) The amount of funds deposited into an escrow account shall be
limited to the amount expected to be disbursed within 10 working days
from the date of deposit. If the escrow account, for whatever reason,
at any time contains funds exceeding 10 days cash needs, the grantee
immediately shall transfer the excess funds to its program account. In
the program account, the excess funds shall be treated as funds
erroneously drawn in accordance with the requirements of U.S. Treasury
Financial Manual, paragraph 6-2075.30.
(5) Funds deposited into an escrow account shall be used only to
pay the actual costs of rehabilitation incurred by the owner under the
contract with a private contractor. Other eligible costs related to the
rehabilitation loan or grant, e.g., the grantee's administrative costs
under Sec. 953.206 or rehabilitation services costs under
Sec. 953.202(b)(9), are not permissible uses of escrowed funds. Such
other eligible rehabilitation costs shall be paid under normal ICDBG
payment procedures (e.g., from withdrawals of grant funds under the
grantee's line of credit with the Treasury).
(b) Interest. Interest earned on escrow accounts established in
accordance with this section, less any service charges for the account,
shall be remitted to HUD at least quarterly but not more frequently
than monthly. Interest earned on escrow accounts is not required to be
remitted to HUD to the extent the interest is attributable to the
investment of program income.
(c) Remedies for noncompliance. If HUD determines that a grantee
has failed to use an escrow account in accordance with this section,
HUD may, in addition to imposing any other sanctions provided for under
this part, require the grantee to discontinue the use of escrow
accounts, in whole or in part.
Subpart G--Other Program Requirements
Sec. 953.600 Constitutional prohibition.
In accordance with First Amendment Church/State Principles, as a
general rule, ICDBG assistance may not be used for religious activities
or provided to primarily religious entities for any activities,
including secular activities. The following restrictions and
limitations therefore apply to the use of ICDBG funds.
(a) ICDBG funds may not be used for the acquisition of property or
the construction or rehabilitation (including historic preservation and
removal of architectural barriers) of structures to be used for
religious purposes or which will otherwise promote religious interests.
This limitation includes the acquisition of property for ownership by
primarily religious entities and the construction or rehabilitation
(including historic preservation and removal of architectural barriers)
of structures owned by such entities (except as permitted under
paragraph (b) of this section with respect to rehabilitation and under
paragraph (d) of this section with respect to repairs undertaken in
connection with public services) regardless of the use to be made of
the property or structure. Property owned by primarily religious
entities may be acquired with ICDBG funds at no more than fair market
value for a non-religious use.
(b) ICDBG funds may be used to rehabilitate buildings owned by
primarily religious entities to be used for a wholly secular purpose
under the following conditions:
(1) The building (or portion thereof) that is to be improved with
the ICDBG assistance has been leased to an existing or newly
established wholly secular entity (which may be an entity established
by the religious entity);
(2) The ICDBG assistance is provided to the lessee (and not the
lessor) to make the improvements;
(3) The leased premises will be used exclusively for secular
purposes available to persons regardless of religion;
(4) The lease payments do not exceed the fair market rent of the
premises as they were before the improvements are made;
(5) The portion of the cost of any improvements that also serve a
non-leased part of the building will be allocated to and paid for by
the lessor;
(6) The lessor enters into a binding agreement that unless the
lessee, or a qualified successor lessee, retains the use of the leased
premises for a wholly secular purpose for at least the useful life of
the improvements, the lessor will pay to the lessee an amount equal to
the residual value of the improvements;
(7) The lessee must remit the amount received from the lessor under
paragraph (b)(6) of this section to the grantee or subrecipient from
which the ICDBG funds were derived.
(8) The lessee can also enter into a management contract
authorizing the lessor religious entity to use the building for its
intended secular purpose, e.g., homeless shelter, provision of public
services. In such case, the religious entity must agree in the
management contract to carry out the secular purpose in a manner free
from religious influences in accordance with the principles set forth
in paragraph (c) of this section.
[[Page 40108]]
(c) As a general rule, ICDBG funds may be used for eligible public
services to be provided through a primarily religious entity, where the
religious entity enters into an agreement with the grantee or
subrecipient from which the ICDBG funds are derived that, in connection
with the provision of such services:
(1) It will not discriminate against any employee or applicant for
employment on the basis of religion and will not limit employment or
give preference in employment to persons on the basis of religion;
(2) It will not discriminate against any person applying for such
public services on the basis of religion and will not limit such
services or give preference to persons on the basis of religion;
(3) It will provide no religious instruction or counseling, conduct
no religious worship or services, engage in no religious proselytizing,
and exert no other religious influence in the provision of such public
services;
(d) Where the public services provided under paragraph (c) of this
section are carried out on property owned by the primarily religious
entity, ICDBG funds may also be used for minor repairs to such property
which are directly related to carrying out the public services where
the cost constitutes in dollar terms only an incidental portion of the
ICDBG expenditure for the public services.
Sec. 953.601 Nondiscrimination.
(a) Under the authority of section 107(e)(2) of the Act, the
Secretary waives the requirement that grantees comply with section 109
of the Act except with respect to the prohibition of discrimination
based on age, sex, religion, or against an otherwise qualified disabled
individual.
(b) A grantee shall comply with the provisions of title II of Pub.
L. 90-284 (24 U.S.C. 1301--the Indian Civil Rights Act) in the
administration of a program or activity funded in whole or in part with
funds made available under this part. For purposes of this section,
``program or activity'' is defined as any function conducted by an
identifiable administrative unit of the grantee; and ``funded in whole
or in part with funds made available under this part'' means that ICDBG
funds in any amount have been transferred by the grantee to an
identifiable administrative unit and disbursed in a program or
activity.
Sec. 953.602 Relocation and real property acquisition.
(a) Minimize displacement. Consistent with the other goals and
objectives of this part, grantees shall assure that they have taken all
reasonable steps to minimize the displacement of persons (households,
businesses, nonprofit organizations, and farms) as a result of a
project assisted under this part.
(b) Temporary relocation. The following policies cover residential
tenants who will not be required to move permanently but who must
relocate temporarily for the project. Such tenants must be provided:
(1) Reimbursement for all reasonable out-of-pocket expenses
incurred in connection with the temporary relocation, including the
cost of moving to and from the temporarily occupied housing and any
increase in monthly housing costs (e.g., rent/utility costs).
(2) Appropriate advisory services, including reasonable advance
written notice of:
(i) The date and approximate duration of the temporary relocation;
(ii) The location of the suitable, decent, safe and sanitary
dwelling to be made available for the temporary period;
(iii) The terms and conditions under which the tenant may occupy a
suitable, decent, safe, and sanitary dwelling in the building/complex
following completion of the repairs; and
(iv) The provisions of paragraph (b)(1) of this section.
(c) Relocation assistance for displaced persons. A displaced person
(defined in paragraph (g) of this section) must be provided relocation
assistance at the levels described in, and in accordance with the
requirements of, the Uniform Relocation Assistance and Real Property
Acquisition Policies Act of 1970, as amended (URA)(42 U.S.C. 4601-4655)
and implementing regulations at 49 CFR part 24.
(d) Optional relocation assistance. Under section 105(a)(11) of the
Act, the grantee may provide relocation payments and other relocation
assistance to persons displaced by a project that is not subject to
paragraph (c) of this section. The grantee may also provide relocation
assistance to persons receiving assistance under paragraph (c) of this
section at levels in excess of those required. For assistance that is
not required by State or tribal law, the grantee shall adopt a written
policy available to the public that describes the relocation assistance
that it has elected to furnish and provides for equal relocation
assistance within each class of displaced persons.
(e) Real Property acquisition requirements. The acquisition of real
property for an assisted activity is subject to 49 CFR part 24, subpart
B. Whenever the grantee does not have the authority to acquire the real
property through condemnation, it shall:
(1) Before discussing the purchase price, inform the owner:
(i) Of the amount it believes to be the fair market value of the
property. Such amount shall be based upon one or more appraisals
prepared by a qualified appraiser. However, this provision does not
prevent the grantee from accepting a donation or purchasing the real
property at less than its fair market value.
(ii) That it will be unable to acquire the property if negotiations
fail to result in an amicable agreement.
(2) Request HUD approval of the proposed acquisition price before
executing a firm commitment to purchase the property. The grantee shall
include with its request a copy of the appraisal(s) and, when
applicable, a justification for any proposed acquisition payment that
exceeds the fair market value of the property. HUD will promptly review
the proposal and inform the grantee of its approval or disapproval.
(f) Appeals. A person who disagrees with the grantee's
determination concerning whether the person qualifies as a ``displaced
person,'' or the amount of relocation assistance for which the person
is eligible, may file a written appeal of that determination with the
grantee. A person who is dissatisfied with the grantee's determination
on his or her appeal may submit a written request for review of that
determination to the HUD Area ONAP.
(g) Responsibility of grantee. (1) The grantee shall certify that
it will comply with the URA, the regulations at 49 CFR part 24, and the
requirements of this section, i.e., provide assurance of compliance as
required by 49 CFR part 24. The grantee shall ensure such compliance
notwithstanding any third party's contractual obligation to the grantee
to comply with these provisions.
(2) The cost of required relocation assistance is an eligible
project cost in the same manner and to the same extent as other project
costs. However, such assistance may also be paid for with funds
available to the grantee from any other source.
(3) The grantee shall maintain records in sufficient detail to
demonstrate compliance with this section.
(h) Definition of displaced person. (1) For purposes of this
section, the term displaced person means any person (household,
business, nonprofit organization, or farm) that moves from real
property, or moves his or her personal property from real property,
permanently, as a direct result of rehabilitation, demolition, or
[[Page 40109]]
acquisition for a project assisted under this part. The term
``displaced person'' includes, but is not limited to:
(i) A tenant-occupant of a dwelling unit who moves from the
building/complex permanently after the submission to HUD of an
application for financial assistance that is later approved.
(ii) Any person, including a person who moves before the date
described in paragraph (h)(1)(i) of this section, that either HUD or
the grantee determines was displaced as a direct result of acquisition,
rehabilitation, or demolition for the assisted project.
(iii) A tenant-occupant of a dwelling who moves from the building/
complex permanently, after the execution of the agreement between the
grantee and HUD, if the move occurs before the tenant is provided
written notice offering him or her the opportunity to lease and occupy
a suitable, decent, safe and sanitary dwelling in the same building/
complex, under reasonable terms and conditions, upon completion of the
project. Such reasonable terms and conditions include a monthly rent
and estimated average monthly utility costs that do not exceed the
greater of:
(A) The tenant's monthly rent and estimated average monthly utility
costs before the agreement; or
(B) 30 percent of gross household income.
(iv) A tenant-occupant of a dwelling who is required to relocate
temporarily, but does not return to the building/complex, if either:
(A) The tenant is not offered payment for all reasonable out-of-
pocket expenses incurred in connection with the temporary relocation,
including the cost of moving to and from the temporarily occupied unit,
any increased housing costs and incidental expenses; or
(B) Other conditions of the temporary relocation are not
reasonable.
(v) A tenant-occupant of a dwelling who moves from the building/
complex after he or she has been required to move to another dwelling
unit in the same building/complex in order to carry out the project, if
either:
(A) The tenant is not offered reimbursement for all reasonable out-
of-pocket expenses incurred in connection with the move; or
(B) Other conditions of the move are not reasonable.
(2) Notwithstanding the provisions of paragraph (h)(1) of this
section, a person does not qualify as a ``displaced person'' (and is
not eligible for relocation assistance under the URA or this section),
if:
(i) The person moved into the property after the submission of the
application for financial assistance to HUD, but, before signing a
lease or commencing occupancy, was provided written notice of the
project, its possible impact on the person (e.g., the person may be
displaced, temporarily relocated or suffer a rent increase) and the
fact that the person would not qualify as a ``displaced person'' or for
any assistance provided under this section as a result of the project;
(ii) The person is ineligible under 49 CFR 24.2(g)(2).
(iii) The grantee determines the person is not displaced as a
direct result of acquisition, rehabilitation, or demolition for an
assisted project. To exclude a person on this basis, HUD must concur in
that determination.
(3) A grantee may at any time ask HUD to determine whether a
specific displacement is or would be covered under this section.
(i) Definition of initiation of negotiations. For purposes of
determining the formula for computing the replacement housing
assistance to be provided to a person displaced as a direct result of
rehabilitation or demolition of the real property, the term
``initiation of negotiations'' means the execution of the agreement
covering the rehabilitation or demolition.
(Approved by the Office of Management and Budget under control
number 2577-0191)
Sec. 953.603 Labor standards.
In accordance with the authority under section 107(e)(2) of the
Act, the Secretary waives the provisions of section 110 of the Act
(Labor Standards) with respect to this part, including the requirement
that laborers and mechanics employed by the contractor or subcontractor
in the performance of construction work financed in whole or in part
with assistance received under this part be paid wages at rates not
less than those prevailing on similar construction in the locality, as
determined by the Secretary of Labor in accordance with the Davis-Bacon
Act (40 U.S.C. 276 a to a-7).
Sec. 953.604 Citizen participation.
(a) In order to permit residents of Indian tribes and Alaska native
villages to examine and appraise the applicant's application for funds
under this part, the applicant shall follow traditional means of
resident involvement which, at the least, include the following:
(1) Furnishing residents with information concerning the amounts of
funds available for proposed community development and housing
activities and the range of activities that may be undertaken.
(2) Holding one or more meetings to obtain the views of residents
on community development and housing needs. Meetings shall be scheduled
in ways and at times that will allow participation by residents.
(3) Developing and publishing or posting a community development
statement in such a manner as to afford affected residents an
opportunity to examine its contents and to submit comments.
(4) Affording residents an opportunity to review and comment on the
applicant's performance under any active community development block
grant.
(b) Prior to submission of the application to HUD, the applicant
shall certify by an official Tribal resolution that it has met the
requirements of paragraph (a) of this section; and
(1) Considered any comments and views expressed by residents and,
if it deems it appropriate, modified the application accordingly; and
(2) Made the modified application available to residents.
(c) No part of the requirement under paragraph (a) of this section
shall be construed to restrict the responsibility and authority of the
applicant for the development of the application and the execution of
the grant. Accordingly, the citizen participation requirements of this
section do not include concurrence by any person or group in making
final determinations on the contents of the application.
(Approved by the Office of Management and Budget under control
number 2577-0191)
Sec. 953.605 Environment.
(a) In order to assure that the policies of the National
Environmental Policy Act of 1969 and other provisions of Federal law
which further the purposes of that act (as specified in 24 CFR 58.5)
are most effectively implemented in connection with the expenditure of
ICDBG funds, the grantee shall comply with the Environment Review
Procedures for Entities Assuming HUD Environmental Responsibilities (24
CFR part 58). Upon completion of an environmental review, the grantee
shall submit a certification and request for release of funds for
particular projects in accordance with 24 CFR part 58. The grantee
shall also be responsible for compliance with flood insurance, coastal
barrier resource and airport clear zone requirements under 24 CFR 58.6.
(b) In accordance with 24 CFR 58.34(a)(8), grants for imminent
threats to health or safety approved under the provisions of subpart E
of this part are
[[Page 40110]]
exempt from some or all of the environmental review requirements of 24
CFR part 58, to the extent provided in that section.
Sec. 953.606 Conflict of interest.
(a) Applicability. (1) In the procurement of supplies, equipment,
construction, and services by grantees and subgrantees, the conflict of
interest provisions in 24 CFR 85.36 and 24 CFR 84.42 shall apply.
(2) In all cases not governed by 24 CFR 85.36 and 24 CFR 84.42, the
provisions of this section shall apply. Such cases include the
provision of assistance by the grantee or by its subrecipients to
businesses, individuals, and other private entities under eligible
activities that authorize such assistance (e.g., rehabilitation,
preservation, and other improvements of private properties or
facilities under Sec. 953.202; or grants, loans, and other assistance
to businesses, individuals, and other private entities under
Sec. 953.203 or Sec. 953.204.).
(b) Conflicts prohibited. Except for the use of ICDBG funds to pay
salaries and other related administrative or personnel costs, the
general rule is that no persons described in paragraph (c) of this
section who exercise or have exercised any functions or
responsibilities with respect to ICDBG activities assisted under this
part or who are in a position to participate in a decision-making
process or gain inside information with regard to such activities, may
obtain a personal or financial interest or benefit from an ICDBG
assisted activity, or have an interest in any contract, subcontract or
agreement with respect thereto, or the proceeds thereunder, either for
themselves or those with whom they have family or business ties, during
their tenure or for one year thereafter.
(c) Persons covered. The conflict of interest provisions of
paragraph (b) of this section apply to any person who is an employee,
agent, consultant, officer, or elected or appointed official of the
grantee, or of any designated public agencies, or CBDOs under
Sec. 953.204, receiving funds under this part.
(d) Exceptions requiring HUD approval.--(1) Threshold requirements.
Upon the written request of a grantee, HUD may grant an exception to
the provisions of paragraph (b) of this section on a case-by-case
basis, when it determines that such an exception will serve to further
the purposes of the Act and the effective and efficient administration
of the grantee's program or project. An exception may be considered
only after the grantee has provided the following:
(i) A disclosure of the nature of the possible conflict,
accompanied by an assurance that there has been public disclosure of
the conflict and a description of how the public disclosure was made;
and
(ii) An opinion of the grantee's attorney that the interest for
which the exception is sought would not violate Tribal laws on conflict
of interest, or applicable State laws.
(2) Factors to be considered for exceptions: In determining whether
to grant a requested exception after the grantee has satisfactorily met
the requirements of paragraph (d)(1) of this section, HUD shall
consider the cumulative effect of the following factors, where
applicable:
(i) Whether the exception would provide a significant cost benefit
or essential expert knowledge to the program or project which would
otherwise not be available;
(ii) Whether an opportunity was provided for open competitive
bidding or negotiation;
(iii) Whether the affected person has withdrawn from his or her
functions or responsibilities, or from the decision-making process,
with reference to the specific assisted activity in question;
(iv) Whether the interest or benefit was present before the
affected person was in a position as described in paragraph (b) of this
section;
(v) Whether undue hardship will result, either to the grantee or to
the person affected, when weighed against the public interest served by
avoiding the prohibited conflict;
(vi) Any other relevant considerations.
(e) Circumstances under which the conflict prohibition does not
apply. (1) In instances where a person who might otherwise be deemed to
be included under the conflict prohibition is a member of a group or
class of beneficiaries of the assisted activity and receives generally
the same interest or benefits as are being made available or provided
to the group or class, the prohibition does not apply, except that if,
by not applying the prohibition against conflict of interest, a
violation of Tribal or State laws on conflict of interest would result,
the prohibition does apply. However, if the assistance to be provided
is housing rehabilitation (or repair) or new housing, a public
disclosure of the nature of the assistance to be provided and the
specific basis for the selection of the proposed beneficiaries must be
made prior to the submission of an application to HUD. Evidence of this
disclosure must be provided as a component of the application.
(f) Record retention. All records pertaining to the grantee's
decision under this section shall be maintained for HUD review upon
request.
(Approved by the Office of Management and Budget under control
number 2577-0191)
Sec. 953.607 Lead-based paint.
(a) Prohibition against the use of lead-based paint. Section 401(b)
of the Lead-Based Paint Poisoning Prevention Act (42 U.S.C. 4831(b))
directs HUD to prohibit the use of lead-based paint in residential
structures constructed or rehabilitated with Federal assistance. Such
prohibitions are contained in 24 CFR part 35, subpart B, and are
applicable to residential structures constructed or rehabilitated with
assistance provided under this part.
(b) Notification of hazards of lead-based paint poisoning. (1) The
Secretary has promulgated requirements regarding notification to
purchasers and tenants of HUD-associated housing constructed prior to
1978 of the hazards of lead-based paint poisoning at 24 CFR part 35,
subpart A. This paragraph is promulgated pursuant to the authorization
granted in 24 CFR 35.5(c) and supersedes, with respect to all housing
to which it applies, the notification requirements prescribed by
subpart A of 24 CFR part 35.
(2) For properties constructed prior to 1978, applicants for
rehabilitation assistance provided under this part and tenants or
purchasers of properties owned by the grantee or its subrecipient and
acquired or rehabilitated with assistance under this part shall be
notified:
(i) That the property may contain lead-based paint;
(ii) Of the hazards of lead-based paint;
(iii) Of the symptoms and treatment of lead-based paint poisoning;
(iv) Of the precautions to be taken to avoid lead-based paint
poisoning (including maintenance and removal techniques for eliminating
such hazards);
(v) Of the advisability and availability of blood lead level
screening for children under six years of age;
(vi) That in the event lead-based paint is found on the property,
appropriate treatment procedures may be undertaken.
(c) Elimination of lead-based paint hazards. The purpose of this
paragraph is to implement the provisions of section 302 of the Lead-
Based Paint Poisoning Prevention Act, 42 U.S.C. 4822, by establishing
procedures to eliminate as far as practicable the hazards due to the
presence of paint which may contain lead and to which children under
six years of age may be
[[Page 40111]]
exposed in existing housing which is rehabilitated with assistance
provided under this part. HUD has promulgated requirements regarding
the elimination of lead-based paint hazards in HUD-associated housing
at 24 CFR part 35, subpart C. This paragraph is promulgated pursuant to
the authorization granted in 24 CFR 35.24(b)(4) and supersedes, with
respect to all housing to which it applies, the requirements prescribed
by subpart C of 24 CFR part 35.
(1) Applicability. This paragraph applies to the rehabilitation of
applicable surfaces in existing housing which is assisted under this
part. The following activities assisted under the Indian Community
Development Block Grant program are not covered by this paragraph (c):
(i) Emergency repairs (not including lead-based paint-related
emergency repairs);
(ii) Weatherization;
(iii) Water or sewer hook-ups;
(iv) Installation of security devices;
(v) Facilitation of tax exempt bond issuances which provide funds
for rehabilitation;
(vi) Other similar types of single-purpose programs that do not
include physical repairs or remodeling of applicable surfaces (as
defined in 24 CFR 35.22) of residential structures; and
(vii) Any non-single purpose rehabilitation that does not involve
applicable surfaces (as defined in 24 CFR 35.22) that does not exceed
$3,000 per unit.
(2) Definitions.
Applicable surface. All intact and non-intact interior and exterior
painted surfaces of a residential structure.
Chewable surface. All protruding painted surfaces up to five feet
from the floor or ground, that are readily accessible to children under
six years of age, e.g., protruding corners, windowsills and frames,
doors and frames, and other protruding woodwork.
Defective paint surface. A surface on which the paint is cracking,
scaling, chipping, peeling or loose.
Elevated blood lead level or EBL. Excessive absorption of lead,
that is, confirmed concentration of lead in whole blood of 20 ug/dl
(micrograms of lead per deciliter) for a single test or of 15-19 ug/dl
in two consecutive tests 3-4 months apart.
HEPA. A high efficiency particle accumulator as used in lead
abatement vacuum cleaners.
Lead-based paint. A paint surface, whether or not defective,
identified as having a lead content greater than or equal to 1 mg/cm2
(milligram per square centimeter) or .5 percent by weight or 5000 parts
per million (PPM).
(3) Inspection and Testing.--(i) Defective paint surfaces. The
grantee shall inspect for defective paint surfaces in all units
constructed prior to 1978 which are occupied by families with children
under six years of age and which are proposed for rehabilitation
assistance. The inspection shall occur at the same time the property is
being inspected for rehabilitation. Defective paint conditions will be
included in the work write-up for the remainder of the rehabilitation
work.
(ii) Chewable surfaces. The grantee shall be required to test
chewable surfaces for lead-based paint if the family residing in a
unit, constructed prior to 1978 and receiving rehabilitation
assistance, includes a child under six years of age with an identified
EBL condition. Testing must be conducted by an inspector certified or
regulated by a State or local health or housing agency or an
organization recognized by HUD. Lead content shall be tested by using
an X-ray fluorescence analyzer (XRF) or by laboratory analysis of paint
samples.
(iii) Abatement without testing. In lieu of the procedures set
forth in paragraph (c)(3)(ii) of this section, in the case of a
residential structure constructed prior to 1978, the grantee may forgo
testing and treat all applicable surfaces in accordance with the
methods set out in paragraph (c)(5) of this section.
(4) Treatment Actions. (i) For inspections performed under
Sec. 953.607(c)(3)(i) and where defective paint surfaces are found,
treatment shall be provided to defective areas in accordance with
paragraph (c)(5) of this section. Treatment shall be performed before
final inspection and approval of the work.
(ii) For testing performed under Sec. 953.607(c)(3)(ii) and where
interior chewable surfaces are found to contain lead-based paint, all
interior chewable surfaces in any affected room shall be treated. Where
exterior chewable surfaces are found to contain lead-based paint, the
entire exterior chewable surface shall be treated. Treatment in
accordance with paragraph (c)(5) of this section shall be performed
before final inspection and approval of the work.
(iii) When weather prohibits repainting exterior surfaces before
final inspection, the grantee may permit the owner to treat the
defective paint or chewable lead-based paint as required by this
section and agree to repaint by a specified date. A separate inspection
is required.
(5) Treatment methods. Treatment of defective paint surfaces and
chewable surfaces must consist of covering or removal of the paint in
accordance with the following requirements:
(i) A defective paint surface shall be treated if the total area of
defective paint on a component is:
(A) More than 10 square feet on an exterior wall;
(B) More than 2 square feet on an interior or exterior component
with a large surface area, excluding exterior walls and including, but
not limited to, ceilings, floors, doors, and interior walls; or
(C) More than 10 percent of the total surface area on an interior
or exterior component with a small surface area, including, but not
limited to, window sills, baseboards and trim.
(ii) Acceptable methods of treatment are: Removal by wet scraping,
wet sanding, chemical stripping on or off site, replacing painted
components, scraping with infra-red or coil type heat gun with
temperatures below 1100 degrees, HEPA vacuum sanding, HEPA vacuum
needle gun, contained hydroblasting or high pressure wash with HEPA
vacuum, and abrasive sandblasting with HEPA vacuum. Surfaces must be
covered with durable materials with joints and edges sealed and caulked
as needed to prevent the escape of lead contaminated dust.
(iii) Prohibited methods of removal are: Open flame burning or
torching; machine sanding or grinding without a HEPA exhaust;
uncontained hydroblasting or high pressure wash; and dry scraping
except around electrical outlets or except when treating defective
paint spots no more than two square feet in any one interior room or
space (hallway, pantry, etc.) or totalling no more than twenty square
feet on exterior surfaces.
(iv) During exterior treatment, soil and playground equipment must
be protected from contamination.
(v) All treatment procedures must be concluded with a thorough
cleaning of all surfaces in the room or area of treatment to remove
fine dust particles. Cleanup must be accomplished by wet washing
surfaces with a lead solubilizing detergent such as trisodium phosphate
or an equivalent solution.
(vi) Waste and debris must be disposed of in accordance with all
applicable Federal, State and local laws.
(6) Funding for inspection, testing and treatment. Program
requirements and local program design will determine whether the cost
of inspection, testing or treatment is to be borne by the owner/
developer, the grantee or a combination of the owner/developer and the
grantee.
[[Page 40112]]
(7) Tenant protection. The owner/developer shall take appropriate
action to protect residents and their belongings from hazards
associated with treatment procedures. Residents must not enter spaces
undergoing treatment until cleanup is completed. Personal belongings
that are in work areas must be relocated or otherwise protected from
contamination. Where necessary, these actions may include the temporary
relocation of tenants during the treatment process. The owner/developer
shall notify the grantee of all such actions taken.
(8) Records. The grantee shall keep a copy of each inspection and/
or test report for at least three years.
(9) Monitoring and enforcement. Area ONAP monitoring of
rehabilitation programs includes reviews for compliance with applicable
program requirements for lead-based paint. In cases of noncompliance,
HUD may impose conditions or sanctions on grantees to encourage prompt
compliance.
(10) Compliance with other program requirements, Federal, State and
local laws.--(i) Other program requirements. To the extent that
assistance from any of the programs covered by this section is used in
conjunction with other HUD program assistance which have lead-based
paint requirements which may have more or less stringent requirements,
the more stringent requirements will prevail.
(ii) HUD responsibility. If HUD determines that a State or local
law, ordinance, code or regulation provides for lead-based paint
testing or hazard treatment in a manner which provides a level of
protection from the hazards of lead-based paint poisoning at least
comparable to that provided by the requirements of this section and
that adherence to the requirements of this subpart would be duplicative
or otherwise cause inefficiencies, HUD may modify or waive the
requirements of this section in such manner as may be appropriate to
promote efficiency while ensuring such comparable level of protection.
(iii) Grantee responsibility. Nothing in this section is intended
to relieve any grantee in the programs covered by this section of any
responsibility for compliance with applicable State or local laws,
ordinances, codes or regulations governing the inspection, testing or
treatment of lead-based paint hazards.
(Approved by the Office of Management and Budget under control
number 2577-0191)
Sec. 953.608 Debarment and suspension.
As required by 24 CFR part 24, each grantee must require
participants in lower tier covered transactions (e.g., contractors and
sub-contractors) to include the certification in appendix B of part 24
(that neither it nor its principals is presently debarred, suspended,
proposed for debarment, declared ineligible, or voluntarily excluded
from participation from the covered transaction) in any proposal
submitted in connection with the lower tier transactions. A grantee may
rely on the certification , unless it knows the certification is
erroneous.
Subpart H--Program Performance
Sec. 953.700 Review of grantee's performance.
(a) Objective. HUD will review each grantee's performance to
determine whether the grantee has:
(1) Complied with the requirements of the Act, this part, the grant
agreement and other applicable laws and regulations;
(2) Carried out its activities substantially as described in its
application;
(3) Made substantial progress in carrying out its approved program;
(4) A continuing capacity to carry out the approved activities in a
timely manner; and
(5) The capacity to undertake additional activities funded under
this part.
(b) Basis for review. In reviewing each grantee's performance, HUD
will consider all available evidence which may include, but not be
limited to, the following:
(1) The approved application and any amendments thereto;
(2) Reports prepared by the grantee;
(3) Records maintained by the grantee;
(4) Results of HUD's monitoring of the grantee's performance,
including field evaluation of the quality of the work performed;
(5) Audit reports;
(6) Records of drawdowns on the line of credit;
(7) Records of comments and complaints by citizens and
organizations; and
(8) Litigation.
Sec. 953.701 Corrective and remedial action.
(a) General. One or more corrective or remedial actions will be
taken by HUD when, on the basis of the performance review, HUD
determines that the grantee has not:
(1) Complied with the requirements of the Act, this part, and other
applicable laws and regulations, including the environmental
responsibilities assumed under section 104(g) of title I of the Act;
(2) Carried out its activities substantially as described in its
applications;
(3) Made substantial progress in carrying out its approved program;
or
(4) Shown the continuing capacity to carry out its approved
activities in a timely manner.
(b) Action. The action taken by HUD will be designed, first, to
prevent the continuance of the deficiency; second, to mitigate any
adverse effects or consequences of the deficiency; and third, to
prevent a recurrence of the same or similar deficiencies. The following
actions may be taken singly or in combination, as appropriate for the
circumstances:
(1) Request the grantee to submit progress schedules for completing
approved activities or for complying with the requirements of this
part;
(2) Issue a letter of warning advising the grantee of the
deficiency (including environmental review deficiencies and housing
assistance deficiencies), describing the corrective actions to be
taken, establishing a date for corrective actions, and putting the
grantee on notice that more serious actions will be taken if the
deficiency is not corrected or is repeated;
(3) Advise the grantee to suspend, discontinue, or not incur costs
for the affected activity;
(4) Advise the grantee to reprogram funds from affected activities
to other eligible activities, provided that such action shall not be
taken in connection with any substantial violation of part 58 and
provided that such reprogramming is subjected to the environmental
review procedures of part 58 of this title;
(5) Advise the grantee to reimburse the grantee's program account
or line of credit in any amount improperly expended;
(6) Change the method of payment from a line of credit basis to a
reimbursement basis; and/or
(7) Suspend the line of credit until corrective actions are taken.
Sec. 953.702 Reduction or withdrawal of grant.
(a) General. A reduction or withdrawal of a grant under paragraph
(b) of this section will not be made until at least one of the
corrective or remedial actions specified in Sec. 953.701(b) has been
taken and only then if the grantee has not made an appropriate and
timely response. Before making such a grant reduction or withdrawal,
the grantee also shall be notified and given an opportunity within a
prescribed time for an informal consultation regarding the proposed
action.
[[Page 40113]]
(b) Reduction or withdrawal. When the Area ONAP determines, on the
basis of a review of the grantee's performance, that the objectives set
forth in Sec. 953.700(a)(2) or (3) have not been met, the Area ONAP may
reduce or withdraw the grant, except that funds already expended on
eligible approved activities shall not be recaptured.
Sec. 953.703 Other remedies for noncompliance.
(a) Secretarial actions. If the Secretary finds a grantee has
failed to comply with any provision of this part even after corrective
actions authorized under Sec. 953.701 have been applied, the following
actions may be taken provided that reasonable notice and opportunity
for hearing is made to the grantee. (The Administrative Procedure Act
(5 U.S.C. 551 et seq.), where applicable, shall be a guide in any
situation involving adjudications where the Secretary desires to take
actions requiring reasonable notice and opportunity for a hearing):
(1) Terminate the grant to the grantee;
(2) Reduce the grant to the grantee by an amount equal to the
amount which was not expended in accordance with this part; or
(3) Limit the availability of funds to projects or activities not
affected by such failure to comply; provided, however, that the
Secretary may on due notice revoke the grantee's line of credit in
whole or in part at any time if the Secretary determines that such
action is necessary to preclude the further expenditure of funds for
activities affected by such failure to comply.
(b) Secretarial referral to the Attorney General. If there is
reason to believe that a grantee has failed to comply substantially
with any provision of the Act, the Secretary may refer the matter to
the Attorney General of the United States with a recommendation that an
appropriate civil action be instituted. Upon such a referral, the
Attorney General may bring a civil action in any United States district
court having venue thereof for such relief as may be appropriate,
including an action to recover the amount of the assistance furnished
under this part which was not expended in accordance with this part or
for mandatory or injunctive relief.
Dated: June 18, 1996.
Michael B. Janis,
General Deputy Assistant Secretary for Public and Indian Housing.
[FR Doc. 96-19350 Filed 7-30-96; 8:45 am]
BILLING CODE 4210-32-P
Complete official Federal Register PDF
FR Doc. 96-19330 Fenpropathrin; Pesticide Tolerance
[Federal Register Volume 61, Number 148 (Wednesday, July 31, 1996)]
[Rules and Regulations]
[Pages 39887-39889]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19330]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 180
[PP 4F4327/R2253; FRL-5385-1]
RIN 2070-AB78
Fenpropathrin; Pesticide Tolerance
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final Rule.
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SUMMARY: This rule establishes tolerances for residues of the
insecticide/miticide fenpropathrin, a synthetic pyrethroid, in or on
the raw agricultural commodities (RACs) peanuts and peanut hay, and
increases tolerances in meat, meat byproduct and fat of cattle, goats,
hogs, horses and sheep and poultry; eggs; and milkfat. Valent U.S.A
submitted petitions under the Federal Food, Drug and Cosmetic Act
(FFDCA) that requested a regulation to establish these maximum
permissible levels for residues of the insecticide.
EFFECTIVE DATE: This regulation becomes effective July 31, 1996.
ADDRESSES: Written objections and hearing requests, identified by the
docket number [PP 4F4327/R2253], may be submitted to: Hearing Clerk
(1900), Environmental Protection Agency, Rm. M3708, 401 M St., SW.,
Washington, DC 20460. A copy of any objections and hearing requests
filed with the Hearing Clerk should be identified by the docket number
and submitted to: Public Response and Program Resources Branch, Field
Operations Division (7506C), Office of Pesticide Programs,
Environmental Protection Agency, 401 M St., SW., Washington, DC 20460.
In person, bring copy of objections and hearing requests to Rm. 1132,
CM #2, 1921 Jefferson Davis Hwy., Arlington, VA 22202. Fees
accompanying objections shall be labeled ``Tolerance Petition Fees''
and forwarded to: EPA Headquarters Accounting Operations Branch, OPP
(Tolerance Fees), P.O. Box 360277M, Pittsburgh, PA 15251. Comments and
data may also be submitted to OPP by sending electronic mail (e-mail)
to:[email protected].
Electronic comments must be submitted as an ASCII file avoiding the
use of special characters and any form of encryption. Comments and data
will also be accepted on disks in WordPerfect 5.1 file format or ASCII
file format. All comments and data in electronic form must be
identified by the docket number [PP 4F4327/R2253]. Electronic comments
on this proposed rule may be filed online at many Federal Depository
Libraries. Additional information on electronic submissions can be
found in the ``SUPPLEMENTARY INFORMATION'' section of this document.
Information submitted as a comment concerning this notice may be
claimed confidential by marking any part or all of that information as
``Confidential Business Information'' (CBI). Information so marked will
not be disclosed except in accordance with procedures set forth in 40
CFR part 2. A copy of the comment that does not contain CBI must be
submitted for inclusion in the public record. Information not marked
confidential may be disclosed publicly by EPA without prior notice. All
written comments will be available for public inspection in Rm. 1132 at
the address given above, from 8 a.m. to 4:30 p.m., Monday through
Friday, excluding legal holidays.
FOR FURTHER INFORMATION CONTACT: By mail: George T. LaRocca, Product
Manager (PM) 13, Registration Division (7505C), Office of Pesticide
Programs, Environmental Protection Agency, 401 M St., SW., Washington,
DC 20460. Office location and telephone number: Second Floor, Crystal
Mall #2, 1921 Jefferson Davis Highway, Arlington, VA 22202. (703) 305-
6100, e-mail: [email protected].
SUPPLEMENTARY INFORMATION: EPA issued notices, published in the Federal
Register of July 13, 1994 (59 FR 35719), which announced that Valent
U.S.A. Corporation, 1333 N. California Blvd., Suite 600, Walnut Creek,
CA 94596 had submitted pesticide petition (PP) 4F4327 and food/feed
additive petition (FAP) 4H5690 to EPA. Pesticide petition 4F4327
requested that the Administrator, pursuant to section 408(d)of the
Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a(d), amend
40 CFR 180.466 by establishing tolerances for residues of the
insecticide fenpropathrin (alpha-cyano-3-phenoxybenzyl 2,2,3,3-
tetramethylcyclopropanecarboxylate) in or on the raw agricultural
commodities (RACs) peanuts, vines and peanuts, hay (dried) at 20 parts
per million (ppm); milkfat at 2.0 ppm (reflecting 0.08 ppm in whole
milk); fat (cattle, goats, hogs, horses, and sheep) at 1.0 ppm; peanut
hulls at 0.3 ppm; meat and meat byproducts (cattle, goats, horses, and
sheep) at 0.1 ppm; poultry meat, fat, meat byproducts and eggs at 0.05
ppm; and peanut nut meat at 0.01 ppm. Food/feed additive petition (FAP)
4H5690 requested that the Administrator pursuant to section 409(b) of
the FFDCA (21 U.S.C. 348(b)) amend 40 CFR 185.3325 and 186.3225 by
establishing a food/feed additive regulation for fenpropathrin in and
on peanut oil at 0.05 ppm and peanut soapstock at 0.02 ppm.
In a letter dated January 5, 1996, Valent U.S.A. requested
withdrawal of the food/feed additive petition (FAP 4H5690) in or on
peanut oil and peanut soapstock and amended PP 4F4327 by deletion of
the proposed tolerances in/on peanut hulls and peanut vines. The notice
withdrawing FAP 4H5690 was published in the Federal Register July 24,
1996 (61 FR 38447). Valent U.S.A.'s withdrawal of the food/feed
additive petition was in response to EPA's determination that residues
of fenpropathrin in processed commodities will not exceed the
tolerances in the RAC. Although a processing study showed some
concentration in peanut meal and refined oil, EPA has determined that a
section 409 tolerance is unnecessary because it is unlikely
[[Page 39888]]
that the fenpropathrin residues in peanut meal and refined oil will
exceed the limit of quantification (LOQ) tolerance that is being
established on peanut nut meat. Valent's deletions of the proposed
tolerances in/on peanut hulls and peanut vines were submitted in
response to EPA's September 1995 revision to Table II of the Pesticide
Assessment Guidelines, Subdivision O (Residue Chemistry) Raw
Agricultural and Processed Commodities and Livestock Feeds Derived from
Field Crops. This document states that peanut soapstock and peanut
hulls are no longer considered significant livestock feed items, thus
tolerances are not required. This amendment also addressed EPA's
preference for peanut, dried hay to be expressed in term of peanuts,
hay.
The scientific data submitted in this petition and other relevant
material have been evaluated. The toxicological and metabolism data and
analytical methods for enforcement purposes considered in support of
these tolerances are discussed in detail in related documents published
in the Federal Register of April 14, 1993 (58 FR 19357).
A dietary exposure/risk assessment was performed for fenpropathrin
using a Reference Dose (RfD) of 0.025 mg/kg/day. The RfD is based on a
no-observable-effect Level (NOEL) of 2.5 mg/kg/body weight/day (100
ppm) and an uncertainty factor of 100 from a 1-year dog feeding study
that demonstrated tremors in test animals at the lowest effect level.
The current estimated dietary exposure for the overall U.S. population
and non-nursing infants (less than 1 year), the subgroup population
exposed to the highest risk, is 0.365% and 0.475% of the RfD,
respectively. The current action will increase exposure to 0.437% and
0.704% respectively. Generally speaking, the Agency has no cause for
concern if total residue contribution for published and proposed
tolerances is less than 100 percent of the RfD.
The metabolism of the chemical in plants and livestock is
adequately understood for this use. Any secondary residues occurring in
meat, fat, meat by products of cattle, goats, hogs, horses, poultry,
sheep; milkfat and eggs will be covered by the tolerances outlined
above.
An adequate analytical method (gas liquid chromatography with an
electron capture detector) is available for enforcement purposes. The
enforcement methodology has been submitted to the Food and Drug
Administration, and published in the Pesticide Analytical Manual Vol. I
(PAM I).
There are presently no actions pending against the continued
registration of this chemical. The pesticide is considered useful for
the purposes which it is sought. Based on the information and data
considered, the Agency has determined that the tolerances established
by amending 40 CFR part 180 will protect the public health. Therefore,
the tolerance is established as set forth below.
Any person adversely affected by this regulation may, within 30
days after publication of this document in the Federal Register, file
written objections to the regulation and may also request a hearing on
those objections. Objections and hearing requests must be filed with
the Hearing Clerk, at the address given above (40 CFR 178.20). A copy
of the objections and/or hearing requests filed with the Hearing Clerk
should be submitted to the OPP docket for this rulemaking. The
objections submitted must specify the provisions of the regulation
deemed objectionable and the grounds for the objections (40 CFR
178.25). Each objection must be accompanied by the fee prescribed by 40
CFR 180.33(i). If a hearing is requested, the objections must include a
statement of the factual issue(s) on which a hearing is requested, the
requestor's contentions on such issues, and a summary of any evidence
relied upon by the objector (40 CFR 178.27). A request for a hearing
will be granted if the Administrator determines that the material
submitted shows the following: There is genuine and substantial issue
of fact; there is a reasonable possibility that available evidence
identified by the requestor would, if established, resolve one or more
of such issues in favor of the requestor, taking into account
uncontested claims or facts to the contrary; and resolution of the
factual issue(s) in the manner sought by the requestor would be
adequate to justify the action requested (40 CFR 178.32).
A record has been established for this rulemaking under docket
number [PP 4F4327/R2253](including objections and hearing requests
submitted electronically as described below). A public version of this
record, including printed, paper versions of electronic comments, which
does not include any information claimed as CBI, is available for
inspection from 8 a.m. to 4:30 p.m., Monday through Friday, excluding
legal holidays. The public record is located in Room 1132 of the Public
Response and Program Resources Branch, Field Operations Division
(7506C), Office of Pesticide Programs, Environmental Protection Agency,
Crystal Mall #2, 1921 Jefferson Davis Highway, Arlington, VA 22202.
An electronic copy of objections and hearing requests filed with
the Hearing Clerk can be sent directly to OPP at:
opp-D[email protected]
An electronic copy of objections and hearing requests filed with
the Hearing Clerk must be submitted as an ASCII file avoiding the use
of special characters and any form of encryption.
The official record for this rulemaking, as well as the public
version, as described above, will be kept in paper form. Accordingly,
EPA will transfer any objections and hearing requests received
electronically into printed, paper form as they are received and will
place the paper copies in the official rulemaking record which will
also include all objections and hearing requests submitted directly in
writing. The official rulemaking record is the paper record maintained
at the Virginia address in ``ADDRESSES'' at the beginning of this
document.
Under Executive Order 12866 (58 FR 51735, October 4, 1993), the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to all the requirements of the Executive Order
(i.e., Regulatory Impact Analysis, review by the Office of Management
and Budget (OMB)). Under section 3(f), the order defines
``significant'' as those actions likely to lead to a rule (1) having an
annual effect on the economy of $100 million or more, or adversely and
materially affecting a sector of the economy, productivity,
competition, jobs, the environment, public health or safety, or State,
local or tribal governments or communities (also known as
``economically significant''); (2) creating serious inconsistency or
otherwise interfering with an action taken or planned by another
agency; (3) materially altering the budgetary impacts of entitlement,
grants, user fees, or loan programs; or (4) raising novel legal or
policy issues arising out of legal mandates, the President's
priorities, or the principles set forth in this Executive Order.
Pursuant to the terms of this Executive Order, EPA has determined
that this rule is not ``significant'' and is therefore not subject to
OMB review.
This action does not impose any enforceable duty, or contain any
``unfunded mandates'' as described in Title II of the Unfunded Mandates
Reform Act of 1995 (Pub. L. 104-4), or require prior consultation as
specified by Executive Order 12875 (58 FR 58093, October 28, 1993),
entitled Enhancing the Intergovernmental Partnership, or special
consideration as required by
[[Page 39889]]
Executive Order 12898 (59 FR 7629, February 16, 1994).
Under 5 U.S.C. 801(a)(1)(A) of the Administrative Procedure Act
(APA) as amended by the Small Business Regulatory Enforcement Fairness
Act of 1996 (Title II of Pub. L. 104-121, 110 Stat. 847), EPA submitted
a report containing this rule and other required information to the
U.S. Senate, the U.S. House of Representatives and the Comptroller
General of the General Accounting Office prior to publication of the
rule in today's Federal Register. This rule is not a ``major rule'' as
defined by 5 U.S.C. 804(2) of the APA as amended.
Pursuant to the requirements of the Regulatory Flexibility Act
(U.S.C. 601-612), the Administrator has determined that regulation
establishing new tolerances or raising tolerance levels or establishing
exemptions from tolerance requirements do not have a significant
economic impact on a substantial number of small entities. A
certification statement explaining the factual basis for this
determinations was published in the Federal Register of May 4, 1981 (46
FR 24950).
List of Subjects in 40 CFR Part 180
Environmental Protection, Administrative practice and procedure,
Agricultural commodities, Pesticides and pests, Reporting and
recordkeeping requirements.
Dated: July 23, 1996.
Daniel M. Barolo,
Director, Office of Pesticide Programs.
Therefore, 40 CFR Part 180 is amended as follows:
PART 180--[AMENDED]
1. The authority citation for part 180 continues to read as
follows:
Authority: 21 U.S.C. 346a and 371.
2. In Sec. 180.466 the table is amended by adding alphabetically an
entry for the commodities peanut, nutmeat; peanut, hay, and poultry,
meat; and by revising the tolerances in meat, meat byproduct and fat of
cattle, goats, hogs, horses and sheep; milkfat; poultry fat and meat
byproduct; and eggs to read as follows:
Sec. 180.466 Fenpropathrin, tolerances for residues,
* * * * *
----------------------------------------------------------------------------------------------------------------
Commodity Parts per million Expiration date
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Cattle, fat........................................ 1.0 None
Cattle, mbyp....................................... 0.1 Do.
Cattle, meat....................................... 0.1 Do.
Eggs............................................... 0.05 Do.
Goats, fat......................................... 1.0 Do.
Goats, mbyp........................................ 0.1 Do.
Goats, meat........................................ 0.1 Do.
Hogs, fat.......................................... 1.0 Do.
Hogs, mbyp......................................... 0.1 Do.
Hogs, meat......................................... 0.1 Do.
Horses, fat....................................... 1.0 Do.
Horses, mbyp....................................... 0.1 Do.
Horses, meat....................................... 0.1 Do.
Milkfat (reflecting 0.08 in whole milk)............ 2.0 Do.
Peanut, hay........................................ 20.0 Do.
Peanut, nutmeat.................................... 0.01 Do.
Poultry, fat....................................... 0.05 Do.
Poultry, meat...................................... 0.05 Do.
Poultry, mbyp...................................... 0.05 Do.
* * * * * * *
----------------------------------------------------------------------------------------------------------------
[FR Doc. 96-19330 Filed 7-30-96; 8:45 am]
BILLING CODE 6560-50-F
Complete official Federal Register PDF
FR Doc. 96-19314 Airworthiness Directives; McDonnell Douglas Model DC-9 and DC-9- 80 Series Airplanes, and C-9 (Military) Airplanes, Equipped With a Ventral Aft Pressure Bulkhead
[Federal Register Volume 61, Number 148 (Wednesday, July 31, 1996)]
[Rules and Regulations]
[Pages 39860-39862]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19314]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
14 CFR Part 39
[Docket No. 95-NM-186-AD; Amendment 39-9704; AD 96-16-04]
RIN 2120-AA64
Airworthiness Directives; McDonnell Douglas Model DC-9 and DC-9-
80 Series Airplanes, and C-9 (Military) Airplanes, Equipped With a
Ventral Aft Pressure Bulkhead
AGENCY: Federal Aviation Administration, DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This amendment supersedes an existing airworthiness directive
(AD), applicable to certain McDonnell Douglas Model DC-9 and DC-9-80
series airplanes, Model MD-88 airplanes, and C-9 (military) airplanes,
that currently requires repetitive inspections to detect fatigue
cracking in the area of the attach tees of the ventral aft pressure
bulkhead. This amendment requires revised inspection and repair
procedures, and provides for terminating action. It also deletes Model
MD-88 airplanes from the applicability of the rule. This amendment is
prompted by reports of fatigue cracking found in the subject area. The
actions specified by this AD are intended to prevent the propagation of
fatigue cracking, which could lead to structural failure of the ventral
aft pressure bulkhead and subsequent rapid depressurization of the
airplane.
DATES: Effective September 4, 1996.
The incorporation by reference of certain publications listed in
the regulations is approved by the Director of the Federal Register as
of September 4, 1996.
ADDRESSES: The service information referenced in this AD may be
obtained from McDonnell Douglas Corporation, 3855 Lakewood Boulevard,
Long Beach, California 90846, Attention: Technical Publications
Business Administration, Department C1-L51 (2-60). This information may
be examined at the Federal Aviation Administration (FAA), Transport
Airplane Directorate, Rules Docket, 1601 Lind Avenue, SW., Renton,
Washington; or at the FAA, Los Angeles Aircraft Certification Office,
Transport Airplane Directorate, 3960 Paramount Boulevard, Lakewood,
California; or at the Office of the Federal Register, 800 North Capitol
Street, NW., suite 700, Washington, DC.
FOR FURTHER INFORMATION CONTACT: Brent Bandley, Aerospace Engineer,
Airframe Branch, ANM-120L, FAA, Los Angeles Aircraft Certification
Office, 3960 Paramount Boulevard, Lakewood, California 90712; telephone
(310) 627-5237; fax (310) 627-5210.
SUPPLEMENTARY INFORMATION: A proposal to amend part 39 of the Federal
Aviation Regulations (14 CFR part 39) by superseding AD 89-16-12,
amendment 39-6287 (54 FR 31649, August 1, 1989), which is applicable to
certain McDonnell Douglas Model DC-9 and DC-9-80 series airplanes,
Model MD-88 airplanes, and C-9 (Military) airplanes, was published in
the Federal Register on August 1, 1989 (54 FR 31649). The action
proposed to require revised inspection and repair procedures, and
provide for terminating action. It also proposed to delete Model MD-88
airplanes from the applicability of the rule, since the terminating
action was installed on those airplanes during production.
Interested persons have been afforded an opportunity to participate
in the making of this amendment. Due consideration has been given to
the comments received.
Support for the Proposal
Two commenters support the proposal.
Request To Allow Inspections at Current Intervals
Several commenters oppose the proposed shorter inspection
intervals. These commenters request that the proposal be revised to
permit operators to continue to conduct inspections at the same
frequency as was mandated previously by AD 89-16-12. The commenters
contend that the proposed AD is founded on the FAA's statement that
improved inspection methods are available and should be used. These
commenters do not object to modernizing the inspection methods, but
state that nothing supports the proposed increase in inspection
frequency. The commenters maintain that the increase in the frequency
of inspections will be disruptive to airline maintenance programs and
scheduling, and this will have an adverse economic impact on operators.
The FAA does not concur with the commenters' request. After
cracking of the ventral aft pressure bulkhead tees was found, the FAA
issued AD 89-16-12 only as an interim measure to mandate some type of
inspection on these tees. Because no inspection procedures had been
developed at that time for inspecting these specific tees, the FAA
required that operators inspect them using the same inspection
methods--and inspection intervals--that already had been developed for
inspecting non-ventral aft pressure bulkhead tees. (Those inspection
methods and intervals were described in McDonnell Douglas Service
Bulletin A53-231.) The FAA issued AD 89-16-12 in the absence of any
specific, pertinent technical data relative to appropriate inspections
of ventral bulkhead tees, and considered that some type of inspection
of these tees was better than none at all. Even at the time that AD 89-
16-12 was issued, it was the FAA's intention to revise that AD once the
manufacturer had developed inspection methods that were specific to
ventral bulkhead tees. (The FAA explained this in the preamble to AD
89-16-12.)
When McDonnell Douglas eventually developed inspections for the
ventral bulkhead tees, it issued Service Bulletin A53-232, which
contained the inspection instructions and recommended inspection
intervals. The inspection intervals were shorter than those that had
been recommended for non-ventral bulkhead tees. These shorter intervals
were determined based on the crack growth rate of these specific tees,
residual strength of uncracked tees, and the detectability of the
cracking using the inspection method. The FAA reviewed and approved the
technical material presented in Service Bulletin A53-232.
Based on that material and other data gathered from the in-service
fleet, the FAA has determined that:
1. The structure of the ventral and non-ventral bulkheads differs
enough to justify the difference in the inspection intervals of the
associated attach tees;
2. Using the same inspection interval for both ventral and non-
ventral attach tees cannot be technically justified;
3. Shorter repetitive inspection intervals are appropriate for the
ventral attach tees; and
4. The shorter inspection intervals will ensure that fatigue
cracking at the attach tees positioned in the ventral aft pressure
bulkhead is detected and corrected before cracking can grow to a
critical length and jeopardize the integrity of the bulkhead.
While operators may incur additional costs because of more frequent
inspections and maintenance schedule changes, the FAA finds that these
costs are necessary in order to ensure the continued airworthiness of
these
[[Page 39861]]
airplanes and the safety of the flying public.
Conclusion
After careful review of the available data, including the comments
noted above, the FAA has determined that air safety and the public
interest require the adoption of the rule as proposed.
Cost Impact
There are approximately 1,500 Model DC-9 and DC-9-80 series
airplanes, and C-9 (military) airplanes of the affected design in the
worldwide fleet. The FAA estimates that 1,000 airplanes of U.S.
registry will be affected by this proposed AD.
To accomplish the actions specified as ``OPTION I'' of the AD will
entail approximately 22 work hours per visual inspection and 12 work
hours per low frequency eddy current inspection. The average labor rate
is $60 per work hour. Based on these figures, the cost impact on U.S.
operators who elect to accomplish OPTION I is estimated to be $2,040
per airplane per inspection cycle.
To accomplish the actions specified as ``OPTION II'' of the AD will
entail approximately 8 work hours per high and low frequency eddy
current inspection. The average labor rate is $60 per work hour. Based
on these figures, the cost impact on U.S. operators who elect to
accomplish OPTION II is estimated to be $480 per airplane per
inspection cycle.
The cost impact figures discussed above are based on assumptions
that no operator has yet accomplished any of the requirements of this
AD action, and that no operator would accomplish those actions in the
future if this AD were not adopted.
Regulatory Impact
The regulations adopted herein will not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this final
rule does not have sufficient federalism implications to warrant the
preparation of a Federalism Assessment.
For the reasons discussed above, I certify that this action (1) Is
not a ``significant regulatory action'' under Executive Order 12866;
(2) is not a ``significant rule'' under DOT Regulatory Policies and
Procedures (44 FR 11034, February 26, 1979); and (3) will not have a
significant economic impact, positive or negative, on a substantial
number of small entities under the criteria of the Regulatory
Flexibility Act. A final evaluation has been prepared for this action
and it is contained in the Rules Docket. A copy of it may be obtained
from the Rules Docket at the location provided under the caption
ADDRESSES.
List of Subjects in 14 CFR Part 39
Air transportation, Aircraft, Aviation safety, Incorporation by
reference, Safety.
Adoption of the Amendment
Accordingly, pursuant to the authority delegated to me by the
Administrator, the Federal Aviation Administration amends part 39 of
the Federal Aviation Regulations (14 CFR part 39) as follows:
PART 39--AIRWORTHINESS DIRECTIVES
1. The authority citation for part 39 continues to read as follows:
Authority: 49 U.S.C. 106(g), 40113, 44701.
Sec. 39.13 [Amended]
2. Section 39.13 is amended by removing amendment 39-6287 (54 FR
31649, August 1, 1989), and by adding a new airworthiness directive
(AD), amendment 39-9704, to read as follows:
96-16-04 McDonnell Douglas: Amendment 39-9704. Docket 95-NM-186-AD.
Supersedes AD 89-16-12, Amendment 39-6287.
Applicability: Model DC-9-10, -20, -30, -40, and -50 series
airplanes; Model DC-9-81 (MD-81), DC-9-82 (MD-82) and DC-9-83 (MD-
83) series airplanes; and C-9 (military) airplanes; equipped with a
ventral aft pressure bulkhead; as listed in McDonnell Douglas Alert
Service Bulletin A53-232, Revision 2, dated April 28, 1995;
certificated in any category.
Note 1: This AD applies to each airplane identified in the
preceding applicability provision, regardless of whether it has been
otherwise modified, altered, or repaired in the area subject to the
requirements of this AD. For airplanes that have been modified,
altered, or repaired so that the performance of the requirements of
this AD is affected, the owner/operator must request approval for an
alternative method of compliance in accordance with paragraph (d) of
this AD. The request should include an assessment of the effect of
the modification, alteration, or repair on the unsafe condition
addressed by this AD; and, if the unsafe condition has not been
eliminated, the request should include specific proposed actions to
address it.
Compliance: Required as indicated, unless accomplished
previously.
To prevent the propagation of fatigue cracks that could result
in structural failure of the ventral aft pressure bulkhead,
accomplish the following:
(a) Accomplish the requirements of either paragraph (a)(1),
``OPTION I,'' or (a)(2), ``OPTION II,'' of this AD in accordance
with McDonnell Douglas Alert Service Bulletin A53-232, Revision 2,
dated April 28, 1995. The initial inspection of either option must
be accomplished at the applicable time specified in Table 1 of this
AD.
Table 1
------------------------------------------------------------------------
Total accumulated landings as of the
effective date of this AD- Initial inspection
------------------------------------------------------------------------
Less than 35,000-...................... Prior to the accumulation of
36,500 total landings, or
within 1,500 landings after
the effective date of this AD,
whichever occurs later.
35,000 or more......................... Within 300 landings after the
effective date of this AD; or
within 3,500 landings after
accomplishing the last
inspection performed in -
accordance with AD 89-16-12;
whichever occurs later.
------------------------------------------------------------------------
(1) OPTION I: Accomplish the requirements of paragraphs
(a)(1)(i), (a)(1)(ii), and (a)(1)(iii) of this AD. -
(i) Conduct a low frequency eddy current inspection to detect
cracks of the side areas above the floor between longerons 7 and 17
on fuselage left and right sides. Repeat this inspection at
intervals not to exceed 1,500 landings.
(ii) Conduct an optically aided detailed visual inspection to
detect cracks of the top and lower areas from longeron 7 left side
to longeron 7 right side, and on the lower fuselage from longeron 17
to longeron 20 on fuselage left and right sides. Repeat this
inspection thereafter at intervals not to exceed 1,500 landings.
(iii) Conduct an optically aided detailed visual inspection to
detect cracks of the bottom area from longeron 20 left side to
longeron 20 right side. Repeat this inspection thereafter at
intervals no to exceed 3,500 landings.
(2) OPTION II: Conduct both a high frequency and a low frequency
eddy current inspection for cracks around the entire periphery of
the fuselage from the forward side of the bulkhead. Repeat these
inspections at intervals not to exceed 2,500 landings.
(b) If any cracked tee section is found during any inspection
required by this AD, prior to further flight, accomplish the
requirements of either paragraph (b)(1) or (b)(2) of this AD, in
accordance with the procedures specified in McDonnell Douglas Alert
Service Bulletin A53-232, Revision 2, dated April 28, 1995:
(1) Replace the cracked tee section with a new like part. Once
that replaced part has accumulated 35,000 landings, repeat the
inspections required by paragraph (a) of this AD. Or
(2) Replace the cracked tee section with an improved part, as
specified in the alert service bulletin. Such replacement
[[Page 39862]]
constitutes terminating action for the repetitive inspections of
that section of the tee only.
(c) Replacement of all six aft pressure bulkhead tee sections
with new improved parts, in accordance with McDonnell Douglas Alert
Service Bulletin A53-232, Revision 2, dated April 28, 1995,
constitutes terminating action for the inspections required by this
AD.
(d) An alternative method of compliance or adjustment of the
compliance time that provides an acceptable level of safety may be
used if approved by the Manager, Los Angeles Aircraft Certification
Office (ACO), FAA, Transport Airplane Directorate. Operators shall
submit their requests through an appropriate FAA Principal
Maintenance Inspector, who may add comments and then send it to the
Manager, Los Angeles ACO.
Note 2: Information concerning the existence of approved
alternative methods of compliance with this AD, if any, may be
obtained from the Los Angeles ACO.
(e) Special flight permits may be issued in accordance with
sections 21.197 and 21.199 of the Federal Aviation Regulations (14
CFR 21.197 and 21.199) to operate the airplane to a location where
the requirements of this AD can be accomplished.
(f) The inspections and replacements shall be done in accordance
with McDonnell Douglas Alert Service Bulletin A53-232, Revision 2,
dated April 28, 1995. This incorporation by reference was approved
by the Director of the Federal Register in accordance with 5 U.S.C.
552(a) and 1 CFR part 51. Copies may be obtained from McDonnell
Douglas Corporation, 3855 Lakewood Boulevard, Long Beach, California
90846, Attention: Technical Publications Business Administration,
Department C1-L51 (2-60). Copies may be inspected at the FAA,
Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton,
Washington; or at the FAA, Los Angeles Aircraft Certification
Office, Transport Airplane Directorate, 3960 Paramount Boulevard,
Lakewood, California; or at the Office of the Federal Register, 800
North Capitol Street, NW., suite 700, Washington, DC.
(g) This amendment becomes effective on September 4, 1996.
Issued in Renton, Washington, on July 24, 1996.
S.R. Miller,
Acting Manager, Transport Airplane Directorate, Aircraft Certification
Service.
[FR Doc. 96-19314 Filed 7-30-96; 8:45 am]
BILLING CODE 4910-13-U
Complete official Federal Register PDF
FR Doc. 96-19085 Cyfluthrin; Pesticide Tolerance
[Federal Register Volume 61, Number 148 (Wednesday, July 31, 1996)]
[Rules and Regulations]
[Pages 39883-39887]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19085]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 180
[PP 2F4137/R2259; FRL-5387-2]
RIN 2070-AB78
Cyfluthrin; Pesticide Tolerance
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final Rule.
-----------------------------------------------------------------------
SUMMARY: This document establishes time-limited tolerances with an
expiration date of November 15, 1997, for residues of the insecticide
cyfluthrin, a synthetic pyrethroid, in or on the raw agricultural
commodities (RAC's) sorghum, fodder, forage and grain; aspirated grain
fractions; the fat of cattle, goats, horses, hogs, and sheep; and
milkfat. The regulation to establish a maximum permissible level for
residues of the insecticide cyfluthrin was requested in a petition
submitted by Bayer Corporation.
EFFECTIVE DATE: This regulation becomes effective July 31, 1996.
ADDRESSES: Written objections and hearing requests, identified by the
document control number, [PP 2F4137/R2259], may be submitted to:
Hearing Clerk (1900), Environmental Protection Agency, Rm. M3708, 401 M
St., SW., Washington, DC 20460. A copy of any
[[Page 39884]]
objections and hearing requests filed with the Hearing Clerk should be
identified by the document control number and submitted to: Public
Response and Program Resources Branch, Field Operations Division
(7506C), Office of Pesticide Programs, Environmental Protection Agency,
401 M St., SW., Washington, DC 20460. In person, bring copy of
objections and hearing requests to Rm. 1132, CM #2, 1921 Jefferson
Davis Hwy., Arlington, VA 22202. Fees accompanying objections shall be
labeled ``Tolerance Petition Fees'' and forwarded: EPA Headquarters
Accounting Operations Branch, OPP (Tolerance Fees), P.O. Box 360277M,
Pittsburgh, PA 15251. An electronic copy of objections and hearing
requests filed with the Hearing Clerk may be submitted to OPP by
sending electronic mail (e-mail) to: [email protected]
Copies of electronic objections and hearing requests must be
submitted as an ASCII file avoiding the use of special characters and
any form of encryption. Copies of electronic objections and hearing
requests will also be accepted on disks in WordPerfect 5.1 file format
or ASCII file format. All copies of electronic objections and hearing
requests must be identified by the docket number [PP 2F4137/R2259] . No
Confidential Business Information (CBI) should be submitted through e-
mail. Copies of electronic objections and hearing requests on this rule
may be filed online at many Federal Depository Libraries. Additional
information on electronic submissions can be found below in this
document.
Information submitted as a comment concerning this notice may be
claimed confidential by marking any part or all of that information as
``Confidential Business Information'' (CBI). Information so marked will
not be disclosed except in accordance with procedures set forth in 40
CFR Part 2. A copy of the comment that does not contain CBI must be
submitted for inclusion in the public record. Information not marked
confidential may be disclosed publicly by EPA without prior notice. All
written comments will be available for public inspection in Rm. 1132 at
the address given above, from 8 a.m. to 4 p.m., Monday through Friday,
excluding legal holidays.
FOR FURTHER INFORMATION CONTACT: By mail: George T. LaRocca, Product
Manager (PM) 13, Registration Division (7505C), Office of Pesticide
Programs, Environmental Protection Agency, 401 M St. SW., Washington,
DC 20460. Office location and telephone number: Rm. 204, CM #2, 1921
Jefferson Davis Highway, Arlington, VA 22202. (703) 305-6100.
SUPPLEMENTARY INFORMATION: EPA issued a public notice, published in the
Federal Register of December 30, 1992 (57 FR 62334), which announced
that Bayer Corp. (formerly Miles, Inc.) had submitted pesticide
petition (PP) 2F4137 to EPA. Pesticide petition (PP) 2F4137 requests
that the Administrator, pursuant to sections 408(d) of the Federal
Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a(d) and 348(b),
amend 40 CFR 180.436 by establishing tolerances for residues of the
insecticide cyfluthrin, [cyano[4-fluoro-3-phenoxyphenyl]-methyl-3-[2,2-
dicloroethenyl]-2,2-dimethylcyclopropanecarboxylate] in or on the raw
agricultural commodities (RACs) sorghum, forage at 2.0 parts per
million (ppm); sorghum, grain at 4.00 ppm; sorghum, fodder, silage and
hay at 5.00 ppm.
In a letter dated October 16, 1995, Bayer Corp. (61 FR 26904, May
29, 1996) requested that the pesticide petition (2F4137) be amended by
increasing the existing tolerances in or on the fat of cattle, goats,
hogs, horses and sheep to 5.00 ppm; milkfat to 15.00 ppm (reflecting
0.50 ppm in whole milk) and establishing a tolerance for aspriated
grain fraction at 300 ppm. This amendment also addressed EPA's
preference for the sorghum, fodder, silage and hay tolerances to be
expressed in terms of sorghum, fodder. There were no comments or
requests to the advisory committee received in response to the initial
and amended notices of filing.
The data base for cyfluthrin is essentially complete. Data lacking
but desirable are a new 21-day subchronic dermal study, an acute
neurotoxicity study in rats, a 90-day neurotoxicity study in rats, and
a dermal sensitization study on the end-use product, Baythroid 2.
Although these data are lacking, the Agency believes it has sufficient
toxicity data to support the proposed tolerance and these missing data
will not significantly change its risk assessment. In a letter dated
November 2, 1995, Bayer Corp. has committed to submit the 21-day
subchronic dermal study by June 1996, the acute neurotoxicity study by
December 1996 and the 90-day neurotoxicity study by May 1997. On
October 12, 1995, Bayer Corp submitted to the Agency a dermal
sensitization study on Baythroid 2. On July 11, 1996, Bayer Corporation
submitted a 21-day subchronic dermal study on Baythroid 2 to the
Agency.
The scientific data submitted in the petition and other relevant
material have been evaluated. The toxicology data submitted in support
of the tolerance include:
1. A 12-month chronic feeding study in dogs with a no-observed-
effect level (NOEL) of 4 mg/kg/day. The lowest effect level (LEL) for
this study is established at 16 mg/kg/day, based on slight ataxia,
increased vomiting, diarrhea and decreased body weight.
2. A 24-month chronic feeding/carcinogenicity study in rats with a
NOEL of 2.5 mg/kg/day and LEL of 6.2 mg/kg/day, based on decreased body
weights in males, decreased food consumption in males, and inflammatory
foci in the kidneys in females. There were no carcinogenic effects
observed under the conditions of the study.
3. A 24-month carcinogenicity study in mice. There were no
carcinogenic effects observed under the conditions of the study.
4. An oral developmental toxicity study in rats with a maternal and
fetal NOEL of 10 mg/kg/day (highest dose tested). An oral developmental
toxicity study in rabbits with a maternal NOEL of 20 mg/kg/day and a
maternal LEL of 60 mg/kg/day, based on decreased body weight gain and
decreased food consumption during the dosing period. A fetal NOEL of 20
mg/kg/day and a fetal LEL of 60 mg/kg/day were also observed in this
study. The LEL was based on increased resorptions and increased
postimplantation loss.
5. A developmental toxicity study in rats by the inhalation route
of administration with a maternal NOEL of 0.0011 mg/l and a LEL of
0.0047 mg/l, based on reduced mobility, dyspnea, piloerection,
ungroomed coats and eye irritation. The fetal NOEL is 0.00059 mg/l and
the fetal LEL is 0.0011 mg/l, based on sternal anomalies and increased
incidence of runts. A second developmental toxicity study in rats by
the inhalation route of administration is currently under review. The
issue of whether cyfluthrin directly induces fetotoxicity under these
conditions is unresolved at this time.
6. A three-generation reproduction study in rats with a systemic
NOEL of 2.5 mg/kg/day and a systemic LEL of 7.5 mg/kg/day due to
decreased parent and pup body weights. The reproductive NOEL and LEL
are 7.5 mg/kg/day and 22.5 mg/kg/day respectively.
7. Mutagenicity tests, including several gene mutation assays
(reverse mutation and recombination assays in bacteria and a Chinese
hamster ovary(CHO)/HGPRT assay); a structural chromosome aberration
assay (CHO/
[[Page 39885]]
sister chromatid exchange assay); and an unscheduled DNA synthesis
assay in rat hepatocytes. All tests were negative for genotoxicity.
8. A metabolism study in rats showing that cyfluthrin is rapidly
absorbed and excreted, mostly as conjugated metabolites in the urine,
within 48 hours. An enterohepatic circulation was observed.
A chronic dietary exposure/risk assessment was performed for
cyfluthrin using a Reference Dose (RfD) of 0.025 mg/kg bwt/day, based
on a NOEL of 50 ppm (2.5 mg/kg bwt/day) and an uncertainty factor of
100. The NOEL was determined in a 2-year rat feeding study. The
endpoint effects of concern were decreased body weights in males and
inflammation of the kidneys in females at the LEL of 6.2 mg/kg/day. For
purposes of this dietary exposure/risk assessment tolerance level
residues were used and percent crop treated assumption made for some of
the commodities. The current estimated dietary exposure for the overall
U.S. population resulting from established tolerances is 0.001221 mg/
kg/bwt day, which represents 4.8 percent of the RfD. The current action
will increase exposure to 0.009420 mg/kg/bwt/day or 37.6 percent of the
RfD. The current estimated dietary exposure for the subgroup population
exposed to the highest risk, non-nursing infants less than 1 year old,
is 0.002081 mg/kg bwt/day, which represents 8.3 percent of the RfD. The
current action will increase exposure to 0.025266 mg/kg bwt/day or 101
percent of the RfD. Although the estimate of dietary exposure for the
subgroup, non-nursing infants less than 1 year old, is slightly higher
than the Agency's level of concern, i.e., greater than 100 percent of
the RfD, the Agency believes that actual exposure and risk would be
lower. The basis for this is that the risk reflects a higher than
actual dietary exposure because it assumes that 100 percent of the U.S.
sorghum crop is treated with cyfluthrin and that all quantities of the
feed consumed will bear residue levels as high as the proposed
tolerance. In reality, the Agency knows that all sorghum will not be
treated with this pesticide and that actual levels on meat and milk
will be lower than tolerance levels. In addition the food commodity
that contributes the most to this slight risk exceedence is milk at
88.2 percent of the RfD; 71.2 percent from milk fat and 17 percent from
whole milk and milk sugars. Metabolism data indicates that most of the
cyfluthrin will concentrate in milk fat and very little in the other
components, whole milk and milk sugar. Thus the 17 percent contribution
is an overestimate of actual exposure. Thus, EPA concludes that the
chronic dietary risk of cyfluthrin, as estimated by the dietary risk
assessment, does not appear to be of concern.
Because there was a sign of developmental effects seen in animal
studies, the Agency used the rabbit developmental toxicity study with a
maternal NOEL of 20 mg/kg/day to assess acute dietary exposure and
determine a margin of exposure (MOE) for the overall U.S. population
and certain subgroups. Since the toxicological end-point pertains to
developmental toxicity, the population group of concern for this
analysis is women aged 13 and above, the subgroup which most closely
approximates women of child-bearing age. The MOE is calculated as the
ratio of the NOEL to the exposure. For this analysis the Agency
calculated the MOE for women ages 13 and above to be 2,500. Generally
speaking, MOE's greater than 100 for data derived from animal studies
are regarded as showing no appreciable risk.
The metabolism of cyfluthrin in plants and livestock for this use
is adequately understood. The residues of concern is cyfluthrin per se.
Current established tolerances for cyfluthrin in poultry meat, fat and
meat-by-products are adequate. An adequate analytical method, gas-
liquid chromatography, is available for enforcement purposes. The
enforcement methodology has been submitted to the Food and Drug
Administration for publication in the Pesticide Analytical Manual Vol.
II (PAM II). Because of the long lead time for publication of the
method in PAM II, the analytical methodology is being made available in
the interim to anyone interested in pesticide enforcement when
requested from: Calvin Furlow, Public Response and Program Resources
Branch, Field Operations Divisions (7506C), Office of Pesticide
Programs, Environmental Protection Agency 401 M St., SW., Washington,
DC 20460. Office location and telephone number: Rm. 1132, CM #2, 1921
Jefferson Davis Hwy., Arlington, VA 22202, (703) 305-5232.
On August 5, 1988, EPA issued a conditional registration and time-
limited tolerance for cyfluthrin for use on cottonseed with an
expiration date of October 31, 1991 (see the Federal Register of August
15 ,1988 (53 FR 30676)). On November 12, 1992, the conditional
registration was amended and extended to November 15, 1993 and the
tolerance on cottonseed extended to November 15, 1994 (see Federal
Registers October 20, 1993 (58 FR 54094) and February 22, 1994 (54 FR
9411)). On November 15, 1993, EPA amended the conditional registration
on cottonseed by extending the expiration date to November 15, 1996 and
extending the time-limited tolerance to November 15, 1997. The
conditional registration was amended and extended to allow time for
submission and evaluation of additional environmental effects data. In
order to evaluate the effects of cyfluthrin on fish and aquatic
organisms and its fate in the environment, additional data were
required to be collected and submitted during the period of conditional
registration. Such requirements included a sediment bioavailability and
toxicity study and a small-plot runoff study that must be submitted to
the Agency by July 1, 1996. To be consistent with the conditional
registration and extension on cottonseed, the Agency is issuing a
conditional registration with an expiration date of November 15, 1996
and establishing a time-limited tolerance on sorghum (fodder, forage
and grain), aspirated grain fractions and livestock animal commodities
with an expiration date of November 15, 1997, to cover residues
expected to result from use during the period of conditional
registration.
Residues remaining in or on the above commodities after expiration
of these tolerances will not be considered actionable if the pesticide
is legally applied during the term and in accordance with provisions of
the conditional registration.
There are presently no actions pending against the continued
registration of this chemical.
The pesticide is considered useful for the purposes for which it is
sought. Based on the information and data considered, the Agency has
determined that the tolerances established by amending 40 CFR 180.436
would protect the public health. Therefore, the tolerances are
established as set forth below.
Any person adversely affected by this regulation may, within 30
days after publication of this document in the Federal Register, file
written objections to the regulation and may also request a hearing on
those objections. Objections and hearing requests must be filed with
the Hearing Clerk, at the address given above (40 CFR 178.20). A copy
of the objections and/or hearing requests filed with the Hearing Clerk
should be submitted to the OPP docket for this rulemaking. The
objections submitted must specify the provisions of the regulation
deemed objectionable and the grounds for the objections (40 CFR
178.25). Each objection must be accompanied by the fee prescribed by
[[Page 39886]]
40 CFR 180.33(i). If a hearing is requested, the objections must
include a statement of the factual issue(s) on which a hearing is
requested, the requestor's contentions on such issues, and a summary of
any evidence relied upon by the objector (40 CFR 178.27). A request for
a hearing will be granted if the Administrator determines that the
material submitted shows the following: There is genuine and
substantial issue of fact; there is a reasonable possibility that
available evidence identified by the requestor would, if established,
resolve one or more of such issues in favor of the requestor, taking
into account uncontested claims or facts to the contrary; and
resolution of the factual issue(s) in the manner sought by the
requestor would be adequate to justify the action requested (40 CFR
178.32).
A record has been established for this rulemaking under docket
number [PP 2F4137/R2259] (including objections and hearing requests
submitted electronically as described below). A public version of this
record, including printed, paper versions of electronic comments, which
does not include any information claimed as CBI, is available for
inspection from 8 a.m. to 4:30 p.m., Monday through Friday, excluding
legal holidays. The public record is located in Room 1132 of the Public
Response and Program Resources Branch, Field Operations Division
(7506C), Office of Pesticide Programs, Environmental Protection Agency,
Crystal Mall #2, 1921 Jefferson Davis Highway, Arlington, VA 22202.
A copy of electronic objections and hearing request filed with the
Hearing Clerk can be sent directly to EPA at:
opp-D[email protected]
A copy of electronic objections and hearing requests filed with the
Hearing Clerk must be submitted as an ASCII file avoiding the use of
special characters and any form of encryption.
The official record of this rulemaking, as well as the public
eversion, as described above will be kept in paper form. Accordingly,
EPA will transfer any objections and hearing requests received
electronically into printed, paper form as they are received and will
place the paper copies in the official rulemaking record which will
also include all objections and hearing requests submitted directly in
writing. The official rulemaking record is the paper record maintained
at the address in ``ADDRESSES'' at the beginning of this document.
Under Executive Order 12866 (58 FR 51735, October 4, 1993), the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to all the requirements of the Executive Order
(i.e., Regulatory Impact Analysis, review by the Office of Management
and Budget (OMB)). Under section 3(f), the order defines
``significant'' as those actions likely to lead to a rule (1) having an
annual effect on the economy of $100 million or more, or adversely and
materially affecting a sector of the economy, productivity,
competition, jobs, the environment, public health or safety, or State,
local or tribal governments or communities (also known as
``economically significant); (2) creating serious
inconsistency or otherwise interfering with an action taken or planned
by another agency; (3) materially altering the budgetary impacts of
entitlement, grants, user fees, or loan programs; or (4) raising novel
legal or policy issues arising out of legal mandates, the President's
priorities, or the principles set forth in this Executive Order.
Pursuant to the terms of this Executive Order, EPA has determined
that this rule is not ``significant'' and is therefore not subject to
OMB review.
This action does not impose any enforceable duty, or contain any
unfunded mandates as described in Title II of the Unfunded Mandates
Reform Act of 1995 (Pub. L. 104-4), or require prior consultation as
specified by Executive Order 12875 (58 FR 58093, October 28, 1993),
entitled Enhancing the Intergovernmental Partnership, or special
consideration as required by Executive Order 12898 (59 FR 7629,
February 16, 1994).
Pursuant to the requirements of the Regulatory Flexibility Act (5
U.S.C. 601-612), the Administrator has determined that regulations
establishing new tolerances or raising tolerance levels or establishing
exemptions from tolerance requirements do not have a significant
economic impact on a substantial number of small entities. A
certification statement explaining the factual basis for this
determination was published in the Federal Register of May 4, 1981 (46
FR 24950).
Under 5 U.S.C. 801(a)(1)(A) of the Administrative Procedure Act
(APA) as amended by the Small Business Regulatory Enforcement Fairness
Act of 1996 (Title II of Pub. L. 104-121, 110 Stat. 847), EPA submitted
a report containing this rule and other required information to the
U.S. Senate, the U.S. House of Representatives and the Comptroller
General of the General Accounting Office prior to publication of the
rule in today's Federal Register. This rule is not a ``major rule'' as
defined by 5 U.S.C. 804(2) of the APA as amended.
List of Subjects in 40 CFR Part 180
Environmental Protection, Administrative practice and procedure,
Agricultural commodities, Pesticides and pests, Reporting and record
keeping requirements.
Dated: July 19, 1996.
Daniel M. Barolo,
Director, Office of Pesticide Programs.
Therefore, chapter I of title 40 Code of Federal Regulations is
amended as follows:
PART 180--[AMENDED]
1. The Authority citation of part 180 continues to read as follows:
Authority: 21 U.S.C. 346a and 371.
2. In Sec. 180.436, the table in paragraph (a) is amended by adding
alphabetically entries for the commodities ``aspriated grain
fractions'' and ``sorghum fodder,'' ``sorghum forage'' and ``sorghum
grain;'' and by revising the entries for cattle, fat; goats, fat; hogs,
fat; horses, fat; milkfat; and sheep, fat; to read as follows:
Sec. 180.436 Cyfluthrin: tolerances for residues.
(a) * * *
----------------------------------------------------------------------------------------------------------------
Parts per
Commodity million Expiration date
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Aspirated Grain Fractions................................. 300.00 Nov. 15, 1997.
Cattle, fat............................................... 5.00 Do.
* * * * * * *
Goats, fat................................................ 5.00 Do.
* * * * * * *
Hogs, fat................................................. 5.00 Do.
[[Page 39887]]
* * * * * * *
Horses, fat............................................... 5.00 Do.
Milkfat (reflecting 0.5 ppm in whole milk)................ 15.00 Do.
* * * * * * *
Sheep, fat................................................ 5.00 Do.
* * * * * * *
Sorghum, fodder........................................... 5.00 Do.
Sorghum, forage........................................... 2.00 Do.
Sorghum, grain............................................ 4.00 Do.
* * * * * * *
----------------------------------------------------------------------------------------------------------------
[FR Doc. 96-19085 Filed 7-30-96; 8:45 am]
BILLING CODE 6560-50-F
Complete official Federal Register PDF
FR Doc. 96-18806 Accounting Requirements for RUS Telecommunications Borrowers
[Federal Register Volume 61, Number 148 (Wednesday, July 31, 1996)]
[Rules and Regulations]
[Pages 39844-39850]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18806]
-----------------------------------------------------------------------
DEPARTMENT OF AGRICULTURE
Rural Utilities Service
7 CFR Part 1770
RIN 0572-AB10
Accounting Requirements for RUS Telecommunications Borrowers
AGENCY: Rural Utilities Service, USDA.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Rural Utilities Service (RUS) is amending its regulations
on accounting policies and procedures for RUS telecommunications
borrowers as set forth in RUS's regulations concerning Accounting
System Requirements for RUS Telecommunications Borrowers. This rule
establishes an accounting interpretation for postretirement benefits
that addresses both the requirements of the Financial Accounting
Standards Board (FASB) and the Federal Communications Commission (FCC).
It also sets forth accounting interpretations that establish uniform
accounting procedures for Rural Telephone Bank (RTB) stock, cushion of
credit investments, Rural Economic Development loans and grants, and
satellite or cable television service investments.
EFFECTIVE DATE: This rule is effective August 30, 1996.
FOR FURTHER INFORMATION CONTACT: Ms. Roberta D. Purcell, Director,
Program Accounting Services Division, Rural Utilities Service, STOP
1523, room 2221, South Building, U.S. Department of Agriculture,
Washington, DC 20250-1523, telephone number (202) 720-9450.
SUPPLEMENTARY INFORMATION:
Executive Order 12866
This final rule has been determined to be not significant for the
purposes of Executive Order 12866 and therefore has not been reviewed
by the Office of Management and Budget (OMB).
Regulatory Flexibility Act Certification
The Administrator of RUS has determined that the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.) does not apply to this final
rule.
Information Collection and Recordkeeping Requirements
The information collection and recordkeeping requirements contained
in this rule have been approved by OMB under control number 0572-0003
pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35,
as amended.) Comments regarding these requirements may be sent to
Roberta D. Purcell, Director, Program Accounting Services Division,
Rural Utilities Service, STOP 1523, Washington, DC 20250-1523.
National Environmental Policy Act Certification
The Administrator, RUS, has determined that this final rule will
not significantly affect the quality of the human environment as
defined by the National Environmental Policy Act of 1969 (42 U.S.C.
4321 et seq.). Therefore, this action does not require an environmental
impact statement or assessment.
Catalog of Federal Domestic Assistance
The program described by this final rule is listed in the Catalog
of Federal Domestic Assistance Program under numbers 10.851--Rural
Telephone Loans and Loan Guarantees and 10.852--Rural Telephone Bank
loans. This catalog is available on a subscription basis from the
Superintendent of Documents, the United States Government Printing
Office, Washington, DC 20402.
Executive Order 12372
This final rule is excluded from the scope of Executive Order
12372, Intergovernmental Consultation. A Notice of Final Rule entitled
Department Programs and Activities Excluded from Executive Order 12372
(50 FR 47034) exempts RUS and RTB loans and loan guarantees, and RTB
loans, to governmental and nongovernmental entities from coverage under
this order.
Executive Order 12778
This final rule has been reviewed under Executive Order 12778,
Civil Justice Reform. This final rule: (1) Will not preempt any state
or local laws, regulations, or policies, unless they present an
irreconcilable conflict with
[[Page 39845]]
this rule; (2) Will not have any retroactive effect; and (3) Will not
require administrative proceeding before parties may file suit
challenging the provisions of this proposed rule.
National Performance Review
This regulatory action is being taken as part of the National
Performance Review program to eliminate unnecessary regulations and
improve those that remain in force.
Background
In order to facilitate the effective and economical operation of a
business, adequate and reliable financial records must be maintained.
Accounting records must provide a clear, accurate picture of current
economic conditions from which management can make informed decisions
in charting the company's future. The rate regulated environment in
which a telecommunications carrier operates causes an even greater need
for financial information that is accurate, complete, and comparable
with that generated by other carriers. For this reason, the FCC
prescribes a Uniform System of Accounts (USoA) for the
telecommunications industry.
RUS, as a Federal lender and mortgagee, and in furthering the
objectives of the Rural Electrification Act (RE Act) (7 U.S.C. 901 et
seq.) has a legitimate programmatic interest and a substantial
financial interest in requiring adequate records to be maintained. In
order to provide RUS with financial information that can be analyzed
and compared with the operations of other borrowers in the RUS program,
all RUS borrowers must maintain financial records that utilize uniform
accounts and uniform accounting policies and procedures. The standard
RUS security instrument, therefore, requires borrowers to maintain
their books, records, and accounts in accordance with methods and
principles of accounting prescribed by RUS in the RUS USoA for its
telecommunications borrowers.
To ensure that borrowers consistently account for and apply the
provisions of recent pronouncements of the FASB and the FCC, the RUS
USoA must be revised and updated as changes in generally accepted
accounting principles and the FCC USoA occur. RUS is, therefore,
establishing a new accounting interpretation that addresses the
accounting requirements set forth in Statement of Financial Accounting
Standards No. 106, Employers' Accounting for Postretirement Benefits
Other Than Pensions (Statement No. 106). Statement No. 106 requires
reporting entities to accrue the expected cost of postretirement
benefits during the years the employee provides service to the entity.
Copies of Statements of Financial Accounting Standards may be obtained
from the Order Department of the Financial Accounting Standards Board,
401 Merritt 7, P.O. Box 5116, Norwalk, Connecticut 06856-5116.
RUS is also establishing an accounting interpretation for RTB bank
stock that sets forth the journal entries necessary to record the
required purchase of Class B RTB stock, patronage refunds in the form
of additional shares of Class B RTB stock, purchases of Class C stock,
and dividends received on Class C stock. The interpretation also
addresses the proper accounting for the conversion of Class B stock to
Class C stock after all RTB loans have been repaid.
RUS is also setting forth an accounting interpretation that
establishes the accounting policies and procedures for the Rural
Economic Development loan and grant programs recently established by
the Rural Business and Cooperative Development Service and for
investments in satellite and cable television services.
Comments
A proposed rule entitled Accounting Requirements for REA
Telecommunications Borrowers, published September 14, 1994, at 59 FR
47097, invited interested parties to submit comments on or before
November 14, 1994. Comments were received from telecommunications
borrowers, certified public accountants (CPAs), state wide
associations, and national trade associations. The following paragraphs
address the various topics that were discussed by the commenters.
Interpretation No. 101, Postretirement Benefits
Comment. Some commenters questioned the need for actuarial studies
if the only benefit provided is an item such as local phone service.
Response. As with all statements issued by FASB, the provisions of
Statement No. 106 need not be applied to immaterial amounts. If the
borrower and the independent CPA engaged to perform the annual audit of
the borrower's financial statements are satisfied as to the
immateriality of a benefit provided, Statement No. 106 need not be
adopted and accordingly, an actuarial study is not required. It should
be noted, however, that an initial actuarial study may be necessary in
order to determine the materiality of the benefit provided. For this
reason, no revision was made to the final rule.
Comment. Several commenters presented arguments for retaining the
option to immediately recognize the transition obligation created by
the implementation of Statement No. 106.
Response. On December 26, 1991, the FCC issued 6 FCC Rcd 7560,
which requires telecommunications carriers to recognize the transition
obligation on a delayed basis thereby eliminating the option of
immediate recognition. In order to ensure the consistent and uniform
application of generally accepted accounting principles among all
telecommunications borrowers, RUS requires its borrowers to comply with
the FCC USoA. Therefore, all RUS borrowers are required to adopt the
delayed recognition required by the FCC. If a state regulatory body
requires immediate recognition of the postretirement benefit transition
obligation, the transition obligation should be recognized on a delayed
basis with the jurisdictional difference accounts used to effect
compliance with the state requirements.
Interpretation No. 102, Rural Telephone Bank Stock
Comment. Several commenters suggested that the purchase of Class B
RTB stock should be accounted for as an increase in interest expense or
as an amortizable loan cost rather than as the acquisition of an asset.
Response. While the investment in Class B RTB stock is a
requirement for a borrower to secure financing from the RTB, the owner
of Class B RTB stock is entitled to patronage refunds in the form of
additional shares of Class B stock. When a borrower has repaid all of
its RTB loans, the borrower may request that the Class B stock be
converted into Class C stock. Class C stock earns cash dividends and
may be redeemed at some future time in accordance with the bylaws of
the RTB. The aforementioned characteristics are indicative of an
investment, not an item of expense, and as such, no revision was made
to the final rule.
Comment. One commenter stated that income should be recognized at
the time the patronage refund is allocated to the owners of Class B RTB
stock in order to insure that members of a telecommunications
cooperative receive their fair share of the patronage refund.
Response. In 1975, this issue was considered by the Staff
Subcommittee on Accounts of the National Association of Regulatory
Utility Commissioners. Because Class B RTB stock has no known market
value, pays no return or interest, and cannot be alienated except in
connection with the transfer of the outstanding RTB loan, the committee
[[Page 39846]]
recommended that the patronage refunds be recorded as a memorandum
entry on the books of account until such time as the value of the stock
is realized, in cash, through its redemption.
Comment. Several commenters raised issues regarding RTB
privatization.
Response. When privatization of the RTB actually begins, any
necessary revisions to this regulation will be proposed and exposed for
comment at that time.
Comment. One commenter questioned the determinability of the fair
value of Class C stock based on Accounting Principle Board Opinion No.
29, Accounting for Nonmonetary Transactions (Opinion No. 29).
Response. The conversion of Class B RTB stock to Class C RTB stock
meets the definition of a nonmonetary exchange as set forth in Opinion
No. 29. In Opinion No. 29, the Accounting Principles Board concluded
that the accounting for nonmonetary transactions should be based upon
the fair value of the assets involved. Paragraphs 25 & 26 of the
opinion, however, raise questions concerning the determination of fair
value within reasonable limits. While the face value of Class C stock
is considered to be its surrender value, the indefinite nature of its
realizability requires the consideration of the time value of money.
Calculating the present value of the Class C stock is not feasible
because it is not known when the Class C stock will become redeemable.
Therefore, the fair value of this transaction cannot be determined
within reasonable limits and as such, must be accounted for at the
recorded value of the Class B RTB stock. The final rule has been
revised accordingly.
Comment. Several commenters expressed concern regarding the tax
issues that would be raised if income is recognized at the time Class B
stock is converted into Class C stock.
Response. While income tax issues are of great concern to RUS
borrowers and we are sympathetic to these concerns, accounting
interpretations issued by RUS must be based upon the appropriate,
consistent application of generally accepted accounting principles
(GAAP). As such, RUS cannot prescribe accounting requirements that do
not comply with GAAP in an effort to circumvent either Federal or state
income tax laws. It should be noted, however, that by recording the
conversion of Class B stock at its recorded value, no income is
recognized until the Class C stock is actually redeemed.
Interpretation No. 103, Cushion of Credit Investments
Comment. One commenter suggested that interest earned on the RUS
Cushion of Credit account should be recorded as a credit to interest
expense rather than interest income under the ``right of offset'' as
discussed in FASB Technical Bulletin No. 88-2, Definition of a Right of
Setoff (FTB No. 88-2).
Response. FTB No. 88-2 was superseded, in its entirety, by FASB
Interpretation No. 39, Offsetting of Amounts Related to Certain
Contracts (Interpretation No. 39). Interpretation No. 39 states that
the offsetting of assets and liabilities in the balance sheet is
improper except where a right of offset exists. A right of offset
exists only when each of two parties owes the other determinable
amounts. In accordance with paragraph 5, footnote 2, of Interpretation
No. 39, cash on deposit at a financial institution must be considered
cash by the depositor rather than an amount owed to the depositor.
Therefore, deposits in the RUS Cushion of Credit account do not meet
the criteria required for offsetting against the principle owed on an
outstanding RUS loan. As such, no offset of interest income and expense
is appropriate under Interpretation No. 39 and no revision was made to
the final rule.
Interpretation No. 104, Rural Economic Development Loan and Grant
Program
Comment. Two commenters objected to recording the funds received
from a Rural Economic Development grant as income.
Response. The establishment of a revolving loan program with
Federal grant funds creates special concerns from an accounting
perspective. The customary Federal grant is made for a specific project
or purpose. The income to the grantee is offset by the costs incurred
in the project, thereby eliminating any net income effect. When a
revolving loan program is established, however, the grantee incurs no
immediate expense with which to offset the grant proceeds. The grant
proceeds are loaned to a third party thereby creating an asset
(receivable) from that third party. As the loan is repaid, the asset is
reduced and additional funds are available for relending. While there
may be the incidental costs of administering the loan program, no
additional costs are incurred until a loan actually goes into default.
In fact, under the Rural Business and Cooperative Development Service's
grant program, after the initial grant funds have been loaned and
repaid, the borrower may charge a reasonable rate of interest on its
revolving loans. The grant program may, therefore, actually become
income producing.
Additionally, because 7 CFR Part 1703, Subpart B, Rural Economic
Development Loan and Grant Program, is somewhat ambiguous as to the
final disposition of the grant funds upon termination of the revolving
loan program, further accounting concerns are raised.
The accounting for a rural economic development grant is therefore,
dependent upon the grant agreement itself. If the grant agreement
requires repayment of the funds upon termination of the revolving loan
program, the funds must be recorded as a liability. If the grant
agreement stipulates that there is no obligation for repayment, the
funds should be recorded as a permanent infusion of capital. If,
however, the agreement is silent as to the final disposition of the
grant funds, the funds must be recorded as income. The final rule has
been revised accordingly.
Interpretation No. 105, Satellite and Cable Television Services
Comment. One commenter suggested that this interpretation should
apply to any type of service offered through a subsidiary, joint
venture, or as a segment of an entity's operations.
Response. While the underlying accounting principles used to
establish this accounting interpretation are applicable to any type of
service offered through a subsidiary, joint venture, or a segment of an
entity's operations, the purpose of this interpretation was to
specifically address borrowers' investments in satellite and cable
television services. For this reason, no revision was made to the final
rule.
List of Subjects in 7 CFR Part 1770
Accounting, Loan programs--communications, Reporting and
recordkeeping requirements, Rural areas, Telecommunications, Uniform
System of Accounts.
For the reasons set forth in the preamble, RUS hereby amends 7 CFR
chapter XVII as follows:
PART 1770--ACCOUNTING REQUIREMENTS FOR RUS TELECOMMUNICATIONS
BORROWERS
1. The authority citation for part 1770 continues to read as
follows:
Authority: 7 U.S.C. 901 et seq.; 7 U.S.C.1921 et seq.; Pub. L.
103-354, 108 Stat. 3178 (7 U.S.C. 6941 et seq.).
2. Subpart C is added to read as follows:
[[Page 39847]]
Subpart C--Accounting Interpretations
Sec.
1770.26 General.
1770.27 Definitions.
1770.28-1770.45 [Reserved]
Appendix to Subpart C--Accounting Methods and Procedures Required of
All Borrowers
Subpart C--Accounting Interpretations
Sec. 1770.26 General.
(a) The standard provisions of the security instruments utilized by
the Rural Utilities Service (RUS) and the Rural Telephone Bank (RTB)
for all telecommunications borrowers require borrowers to at all times
keep and safely preserve, proper books, records, and accounts in which
full and true entries will be made of all of the dealings, business,
and affairs of the borrower in accordance with the methods and
principles of accounting prescribed by the state regulatory body having
jurisdiction over the borrower and by the Federal Communications
Commission (FCC) in its Uniform System of Accounts for
telecommunications companies (47 CFR part 32), as those methods and
principles of accounting are supplemented from time to time by RUS.
(b) This subpart implements those standard provisions of the RUS
and RTB security instruments by prescribing accounting principles,
methodologies, and procedures applicable to all telecommunications
borrowers for particular situations.
Sec. 1770.27 Definitions.
As used in this part:
Borrower is an RUS telecommunications borrower.
Cushion of Credit Account is a 5 percent interest bearing account
established by RUS in which all voluntary payments or overpayments on
Rural Electric and Telephone Revolving Funds after October 1, 1987, are
deposited.
FCC is the Federal Communications Commission.
Part 32 is 47 CFR Part 32, Uniform System of Accounts, issued by
the Federal Communications Commission.
RAO is the Responsible Accounting Officer of the Federal
Communications Commission.
RE Act is the Rural Electrification Act of 1936, as amended (7
U.S.C. 901 et seq.).
RETRF is the Rural Electric and Telephone Revolving Fund.
RTB is the Rural Telephone Bank.
RUS is the Rural Utilities Service, an agency of the United States
Department of Agriculture, or its predecessor or successor.
Sec. 1770.28--1770.45 [Reserved]
Appendix to Subpart C--Accounting Methods and Procedures Required of
All Borrowers
All borrowers shall maintain and keep their books of accounts
and all other books and records which support the entries in such
books of accounts in accordance with the accounting principles
prescribed in this appendix.
Numerical Index
Number and Title
101 Postretirement Benefits
102 Rural Telephone Bank Stock
103 Cushion of Credit Investments
104 Rural Economic Development Loan and Grant Program
105 Satellite and Cable Television Services
106 Consolidated Financial Statements
Subject Matter Index Number
C
Cable Television Services.................................. 105
Consolidated Financial Statements.......................... 106
Cushion of Credit Investments.............................. 103
E
Economic Development Loan and Grant Program................ 104
F
Financial Statements--Consolidated......................... 106
I
Investments--Cushion of Credit............................. 103
P
Postretirement Benefits.................................... 101
R
Rural Economic Development Loan and Grant Program.......... 104
Rural Telephone Bank Stock................................. 102
S
Satellite Television Services.............................. 105
Stock--Rural Telephone Bank................................ 102
101 Postretirement Benefits
A. Statement of Financial Accounting Standards No. 106,
Employers' Accounting for Postretirement Benefits Other than
Pensions (Statement No. 106), requires reporting entities to accrue
the expected cost of postretirement benefits during the years the
employee provides service to the entity. For purposes of applying
the provisions of Statement No. 106, members of the board of
directors are considered to be employees of the cooperative. Prior
to the issuance of Statement No. 106, most reporting entities
accounted for postretirement benefit costs on a ``pay-as-you-go''
basis; that is, costs were recognized when paid, not when the
employee provided service to the entity in exchange for the
benefits. (Statement 106 is available from the Financial Accounting
Standards Board, 401 Merritt 7, P.O. Box 5116, Norwalk, CT. 06856-
5116.)
B. As defined in Statement No. 106, a postretirement benefit
plan is a deferred compensation arrangement in which an employer
promises to exchange future benefits for an employee's current
services. Postretirement benefit plans may be funded or unfunded.
Postretirement benefits include, but are not limited to, health
care, life insurance, tuition assistance, day care, legal services,
and housing subsidies provided outside of a pension plan.
C. Statement No. 106 applies to both written plans and to plans
whose existence is implied from a practice of paying postretirement
benefits. An employer's practice of providing postretirement
benefits to selected employees under individual contracts with
specific terms determined on a employee-by-employee basis does not,
however, constitute a postretirement benefit plan under the
provisions of this statement.
D. Postretirement benefit plans generally fall into three
categories: single-employer defined benefit plans, multiemployer
plans, and multiple-employer plans.
E. A single-employer plan is a postretirement benefit plan that
is maintained by one employer. The term may also be applied to a
plan that is maintained by related parties such as a parent and its
subsidiaries. A multiemployer plan is a postretirement benefit plan
in which two or more unrelated employers contribute, usually
pursuant to one or more collective-bargaining agreements. One
characteristic of a multiemployer plan is that the assets
contributed by one participating employer may be used to provide
benefits to employees of other participating employers since assets
contributed by an employer are not segregated in a separate account
or restricted to provide benefits only to employees of that
employer.
F. A multiple-employer plan is a postretirement benefit plan
that is maintained by more than one employer but is not a
multiemployer plan. A multiple-employer plan is generally not
collectively bargained and is intended to allow participating
employers to pool their plan assets for investment purposes and
reduce the cost of plan administration. A multiple-employer plan
maintains separate accounts for each employer so that contributions
provide benefits only for employees of the contributing employer.
G. The accounting requirements set forth in this interpretation
focus on single- and multiple-employer plans. The accounting
requirements set forth in Statement No. 106 for multiemployer plans
or defined contribution plans shall be adopted for borrowers
electing those types of plans.
H. Under the provisions of Statement No. 106, there are two
components of the postretirement benefit cost: the current period
cost and the transition obligation. The transition obligation is a
one-time accrual of the costs resulting from services already
provided. Statement No. 106 allows the transition obligation to be
deferred and amortized on a straight-line basis over the average
remaining service period of the active employees. If the average
remaining service period of the active employees is less than 20
years, a 20-year amortization period may be used.
I. Accounting Requirements
A. All borrowers shall adopt the accrual accounting provisions
and reporting
[[Page 39848]]
requirements as set forth in Statement No. 106. The transition
obligation and accrual of the current period cost must be based upon
an actuarial study. This study must be updated to allow the borrower
to comply with the measurement date requirements of Statement No.
106; however, the study must, at a minimum, be updated every five
years. Borrowers may not account for postretirement benefits on a
``pay-as-you-go'' basis.
B. Under the provisions of Statement No. 106, an entity may
recognize the transition obligation, in its entirety, when Statement
No. 106 is first adopted or the entity may elect to delay the
recognition of the transition obligation. On December 26, 1991,
however, the FCC issued 6 FCC Rcd 7560, which requires
telecommunications carriers to recognize the transition obligation
on a delayed basis. RUS reviewed this issuance and has determined
that borrowers must comply with this ruling and recognize the
transition obligation on a delayed basis.
C. The deferral and amortization of the transition obligation on
a delayed basis is considered to be an off balance sheet item. As a
result, an accounting entry is not required at the time of adoption
of Statement No. 106. Instead, the transition obligation is
recognized as a component of postretirement benefit cost as it is
amortized. The amount of the unamortized transition obligation must
be disclosed in the notes to the financial statements.
D. In accordance with the provisions of Responsible Accounting
Officer (RAO) Letter 20, released by the FCC on April 24, 1992,
Account 4310, Other Long-Term Liabilities, shall be used to record
the liability accrued for postretirement benefits. (RAO Letter 20 is
available from the Federal Communications Commission, 1919 M Street,
NW., Washington, DC 20554.) Borrowers shall credit this account for
the net periodic cost of postretirement benefits for the current
year and shall debit this account for any fund payments made during
the current year.
E. Net periodic postretirement benefit cost includes current
period service cost, interest cost, return on plan assets,
amortization of prior service cost, gains and losses, and
amortization of the transition obligation. If fund payments create a
debit balance in the postretirement benefits portion of Account
4310, the debit balance applicable to postretirement benefits shall
be reported in Account 1410, Other Noncurrent Assets. Account 1410
shall also be used to record any prepaid postretirement benefit
cost.
F. The benefits portion of the expense matrix for the
appropriate Part 32 expense accounts shall be used to record the
current period service cost component of the current year's net
periodic postretirement benefit cost. The interest cost component,
return on plan assets, amortization of prior service cost, gains and
losses, and amortization of the transition obligation shall be
charged to the benefits portion of the expense matrix of Account
6728, Other General and Administrative.
II. Effective Date and Implementation
A. For plans outside the United States and for defined benefit
plans of employers that (a) are nonpublic enterprises and (b)
sponsor defined benefit postretirement plans with no more than 500
plan participants in the aggregate, Statement No. 106 is effective
for fiscal years beginning after December 15, 1994. For all other
plans, Statement No. 106 is effective for fiscal years beginning
after December 15, 1992.
102 Rural Telephone Bank Stock
A. Capital stock issued by the Rural Telephone Bank consists of
Class A, Class B, and Class C stock. Class A stock is issued only to
the Administrator of RUS on behalf of the United States in exchange
for capital furnished to RTB.
B. Class B stock is issued only to recipients of loans under
Section 408 of the Rural Electrification Act (RE Act). Borrowers
receiving loan funds pursuant to Section 408(a) (1) or (2) of the RE
Act are required to invest 5 percent of the amount of loan funds
approved in Class B stock. No dividends are payable on Class B
stock. All holders of Class B stock are entitled to patronage
refunds in the form of Class B stock under the terms and conditions
specified in the bylaws of the RTB.
C. Class C stock is available for purchase by borrowers,
corporations, and public bodies eligible to borrow under Section 408
of the RE Act, or by organizations controlled by such borrowers,
corporations and public bodies. The payment of dividends is in
accordance with the bylaws of the RTB.
Accounting Requirements
A. The purchase of RTB stock required by the RE Act shall be
debited to Account 1402.1, Investments in Nonaffiliated Companies--
Class B RTB Stock. Patronage refunds in the form of additional
shares of RTB Class B Stock shall be debited to Account 1402.1 and
credited to Account 1402.11, Investments in Nonaffiliated
Companies--Class B RTB Stock--Cr.
B. Purchases of Class C RTB stock shall be debited to Account
1402.2, Investments in Nonaffiliated Companies--Class C RTB Stock.
Cash dividends received on Class C RTB stock shall be credited to
Account 7310, Dividend Income.
C. Once a borrower has repaid all of its RTB loans, it may
request that its Class B stock be converted to Class C stock. When
the conversion is made, Account 1402.2 shall be debited and Account
1402.1 shall be credited for the face value of the stock converted.
Account 1402.21, Investments in Nonaffiliated Companies--Class C RTB
Stock--Cr., shall be credited and Account 1402.11 shall be debited
for the face value of the Class B stock that has been received as
patronage refunds.
103 Cushion of Credit Investments
A. The RUS Cushion of Credit account is an investment account
bearing an interest rate of 5 percent. All voluntary payments or
overpayments on Rural Electric and Telephone Revolving Fund (RETRF)
loans made after October 1, 1987, are deposited into this account in
the appropriate borrower's name.
Accounting Requirements
A. The following journal entries shall be used by RUS borrowers
to record the transactions associated with cushion of credit
payment:
1. Dr. 4210.18, RUS Notes--Advance Payments, Dr. Cr. 1130.1/1120.11,
Cash--General Fund. To record the cushion of credit payment.
2. Dr. 4210.18, RUS Notes--Advance Payments, Dr. Cr. 7320/7300.2,
Interest Income. To record interest earned on cushion of credit
deposits.
3. Dr. 4210.12, RUS Notes, Cr. 4210.18, RUS Notes--Advance Payments,
Dr. To apply cushion of credit payments (and interest) to the RUS
note.
104 Rural Economic Development Loan and Grant Program
A. On December 21, 1987, Section 313, Cushion of Credit Payments
Program (7 U.S.C. 901 et seq.), was added to the RE Act. Section 313
establishes a Rural Economic Development Subaccount and authorizes
the Administrator of the RUS to provide zero interest loans or
grants to RE Act borrowers for the purpose of promoting rural
economic development and job creation projects. Effective December
5, 1994, this authority was assigned to the Administrator, Rural
Business and Cooperative Development Service.
B. 7 CFR part 1703, Subpart B, Rural Economic Development Loan
and Grant Program, sets forth the policies and procedures relating
to the zero interest loan program and for approving and
administering grants.
Accounting Requirements
A. The accounting journal entries required to record the
transactions associated with a Rural Economic Development grant are
as follows:
1. Dr. 1130.4/1120.14, Cash--General Fund--Economic Development
Grant Funds. Cr. 4210.25, RUS Notes--Economic Development Grant; Cr.
4540.41, Other Capital--Miscellaneous; or Cr. 7360/7300.6, Other
Nonoperating Income. To record grant funds disbursed by RUS. If the
grant agreement requires repayment of the funds upon termination of
the revolving loan program, Account 4210.25 shall be credited. If
the grant agreement states that there is absolutely no obligation
for repayment upon termination of the revolving loan program, the
funds shall be accounted for as a permanent infusion of capital by
crediting Account 4540.41. If, however, the grant agreement is
silent as to the final disposition of the grant funds, Account 7360/
7300.6 shall be credited.
2. Dr. 1401.1, Other Investments in Affiliated Companies--Federal
Economic Development Grant Loans or Dr. 1402.4, Other Investments in
Nonaffiliated Companies--Federal Economic Development Grant Loans
Cr. 1130.4/1120.14, Cash--General Fund--Economic Development Grant
Funds. To record a Federal revolving loan to an economic development
project.
[[Page 39849]]
3. Dr. 1130.1/1120.11, Cash--General Fund. Cr. 7360/7300.6, Other
Nonoperating Income. To record payment of loan servicing fees
charged to the economic development project.
4. Dr. 1130.5/1120.15, Cash--General Fund--Economic Development Non-
Federal Revolving Funds. Cr. 1401.1, Other Investments in Affiliated
Companies --Federal Economic Development Grant Loans or Cr. 1402.4,
Other Investments in Nonaffiliated Companies--Federal Economic
Development Grant Loans. To record the repayment, by the project, of
the Federal revolving loan.
5. Dr. 1401.2, Other Investments in Affiliated Companies--Non-
Federal Economic Development Grant Loans or Dr. 1402.5, Other
Investments in Nonaffiliated Companies--Non-Federal Economic
Development Grant Loans. Cr. 1130.5/1120.15, Cash--General Fund--
Economic Development Non-Federal Revolving Funds. To record a Non-
Federal revolving loan to an economic development project.
6. Dr. 1210, Interest and Dividends Receivable Cr. 7320/7300.2,
Interest Income. To record the interest earned on a Non-Federal
revolving loan to an economic development project.
7. Dr. 1130.5/1120.15, Cash--General Fund--Economic Development Non-
Federal Revolving Funds. CR. 1401.2, Other Investments in Affiliated
Companies--Non-Federal Economic Development Grant Loans or Cr.
1402.5, Other Investments in Nonaffiliated Companies--Non-Federal
Economic Development Grant Loans. To record the repayment, by the
project, of the Non-Federal revolving loan.
B. The accounting journal entries required to record the
transactions associated with a Rural Economic Development loan are
as follows:
1. Dr. 4210.26, Economic Development Notes--Unadvanced, Fr. Cr.
4210.25, Economic Development Notes. To record the contractual
obligation to RUS for the Economic Development Notes.
2. Dr. 1130.6/1120.16, Cash--General Fund--Economic Development Loan
Funds Cr. 4210.26, Economic Development Notes--Unadvanced, Dr. To
record the receipt of the economic development loan funds.
3. Dr. 1401.3, Other Investments in Affiliated Companies--Federal
Econmic Development Loans or Dr. 1402.6, Other Investments in
Nonaffilitated Companies--Federal Economic Development Loans. Cr.
1130.6/1120.16, Cash--General Fund--Ecoomice Development Loan Funds.
To record the discursement of economci development loand funds to
the project.
4. Dr. 1130.1/1120.11, Cash--General Fund. Cr. 7360/7300.6, Other
Nonoperating Income. To record payment of loan servicing fees
charged to the economic development project.
5. Dr. 1210, Interest and Dividends Receivable Cr. 7320/7300.2,
Interest Income. To record the interest earned on the investment of
rural economic development loan funds.
6. Dr. 7370, Special Charges. Cr. 1130.1, Cash--General Funds. To
record the payment of interest earned in excess of $500 on the
investment of rural economic development loan funds. Note: Interest
earned in excess of $500 must be used for the rural economic
development project for which the loan funds were received or
returned to RUS.
7. Dr. 1130.6/1120.16, Cash--General Fund--Economic Development Loan
Funds. Cr. 1401.3, Other Investments in Affiliated Companies--
Federal Economic Development Loans or Cr. 1402.6, Other Investments
in Nonaffiliated Companies--Federal Economic Development Loans. To
record repayment, by the project, of the economic development loan.
8. Dr. 4210.25, Economic Development Notes. Cr. 1130.6/1120.16,
Cash--General Fund--Economic Development Loan Funds. To record the
repayment, to RUS, of the economic development loan funds.
105 Satellite and Cable Television Services
A. Many RUS borrowers have become involved in providing either
satellite or cable television services to their members and others
through subsidiaries, joint ventures, or as segments of their
current operations.
Accounting Requirements
A. This section outlines the accounting to be followed when
recording transactions involving satellite or cable television
services.
1. Separate Subsidiary. If a borrower provides satellite or
cable television services through a separate subsidiary, the
investment in the subsidiary shall be debited to Account 1401,
Investments in Affiliated Companies. The net income or loss of the
subsidiary shall be debited or credited to Account 1401, as
appropriate, with an offsetting entry to Account 7360, Other
Nonoperating Income.
2. Joint Venture. i. If a borrower provides satellite or cable
television services through a joint venture, the borrower's
ownership interest dictates the accounting methodology. If the
borrower has less than a 20 percent ownership interest in the joint
venture, the investment is accounted for under the cost method of
accounting in Account 1402, Investments in Nonaffiliated Companies.
Under the cost method, the joint venture's net income or loss is not
recorded in the borrower's records. Income is recognized only to the
extent of any dividends declared by the joint venture. When a
dividend is declared, the borrower shall debit Account 1210,
Interest and Dividends Receivable, and credit Account 7310, Dividend
Income. When the dividend is received in cash, the borrower shall
debit Account 1130.1, Cash--General Fund, and credit Account 1210.
ii. If a borrower has a 20-percent or more ownership interest in
the joint venture, the investment is accounted for under the equity
method in Account 1401, Investments in Affiliated Companies. The
borrower's proportionate share of the joint venture's net income or
loss shall be debited or credited to Account 1401, as appropriate,
with an offsetting entry to Account 7360, Other Nonoperating Income.
3. Segment of Current Operations. i. If a borrower provides
satellite or cable television service as a segment of its current
operations and there are no shared assets between this activity and
the regulated telecommunications activities of the borrower, the
investment shall be debited to Account 1406.1, Nonregulated
Investments--Permanent Investment. The net income or loss from
providing such service shall be debited or credited, as appropriate,
to Account 1406.3, Nonregulated Investments--Current Net Income,
with an offsetting entry to Account 7990, Nonregulated Net Income.
ii. If a borrower provides satellite or cable television service
as a segment of current operations and shares assets between this
activity and the regulated telecommunications activities of the
borrower, the franchise and application fees shall be debited to a
subaccount of Account 2690, Intangibles. The cost of the satellite
or cable television equipment shall be debited to a subaccount of
Account 2231, Radio Systems. Revenues earned from providing
satellite or cable service shall be credited to Account 5280,
Nonregulated Operating Revenue, while the associated expenses shall
be recorded in a subaccount of the applicable regulated expense
accounts.
4. Sale and Installation of Satellite or Cable Television
Equipment. i. If a borrower sells or installs satellite or cable
television equipment as a segment of its current operations and
there are no shared assets between this activity and the regulated
telecommunications activities of the borrower, the purchase of the
equipment shall be debited to Account 1406.1, Nonregulated
Investments--Permanent Investment. The net income or loss from
providing such services shall be debited or credited, as
appropriate, to Account 1406.3, Nonregulated Investments--Current
Net Income, with an offsetting entry to Account 7990, Nonregulated
Net Income.
ii. If a borrower sells or installs satellite or cable
television equipment as a segment of its current operations and
shares assets between this activity and the regulated
telecommunications activities of the borrower, the purchase of the
equipment shall be debited to Account 1220.2, Property Held for Sale
or Lease. Revenues received for the sale or installation of the
equipment shall be credited to Account 5280, Nonregulated Operating
Revenue, while the associated expenses shall be debited to a
subaccount of the applicable regulated expense accounts.
106 Consolidated Financial Statements
A. In October 1987, FASB issued Statement of Financial
Accounting Standards No. 94, Consolidation of All Majority-Owned
Subsidiaries (Statement No. 94). (Statement 94 is available from the
Financial Accounting Standards Board, 401 Merritt 7, P.O. Box 5116,
Norwalk, CT 06856-5116.) For purposes of reporting to RUS, Statement
No. 94 shall be applied as follows:
[[Page 39850]]
1. A borrower that is a subsidiary of another entity shall
prepare and submit to RUS separate financial statements even though
this financial information is presented in the parent's consolidated
statements.
2. In those cases in which a borrower has a majority-ownership
in a subsidiary, the borrower shall prepare consolidated financial
statements in accordance with the requirements of Statement No. 94.
These consolidated statements must also include supplementary
schedules presenting a Balance Sheet and Income Statement for each
majority-owned subsidiary included in the consolidated statements.
B. Although Statement No. 94 requires the consolidation of
majority-owned subsidiaries, the RUS Form 479, Financial and
Statistical Report for Telecommunications Borrowers, shall be
prepared on an unconsolidated basis by all borrowers.
Dated: July 17, 1996.
Jill Long Thompson,
Under Secretary, Rural Development.
[FR Doc. 96-18806 Filed 7-30-96; 8:45 am]
BILLING CODE 3410-15-P
Complete official Federal Register PDF
FR Doc. 96-16015 Debarment and Suspension (Procurement) and Governmentwide Debarment and Suspension (Nonprocurement) and Governmentwide Requirements for Drug-Free Workplace (Grants) and Department of Energy Acquisition Regulation
[Federal Register Volume 61, Number 148 (Wednesday, July 31, 1996)]
[Rules and Regulations]
[Pages 39854-39859]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-16015]
=======================================================================
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DEPARTMENT OF ENERGY
10 CFR Parts 1035 and 1036 and 48 CFR Part 909
RIN 1991-AB24
Debarment and Suspension (Procurement) and Governmentwide
Debarment and Suspension (Nonprocurement) and Governmentwide
Requirements for Drug-Free Workplace (Grants) and Department of Energy
Acquisition Regulation
AGENCY: Department of Energy (DOE).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Department of Energy (DOE) today is publishing a final
rule which amends its regulations governing debarment and suspension in
procurement and nonprocurement activities. The rule establishes a
common fact-finding process in procurement and nonprocurement cases
involving a genuine dispute over material facts. The rule removes the
Department's procurement debarment and suspension regulations from part
10 of the Code of Federal Regulations (CFR) and recodifies them in the
Department of Energy Acquisition Regulation (DEAR), chapter 9 of title
48 of the Code of Federal Regulations.
EFFECTIVE DATE: This rule is effective August 30, 1996.
FOR FURTHER INFORMATION CONTACT: Mrs. Cynthia Yee, Office of Clearance
and Support, Procurement and Assistance Management, HR-52, U. S.
Department of Energy, 1000 Independence Avenue, SW, Washington, DC
20585, 202-586-1140.
SUPPLEMENTARY INFORMATION:
I. Background.
II. Public Comments.
III. Procedural Requirements.
A. Regulatory Review.
B. Review under the Regulatory Flexibility Act.
C. Review Under the Paperwork Reduction Act.
D. Review Under the National Environmental Policy Act.
E. Review Under Executive Order 12612.
F. Review Under Executive Order 12988.
G. Review Under the Unfunded Mandates Reform Act.
I. Background
The Department of Energy (DOE) today is publishing a final rule
which removes 10 CFR Part 1035, Debarment and Suspension (Procurement),
and recodifies the regulation at 48 CFR Part 909. In recodifying the
procurement debarment and suspension regulations, DOE makes various
changes to clarify the provisions of procurement debarment and
suspension and to ensure consistency between the Federal Acquisition
Regulation (FAR) and the DEAR. See explanation of the changes in the
preamble to the Notice of Proposed Rulemaking published for this rule
on February 2, 1996 (61 FR 3877). Under the recodified regulations, the
Energy Board of Contract Appeals will conduct fact-finding in
suspensions or proposed debarments in which the debarring/suspending
official determines that material facts are in dispute.
This rule also amends 10 CFR Part 1036, Governmentwide Debarment
and Suspension (Nonprocurement) and Governmentwide Requirements for
Drug-Free Workplace (Grants), which governs debarment and suspension
with regard to DOE nonprocurement and grants programs. The changes made
to 10 CFR Part 1036 are primarily technical or procedural in nature.
They are explained in the preamble of the Notice of Proposed Rulemaking
(61 FR 3877-3878), with the exception of changes to subparagraph (c)(1)
of section 1036.110 and subparagraph (a) of section 1036.215, which
were not in the proposed rule. These subparagraphs are being added
because previous changes to the common rule resulted in them being
inadvertently omitted. This final rule reinstates the subparagraphs and
corrects references in those reinstated subparagraphs. Section 1036.700
provides for fact-finding by the Energy Board of Contract Appeals in
suspensions or proposed debarments in which the debarring/suspending
official determines that material facts are in dispute.
The Department of Energy Consolidated List of Debarred, Suspended,
Ineligible and Voluntarily Excluded Awardees (DOE List) has been
eliminated as unnecessary because the General Services Administration
maintains, pursuant to Executive order 12549, a governmentwide list of
parties excluded from federal procurement and nonprocurement programs.
Due to the extensive revisions to DEAR, the complete text of DEAR
909.4 is published. However, only those portions of Part 1036 that are
affected by the changes are published, rather than
[[Page 39855]]
publishing the complete text of the common rule.
II. Public Comments
On February 2, 1996, DOE published a Notice of Proposed Rulemaking
and invited public comment for a period of 60 days on these amendments
to the Department's debarment and suspension regulations (61 FR 3877).
No comments were received on the proposed rule. Except for the
technical correction of sections 1036.110 and 1036.215, this final rule
makes no changes to the rule as proposed.
III. Procedural Requirements
A. Regulatory Review
Today's final rule has been determined not to be a ``significant
regulatory action'' under Executive Order 12866, ``Regulatory Planning
and Review,'' (58 FR 51735, October 4, 1993). Nevertheless, a copy of
the rule was submitted informally to the Office of Information and
Regulatory Affairs because it relates to the subject matter of a
Governmentwide common rule.
B. Review Under the Regulatory Flexibility Act
This final rule was reviewed under the Regulatory Flexibility Act
of 1980, Public Law 96-354, which requires preparation of a regulatory
flexibility analysis for any rule which is likely to have significant
economic impact on a substantial number of small entities. Today's rule
revises procedural requirements pertaining to suspension and debarment
of DOE contractors. It contains no recordkeeping or substantive
regulatory requirements. DOE certifies that this rule will not have a
signficant economic impact on a substantial number of small entities,
and therefore, no regulatory flexibility analysis has been prepared.
C. Review Under the Paperwork Reduction Act
No new information collection or recordkeeping requirements are
imposed by this rule. Accordingly, no OMB clearance is required by the
Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.).
D. Review Under NEPA
DOE has determined that issuance of this rule is not a major
federal action significantly affecting the quality of the human
environment within the meaning of the National Environmental Policy Act
of 1969 (NEPA), 42 U.S.C. 4321 et seq., and therefore that neither an
environmental assessment nor an environmental impact statement is
required. Categorical exclusion A2 in DOE's regulations implementing
NEPA, appendix A of subpart D of 10 CFR Part 1021, applies to this
rulemaking. Categorical exclusion A2 encompasses procedural and
administrative matters pertaining to contracts.
E. Review Under Executive Order 12612
Executive Order 12612, 52 FR 41685 (October 30, 1987), requires
that regulations, rules, legislation, and any other policy actions be
reviewed for any substantial direct effects on States, on the
relationship between the national Government and the States, and in the
distribution of power and responsibility among various levels of
Government. If there are sufficient substantial direct effects, then
the Executive Order requires preparation of a federalism assessment to
be used in all decisions involved in promulgating and implementing a
policy action.
Today's rule revises certain procedural requirements pertaining to
suspension and debarment of DOE contractors. DOE has determined that
none of the revisions will have a substantial direct effect on the
institutional interests or traditional functions of the States.
F. Review Under Executive Order 12988
Section 3 of Executive Order 12988 instructs each agency to adhere
to certain requirements in promulgating new regulations and reviewing
existing regulations. These requirements, set forth in sections 3(a)
and 3(b), include eliminating drafting errors and needless ambiguity,
drafting the regulations to minimize litigation, providing clear and
certain legal standards for affected conduct, and promoting
simplification and burden reduction. Agencies are also instructed to
make every reasonable effort to ensure that the regulation: specifies
clearly any preemptive effect, effect on existing Federal law or
regulation, and retroactive effect; describes any administrative
proceedings to be available prior to judicial review and any provisions
for the exhaustion of such administrative proceedings; and defines key
terms. DOE has completed the required review and determined that, to
the extent permitted by law, the final rule meets the relevant
standards of Executive Order 12988.
G. Review Under the Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (the Act),
enacted as Pub. L. 104-4 on March 22, 1995, requires each Federal
agency, to the extent permitted by law, to prepare a written assessment
of the effects of any Federal mandate in a proposed or final agency
rule that may result in the expenditure by State, local, and tribal
governments, in the aggregate, or by the private sector, of $100
million or more (adjusted annually for inflation) in any one year.
Section 204(a) of the Act, 2 U.S.C. 1534(a), requires the Federal
agency to develop an effective process to permit timely input by
elected officers (or their designees) of State, local, and tribal
governments on a proposed ``significant intergovernmental mandate.''
Section 203 of the Act, which supplements section 204(a), provides that
before establishing any regulatory requirements that might
significantly or uniquely affect small governments, the agency shall
have developed a plan that, among other things, provides for notice to
potentially affected small governments, if any, and for a meaningful
and timely opportunity to provide input in the development of
regulatory proposals. 2 U.S.C. 1533.
The final rule published today does not contain any Federal
mandate. Therefore, the requirements of Title II of the Unfunded
Mandates Reform Act of 1995 do not apply.
List of Subjects
10 CFR Part 1035
Administrative practice and procedure, Government procurement.
10 CFR Part 1036
Administrative practice and procedure, Drug abuse, Grant programs,
Loan programs.
48 CFR Part 909
Government procurement.
Issued in Washington, DC, on June 7, 1996.
Richard H. Hopf,
Deputy Assistant Secretary for Procurement and Assistance Management.
For the reasons set out in the preamble, Title 10 Code of Federal
Regulations Parts 1035 and 1036 and Chapter 9, Title 48 Code of Federal
Regulations are amended as set forth below.
10 CFR PART 1035--DEBARMENT AND SUSPENSION (PROCUREMENT)--[REMOVED]
1. Under the authority of Section 644 of the DOE Organization Act,
42 U.S.C. 7254, Part 1035--Debarment and Suspension (Procurement) is
removed.
[[Page 39856]]
PART 1036--GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT)
AND GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE (GRANTS)
2. The authority citation continues to read as follows:
Authority: E.O. 12689, E.O. 12549; Sec. 5151-5160 of the Drug-
Free Workplace Act of 1988 (Pub. L. 100-690, Title V, Subtitle D; 42
U.S.C. 701 et seq.); Secs. 644 and 646, Pub. L. 95-91, 91 Stat. 599
(42 U.S.C. 7254 and 7256); Pub. L. 97-258, 98 Stat. 1003-1005 (31
U.S.C.) 6301-6308.
Subpart A--General
Sec. 1036.105 Definitions. [Amended]
3. Section 1036.105 is amended by revising the phrase ``Director,
Procurement and Assistance Management Directorate'' to read ``Deputy
Assistant Secretary for Procurement and Assistance Management or
designee'' in the definitions for ``Debarring Official''(paragraph (3))
and ``Suspending Official''(paragraph (3)); and removing the
definitions for ``Director'' and ``DOE List.''
4. Section 1036.110 is amended by adding paragraphs (c) (1) and (2)
to read as follows:
Sec. 1036.110 Coverage.
* * * * *
(c) * * *
(1) Debarment and suspension of DOE procurement contractors is
covered by 48 CFR (DEAR) 909.4.
(2) Reserved.
Subpart B--Effect of Action
5. Section 1036.215 is amended by adding paragraphs (a) and (b) to
read as follows:
Sec. 1036.215 Exception provision.
* * * * *
(a) The DOE authorized designee is the Deputy Assistant Secretary
for Procurement and Assistance Management or designee.
(b) Reserved.
Subpart C--Debarment
Sec. 1036.312 Notice of proposed debarment. [Amended]
6. Section 1036.312 is amended by removing paragraph (b)(1); by
removing paragraph (d)(1); by removing paragraph (e)(1); in paragraph
(f) by revising ``Director'' to read ``debarring official;'' and in
paragraph (g) by revising ``DOE'' to read ``GSA.''
Sec. 1036.313 Opportunity to contest proposed debarment. [Amended]
7. Section 1036.313 is amended in paragraph (a)(1) by revising
``Director'' to read ``debarring official'' and removing the citation
``(See Sec. 1036.600(c)).''
Sec. 1036.314 Debarring official's decision. [Amended]
8. Section 1036.314 is amended by removing paragraph (d)(1)(vi) and
redesignating paragraphs (d)(1) (vii) and (viii) as (d)(1) (vi) and
(vii).
Sec. 1036.315 Settlement and voluntary exclusion. [Amended]
9. Section 1036.315 is amended by removing paragraph (c).
Subpart D--Suspension
Sec. 1036.411 Notice of Suspension. [Amended]
10. Section 1036.411 is amended by removing paragraph (c)(1); by
removing paragraph (f)(1); in paragraph (h) by revising ``Director'' to
read ``suspending official'' and in paragraph (j) by revising ``DOE''
to read ``GSA.''
Sec. 1036.412 Opportunity to contest suspension. [Amended]
11. Section 1036.412 is amended by removing paragraph (a)(1).
Subpart G--Additional DOE Procedures for Debarment and Suspension
12. Section 1036.700, Decisionmaking, is revised to read as
follows:
Sec. 1036.700 Procedures.
(a) Decisionmaking process for debarments. (1) In actions based
upon a conviction or civil judgment, and other actions in which there
is no genuine dispute over material facts, the debarring official shall
make a decision on the basis of all the information in the
administrative record, including any submissions made by the awardee.
If no suspension is in effect, the decision shall be made within 30
working days after receipt of any information and argument submitted by
the awardee, unless the debarring official extends this period for good
cause. The debarring official shall consider information and argument
in opposition to the proposed debarment including identification of
disputed material facts. If the respondent fails to submit a timely
written response to a notice of proposed debarment, the debarring
official shall notify the respondent in accordance with 10 CFR 1036.312
that the awardee is debarred.
(2) In actions not based upon a conviction or civil judgment, if it
is found that the awardee's submission in opposition raises a genuine
dispute over facts material to the proposed debarment, at the request
of the awardee, the debarring official shall refer the matter to the
Energy Board of Contract Appeals for a fact-finding conference, in
accordance with rules consistent with this section promulgated by the
Energy Board of Contract Appeals. The Energy Board of Contract Appeals
shall report to the Debarring Official findings of fact, not
conclusions of law. The findings shall resolve any disputes over
material facts based on a preponderance of evidence.
(b) Decisionmaking process for suspensions. (1) In actions based on
an indictment, the suspending official shall make a decision based upon
the administrative record, which shall include submissions made by the
awardee.
(2) In actions not based on an indictment, if it is found that the
awardee's submission in opposition raises a genuine dispute over facts
material to the suspension and if no determination has been made, on
the basis of Department of Justice advice, that substantial interest of
the Government in pending or contemplated legal proceedings based on
the same facts as the suspension would be prejudiced, the suspending
official shall, at the request of the awardee, refer the matter to the
Energy Board of Contract Appeals for a fact-finding conference, in
accordance with rules promulgated by the Energy Board of Contract
Appeals. The Energy Board of Contract Appeals shall report to the
Suspending Official findings of fact, not conclusions of law. The
findings shall resolve any disputes over material facts based on
adequate evidence.
(c) Meeting. Upon receipt of a timely request therefore from the
respondent, the debarring/suspending official shall schedule a meeting
between the debarring/suspending official and the respondent, to be
held no later than 30 days from the date the request is received. The
debarring/suspending official may postpone the date of the meeting if
the respondent requests a postponement in writing. At the meeting, the
respondent, appearing personally or through an attorney or other
authorized representative, may informally present and explain evidence
that causes for debarment or suspension do not exist, evidence of any
mitigating factors, and arguments concerning the imposition, scope,
duration, or effects of a proposed debarment or suspension.
[[Page 39857]]
(d) Fact-finding conference. The purpose of a fact-finding
conference under this section is to provide the respondent an
opportunity to dispute material facts and to provide the debarring/
suspending official with findings of fact based, as applicable, on
adequate evidence or on a preponderance of the evidence. If the
debarring/suspending official determines that a written response or a
presentation at the meeting under paragraph (c) of this section puts
material facts in dispute, the debarring/suspending official shall
refer the matter to the Energy Board of Contract Appeals for fact-
finding. The fact-finding conference shall be conducted in accordance
with rules promulgated by the Energy Board of Contract Appeals. The
Energy Board of Contract Appeals shall report to the Debarring Official
findings of fact, but not conclusions of law. The findings shall
resolve any disputes over material facts based on a preponderance of
evidence if the case involves a proposal to debar, or on adequate
evidence if the case involves a suspension. Since convictions or civil
judgments generally establish the cause for debarment by a
preponderance of the evidence, there usually is no genuine dispute over
a material fact that warrants a fact-finding conference for those
proposed debarments based on convictions or civil judgments.
13. Section 1036.705 is amended in the introductory paragraph by
revising ``Director'' to read ``debarring/suspending official'' in the
first and second sentences, revising reference to ``1036.700(b)(1) or
(b)(2)'' to read ``1036.700(c)'' and by revising paragraph (b) to read
as follows:
Sec. 1036.705 Coordination with Department of Justice.
* * * * *
(b) Deny additional proceedings and base the decision on all
information in the administrative recording, including any submissions
made by the respondent.
Sec. 1036.710 DOE consolidated list of debarred, suspended,
ineligible, and voluntarily excluded awardees. [Removed]
14. Section 1036.710, DOE consolidated list of debarred, suspended,
ineligible, and voluntarily excluded awardees, is removed.
Sec. 1036.715 Effects of being listed on the GSA list. [Amended]
15. Section 1036.715 is amended by revising the section heading to
read ``Effects of being listed on the GSA list'' and, in the
introductory paragraph, by revising ``Director'' to read ``Deputy
Assistant Secretary for Procurement and Assistance Management or
designee'' and by revising ``DOE List'' to read ``GSA List'' wherever
it appears in paragraphs (a) through (g).
48 CFR PART 909--CONTRACTOR QUALIFICATIONS
16. The authority citation for Part 909 continues to read as
follows:
Authority: 42 U.S.C. 7254; 40 U.S.C. 486(c).
17. Subpart 909.4 is revised to read as follows:
Subpart 909.4--Debarment, Suspension, and Ineligibility
Sec.
909.400 Scope of subpart.
909.401 Applicability.
909.403 Definitions.
909.405 Effect of listing.
909.406 Debarment.
909.406-2 Causes for debarment.
909.406-3 Procedures.
909.406-6 Requests for reconsideration of debarment.
909.407-2 Causes for suspension.
909.407-3 Procedures.
Subpart 909.4--Debarment, Suspension, and Ineligibility
Sec. 909.400 Scope of subpart.
This subpart--
(a) Prescribes policies and procedures governing the debarment and
suspension of organizations and individuals from participating in
Department of Energy (DOE) contracts, procurement sales contracts, and
real property purchase agreements, and from participating in DOE
approved subcontracts and subagreements.
(b) Sets forth the causes, procedures, and requirements for
determining the scope, duration, and effect of DOE debarment and
suspension actions; and
(c) Implements and supplements FAR subpart 9.4 with respect to the
exclusion of organizations and individuals from procurement contracting
and Government approved subcontracting.
Sec. 909.401 Applicability.
The provisions of this subpart apply to all procurement debarment
and suspension actions initiated by DOE on or after the effective date
of this subpart. Nonprocurement debarment and suspension rules are
codified in 10 CFR part 1036.
Sec. 909.403 Definitions.
In addition to the definitions set forth at FAR 9.403, the
following definitions apply to this subpart:
Debarring Official. The DOE Debarring Official is the Deputy
Assistant Secretary for Procurement and Assistance Management, or
designee.
DOE means the Department of Energy, including the Federal Energy
Regulatory Commission.
Suspending Official. The DOE Suspending Official is the Deputy
Assistant Secretary for Procurement and Assistance Management, or
designee.
Sec. 909.405 Effect of listing. (DOE coverage--paragraph (e), (b),
(g) and (h))
(e) The Department of Energy may not solicit offers from, award
contracts to or consent to subcontract with contractors debarred,
suspended or proposed for debarment unless the Deputy Assistant
Secretary for Procurement and Assistance Management makes a written
determination justifying that there is a compelling reason for such
action in accordance with FAR 9.405(a).
(f) DOE may disapprove or not consent to the selection (by a
contractor) of an individual to serve as a principal investigator, as a
project manager, in a position of responsibility for the administration
of Federal funds, or in another key personnel position, if the
individual is on the GSA List.
(g) DOE shall not conduct business with an agent or representative
of a contractor if the agent's or representative's name appears on the
GSA List.
(h) DOE shall review the GSA List before conducting a preaward
survey or soliciting proposals, awarding contracts, renewing or
otherwise extending the duration of existing contracts, or approving or
consenting to the award, extension, or renewal of subcontracts.
Sec. 909.406 Debarment.
Sec. 909.406-2 Causes for debarment. (DOE coverage--paragraphs (c)
and (d))
(c) The Debarring Official may debar a contractor for any other
cause of so serious or compelling a nature that it affects the present
responsibility of a DOE contractor. Such cause may include but is not
limited to:
(1) Commission of fraud or a criminal offense in connection with
obtaining, attempting to obtain, or performing a private contract or
subcontract; and
(2) Inexcusable, prolonged, or repeated failure to pay a debt
(including disallowed costs and overpayments) owed to DOE, provided the
contractor has been notified of the determination of indebtedness, and
further provided that the time for initiating any administrative or
legal action to oppose or appeal the determination of indebtedness has
expired or that such action, if initiated, has been concluded.
(d) The Debarring Official may debar a contractor:
(1) On the basis that an individual or organization is an affiliate
of a debarred
[[Page 39858]]
contractor, subject to the requirements of FAR 9.406-1(b) and 9.406-
3(c);
(2) For failure to observe the material provisions of a voluntary
exclusion (see 10 CFR 1036.315 for discussion of voluntary exclusion).
Sec. 909.406-3 Procedures. (DOE coverage--paragraphs (a), (b) and
(d))
(a) Investigation and referral. (1) Offices responsible for the
award and administration of contracts are responsible for reporting to
both the Deputy Assistant Secretary for Procurement and Assistance
Management and the DOE Inspector General information about possible
fraud, waste, abuse, or other wrongdoing which may constitute or
contribute to a cause(s) for debarment under this subpart.
Circumstances that involve possible criminal or fraudulent activities
must be reported to the Office of the Inspector General in accordance
with 10 CFR Part 1010, Conduct of Employees, Sec. 1010.217(b),
Cooperation with the Inspector General.
(2) At a minimum, referrals for consideration of debarment action
should be in writing and should include the following information:
(i) The recommendation and rationale for the referral;
(ii) A statement of facts;
(iii) Copies of documentary evidence and a list of all witnesses,
including addresses and telephone numbers, together with a statement
concerning their availability to appear at a fact-finding proceeding
and the subject matter of their testimony;
(iv) A list of parties including the contractor, principals, and
affiliates (including last known home and business addresses, zip codes
and DUNS Number);
(v) DOE's acquisition history with the contractor, including recent
experience under contracts and copies of pertinent contracts;
(vi) A list of any known active or potential criminal
investigations, criminal or civil proceedings, or administrative claims
before the Board of Contract Appeals; and
(vii) A statement regarding the impact of the debarment action on
DOE programs. This statement is not required for referrals by the
Inspector General.
(3) Referrals may be returned to the originator for further
information or development.
(b) Decisionmaking process. Contractors proposed for debarment
shall be afforded an opportunity to submit information and argument in
opposition to the proposed debarment.
(1) In actions based upon a conviction or civil judgment, or in
which there is no genuine dispute over material facts, the Debarring
Official shall make a decision on the basis of all the information in
the administrative record, including any submissions made by the
contractor. If the respondent fails to submit a timely written response
to a notice of proposed debarment, the Debarring Official shall notify
the respondent in accordance with FAR 9.406-3(e) that the contractor is
debarred.
(2) In actions not based upon a conviction or civil judgment, the
contractor may request a fact-finding hearing to resolve a genuine
dispute of material fact. In its request, the contractor must identify
the material facts in dispute and the basis for disputing the facts. If
the Debarring Official determines that there is a genuine dispute of
material fact, the Debarring Official shall refer the matter to the
Energy Board of Contract Appeals for a fact-finding conference.
(3) Meeting. Upon receipt of a timely request therefor from a
contractor proposed for debarment, the Debarring Official shall
schedule a meeting between the Debarring Official and the respondent,
to be held no later than 30 days from the date the request is received.
The Debarring Official may postpone the date of the meeting if the
respondent requests a postponement in writing. At the meeting, the
respondent, appearing personally or through an attorney or other
authorized representative, may present and explain evidence that causes
for debarment do not exist, evidence of any mitigating factors, and
arguments concerning the imposition, scope, or duration of a proposed
debarment or debarment.
(4) Fact-finding conference. The purpose of a fact-finding
conference under this section is to provide the respondent an
opportunity to dispute material facts through the submission of oral
and written evidence; resolve facts in dispute; and provide the
Debarring Official with findings of fact based, as applicable, on
adequate evidence or on a preponderance of the evidence. The fact-
finding conference shall be conducted in accordance with rules
consistent with FAR 9.406-3(b) promulgated by the Energy Board of
Contract Appeals. The Energy Board of Contract Appeals will notify the
affected parties of the schedule for the hearing. The Energy Board of
Contract Appeals shall deliver written findings of fact to the
Debarring Official (together with a transcription of the proceeding, if
made) within a certain time period after the hearing record closes, as
specified in the Energy Board of Contract Appeals Rules. The findings
shall resolve any disputes over material facts based upon a
preponderance of the evidence, if the case involves a proposal to
debar, or on adequate evidence, if the case involves a suspension.
Since convictions or civil judgments generally establish the cause for
debarment by a preponderance of the evidence, there usually is no
genuine dispute over a material fact that would warrant a fact-finding
conference for those proposed debarments based on convictions or civil
judgments.
(d) Debarring Official's decision. (4) The Debarring Official's
final decision shall be based on the administrative record. In those
actions where additional proceedings are necessary as to disputed
material facts, written findings of fact shall be prepared and included
in the final decision. In those cases where the contractor has
requested and received a fact-finding conference, the written findings
of fact shall be those findings prepared by the Energy Board of
Contract Appeals. Findings of fact shall be final and conclusive unless
within 15 days of receipt of the findings, the Department or the
respondent requests reconsideration, as provided in the Board's Rules,
or unless set aside by a court of competent jurisdiction. The Energy
Board of Contract Appeals shall be provided a copy of the Debarring
Official's final decision.
909.406-6 Requests for reconsideration of debarment.
(a) At any time during a period of debarment, a respondent may
submit to the Debarring or Suspending Official a written request for
reconsideration of the scope, duration, or effects of the suspension/
debarment action because of new information or changed circumstances,
as discussed at FAR 9.406-4(c).
(b) In reviewing a request for reconsideration, the Debarring or
Suspending Official may, in his or her discretion, utilize any of the
procedures (meeting and fact-finding) set forth in 48 CFR (DEAR)
909.406-3 and 909.407-3. The Debarring or Suspending Official's final
disposition of the reconsideration request shall be in writing and
shall set forth the reasons why the request has been granted or denied.
A notice transmitting a copy of the disposition of the request for
reconsideration shall be sent to the respondent and, if a fact-finding
conference under 48 CFR (DEAR) 909.406-3(b)(4) is pending (as in the
case of a request for reconsideration of a suspension, where the
proposed debarment is the subject of a fact-finding conference), a copy
of the disposition shall be transmitted to the Energy Board of Contract
Appeals.
[[Page 39859]]
909.407-2 Causes for suspension. (DOE coverage--paragraph (d))
(d) The Suspending Official may suspend an organization or
individual:
(1) Indicted for or suspected, upon adequate evidence, of the
causes described in 48 CFR (DEAR) 909.406-2(c)(1).
(2) On the basis of the causes set forth in 48 CFR (DEAR) 909.406-
2(d)(2).
(3) On the basis that an organization or individual is an affiliate
of a suspended or debarred contractor.
909.407-3 Procedures. (DOE coverage--paragraphs (b) and (c))
(b) Decisionmaking process.
(1) In actions based on an indictment, the Suspending Official
shall make a decision based upon the administrative record, which shall
include submissions made by the contractor in accordance with 48 CFR
(DEAR) 909.406-3(b)(1) and 909.406-3(b)(3).
(2) For actions not based on an indictment, the procedures in 48
CFR (DEAR) 909.406-3(b)(2) and FAR 9.407-3(b)(2) apply.
(3) Coordination with Department of Justice. Whenever a meeting or
fact-finding conference is requested, the Suspending Official's legal
representative shall obtain the advice of appropriate Department of
Justice officials concerning the impact disclosure of evidence at the
meeting or fact-finding conference could have on any pending civil or
criminal investigation or legal proceeding. If such Department of
Justice official requests in writing that evidence needed to establish
the existence of a cause for suspension not be disclosed to the
respondent, the Suspending Official shall:
(i) Decline to rely on such evidence and withdraw (without
prejudice) the suspension or proposed debarment until such time as
disclosure of the evidence is authorized; or
(ii) Deny the request for a meeting or fact-finding and base the
suspension decision solely upon the information in the administrative
record, including any submission made by the respondent.
(e) Notice of suspending official's decision. In actions in which
additional proceedings have been held, following such proceedings, the
Suspending Official shall notify respondent, as applicable, in
accordance with paragraphs (e)(1) or (e)(2) of this section.
(1) Upon deciding to sustain a suspension, the Suspending Official
shall promptly send each affected respondent a notice containing the
following information:
(i) A reference to the notice of suspension, the meeting and the
fact-finding conference;
(ii) The Suspending Official's findings of fact and conclusions of
law;
(iii) The reasons for sustaining a suspension;
(iv) A reference to the Suspending Official's waiver authority
under 48 CFR (DEAR) 909.405;
(v) A statement that the suspension is effective throughout the
Executive Branch as provided in FAR 9.407-1(d);
(vi) Modifications, if any, of the initial terms of the suspension;
(vii) A statement that a copy of the suspension notice was sent to
GSA and that the respondent's name and address will be added to the GSA
List; and
(viii) If less than an entire organization is suspended,
specification of the organizational element(s) or individual(s)
included within the scope of the suspension.
(2) If the Suspending Official decides to terminate a suspension,
the Suspending Official shall promptly send, by certified mail, return
receipt requested, each affected respondent a copy of the final
decision required under this section.
[FR Doc. 96-16015 Filed 7-30-96; 8:45 am]
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