issue-1996-09-17•Federal Register final rules — 1996-09-17
Federal Register final rules — 1996-09-17
issue-1996-09-17Federal Register final rules — 1996-09-17Regulation
Published Federal Register documents, not public-inspection drafts. The GPO XML/text rendition is a research aid; the linked complete official PDF retains the printed layout and all graphics. Graphics are retained in that PDF and are not independently reproduced in this text rendition. Publication does not establish that every provision remains legally in force.
FR Doc. 96-23905 Pyridaben; Pesticide Tolerances for Emergency Exemptions
[Federal Register Volume 61, Number 181 (Tuesday, September 17, 1996)]
[Rules and Regulations]
[Pages 48843-48848]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-23905]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 180
[OPP-300436; FRL-5395-8]
RIN 2070-AB78
Pyridaben; Pesticide Tolerances for Emergency Exemptions
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final Rule.
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SUMMARY: This regulation establishes time-limited tolerances for
combined residues of the insecticide/miticide pyridaben in or on the
raw agricultural commodity apples and the processed feed commodity wet
apple pomace in connection with EPA's granting of emergency exemptions
under section 18 of the Federal Insecticide, Fungicide, and Rodenticide
Act authorizing use of pyridaben on apples in Delaware, New Jersey, and
Virginia. This regulation establishes maximum permissible levels for
residues of pyridaben in these foods pursuant to section 408(l)(6) of
the Federal Food, Drug and Cosmetic Act, as amended by the Food Quality
Protection Act of 1996 (Pub. L. 104-170). The tolerances will expire
and be revoked automatically without further action by EPA on August
23, 1997.
DATES: This regulation becomes effective September 17, 1996. This
regulation expires and is revoked automatically without further action
by EPA on August 23, 1997. Objections and requests for hearings must be
received by EPA on November 18, 1996.
ADDRESSES: Written objections and hearing requests, identified by the
docket number, [OPP-300436], must be submitted to: Hearing Clerk
(1900), Environmental Protection Agency, Rm. M3708, 401 M St., SW.,
Washington, DC 20460. Fees accompanying objections and hearing requests
shall be labeled ``Tolerance Petition Fees'' and forwarded to: EPA
Headquarters Accounting Operations Branch, OPP (Tolerance Fees), P.O.
Box 360277M, Pittsburgh, PA 15251.
A copy of any objections and hearing requests filed with the
Hearing Clerk identified by the docket number, [OPP-300436], should be
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 a copy of objections and hearing requests to Rm. 1132,
CM #2, 1921 Jefferson Davis Hwy., Arlington, VA 22202. A copy of
objections and hearing requests filed with the Hearing Clerk may also
be submitted electronically by sending electronic mail (e-mail) to:
[email protected]. Copies of objections and hearing requests
must be submitted as an ASCII file avoiding the use of special
characters and any form of encryption. Copies of objections and hearing
requests will also be accepted on disks in WordPerfect 5.1 file format
or ASCII file format. All copies of objections and hearing requests in
electronic form must be identified by the docket number [OPP-300436].
No Confidential Business Information (CBI) should be submitted through
e-mail. Electronic copies of objections and hearing requests on this
rule may be filed online at many Federal Depository Libraries.
FOR FURTHER INFORMATION CONTACT: By mail: Pat Cimino, Registration
Division (7505W), Environmental Protection Agency, 401 M St., SW.,
Washington, DC 20460. Office location and telephone number: Sixth
Floor, Crystal Station #1, 2800 Jefferson Davis Highway, Arlington, VA
22202. (703) 308-8328, e-mail: [email protected].
SUPPLEMENTARY INFORMATION: EPA, on its own initiative, pursuant to
section 408(e) and (l)(6) of the Federal Food, Drug and Cosmetic Act
(FFDCA), 21 U.S.C. 346a(e) and (l)(6), is establishing tolerances for
residues of the insecticide/miticide pyridaben [2-tert-butyl-5-(4-tert-
butylbenzylthio)-4-chloropyridazin-3(2H)-one] in or on apples at 0.5
part per million (ppm) and in or on wet apple pomace at 1.0 ppm. These
tolerances will expire and be revoked automatically without further
action by EPA on August 23, 1997.
I. Background and Statutory Authority
The Food Quality Protection Act of 1996 (FQPA) (Pub. L. 104-170)
was signed into law August 3, 1996. FQPA amends both the Federal Food,
Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 301 et seq., and the Federal
Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. 136 et
seq. The FQPA amendments went into effect immediately. Among other
things, FQPA amends FFDCA to bring all EPA pesticide tolerance-setting
activities under a new section 408 with a new safety standard and new
procedures.
[[Page 48844]]
New section 408(b)(2)(A)(i) allows EPA to establish a tolerance
(the legal limit for a pesticide chemical residue in or on a food) only
if EPA determines that the tolerance is ``safe.'' Section
408(b)(2)(A)(ii) defines ``safe'' to mean that ``there is a reasonable
certainty that no harm will result from aggregate exposure to the
pesticide chemical residue, including all anticipated dietary exposures
and all other exposures for which there is reliable information.'' This
includes exposure through drinking water, but does not include
occupational exposure. Section 408(b)(2)(C) requires EPA to give
special consideration to exposure of infants and children to the
pesticide chemical residue in establishing a tolerance and to ``ensure
that there is a reasonable certainty that no harm will result to
infants and children from aggregate exposure to the pesticide chemical
residue....'' Section 408(b)(2)(D) specifies factors EPA is to consider
in establishing a tolerance. Section 408(b)(3) requires EPA to
determine that there is a practical method for detecting and measuring
levels of the pesticide chemical residue in or on food and that the
tolerance be set at a level at or above the limit of detection of the
designated method. Section 408(b)(4) requires EPA to determine whether
a maximum residue level has been established for the pesticide chemical
by the Codex Alimentarius Commission. If so, and EPA does not propose
to adopt that level, EPA must publish for public comment a notice
explaining the reasons for departing from the Codex level. Section
408(c) governs EPA's establishment of exemptions from the requirement
for a tolerance using the same safety standard as section 408(B)(2)(A)
and incorporating the provisions of section 408(b)(2)(C) and (D).
Section 18 of FIFRA authorizes EPA to exempt any Federal or State
agency from any provision of FIFRA, if EPA determines that ``emergency
conditions exist which require such exemption.'' This provision was not
amended by FQPA. EPA has established regulations governing such
emergency exemptions in 40 CFR part 166. Generally, these regulations
allow a State or Federal agency to apply for an exemption to allow use
of a pesticide for which that pesticide is not registered to alleviate
an emergency condition. The regulations set forth information
requirements, procedures, and standards for EPA's approval or denial of
such exemptions.
Prior to FQPA, when EPA granted an emergency exemption under
section 18 in connection with use of a pesticide that could result in
residues of the pesticide chemical in or on food, EPA did not establish
a tolerance or exemption from the requirement for a tolerance under
FFDCA. Rather, EPA advised the Food and Drug Administration (FDA) of
the emergency exemption and of the level of residues that EPA concluded
would be present in or on affected foods as a result of the emergency
use. However, new section 408(l)(6) requires EPA to establish a
tolerance or exemption from the requirement for a tolerance for
pesticide chemical residues in food that will result from the use of a
pesticide under an emergency exemption granted by EPA under section 18
of FIFRA. Section 408(l)(6) also requires EPA to promulgate regulations
by August 3, 1997, governing the establishment of tolerances and
exemptions under section 408(l)(6) and requires that the regulations be
consistent with section 408(b)(2) and (c)(2) and FIFRA section 18.
Section 408(e) gives EPA general authority to establish tolerances
and exemptions from the requirement for a tolerance through notice and
comment rulemaking procedures upon EPA's initiative. Section 408(l)(6)
allows EPA to establish tolerances or exemptions from the requirement
for a tolerance, in connection with EPA's granting of FIFRA section 18
emergency exemptions, without providing notice or a period for public
comment. Thus, consistent with the need to act expeditiously on
requests for emergency exemptions under FIFRA, EPA can establish such
tolerances or exemptions under authority of section 408(e) and (l)(6)
without notice and comment rulemaking. The other procedures set out in
section 408(e) and (g) are applicable to these tolerances and
exemptions. Tolerances and exemptions issued under section 408(l)(6)
must be consistent with the safety standards in section 408(b)(2) and
(c)(2), respectively, that are applicable to all tolerances and
exemptions under section 408, and with FIFRA section 18. Section
408(l)(6) specifies that such tolerances and exemptions must have an
expiration date but does not specify how EPA is to set such an
expiration date.
In light of FQPA, EPA is engaged in an intensive process, including
consultation with registrants, States, and other interested
stakeholders, to make decisions on the new policies and procedures that
will be appropriate as a result of enactment of FQPA. This process will
generally delay the review of food use applications, particularly those
involving exposure to children. However, recognizing the importance of
FIFRA section 18 emergency exemptions and their time sensitive nature,
EPA will continue to process section 18 applications for food uses
which clearly are emergencies and which clearly are consistent with the
new FFDCA section 408 safety standard and with FIFRA section 18. EPA
will publish a notice in the Federal Register soon summarizing the
requirements of FQPA, indicating how EPA intends to meet those
requirements, and describing actions necessary to assure that EPA
complies with the law. EPA intends to promulgate the procedural rule
required under section 408(l)(6) by August 3, 1997, but EPA also
intends to continue to grant appropriate section 18 emergency
exemptions and issue the associated tolerances and exemptions in the
interim pending promulgation of that rule. EPA also intends to issue
interim guidance to States and others on how EPA will implement section
18 of FIFRA and section 408(l)(6) in the near future.
EPA intends to address how it will provide an expiration date for
section 408(l)(6) tolerances and exemptions in the general procedural
rule to be promulgated by August 3, 1997. In the interim, EPA has
decided to proceed as follows. Section 408(l)(5) specifies that, if a
tolerance or exemption from the requirement for a tolerance for a
pesticide chemical residue in or on a food has been revoked under
section 408, food containing the residue is not unsafe (and thus
subject to action by FDA as ``adulterated'') if ``the residue is
present as the result of an application or use of a pesticide at a time
and in a manner that was lawful'' under FIFRA and ``the residue does
not exceed a level that was authorized at the time of that application
or use to be present on the food under a tolerance....'' Taking section
408(l)(5) and (6) together, EPA has concluded that the best way to
effect an ``expiration date'' during this interim period for a
tolerance or exemption established in connection with EPA's grant of a
FIFRA section 18 emergency exemption is to specify that the tolerance
or exemption will expire and be revoked automatically, without further
action by EPA, as of a specified date. That date will generally be
approximately 1 year from the date of issuance of the emergency
exemption. Under section 408(l)(5), food that contains residues of the
pesticide chemical as a result of lawful use under the terms of the
section 18 emergency exemption, and at levels that are within those set
by the tolerance or exemption that was established under section
408(l)(6) in connection with the section
[[Page 48845]]
18 action, would remain lawful after the tolerance or exemption is
automatically revoked. EPA believes that handling the section 18-
related tolerances and exemptions in this manner will allow EPA to
respond promptly to emergency conditions during this interim period and
will ensure that food containing pesticide residues as a result of use
under an emergency exemption will not be considered ``adulterated.''
In deciding to continue to act on section 18 emergency exemptions
and to issue the associated tolerances and exemptions early in the
process of FQPA implementation, EPA recognizes that it will be
necessary to make decisions about the new FFDCA section 408, including
the new safety standard. In establishing section 18-related tolerances
and exemptions during this interim period before EPA issues the section
408(l)(6) procedural regulation and before EPA makes its broad policy
decisions concerning the interpretation and implementation of the new
section 408, EPA does not intend to set precedents for the application
of section 408 and the new safety standard to other tolerances and
exemptions. Rather, these early section 18 tolerance and exemption
decisions will be made on a case-by-case basis and will not bind EPA as
it proceeds with further rulemaking and policy development. EPA intends
to act on section 18-related tolerances and exemptions that clearly
qualify under the new law.
II. Emergency Exemptions for Pyridaben on Apples and FFDCA
Tolerances
On August 23, 1996, EPA approved emergency exemptions under FIFRA
section 18 for the states of Delaware, New Jersey and Virginia for use
of pyridaben on apples in those states to control European red mite and
two-spotted spider mite. Emergency conditions are determined to exist
since there are no effective pesticides available for late-season use
in Integrated Pest Management (IPM) programs for control of mites in
Delaware, New Jersey and Virginia. The available data indicate that
pyridaben is effective for mite control and is compatible with mid-
Atlantic apple IPM programs.
As part of its assessment of these applications for emergency
exemptions, EPA assessed the potential risks presented by residues of
pyridaben in or on apples and all foods derived from such apples. In
doing so, EPA considered the new safety standard in FFDCA section
408(b)(2), and EPA decided to grant the section 18 exemptions only
after concluding that the necessary tolerances under FFDCA section
408(l)(6) would clearly be consistent with the new safety standard and
with FIFRA section 18. These tolerances for pyridaben will permit the
marketing of apples treated in accordance with the provisions of the
section 18 emergency exemptions. Consistent with the need to move
quickly on the emergency exemptions and to ensure that the resulting
food is safe and lawful, EPA is issuing these tolerances without notice
and opportunity for public comment under section 408(e) as provided in
section 408(l)(6). Although these tolerances will expire and be revoked
automatically without further action by EPA on August 23, 1997, under
FFDCA section 408(l)(5), residues of pyridaben not in excess of the
amounts specified in the tolerances remaining in or on apples and wet
apple pomace (and foods derived from such apples) after that date will
not be unlawful, provided the pesticide is applied during the term of,
and in accordance with all the conditions of, the emergency exemptions.
EPA will take action to revoke these tolerances earlier if any
experience with, scientific data on, or other relevant information on
this pesticide indicate that the residues are not safe.
EPA has not made any decisions about whether pyridaben meets the
requirements for registration under FIFRA section 3 for use on apples
or whether permanent tolerances for pyridaben for apples and wet apple
pomace would be appropriate. This action by EPA does not serve as a
basis for registration of pyridaben by a State for special local needs
under FIFRA section 24(c). For additional information regarding the
emergency exemptions for pyridaben, contact the Agency's Registration
Division at the address provided above.
III. Risk Assessment and Statutory Findings
EPA performs a number of analyses to determine the risks from
aggregate exposure to pesticide residues. First, EPA determines the
toxicity of pesticides based primarily on toxicological studies using
laboratory animals. These studies address many adverse health effects,
including (but not limited to) reproductive effects, developmental
toxicity, toxicity to the nervous system, and carcinogenicity. For many
of these studies, a dose response relationship can be determined, which
provides a dose that causes adverse effects (threshold effects) and
doses causing no observed effects (the ``no observed effects level'' or
``NOEL'').
Once a study has been evaluated and the observed effects have been
determined to be threshold effects, EPA generally divides the NOEL from
the study with the lowest NOEL by an uncertainty factor (usually 100 or
more) to determine the Reference Dose (RfD). The RfD is a level at or
below which daily aggregate exposure over a lifetime will not pose
appreciable risks to human health. An uncertainty factor (sometimes
called a ``safety factor'') of 100 is commonly used since it is assumed
that people may be up to 10 times more sensitive to pesticides than the
test animals, and that one person or subgroup of the population (such
as infants and children) could be up to 10 times more sensitive to a
pesticide than another. In addition, EPA assesses the potential risks
to infants and children based on the weight of the evidence of the
toxicology studies and determines whether an additional uncertainty
factor is warranted. Thus, an aggregate daily exposure to a pesticide
residue at or below the RfD (expressed as 100 percent or less of the
RfD) is generally considered acceptable by EPA.
Lifetime feeding studies in two species of laboratory animals are
conducted to screen pesticides for cancer effects. When evidence of
increased cancer is noted in these studies, the Agency conducts a
weight of the evidence review of all relevant toxicological data
including short term and mutagenicity studies and structure activity
relationship. Once a pesticide has been classified as a potential human
carcinogen, different types of risk assessments (e.g., linear low dose
extrapolations or margin of exposure calculation based on the
appropriate NOEL) will be carried out based on the nature of the
carcinogenic response and the Agency's knowledge of its mode of action.
In examining aggregate exposure, FFDCA section 408 requires that
EPA take into account available and reliable information concerning
exposure from the pesticide residue in the food in question, residues
in other foods for which there are tolerances, and other non-
occupational exposures, such as where residues leach into groundwater
or surface water that is consumed as drinking water. Dietary exposure
to residues of a pesticide in a food commodity are estimated by
multiplying the average daily consumption of the food forms of that
commodity by the tolerance level or the anticipated pesticide residue
level. The Theoretical Maximum Residue Contribution (TMRC) is an
estimate of
[[Page 48846]]
the level of residues consumed daily if each food item contained
pesticide residues equal to the tolerance. The TMRC is a ``worst case''
estimate since it is based on the assumptions that food contains
pesticide residues at the tolerance level and that 100 percent of the
crop is treated by pesticides that have established tolerances. If the
TMRC exceeds the RfD or poses a lifetime cancer risk that is greater
than approximately 1 in 1 million, EPA attempts to derive a more
accurate exposure estimate for the pesticide by evaluating additional
types of information (anticipated residue data and/or percent of crop
treated data) which show, generally, that pesticide residues in most
foods when they are eaten are well below established tolerances.
Consistent with section 408(b)(2)(D), EPA has reviewed the
available scientific data and other relevant information in support of
this action. Pyridaben is already registered by EPA for greenhouse use
on non-food ornamental plants. EPA has also assessed the toxicology
data base for pyridaben in its evaluation of applications for
registration on apples and citrus. Thus, while EPA has made no decision
on the pending registration application for apples and citrus, EPA has
sufficient data to assess the hazards of pyridaben and to make a
determination on aggregate exposure, consistent with section 408(b)(2),
for the time-limited tolerances for residues of pyridaben on apples at
0.5 ppm and apple pomace at 1.0 ppm. EPA's assessment of the dietary
exposures and risks associated with establishing these tolerances
follows.
A. Toxicological Profile
1. Chronic effects. Based on the available chronic toxicity data,
EPA has established the RfD for pyridaben at 0.005 milligrams(mg)/
kilogram(kg)/day. The RfD for pyridaben is based on a 1-year feeding
study in dogs with a No-Observed Adverse Effect Level (NOAEL) of 0.5
mg/kg/day and an uncertainty factor of 100. For this chemical, EPA has
used the NOAEL instead of a NOEL because effects that were judged by
EPA to be minor were observed at the lowest dose tested (0.5 mg/kg/
day). The effects observed at the NOAEL were vomiting, excessive
salivation, and soft stool/diarrhea (all clinical signs unassociated
with changes in biochemical parameters and histopathology). EPA
questioned the biological significance of the small increase in these
effects as compared to effects noted in the control group. Futher,
after consideration of the frequency, severity, and transient nature of
effects observed, EPA concluded that any effects noted at the 0.5 mg/
kg/day feeding level (the NOAEL) were sufficiently negligible as to not
require the application of an additional uncertainty factor above the
100-fold factor already applied to the NOAEL.
2. Acute toxicity. Based on the available acute toxicity data, EPA
has determined that pyridaben does not pose any acute dietary risks.
3. Carcinogenicity. Using its Guidelines for Carcinogen Risk
Assessment published September 24, 1986 (51 FR 33992), EPA has
classified pyridaben as Group ``E'' for carcinogenicity (no evidence of
carcinogenicity) based on the results of carcinogenicity studies in two
species. There was no evidence of carcinogenicity in an 18-month
feeding study in mice and a 2-year feeding study in rats at the dosage
levels tested. The doses tested are adequate for identifying a cancer
risk. Thus, a cancer risk assessment would not be appropriate.
B. Aggregate Exposure
For purposes of assessing the potential dietary exposure under
these tolerances, EPA has estimated aggregate exposure based on the
TMRC from the tolerance for pyridaben on apples at 0.5 ppm and apple
pomace at 1.0 ppm. The TMRC is obtained by multiplying the tolerance
level residue for apples (0.5 ppm) by the consumption data which
estimates the amount of apples and apple products eaten by various
population subgroups. Apple pomace is fed to animals; thus exposure of
humans to residues in apple pomace might result if such residues are
transferred to meat, milk, poultry, or eggs. However, based on the
results of animal metabolism studies and the amount of pyridaben
residues expected in animal feeds, EPA has concluded that there is no
reasonable expectation that measurable residues of pyridaben will occur
in meat and milk under the terms of this emergency exemption. Apple
pomace is not a poultry feed item, thus no residues are expected in
poultry or eggs. There are no other established U.S. tolerances for
pyridaben, and there are no registered uses for pyridaben on food or
feed crops in the United States. In conducting this exposure
assessment, EPA has made very conservative assumptions--100% of apples
will contain pyridaben residues and those residues would be at the
level of the tolerance--which result in an overestimate of human
exposure. Thus, in making a safety determination for these tolerances,
EPA is taking into account this conservative exposure assessment.
Other potential sources of exposure of the general population to
residues of pesticides are residues in drinking water and exposure from
non-occupational sources. Based on the available studies used in EPA's
assessment of environmental risk, EPA does not anticipate exposure to
residues of pyridaben in drinking water. There is no established
Maximum Concentration Level for residues of pyridaben in drinking
water. EPA has not estimated non-occupational exposure for pyridaben
since the current registration for pyridaben is limited to commercial
greenhouse use for non-food ornamental plants and the only other use
will be for commercial apple production under the conditions of the
section 18 emergency exemptions EPA just granted. The potential for
non-occupational exposure to the general population is, thus, not
expected to be significant.
EPA also considered the potential for cumulative effects of
pyridaben and other substances that have a common mechanism of
toxicity. EPA concluded that consideration of a common mechanism of
toxicity is not appropriate at this time. EPA does not have reliable
information to indicate that toxic effects produced by pyridaben would
be cumulative with those of any other chemical compounds; thus EPA is
considering only the potential risks of pyridaben in its aggregate
exposure assessment.
C. Safety Determinations
1. U.S. population in general. Using the conservative exposure
assumptions described above, based on the completeness and reliability
of the toxicity data, EPA has concluded that aggregate exposure to
pyridaben will utilize 6.8 percent of the RfD for the U.S. population.
EPA generally has no concern for exposures below 100 percent of the RfD
because the RfD represents the level at or below which daily aggregate
dietary exposure over a lifetime will not pose appreciable risks to
human health. EPA concludes that there is a reasonable certainty that
no harm will result from aggregate exposure to pyridaben residues.
2. Infants and children. In assessing the potential for additional
sensitivity of infants and children to residues of pyridaben, EPA
considered data from developmental toxicity studies in the rat and
rabbit and a 2-generation reproduction study in the rat. The
developmental toxicity studies are designed to evaluate adverse effects
on the developing organism resulting from pesticide exposure during
prenatal
[[Page 48847]]
development to one or both parents. Reproduction studies provide
information relating to effects from exposure to the pesticide on the
reproductive capability of mating animals and data on systemic
toxicity.
Developmental toxicity (delayed ossification) was observed in
studies using rats and rabbits. The (NOEL's) for developmental effects
were established at 13 mg/kg/day in the rat study and 15 mg/kg/day in
the rabbit study. The developmental effect observed in these studies is
believed to be a secondary effect resulting from maternal stress
(decreased body weight gain and food consumption).
In a 2-generation reproduction study in rats, pups from the high
dose group, which were fed diets containing 80 ppm pyridaben, gained
less weight beginning on lactation day 14. The only effects seen in
pups were decreased body weight gain, indicating that they were
receiving the test compound from the diet. Parental systemic toxicity
including decreased body weights, body weight gains and food efficiency
in males, and slightly decreased body weights and body weight gains in
females during lactation was also observed in the high dose group. The
LOEL for parental systemic toxicity is 80 ppm (equivalent to 6.31 and
7.82 mg/kg/day in male and females, respectively). The NOEL for
parental systemic toxicity is 28 ppm (equivalent to 2.20 and 2.41 mg/
kg/day in male and females, respectively). There was no effect on
reproductive parameters at all dose levels tested in this study.
FFDCA section 408 provides that EPA may apply an additional safety
factor for infants and children in the case of threshold effects to
account for pre- and post-natal toxicity and the completeness of the
database. Based on the current toxicological data requirements, the
database relative to pre- and post-natal effects for children is
complete. Further, for the chemical pyridaben, the NOAEL at 0.5 mg/kg/
day from the dog study, which was used to calculate the RfD (discussed
above), is already lower than the NOEL's from the developmental studies
in rats and rabbits by a factor of more than 10-fold. As to the
reproduction study, the lack of severity of the pup effects observed
(decreased body weight) in the reproduction study at the systemic LOEL
and the fact that the effects began at day 14 and continued through
adulthood suggests that there is no additional sensitivity for infants
and children. Therefore; EPA concludes that an additional uncertainty
factor is not warranted and that the RfD at 0.005 mg/kg/day is
appropriate for assessing aggregate risk to infants and children.
Using the conservative exposure assumptions described above, EPA
has concluded that the percent of the RfD that will be utilized by
aggregate exposure to residues of pyridaben ranges from 9.6 percent for
children 7 to 12 years old, up to 63 percent for non-nursing infants.
Therefore, based on the completeness and reliability of the toxicity
data and the conservative exposure assessment, EPA concludes that there
is a reasonable certainty that no harm will result to infants and
children from aggregate exposure to pyridaben residues.
D. Other Considerations
The metabolism of pyridaben in plants and animals is adequately
understood for the purposes of these tolerances. There are no Codex
maximum residue levels established for residues of pyridaben on apples
or wet apple pomace. There is a practical analytical method for
detecting and measuring levels of pyridaben in or on food with a limit
of detection that allows monitoring of food with residues at or above
the levels set in these tolerances. EPA has provided information on
this method to FDA. The method is available to anyone who is interested
in pesticide residue enforcement from: By mail, Calvin Furlow, Public
Response and Program Resources Branch, Field Operations Division
(7506C), Office of Pesticide Programs, Environmental Protection Agency,
401 M St. SW., Washington, DC 20460. Office location and telephone
number: Crystal Mall #2, Rm 1128, 1921 Jefferson Davis Hwy., Arlington,
VA 22202, 703-305-5805.
E. Conclusion
Therefore, tolerances in connection with the FIFRA section 18
emergency exemptions are established for residues of pyridaben in
apples at 0.5 ppm and wet apple pomace at 1.0 ppm. These tolerances
will expire and be automatically revoked without further action by EPA
on August 23, 1997.
IV. Objections and Hearing Requests
The new FFDCA section 408(g) provides essentially the same process
for persons to ``object'' to a tolerance regulation issued by EPA under
new section 408(e) and (l)(6) as was provided in the old section 408
and in section 409. However, the period for filing objections is 60
days, rather than 30 days. EPA currently has procedural regulations
which govern the submission of objections and hearing requests. These
regulations will require some modification to reflect the new law.
However, until those modifications can be made, EPA will continue to
use those procedural regulations with appropriate adjustments to
reflect the new law.
Any person may, by November 18, 1996, file written objections to
any aspect of this regulation (including the automatic revocation
provision) 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 issues on which a hearing is requested, the
requestor's contentions on such issues, and a summary of any evidence
relied upon by the requestor (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 issues in the manner sought by the requestor would be adequate
to justify the action requested (40 CFR 178.32). Information submitted
in connection with an objection or hearing request 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 information 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.
V. Public Docket
A record has been established for this rulemaking under docket
number [OPP-300436] (including comments and data 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,
[[Page 48848]]
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.
Electronic comments can be sent directly to EPA at:
opp-D[email protected]
Electronic comments 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 all comments 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.
VI. Regulatory Assessment Requirements
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is not a ``significant regulatory action'' and, since this
action does not impose any information collection requirements as
defined by the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., it is
not subject to review by the Office of Management and Budget. In
addition, this action does not impose any enforceable duty or contain
any unfunded mandate as described in the Unfunded Mandates Reform Act
of 1995 (Pub. L. 104-4), or require prior consultation with State
officials as specified by Executive Order 12875 (58 FR 58093, October
28, 1993), or special considerations as required by Executive Order
12898 (59 FR 7629, February 16, 1994).
Because FFDCA section 408(l)(6) permits establishment of this
regulation without a notice of proposed rulemaking, analysis under the
Regulatory Flexibility Act, 5 U.S.C. 604(a), is not required.
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
recordkeeping requirements.
Dated: September 6, 1996.
Daniel M. Barolo,
Director, Office of Pesticide Programs.
Therefore, 40 CFR Chapter I is amended as follows:
PART 180-- [AMENDED]
1. In part 180:
a. The authority citation for part 180 is revised to read as
follows:
Authority: 21 U.S.C. 346a and 371.
b. By adding a new Sec. 180.494 to read as follows:
Sec. 180.494 Pyridaben; tolerances for residues.
(a) [Reserved].
(b) Time-limited tolerances. Time-limited tolerances are
established for residues of the insecticide/miticide pyridaben [2-tert-
butyl-5-(4-tert- butylbenzylthio)-4-chloropyridazin-3(2H)-one] in
connection with use of the pesticide under section 18 emergency
exemptions granted by EPA. The tolerances are specified in the
following table. Each tolerance expires and is automatically revoked on
the date specified in the table without further action by EPA.
------------------------------------------------------------------------
Parts per
Commodity million Expiration/Revocation Date
------------------------------------------------------------------------
Apples....................... 0.5 August 23, 1997
Apples, pomace, wet.......... 1.0 August 23, 1997
------------------------------------------------------------------------
[FR Doc. 96-23905 Filed 9-16-96; 8:45 am]
BILLING CODE 6560-50-F
Complete official Federal Register PDF
FR Doc. 96-23853 Student Assistance General Provisions
[Federal Register Volume 61, Number 181 (Tuesday, September 17, 1996)]
[Rules and Regulations]
[Pages 49042-49043]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-23853]
[[Page 49041]]
_______________________________________________________________________
Part VI
Department of
Education
_______________________________________________________________________
34 CFR Part 668
Student Assistance General Provisions;
Final Rule
Federal Register / Vol. 61, No. 181 / Tuesday, September 17, 1996 /
Rules and Regulations
[[Page 49042]]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF EDUCATION
34 CFR Part 668
Student Assistance General Provisions
AGENCY: Department of Education.
ACTION: Final regulations.
-----------------------------------------------------------------------
SUMMARY: The Secretary amends the Student Assistance General Provisions
regulations. These technical amendments are necessary to clarify the
regulations and to remove the procedural requirement that recipient
institutions include in any request for funds the Catalog of Federal
Domestic Assistance (CFDA) number identifying the source of the funds
and the amount of funds sought for each program included in the
request. The Secretary takes action to defer this change in light of
the information technology currently available to recipient
institutions and the Department.
EFFECTIVE DATE: These regulations take effect on October 17, 1996.
FOR FURTHER INFORMATION CONTACT: Mr. John Kolotos, U.S. Department of
Education, 600 Independence Avenue, SW., ROB-3, room 3045, Washington,
DC 20202-5346. Telephone: (202) 708-7888. Individuals who use a
telecommunications device for the deaf (TDD) may call the Federal
Information Relay Service (FIRS) at 1-800-877-8339 between 8 a.m. and 8
p.m., Eastern time, Monday through Friday.
SUPPLEMENTARY INFORMATION: Section 668.163 (Requesting funds) contains
a requirement that each institution include in any request for cash the
CFDA number identifying the source of the requested funds and the
amount of funds for each program for which funds are sought in the
request (61 FR 61796; December 1, 1995). The Secretary has continued to
evaluate methods of requesting funds in light of refinements in
information technology now available to recipient institutions and to
the Department, and has decided to defer any change in this aspect of
the procedure for requesting cash until future award years. At that
time, the Secretary plans to make available to institutions a more
precise yet easily used request method that will better identify the
program authorization under which funds are requested. The procedural
requirement for identification by CFDA number will therefore no longer
be necessary.
Changes to Sec. 668.163(a)(3) were previously made in regulations
promulgated on June 30, 1995 (60 FR 34432) with the expressed intent of
clarifying the procedures for payment under the reimbursement funding
method. The language adopted there unfortunately suggested that the
procedures had been changed rather than merely clarified. Under the
reimbursement funding method, the Department reimburses an institution
for the amounts the institution has expended by disbursing its own
funds for the purpose of providing grant, loan, or work study
assistance to its students under Title IV of the Higher Education Act
of 1965, as amended (HEA). That disbursement may be made, as provided
in program regulations, either by check or by credit to the student's
account for tuition and other charges then owed, or, with the consent
of the student, for later payment to the student. Until the
disbursement has been made, however, the institution has no
reimbursement claim against the Department. The revised language, which
referred to the disbursements as those that the institution ``will''
make immediately after receiving payment from the Department was
intended to reference situations where the institution had credited
student accounts but not yet paid the student. This revised language
did not accurately describe this procedure. The Secretary therefore
corrects Sec. 668.163(a)(3) to restore a description of reimbursement
requirements as they have been consistently understood and applied by
the Department.
Under those reimbursement procedures, the institution has been
required to disburse fully any amounts for which it seeks
reimbursement, including amounts paid to students directly or credited,
by student consent, to their accounts for later payment. For
reimbursement purposes, however, the Secretary now considers an
institution to have made a disbursement for which a reimbursement claim
is authorized when the institution has credited the student's account
for later payment to the student. The Secretary recognizes the
propriety of this claim because of the nature of the obligation the
institution incurs by making that credit. By crediting the student's
account, the institution incurs a legal obligation to pay the student
the amount credited, to the extent that the student remains eligible.
The institution remains legally obligated to make that payment even if,
by the process of administrative offset, the Department applies funds
otherwise payable to the institution for that approved reimbursement
claim to satisfy a debt owed by the institution.
Waiver of Proposed Rulemaking
In accordance with the Administrative Procedure Act, 5 U.S.C. 553,
it is the practice of the Secretary to offer interested parties the
opportunity to comment on proposed regulations. However, the Secretary
has determined that these amendments to Sec. 668.163(a) to revise and
clarify the procedure for presenting cash requests to the Department
are procedural rules under the exemption from rulemaking requirements
in 5 U.S.C. 553(b)(A) and do not require publication for public
comment.
Executive Order 12866
These regulations have been reviewed in accordance with Executive
Order 12866. Under the terms of the order the Secretary has assessed
the potential costs and benefits of this regulatory action.
The potential costs associated with the proposed regulations are
those determined by the Secretary to be necessary for administering
this program effectively and efficiently.
In assessing the potential costs and benefits--both quantitative
and qualitative--of these regulations, the Secretary has determined
that the benefits of the regulations justify the costs.
The Secretary has also determined that this regulatory action does
not unduly interfere with State, local, and tribal governments in the
exercise of their governmental functions.
Regulatory Flexibility Act Certification
The Secretary certifies that these proposed regulations would not
have a significant economic impact on a substantial number of small
entities. Entities affected by these regulations are institutions of
higher education that participate in the Title IV programs under the
HEA. These regulations, however, would not have a significant impact on
any entities affected. They do not impose excessive regulatory burdens
or require unnecessary Federal supervision. The regulations clarify
existing requirements and relieve unnecessary regulatory burden.
Paperwork Reduction Act of 1995
These proposed regulations have been examined under the Paperwork
Reduction Act of 1995 and have been found to contain no information
collection requirements.
Assessment of Educational Impact
Based on its own review, the Department has determined that the
regulations in this document do not require transmission of information
that is being gathered by or is available from any other agency or
authority of the United States.
[[Page 49043]]
List of Subjects in 34 CFR Part 668
Administrative practice and procedure, Colleges and universities,
Consumer protection, Education, Grant programs--education, Loan
programs--education, Reporting and recordkeeping requirements, Student
aid.
Dated: September 12, 1996.
Richard W. Riley,
Secretary of Education.
(Catalog of Federal Domestic Assistance Number not applicable.)
The Secretary amends Part 668 of Title 34 of the Code of Federal
Regulations as follows:
PART 668--STUDENT ASSISTANCE GENERAL PROVISIONS
1. The authority citation for part 668 continues to read as
follows:
Authority: 20 U.S.C. 1085, 1088, 1091, 1092, 1094, 1099c, and
1141, unless otherwise noted.
2. Section 668.163 is amended by removing paragraph (a)(2)(iii) and
revising paragraph (a)(3) to read as follows:
Sec. 668.163 Requesting funds.
(a) * * *
(3) Reimbursement payment method. Under the reimbursement payment
method--
(i) An institution must first make disbursements to students and
parents for the amount of funds those students and parents are eligible
to receive under the Federal Pell Grant, Direct Loan, and campus-based
programs before the institution may seek reimbursement from the
Secretary for those disbursements. The Secretary considers an
institution to have made a disbursement if the institution has either
credited a student's account or paid a student or parent directly with
its own funds;
(ii) An institution seeks reimbursement by submitting to the
Secretary a request for funds that does not exceed the amount of the
actual disbursements the institution has made to students and parents
included in that request;
(iii) As part of the institution's reimbursement request, the
Secretary requires the institution to--
(A) Identify the students for whom reimbursement is sought; and
(B) Submit to the Secretary or entity approved by the Secretary
documentation that shows that each student and parent included in the
request was eligible to receive and has received the title IV, HEA
program funds for which reimbursement is sought; and
(iv) The Secretary approves the amount of the institution's
reimbursement request for a student or parent and pays the institution
that amount, if the Secretary determines with regard to that student or
parent that the institution--
(A) Accurately determined the student's eligibility for title IV,
HEA program funds;
(B) Accurately determined the amount of title IV, HEA program funds
paid to the student or parent; and
(C) Submitted the documentation required under paragraph
(a)(3)(iii) of this section.
* * * * *
[FR Doc. 96-23853 Filed 9-16-96; 8:45 am]
BILLING CODE 4000-01-P
Complete official Federal Register PDF
FR Doc. 96-23809 Amendment to Class D Airspace, Knob Noster, MO
[Federal Register Volume 61, Number 181 (Tuesday, September 17, 1996)]
[Rules and Regulations]
[Pages 48824-48825]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-23809]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
14 CFR Part 71
[Docket No. 96-ACE-13]
Amendment to Class D Airspace, Knob Noster, MO
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Direct final rule; request for comments.
-----------------------------------------------------------------------
SUMMARY: This action amends the Class D airspace area at Whiteman AFB,
Knob Noster, MO. A review of military instrument approach procedures
found that there is not sufficient Class D airspace and requires an
increase of 0.5 mile extension to the north in order to protect the
point at which arrivals leave 1,000 feet AGL. The effect of this rule
is to provide additional controlled airspace for aircraft executing the
SIAPs at Whiteman AFB.
DATES: Effective date. January 30, 1997.
Comment date. Comments must be received on or before October 25,
1996.
ADDRESSES: Send comments regarding the rule in triplicate to: Manager,
Operations Branch, Air Traffic Division, ACE-530, Federal Aviation
Administration, Docket Number 96-ACE-13, 601 East 12th St., Kansas
City, MO 64106.
The official docket may be examined in the Office of the Assistant
Chief Counsel for the Central Region at the same address between 9:00
a.m. and 3:00 p.m., Monday through Friday, except federal holidays.
An informal docket may also be examined during normal business
hours in the Air Traffic Division at the same address listed above.
FOR FURTHER INFORMATION CONTACT:
Kathy Randolph, Air Traffic Division, Operations Branch, ACE-530C,
Federal Aviation Administration, 601 East 12th Street, Kansas City,
Missouri 64106; telephone: (816) 426-3408.
SUPPLEMENTARY INFORMATION: The FAA has reviewed the controlled airspace
at Whiteman AFB, Knob Noster, MO. The exiting Class D airspace does not
protect the point at which arrivals leave 1,000 feet AGL. Therefore, we
have added a 0.5 mile extension on the north. The amendment to Class D
airspace at Knob Noster, MO, will provide additional controlled
airspace to segregate aircraft operating under Visual Flight Rules
(VFR) from aircraft operating under instrument Flight Rules (IFR)
procedures while arriving or departing the airport. The area will be
depicted on appropriate aeronautical charts thereby enabling pilots to
either circumnavigate the area, continue to operate under VFR to and
from the airport, or otherwise comply with IFR procedures. Class D
airspace areas extending upward from the surface of the earth are
published in paragraph 5000 of FAA Order 7400.9C, dated August 17,
1995, and effective September 16, 1995, which is incorporated by
reference in 14 CFR 71.1. The Class D airspace designation listed in
this document will be published subsequently in the order.
The Direct Final Rule Procedure
The FAA anticipates that this regulation will not result in adverse
or negative comment and, therefore, is issuing it as a direct final
rule. Previous actions of this nature have not been controversial and
have not resulted in adverse comments or objections. The amendment will
enhance safety for all flight operations by designating an area where
VFR pilots may anticipate the presence of IFR aircraft at lower
altitudes, especially during inclement weather conditions. A greater
degree of safety is achieved by depicting the area on aeronautical
charts. Unless a written adverse or negative comment, or a written
notice of intent to submit an adverse or negative comment is received
within the comment period, the regulation will become effective on the
date specified above. After the close of the comment period, the FAA
will publish a document in the Federal Register indicating that no
adverse or negative comments were received, confirming the date on
which the final rule will become effective. If the FAA does receive an
adverse or negative comment within the comment period, or written
notice of intent to submit such a comment, a document withdrawing the
direct final rule will be published in the Federal Register, and a
notice of
[[Page 48825]]
proposed rulemaking may be published with a new comment period.
Comments Invited
Although this action is in the form of a final rule and was not
preceded by a notice of proposed rulemaking, comments are invited on
this rule. Interested persons are invited to comment on this rule by
submitting such written data, views, or arguments as they may desire.
Communications should identify the Rules Docket number and be submitted
in triplicate to the address specified under the caption ``ADDRESSES.''
All communications received on or before the closing date for comments
will be considered, and this rule may be amended or withdrawn in light
of the comments received. Factual information that supports the
commenter's ideas and suggestions is extremely helpful in evaluating
the effectiveness of this action and determining whether additional
rulemaking action would be needed.
Comments are specifically invited on the overall regulatory,
economic, environmental, and energy aspects of the rule that might
suggest a need to modify the rule. All comments submitted will be
available, both before and after the closing date for comments in the
Rules Docket for examination by interested persons. A report that
summarizes each FAA-public contact concerned with the substance of this
action will be filed in the Rules Docket.
Commenters wishing the FAA to acknowledge receipt of their comments
submitted in response to this rule must submit a self-addressed,
stamped postcard on which the following statement is made: ``Comments
to Docket No. 96-ACE-13.'' The postcard will be date stamped and
returned to the commenter.
Agency Findings
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.
The FAA has determined that this regulation is noncontroversial and
unlikely to result in adverse or negative comments. For the reasons
discussed in the preamble, I certify that this regulation (1) is not a
``significant regulatory action'' under Executive Order 12866; (2) is
not a ``significant rule'' under Department of Transportation (DOT)
Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
and (3) if promulgated, 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.
List of Subjects in 14 CFR Part 71
Airspace, Incorporation by reference, Navigation (air).
Adoption of the Amendment
Accordingly, the Federal Aviation Administration amends Part 71 of
the Federal Aviation Regulations (14 CFR Part 71) as follows:
PART 71--[AMENDED]
1. The authority citation for Part 71 continues to read as follows:
Authority: 49 U.S.C. 106(g); 40103, 40113, 40120; E.O. 10854, 24
FR 9565, 3 CFR, 1959-1963 Comp., p. 389; 14 CFR 11.69.
71.1 [Amended]
2. The incorporation by reference in 14 CFR 71.1 of Federal
Aviation Administration Order 7400.9C, Airspace Designations and
Reporting Points, dated August 17, 1995, and effective September 16,
1995, is amended as follows:
Paragraph 5000 Class D airspace areas extending upward from the
surface of the earth.
* * * * *
ACE MO D Knob Noster, MO [Revised]
Whiteman AFB, MO
(Lat. 38 deg.43'49'' N., long., 93 deg.32'53'' W.)
Whiteman TACAN
(Lat. 38 deg.44'09'' N., long. 93 deg.33'02'' W.)
That airspace extending upward from the surface to and including
3,400 feet MSL and within a 4.6-mile radius of Whiteman AFB and
within 1.8 miles each side of the Whiteman TACAN 185 deg. radial
extending from the 4.6 radius to 6.1 miles south of the TACAN and
within 1 mile each side of the Whiteman TACAN 008 deg. radial
extending from the 4.6 radius to 5.1 miles north of the TACAN. This
Class D airspace area is effective during the specified dates and
times established in advance by Notice to Airmen. The effective date
and time will thereafter be continuously published in the Airport/
Facility Directory.
* * * * *
Issued in Kansas City, Mo, on August 16, 1996.
Herman J. Lyons, Jr.,
Manager, Air Traffic Division, Central Region.
[FR Doc. 96-23809 Filed 9-16-96; 8:45 am]
BILLING CODE 4910-13-M
Complete official Federal Register PDF
FR Doc. 96-23808 Standard Instrument Approach Procedures; Miscellaneous Amendments
[Federal Register Volume 61, Number 181 (Tuesday, September 17, 1996)]
[Rules and Regulations]
[Pages 48827-48829]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-23808]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
14 CFR Part 97
[Docket No. 28676; Amdt. No. 1752]
RIN 2120-AA65
Standard Instrument Approach Procedures; Miscellaneous Amendments
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This amendment establishes, amends, suspends, or revokes
Standard Instrument Approach Procedures (SIAPs) for operations at
certain airports. These regulatory actions are needed because of
changes occurring in the National Airspace System, such as the
commissioning of new navigational facilities, addition of new
obstacles, or
[[Page 48828]]
changes in air traffic requirements. These changes are designed to
provide safe and efficient use of the navigable airspace and to promote
safe flight operations under instrument flight rules at the affected
airports.
DATES: An effective date for each SIAP is specified in the amendatory
provisions.
Incorporation by reference-approved by the Director of the Federal
Register on December 31, 1980, and reapproved as of January 1, 1982.
ADDRESSES: Availability of matter incorporated by reference in the
amendment is as follows:
For Examination--
1. FAA Rules Docket, FAA Headquarters Building, 800 Independence
Avenue, SW., Washington, DC 20591;
2. The FAA Regional Office of the region in which affected airport
is located; or
3. The Flight Inspection Area Office which originated the SIAP.
For Purchase-- Individual SIAP copies may be obtained from:
1. FAA Public Inquiry Center (APA-100), FAA Headquarters Building,
800 Independence Avenue, SW., Washington, DC 20591; or
2. The FAA Regional Office of the region in which the affected
airport is located.
By Subscription-- Copies of all SIAPs, mailed once every 2 weeks,
are for sale by the Superintendent of Documents, US Government Printing
Office, Washington, DC 20402.
FOR FURTHER INFORMATION CONTACT:
Paul J. Best, Flight Procedures Standards Branch (AFS-420), Technical
Programs Division, Flight Standards Service, Federal Aviation
Administration, 800 Independence Avenue, SW., Washington, DC 20591;
telephone (202) 267-8277.
SUPPLEMENTARY INFORMATION: This amendment to part 97 of the Federal
Aviation Regulations (14 CFR part 97) establishes, amends, suspends, or
revokes Standard Instrument Approach Procedures (SIAPs). The complete
regulatory description on each SIAP is contained in the appropriate FAA
Form 8260 and the National Flight Data Center (FDC)/Permanent (P)
Notices to Airmen (NOTAM) which are incorporated by reference in the
amendment under 5 U.S.C. 552(a), 1 CFR part 51, and Sec. 97.20 of the
Federal Aviations Regulations (FAR). Materials incorporated by
reference are available for examination or purchase as stated above.
The large number of SIAPs, their complex nature, and the need for a
special format make their verbatim publication in the Federal Register
expensive and impractical. Further, airmen do not use the regulatory
text of the SIAPs, but refer to their graphic depiction of charts
printed by publishers of aeronautical materials. Thus, the advantages
of incorporation by reference are realized and publication of the
complete description of each SIAP contained in FAA form documents is
unnecessary. The provisions of this amendment state the affected CFR
(and FAR) sections, with the types and effective dates of the SIAPs.
This amendment also identifies the airport, its location, the procedure
identification and the amendment number.
The Rule
This amendment to part 97 of the Federal Aviation Regulations (14
CFR part 97) establishes, amends, suspends, or revokes SIAPs. For
safety and timeliness of change considerations, this amendment
incorporates only specific changes contained in the content of the
following FDC/P NOTAM for each SIAP. The SIAP information in some
previously designated FDC/Temporary (FDC/T) NOTAMs is of such duration
as to be permanent. With conversion to FDC/P NOTAMs, the respective
FDC/T NOTAMs have been cancelled.
The FDC/P NOTAMs for the SIAPs contained in this amendment are
based on the criteria contained in the U.S. Standard for Termination
Instrument Approach Procedures (TERPS). In developing these chart
changes to SIAPs by FDC/P NOTAMs, the TERPS criteria were applied to
only these specific conditions existing at the affected airports. All
SIAP amendments in this rule have been previously issued by the FAA in
a National Flight Data Center (FDC) Notice to Airmen (NOTAM) as an
emergency action of immediate flight safety relating directly to
published aeronautical charts. The circumstances which created the need
for all these SIAP amendments requires making them effective in less
than 30 days.
Further, the SIAPs contained in this amendment are based on the
criteria contained in the TERPS. Because of the close and immediate
relationship between these SIAPs and safety in air commerce, I find
that notice and public procedure before adopting these SIAPs are
impracticable and contrary to the public interest and, were applicable,
that good cause exists for making these SIAPs effective in less than 30
days.
Conclusion
The FAA has determined that this regulation only involves an
established body of technical regulations for which frequent and
routine amendments are necessary to keep them operationally current.
It, therefore--(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) does not warrant preparation of a regulatory evaluation as the
anticipated impact is so minimal. For the same reason, the FAA
certifies that this amendment will not have a significant economic
impact on a substantial number of small entities under the criteria of
the Regulatory Flexibility Act.
List of Subjects in 14 CFR Part 97
Air traffic control, Airports, Navigation (air).
Issued in Washington, DC on September 6, 1996.
Thomas C. Accardi,
Director, Flight Standards Service.
Adoption of the Amendment
Accordingly, pursuant to the authority delegated to me, part 97 of
the Federal Aviation Regulations (14 CFR part 97) is amended by
establishing, amending, suspending, or revoking Standard Instrument
Approach Procedures, effective at 0901 UTC on the dates specified, as
follows:
PART 97--STANDARD INSTRUMENT APPROACH PROCEDURES
1. The authority citation for part 97 is revised to read as
follows:
Authority: 49 U.S.C. 40103, 40113, 40120, 44701; 49 U.S.C.
106(g); and 14 CFR 11.49(b)(2).
2. Part 97 is amended to read as follows:
Secs. 97.23, 97.25, 97.29, 97.31, 97.33, 97.35 [Amended]
By amending: Sec. 97.23 VOR, VOR/DME, VOR or TACAN, and VOR/DME or
TACAN; Sec. 97.25 LOC, LOC/DME, LDA, LDA/DME, SDF, SDF/DME; Sec. 97.27
NDB, NDB/DME; Sec. 97.29 ILS, ILS/DME, ISMLS, MLS, MLS/DME, MLS/RNAV;
Sec. 97.31 RADAR SIAPs; Sec. 97.33 RNAV SIAPs; and Sec. 97.35 COPTER
SIAPs, identified as follows:
* * * Effective Upon Publication
[[Page 48829]]
--------------------------------------------------------------------------------------------------------------------------------------------------------
FDC date State City Airport FDC No. SIAP
--------------------------------------------------------------------------------------------------------------------------------------------------------
08/13/96............. NH Lebanon............. Lebanon Muni........ FDC 6/5998 NDB or GPS-B, AMDT 3...THIS REPLACES NOTAM 6/
5252 LEB
08/19/96............. MS Jackson............. Jackson Intl........ FDC 6/6274 LOC BC RWY 15R AMDT 4...THIS CORRECTS TL96-
19
08/22/96............. MN Moose Lake.......... Moose Lake-Carlton FDC 6/6428 NDB or GPS RWY 4, ORIG-A...
County.
08/22/96............. SD Aberdeen............ Aberdeen Regional... FDC 6/6416 ILS RWY 31, AMDT 12...
08/22/96............. SD Aberdeen............ Aberdeen Regional... FDC 6/6417 LOC/DME BC RWY 13, AMDT 9...
08/22/96............. SD Aberdeen............ Aberdeen Regional... FDC 6/6418 NDB RWY 31, AMDT 9...
08/22/96............. SD Aberdeen............ Aberdeen Regional... FDC 6/6419 VOR/DME or GPS RWY 13, AMDT 11...
08/22/96............. SD Aberdeen............ Aberdeen Regional... FDC 6/6420 VOR or GPS RWY 31 AMDT 19...
08/23/96............. MN Appleton............ Appleton Muni....... FDC 6/6454 NDB RWY 13 ORIG...
08/23/96............. MN Owatonna............ Owatonna Muni....... FDC 6/6458 VOR/DME RWY 30 AMDT 2A...
08/26/96............. IA Davenport........... Davenport Muni...... FDC 6/6486 VOR or GPS RWY 21, AMDT 7...
08/26/96............. IA Davenport........... Davenport Muni...... FDC 6/6488 ILS RWY 15, ORIG...
08/26/96............. IA Davenport........... Davenport Muni...... FDC 6/6490 VOR or GPS RWY 3, AMDT 8...
08/26/96............. IA Sioux City.......... Sioux Gateway....... FDC 6/6469 NDB RWY 13, AMDT 15A...
08/26/96............. IA Sioux City.......... Sioux Gateway....... FDC 6/6472 ILS RWY 13, AMDT 1A...
08/26/96............. IA Sioux City.......... Sioux Gateway....... FDC 6/6474 ILS RWY 31, AMDT 24B...
08/26/96............. IA Sioux City.......... Sioux Gateway....... FDC 6/6476 VOR/DME or TACAN or GPS RWY 13, AMDT 17A...
08/26/96............. IA Sioux City.......... Sioux Gateway....... FDC 6/6478 VOR or TACAN or GPS RWY 31, AMDT 25A...
08/26/96............. IA Sioux City.......... Sioux Gateway....... FDC 6/6479 NDB RWY 31, AMDT 23A...
08/26/96............. IA Sioux City.......... Sioux Gateway....... FDC 6/6480 NDB RWY 35, ORIG...
08/26/96............. IA Sioux City.......... Sioux Gateway....... FDC 6/6481 GPS RWY 17, ORIG...
08/26/96............. OK Oklahoma City....... Will Rogers World... FDC 6/6468 ILS RWY 4R AMDT 9...
08/28/96............. IL Chicago............. Chicago O'Hare Intl. FDC 6/6638 ILS RWY 4R AMDT 6...
08/28/96............. MN Faribault........... Faribault Muni...... FDC 6/6632 VOR or GPS-A AMDT 3A...
08/28/96............. MN Owatonna............ Owatonna Muni....... FDC 6/6636 VOR or GPS RWY 12 AMDT 8A...
08/28/96............. MN WaSECA.............. WaSECA Muni......... FDC 6/6634 VOR or GPS-A AMDT 3A...
08/28/96............. OH Hillsboro........... Highland County..... FDC 6/6635 VOR/DME or GPS-A AMDT 1A...
09/03/96............. FL Jacksonville........ Craig Muni.......... FDC 6/6770 ILS RWY 32, AMDT 3...
09/03/96............. GA Jefferson........... Jackson County...... FDC 6/6760 VOR/DME or GPS RWY 34 Orig...
09/03/96............. MN Waseca.............. Waseca Muni......... FDC 6/6703 NDB or GPS RWY 15 AMT 3A...
09/03/96............. MN Waseca.............. Wasec Muni.......... FDC 6/6703 NDB or GPS RWY 15 AMT 3A...
09/03/96............. OH Wilmington.......... Clinton Field....... FDC 6/6706 VOR or GPS-A ORIG...
09/03/96............. OH Wilmington.......... Clinton Field....... FDC 6/6706 VOR or GPS-A ORIG
--------------------------------------------------------------------------------------------------------------------------------------------------------
[FR Doc. 96-23808 Filed 9-16-96; 8:45 am]
BILLING CODE 4910-13-M
Complete official Federal Register PDF
FR Doc. 96-23807 Standard Instrument Approach Procedures; Miscellaneous Amendments
[Federal Register Volume 61, Number 181 (Tuesday, September 17, 1996)]
[Rules and Regulations]
[Pages 48826-48827]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-23807]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
14 CFR Part 97
[Docket No. 28675; Amdt. No. 1751]
RIN 2120-AA65
Standard Instrument Approach Procedures; Miscellaneous Amendments
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This amendment establishes, amends, suspends, or revokes
Standard Instrument Approach Procedures (SIAPs) for operations at
certain airports. These regulatory actions are needed because of the
adoption of new or revised criteria, or because of changes occurring in
the National Airspace System, such as the commissioning of new
navigational facilities, addition of new obstacles, or changes in air
traffic requirements. These changes are designed to provide safe and
efficient use of the navigable airspace and to promote safe flight
operations under instrument flight rules at the affected airports.
DATES: An effective date for each SIAP is specified in the amendatory
provisions.
Incorporation by reference--approved by the Director of the Federal
Register on December 31, 1980, and reapproved as of January 1, 1982.
ADDRESSES: Availability of matters incorporated by reference in the
amendment is as follows:
For Examination--
1. FAA Rules Docket, FAA Headquarters Building, 800 Independence
Avenue, SW., Washington, DC 20591;
2. The FAA Regional Office of the region in which the affected
airport is located; or
3. The Flight Inspection Area Office which originated the SIAP.
For Purchase--Individual SIAP copies may be obtained from:
1. FAA Public Inquiry Center (APA-200), FAA Headquarters Building,
800 Independence Avenue, SW., Washington, DC 20591; or
2. The FAA Regional Office of the region in which the affected
airport is located.
By Subscription--Copies of all SIAPs, mailed once every 2 weeks,
are for sale by the Superintendent of Documents, U.S. Government
Printing Office, Washington, DC 20402.
FOR FURTHER INFORMATION CONTACT: Paul J. Best, Flight Procedures
Standards Branch (AFS-420), Technical Programs Division, Flight
Standards Service, Federal Aviation Administration, 800 Independence
Avenue, SW., Washington, DC 20591; telephone (202) 267-8277.
SUPPLEMENTARY INFORMATION: This amendment to part 97 of the Federal
Aviation Regulations (14 CFR part 97) establishes, amends, suspends, or
revokes Standard Instrument Approach Procedures (SIAPs). The complete
regulatory description of each SIAP is contained in official FAA form
documents which are incorporated by reference in this amendment under 5
U.S.C. 552(a), 1 CFR part 51, and Sec. 97.20 of the Federal Aviation
Regulations (FAR). The applicable FAA Forms are identified as FAA Forms
8260-3, 8260-4, and 8260-5. Materials incorporated by reference are
available for examination or purchase as stated above.
The large number of SIAPs, their complex nature, and the need for a
special format make their verbatim publication in the Federal Register
expensive and impractical. Further, airmen do not use the regulatory
text of the SIAPs, but refer to their graphic depiction on charts
printed by publishers of aeronautical materials. Thus, the advantages
of incorporation by reference are realized and publication of the
complete description of each SIAP contained in FAA form documents is
unnecessary. The provisions of this amendment state the affected CFR
(and FAR) sections, with the types and effective dates of the SIAPs.
This amendment also identifies the airport, its location, the procedure
identification and the amendment number.
The Rule
This amendment to part 97 is effective upon publication of each
separate SIAP as contained in the transmittal. Some SIAP amendments may
have been previously issued by the FAA in a National Flight Data Center
(FDC) Notice to Airmen (NOTAM) as an emergency action of immediate
flight safety relating directly to published aeronautical charts. The
circumstances which created the need for some SIAP
[[Page 48827]]
amendments may require making them effective in less than 30 days. For
the remaining SIAPs, an effective date at least 30 days after
publication is provided.
Further, the SIAPs contained in this amendment are based on the
criteria contained in the U.S. Standard for Terminal Instrument
Approach Procedures (TERPS). In developing these SIAPs, the TERPS
criteria were applied to the conditions existing or anticipated at the
affected airports. Because of the close and immediate relationship
between these SIAPs and safety in air commerce, I find that notice and
public procedure before adopting these SIAPs are impracticable and
contrary to the public interest and, where applicable, that good cause
exists for making some SIAPs effective in less than 30 days.
The FAA has determined that this regulation only involves an
established body of technical regulations for which frequent and
routine amendments are necessary to keep them operationally current.
It, therefore--(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) does not warrant preparation of a regulatory evaluation as the
anticipated impact is so minimal. For the same reason, the FAA
certifies that this amendment will not have a significant economic
impact on a substantial number of small entities under the criteria of
the Regulatory Flexibility Act.
List of Subjects in 14 CFR Part 97
Air traffic control, Airports, Navigation (air).
Issued in Washington, DC on September 6, 1996.
Thomas C. Accardi,
Director, Flight Standards Service.
Adoption of the Amendment
Accordingly, pursuant to the authority delegated to me, part 97 of
the Federal Aviation Regulations (14 CFR part 97) is amended by
establishing, amending, suspending, or revoking Standard Instrument
Approach Procedures, effective at 0901 UTC on the dates specified, as
follows:
PART 97--STANDARD INSTRUMENT APPROACH PROCEDURES
1. The authority citation for part 97 is revised to read as
follows:
Authority: 49 U.S.C. 106(g), 40103, 40113, 40120, 44701; and 14
CFR 11.49(b)(2)
2. Part 97 is amended to read as follows:
Secs. 97.23, 97.25, 97.27, 97.29, 97.31, 97.33 [Amended]
By amending: Sec. 97.23 VOR, VOR/DME, VOR or TACAN, and VOR/DME or
TACAN; Sec. 97.25 LOC, LOC/DME, LDA, LDA/DME, SDF, SDF/DME; Sec. 97.27
NDB, NDB/DME; Sec. 97.29 ILS, ILS/DME, ISMLS, MLS, MLS/DME, MLS/RNAV;
Sec. 97.31 RADAR SIAPs; Sec. 97.33 RNAV SIAPs; and Sec. 97.35. COPTER
SIAPs, identified as follows:
* * * Effective October 10, 1996
Alliance, NE, Alliance Muni, NDBRWY30, Amdt 7 CANCELLED
Kearney, NE, Kearney Muni, LOC RWY 36, Amdt 5A CANCELLED
Fort Worth, TX, Luck Field, VOR/DME or GPS-A, Amdt 1, CANCELLED
Cumberland, WI, Cumberland Muni, VOR/DME-A, Orig
* * * Effective November 7, 1996
Arkadelphia, AR, Arkadelphia Muni, NDB OR GPS RWY 4, Amdt 6
West Milford, NJ, Greenwood Lake, VOR RWY 6, Orig
West Milford, NJ, Greenwood Lake, VOR OR GPS-A, Amdt 3, CANCELLED
Saratoga Springs, NY, Saratoga County, VOR-A, Amdt 5
* * * Effective December 5, 1996
Gulf Shores, AL, Jack Edwards, GPS RWY 27, Orig
Anchorage, AK, Anchorage Intl, GPS RWY 14, Orig
Cordova, AK, Merle K/Mudhole/Smith, GPS RWY 27, Orig
Fairbanks, AK, Fairbanks Intl, GPS RWY 1L, Orig
Ketchikan, AK, Ketchikan Intl, GPS-B, Orig
Mekoryuk, AK, Mekoryuk, GPS RWY 23, Orig
Morrilton, AR, Petit Jean Park, NDB OR GPS RWY 2, Amdt 2, CANCELLED
Morrilton, AR, Petit Jean Park, GPS RWY 2, Orig
Palo Alto, CA, Palo Alto Arpt of Santa Clara County, VOR/DME RWY 30,
Orig
Denver, CO, Jeffco, VOR/DME RWY 29L/R, Orig
Denver, CO, Jeffco, VOR/DME OR GPS RWY 29R, Orig CANCELLED
Denver, CO, Jeffco, ILS RWY 29R, Amdt 13
Denver, CO, Jeffco, GPS RWY 29L, Orig
Denver, CO, Jeffco, GPS RWY 29R, Orig
Fort Collins/Loveland, CO, Fort Collins-Loveland Muni, GPS RWY 33,
Amdt 1
Kremmling, CO, McElroy Airfield, VOR/DME OR GPS-A, Amdt 2
Fort Pierce, FL, St. Lucie County Intl, NDB-A, Orig
Chicago/Romeoville, IL, Lewis University, GPS RWY 27, Amdt 1
Boyne Falls, Mi, Boyne Mountain, NDB or GPS-A, Amdt 6
Boyne Falls, Mi, Boyne Mountain, VOR/DME RNAV or GPS-B, Amdt 3
Gaylord, MI, Otsego County, VOR or GPS RWY 27, Orig
Gaylord, MI, Otsego County, VOR or GPS RWY 9, Amdt 8, CANCELLED
Gaylord, MI, Otsego County, VOR or GPS RWY 27, Amdt 8, CANCELLED
Gaylord, MI, Otsego County, NDB RWY 9, Amdt 11
St. Louis, MO, Lambert-St Louis Intl, ILS RWY 24, Amdt 44
Lincoln, NE Lincoln Muni, GPS RWY 14, Orig
Greensboro, NC, May, VOR/DME OR GPS-A, Amdt 2
Kinston, NC, Kinston Regional Jetport at Stallings Field, LOC BC Rwy
23, Orig, CANCELLED
North Wilkesboro, NC, Wilkes County, GPS RWY 1, Orig
Wilson, NC, Wilson Industrial Air Center, NDB or GPS Rwy 3, Amdt 6
Wilson, NC, Wilson Industrial Air Center, NDB or GPS Rwy 21, Amdt 1
Ardmore, OK, Ardmore Downtown Executive, GPS RWY 35, Orig
Claremore, OK, Claremore Muni, GPS RWY 35, Orig
Clinton, OK, Clinton Muni, NDB RWY 35, Amdt 6
Clinton, OK, Clinton Muni, GPS RWY 35, Orig
Pauls Valley, OK, Pauls Valley Muni, GPS RWY 35, Amdt 1
Anahuac, TX, Chambers County, GPS RWY 12, Orig
Brownfield, TX, Terry County, GPS RWY 2, Orig
Center, TX Center Muni, GPS RWY 17, Orig
Cleveland, TX, Cleveland Muni, GPS RWY 16, Orig
Llano, TX, Llano Muni, GPS RWY 17, Orig
Llano, TX, Llano Muni, GPS RWY 35, Orig
Pecos, TX, Pecos Muni, GPS RWY 14, Orig
Port Isabel, TX, Port Isabel-Cameron Co, GPS RWY 13, Orig
Ellensburg, WA, Bowers Field, GPS RWY 25, Orig
Ellensburg, WA, Bowers Field, VOR OR GPS-B, Amdt 1
Ellenburg, WA, Bowers Field, VOR OR GPS-A, Amdt 2
Vancouver, WA, Pearson Field, LDA-A, Orig
Vancouver, WA, Pearson Field, LOC BC-A, Orig, CANCELLED
[FR Doc. 96-23807 Filed 9-16-96; 8:45 am]
BILLING CODE 4910-13-M
Complete official Federal Register PDF
FR Doc. 96-23804 Establishment of Class E Airspace; Miller, SD
[Federal Register Volume 61, Number 181 (Tuesday, September 17, 1996)]
[Rules and Regulations]
[Pages 48825-48826]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-23804]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
14 CFR Part 71
[Airspace Docket No. 96-AGL-11]
Establishment of Class E Airspace; Miller, SD
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This action establishes Class E airspace at Miller Municipal
Airport, Miller, SD, to accommodate a Nondirectional Beacon (NDB) to
serve Runway 15. Controlled airspace extending upward from 700 to 1200
feet above ground level (AGL) is needed to contain aircraft executing
the approach. The intended affect of this action is to provide
segregation of aircraft using instrument approach procedures in
instrument conditions from other aircraft operating in visual weather
conditions.
EFFECTIVE DATE: 0901 UTC, December 5, 1996.
FOR FURTHER INFORMATION CONTACT: John A. Clayborn, Air Traffic
Division, Operations Branch, AGL-530, Federal Aviation Administration,
2300 East Devon Avenue, Des Plaines, Illinois 60018, telephone (847)
294-7568.
SUPPLEMENTARY INFORMATION:
History
On Wednesday, July 3, 1996, the FAA proposed to amend part 71 of
the Federal Aviation Regulations (14 CFR part 71) to accommodate an NDB
at Miller Municipal Airport, Miller, SD (61 FR 34769). The proposal was
to add controlled airspace extending upward from 700 to 1200 feet AGL
to contain Instrument Flight Rules (IFR) operations in controlled
airspace during portions of the terminal operations and while
transiting between the enroute and terminal environments.
Interested parties were invited to participate in this rulemaking
proceeding by submitting written comments on the proposal to the FAA.
No comments objecting to the proposal were received. Class E airspace
designations for airspace areas extending upward from 700 feet or more
above the surface of the earth are published in paragraph 6005 of FAA
Order 7400.9C dated August 17, 1995, and effective September 16, 1995,
which is incorporated by reference in 14 CFR 71.1. The Class E airspace
designation listed in this document will be published subsequently in
the Order.
The Rule
This amendment to part 71 of the Federal Aviation Regulations (14
CFR
[[Page 48826]]
part 71) establishes Class E airspace at Miller Municipal Airport,
Miller, SD, to accommodate an NDB. Controlled airspace extending upward
from 700 to 1200 feet AGL is needed to contain aircraft executing the
approach. The area will be depicted on appropriate aeronautical charts
thereby enabling pilots to circumnavigate the area or otherwise comply
with IFR procedures.
The FAA has determined that this regulation only involves an
established body of technical regulations for which frequent and
routine amendments are necessary to keep them operationally current.
Therefore, this regulation--(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) does not warrant preparation of a Regulatory Evaluation
as the anticipated impact is so minimal. Since this is a routine matter
that will only affect air traffic procedures and air navigation, it is
certified that this rule will not have a significant economic impact on
a substantial number of small entities under the criteria of the
Regulatory Flexibility Act.
List of Subjects in 14 CFR Part 71
Airspace, Incorporation by reference, Navigation (air).
Adoption of the Amendment
In consideration of the foregoing, the Federal Aviation
Administration amends 14 CFR part 71 as follows:
PART 71--[AMENDED]
1. The authority citation for 14 CFR part 71 continues to read as
follows:
Authority: 49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24
FR 9565, 3 CFR, 1959-1963 Comp., p. 389; 14 CFR 11.69.
Sec. 71.1 [Amended]
2. The incorporation by reference in 14 CFR 71.1 of the Federal
Aviation Administration Order 7400.9C, Airspace Designation and
Reporting Points, dated August 17, 1995, and effective September 16,
1995, is amended as follows:
Paragraph 6005 Class E airspace areas extending upward from 700
feet or more above the surface of the earth.
* * * * *
AGL SD/E5 Miller, SD [New]
Miller Municipal Airport, SD
(Lat. 44 deg.31'31'' N, long. 98 deg.57'29'' W)
That airspace extending upward from 700 feet above the surface
within a 6.6-mile radius of the Miller Municipal Airport and that
airspace extending upward from 1,200 feet above the surface bounded
on the west and northwest by V-263, on the south by V-120, and on
the east by V-15 excluding the Aberdeen, SD; the Pierre, SD; the
Mitchell, SD; and the Huron, SD, 1,200 foot Class E airspace areas
and all federal airways.
* * * * *
Issued in Des Plaines, Illinois on September 4, 1996.
Maureen Woods,
Manager, Air Traffic Division.
[FR Doc. 96-23804 Filed 9-16-96; 8:45 am]
BILLING CODE 4910-13-M
Complete official Federal Register PDF
FR Doc. 96-23780 Prevailing Rate Systems; Abolishment of San Joaquin, California, Nonappropriated Fund Wage Area
[Federal Register Volume 61, Number 181 (Tuesday, September 17, 1996)]
[Rules and Regulations]
[Page 48817]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-23780]
========================================================================
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. 181 / Tuesday, September 17, 1996 /
Rules and Regulations
[[Page 48817]]
OFFICE OF PERSONNEL MANAGEMENT
5 CFR Part 532
RIN 3206-AH59
Prevailing Rate Systems; Abolishment of San Joaquin, California,
Nonappropriated Fund Wage Area
AGENCY: Office of Personnel Management.
ACTION: Interim rule with request for comments.
-----------------------------------------------------------------------
SUMMARY: The Office of Personnel Management (OPM) is issuing an interim
rule to abolish the San Joaquin, CA, nonappropriated fund (NAF) Federal
Wage System (FWS) wage area and redefine its sole county (San Joaquin
County) as an area of application to the Sacramento, CA, NAF wage area
for pay-setting purposes.
DATES: This interim rule becomes effective on September 17, 1996.
Comments must be received by October 17, 1996. Employees currently paid
rates from the San Joaquin, CA, NAF wage schedule will continue to be
paid from that scheduled until their conversion to the Sacramento, CA,
NAF wage schedule on April 18, 1997, 1 day before the effective date of
the next Sacramento, CA, wage schedule.
ADDRESSES: Send or deliver comments to Donald J. Winstead, Assistant
Director for Compensation Policy, Human Resources Systems Service,
Office of Personnel Management, Room 6H31, 1900 E Street NW.,
Washington, DC 20415, or FAX: (202) 606-0824.
FOR FURTHER INFORMATION CONTACT:
Angela Graham Humes, (202) 606-2848.
SUPPLEMENTARY INFORMATION: The Department of Defense recommended to OPM
that the San Joaquin, CA, FWS NAF wage area be abolished and that the
sole remaining county (San Joaquin County) be added as an area of
application to the Sacramento, CA, NAF wage area. This change is
necessary because the Stockton Naval Communication Station, host
installation for the wage area, will close on September 30, 1996. The
remaining installation in the area, the Defense Distribution Region
West, has approximately 18 FWS employees and no longer meets the
minimum FWS employment criterion (26 employees) required to be a survey
area.
As required in regulation, 5 CFR 532.219, the following criteria
were considered in redefining these wage areas:
(1) Proximity of largest activity in each county;
(2) Transportation facilities and commuting patterns; and
(3) Similarities of the counties in:
(i) Overall population;
(ii) Private employment in major industry categories; and
(iii) Kinds and sizes of private industrial establishments.
Proximity, similarities in overall population and total private
sector employment, and the kinds and sizes of private industrial
establishments all favor redefining San Joaquin County to the
Sacramento, CA, NAF wage area. Of the regulatory criteria, only
commuting patterns favor the Almeda-Contra Costa, CA, NAF wage area.
Overall, the criteria support the redefinition of San Joaquin County to
the Sacramento, CA, wage area.
The Federal Prevailing Rate Advisory Committee reviewed this
recommendation and by consensus recommended approval.
Waiver of Notice of Proposed Rulemaking and Delayed Effective Date
Pursuant to 5 U.S.C. 553(b)(3)(B), I find that good cause exists
for waiving the general notice of proposed rulemaking. Also, pursuant
to section 553(d)(3) of title 5, United States Code, I find that good
cause exists for making this rule effective in less than 30 days. The
notice is being waived and the regulation is being made effective in
less than 30 days so that advance preparations otherwise required for
the 1997 San Joaquin, CA, NAF wage area survey may be canceled.
Regulatory Flexibility Act
I certify that these regulations will not have a significant
economic impact on a substantial number of small entities because they
affect only Federal agencies and employees.
List of Subjects in 5 CFR Part 532
Administrative practice and procedure, Freedom of information,
Government employees, Reporting and recordkeeping requirements, Wages.
Office of Personnel Management.
Lorraine A. Green,
Deputy Director.
Accordingly, OPM is amending 5 CFR part 532 as follows:
PART 532--PREVAILING RATE SYSTEMS
1. The authority citation for part 532 continues to read as
follows:
Authority: 5 U.S.C. 5343, 5346; Sec. 532.707 also issued under 5
U.S.C. 552.
Appendix B to Subpart B of Part 532--[Amended]
2. Appendix B to subpart B is amended by removing the entry for San
Joaquin in the listing for the State of California.
3. Appendix D to supart B is amended by removing the wage area
listing for San Joaquin, California, and by revising the listing for
Sacramento, California, to read as follows: Appendix D to Supart B of
Part 532--Nonappropriated Fund Wage and Survey Areas
* * * * *
CALIFORNIA
* * * * *
SACRAMENTO
Survey area
California:
Sacramento
Area of Application. Survey area plus:
California:
San Joaquin (Effective date April 19, 1997)
Yuba
Oregon:
Jackson
Klamath
* * * * *
[FR Doc. 96-23780 Filed 9-16-96; 8:45 am]
BILLING CODE 6325-01-M
Complete official Federal Register PDF
FR Doc. 96-23772 Fisheries Off West Coast States and in the Western Pacific; West Coast Salmon Fisheries; Inseason Adjustments from the U.S.-Canadian Border to the Queets River, WA
[Federal Register Volume 61, Number 181 (Tuesday, September 17, 1996)]
[Rules and Regulations]
[Pages 48852-48853]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-23772]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
50 CFR Part 660
[Docket No. 960126016-6121-04; I.D. 090696C]
Fisheries Off West Coast States and in the Western Pacific; West
Coast Salmon Fisheries; Inseason Adjustments from the U.S.-Canadian
Border to the Queets River, WA
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Inseason adjustments.
-----------------------------------------------------------------------
SUMMARY: NMFS announces the transfer of 300 coho salmon from the
recreational fishery in the subarea between Cape Alava and the Queets
River, WA, to the recreational fishery in the subarea between the U.S.-
Canadian
[[Page 48853]]
border and Cape Alava, WA. The Director, Northwest Region, NMFS
(Regional Director), has determined that the recreational quotas should
be revised to 1,400 coho salmon and 6,700 coho salmon for the
respective subareas. This action is intended to help meet the
recreational season duration objectives for each subarea.
DATES: Effective September 16, 1996, through 2400 hours local time,
September 26, 1996. Comments will be accepted through October 1, 1996.
ADDRESSES: Comments may be mailed to William Stelle, Jr., Director,
Northwest Region, NMFS, 7600 Sand Point Way NE., Seattle, WA 98115-
0070. Information relevant to this action has been compiled in
aggregate form and is available for public review during business hours
at the Northwest Regional Office.
FOR FURTHER INFORMATION CONTACT: William L. Robinson, 206-526-6140.
SUPPLEMENTARY INFORMATION: In the annual management measures for ocean
salmon fisheries (61 FR 20175, May 6, 1996), NMFS announced that coho
salmon may be transferred among recreational subareas north of Cape
Falcon, OR, to help meet the recreational season duration objectives
for each subarea. Any transfers between subarea quotas of 5,000 fish or
less shall be done on a fish-for-fish basis.
By inseason management action (61 FR 40157, August 1, 1996), NMFS
announced that the contingency seasons north of Cape Falcon, OR, would
open as stated in the annual management measures. The 1996 recreational
fishery in the subareas between the U.S.-Canadian border and Cape
Alava, WA, and between Cape Alava and the Queets River, WA, opened on
August 5. Each fishery was scheduled to continue through September 26
or attainment of their respective quotas of 6,400 and 1,700 coho salmon
(revised at 61 FR 43472, August 23, 1996), whichever occurred first.
The fishery between the U.S.-Canadian border and Cape Alava closed
on August 31 upon the projected attainment of its quota, published
elsewhere in this issue. The best available information on September 3
indicated that 6,692 coho salmon were caught in this fishery, so the
quota was exceeded by 292 coho salmon. After conferring with
representatives of the affected ports, NMFS agreed to transfer 300 coho
salmon to this fishery from the recreational fishery between Cape Alava
and the Queets River to cover the quota overage. Therefore, the quota
for the subarea between the U.S.-Canadian border and Cape Alava is
increased to 6,700 coho salmon, and the quota for the subarea between
Cape Alava and the Queets River is decreased to 1,400 coho salmon. Even
with the smaller quota, the fishery between Cape Alava and the Queets
River is expected to continue for the duration of its scheduled season.
Modification of quotas is authorized by regulations at 50 CFR
660.409(b)(1)(i). All other restrictions that apply to these fisheries
remain in effect as announced in the annual management measures.
The Regional Director consulted with representatives of the Pacific
Fishery Management Council, the Washington Department of Fish and
Wildlife, and the Oregon Department of Fish and Wildlife regarding this
adjustment. The State of Washington will manage the recreational
fisheries in state waters adjacent to these areas of the exclusive
economic zone in accordance with this Federal action. Because of the
need for immediate action to manage the fisheries under the revised
quotas, NMFS has determined that good cause exists for this action to
be issued without affording a prior opportunity for public comment.
This action does not apply to other fisheries that may be operating in
other areas.
Classification
This action is authorized by 50 CFR 660.409 and 660.411 and is
exempt from review under E.O. 12866.
Authority: 16 U.S.C. 1801 et seq.
Dated: September 11, 1996.
Richard W. Surdi,
Acting Director, Office of Sustainable Fisheries, National Marine
Fisheries Service.
[FR Doc. 96-23772 Filed 9-16-96; 8:45 am]
BILLING CODE 3510-22-F
Complete official Federal Register PDF
FR Doc. 96-23771 Fisheries Off West Coast States and in the Western Pacific; West Coast Salmon Fisheries; Closures from the U.S.-Canadian Border to Cape Alava, WA, and from the Queets River to Leadbetter Point, WA
[Federal Register Volume 61, Number 181 (Tuesday, September 17, 1996)]
[Rules and Regulations]
[Page 48852]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-23771]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
50 CFR Part 660
[Docket No. 960126016-6121-04; I.D. 090696B]
Fisheries Off West Coast States and in the Western Pacific; West
Coast Salmon Fisheries; Closures from the U.S.-Canadian Border to Cape
Alava, WA, and from the Queets River to Leadbetter Point, WA
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Closures.
-----------------------------------------------------------------------
SUMMARY: NMFS announces that recreational salmon fisheries were closed
in the following areas: From the U.S.-Canadian border to Cape Alava, WA
(48 deg.10'00'' N. lat.), at 2400 hours local time (l.t.), August 31,
1996; and from the Queets River (47 deg.31'42'' N. lat.) to Leadbetter
Point, WA (46 deg.38'10'' N. lat.), at 2400 hours l.t., September 5,
1996. The areas will remain closed under the terms of the preseason
announcement of the 1996 management measures. The Director, Northwest
Region, NMFS (Regional Director), has determined that the recreational
quotas of 6,400 coho salmon and 23,000 coho salmon for the respective
areas have been reached. This action is necessary to conform to the
preseason announcement of the 1996 management measures and is intended
to ensure conservation of coho salmon.
DATES: Closure from the U.S.-Canadian border to Cape Alava, WA, is
effective at 2400 hours l.t., August 31, 1996, through 2400 hours l.t.,
September 26, 1996. Closure from the Queets River to Leadbetter Point,
WA, is effective at 2400 hours l.t., September 5, 1996, through 2400
hours l.t., September 26, 1996. Comments will be accepted through
October 1, 1996.
ADDRESSES: Comments may be mailed to William Stelle, Jr., Director,
Northwest Region, NMFS, 7600 Sand Point Way NE., Seattle, WA 98115-
0070. Information relevant to this action has been compiled in
aggregate form and is available for public review during business hours
at the Northwest Regional Office.
FOR FURTHER INFORMATION CONTACT: William L. Robinson, 206-526-6140.
SUPPLEMENTARY INFORMATION: Regulations governing the ocean salmon
fisheries at 50 CFR 660.409(a)(1) state that when a quota for the
commercial or the recreational fishery, or both, for any salmon species
in any portion of the fishery management area is projected by the
Regional Director to be reached on or by a certain date, NMFS will, by
an inseason action issued under 50 CFR 660.411, close the commercial or
recreational fishery, or both, for all salmon species in the portion of
the fishery management area to which the quota applies as of the date
the quota is projected to be reached.
By inseason management action (61 FR 40157, August 1, 1996), NMFS
announced that the contingency seasons north of Cape Falcon, OR, would
open as stated in the annual management measures for ocean salmon
fisheries (61 FR 20175, May 6, 1996). The 1996 recreational fishery in
the area between the U.S.-Canadian border and Cape Alava, WA, would
open on August 5, and the 1996 recreational fishery in the area between
the Queets River and Leadbetter Point, WA, would open on July 22. Each
fishery would continue through September 26 or attainment of their
respective quotas of 6,400 and 23,000 coho salmon (revised at 61 FR
43472, August 23, 1996), whichever occurred first.
The best available information on August 29 indicated that catch
and effort data and projections supported closure of the recreational
fishery in the area between the U.S.-Canadian border and Cape Alava,
WA, at 2400 hours l.t., August 31, and closure of the recreational
fishery in the area between the Queets River and Leadbetter Point, WA,
at 2400 hours l.t., September 5.
The Regional Director consulted with representatives of the Pacific
Fishery Management Council, the Washington Department of Fish and
Wildlife, and the Oregon Department of Fish and Wildlife regarding
these closures. The State of Washington will manage the recreational
fisheries in state waters adjacent to these areas of the exclusive
economic zone in accordance with this Federal action. As provided by
the inseason notice procedures of 50 CFR 660.411, actual notice to
fishermen of this action was given prior to 2400 hours l.t., August 31,
1996 (closure from the U.S.-Canadian border to Cape Alava, WA) and 2400
hours l.t., September 5, 1996 (closure from the Queets River to
Leadbetter Point, WA) by telephone hotline number 206-526-6667 or 800-
662-9825 and by U.S. Coast Guard Notice to Mariners broadcasts on
Channel 16 VHF-FM and 2182 kHz. Because of the need for immediate
action to stop the fishery upon achievement of the quota, NMFS has
determined that good cause exists for this announcement to be issued
without affording a prior opportunity for public comment. This
announcement does not apply to other fisheries that may be operating in
other areas.
Classification
This action is authorized by 50 CFR 660.409 and 660.411 and is
exempt from review under E.O. 12866.
Authority: 16 U.S.C. 1801 et seq.
Dated: September 11, 1996.
Richard W. Surdi,
Acting Director, Office of Sustainable Fisheries, National Marine
Fisheries Service.
[FR Doc. 96-23771 Filed 9-16-96; 8:45 am]
BILLING CODE 3510-22-F
Complete official Federal Register PDF
FR Doc. 96-23770 Northern Anchovy Fishery; Quotas for the 1996-97 Fishing Year
[Federal Register Volume 61, Number 181 (Tuesday, September 17, 1996)]
[Rules and Regulations]
[Pages 48853-48854]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-23770]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
50 CFR Part 662
[Docket No. 960903241-6241-01; I.D. 081996B]
Northern Anchovy Fishery; Quotas for the 1996-97 Fishing Year
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final quotas.
-----------------------------------------------------------------------
SUMMARY: NMFS announces the estimated spawning biomass and final
harvest quotas for the northern anchovy fishery in the exclusive
economic zone south of Point Reyes, CA, for the 1996-97 fishing season.
These quotas may only be adjusted if inaccurate data were used or if
errors were made in the calculations. Comments on these two points are
invited. The intended effect of this action is to establish allowable
harvest levels of Pacific anchovy.
DATES: Effective on August 1, 1996. Comments will be accepted until
October 15, 1996.
ADDRESSES: Submit comments on the final quotas to Ms. Hilda Diaz-
Soltero, Regional Director, Southwest Region, NMFS, 501 West Ocean
Blvd., Suite 4200, Long Beach, CA 90802-4213. Administrative Report LJ-
95-11 is available from this same address.
FOR FURTHER INFORMATION CONTACT: Mr. James J. Morgan, Southwest Region,
NMFS, (310) 980-4036.
SUPPLEMENTARY INFORMATION: In consultation with the California
Department of Fish and Game and the NMFS Southwest Fisheries Science
Center, the Director of the Southwest Region, NMFS, has decided to use
the 1995 estimate of 388,000 mt spawning biomass of the central
subpopulation of northern anchovy, Engraulis mordax, to set harvest
limits for the 1996-97 fishing season. This is the same biomass
estimate that was used for the 1995-96 fishing season because no new
estimate has been made.
On March 26, 1996, a proposed rule was published in the Federal
Register (61 FR 13148), recommending that Federal regulations
implementing the Northern Anchovy Fishery Management Plan (FMP) be
removed. This proposal was based on the fact that harvests of anchovy
have declined greatly since 1982, and that this situation is unlikely
to change in the foreseeable future. Interjurisdictional and allocation
issues that might require Federal intervention no longer exist.
Removing Federal regulations would mean that the anchovy fishery would
continue to be regulated by the State of California. Since no final
action has yet been taken on this proposed rule, Federal regulation of
the fishery is still effective, and a quota must be set for the 1996
fishing season, which begins on August 1 under the regulations.
The biomass estimate was derived from a stock assessment model
using spawning biomass estimated by five indices of abundance.
Documentation of the spawning biomass is contained in Administrative
Report LJ-95-11, published by the Southwest Fisheries Science Center,
NMFS (see ADDRESSES). This report and the determination of harvest
quotas were provided to the Pacific Fishery Management Council
(Council) last year, and a meeting of the Council's Coastal Pelagics
Planning Team and Advisory Subpanel was held in Long Beach, CA, on June
21, 1995. At that time, NMFS requested estimates of
[[Page 48854]]
domestic processing needs from the fishing industry so that a basis
could be established for setting annual quotas. Additional information
was received at the June 26-29, 1995, meeting of the Council. The
result of these meetings was the thorough review of the 1995 estimate
of the spawning biomass, which is the purpose of the meetings as stated
in 50 CFR 662.20(a)(1). There is no new information to support a change
from the assessment made in 1995. No stock assessment was conducted in
1996. With the information available, a modest harvest based on last
year's estimate of the spawning biomass and on the needs of the U.S.
fishery as expressed by the industry is reasonable.
According to the formula in the FMP, the optimum yield (OY) is
61,600 mt (70 percent of the biomass above 300,000), which is allocated
to reduction fisheries, plus 4,900 mt for non-reduction fisheries.
There is no agreement with Mexico on the management of northern
anchovy; a portion of the biomass (30 percent) above 300,000 mt is
designated as the amount to account for this unregulated harvest. Any
portion of the OY not used by U.S. fishermen is identified as total
allowable level of foreign fishing (TALFF) and is available to foreign
fishing.
The estimates of the amount of anchovy that will be used by the
U.S. fishing industry is based, usually, on the largest amount of
reduction and non-reduction processing in the previous 3 years;
however, the spawning biomass has been below 300,000 mt for 3 of the
last 4 years and no fishery was allowed. There was no reduction harvest
in 1995.
The TALFF depends on that portion of the OY that will not be used
by U.S. fishermen, minus the amount of harvest by Mexican vessels that
is in excess of the average Mexican harvest (calculated according to
the formula in the FMP). The estimate of Mexican excess harvest is
based, generally, on the largest harvest in the last 3 years; however,
the biomass has been so low during this time that there has been no
significant fishery off Mexico until last year, and there was no excess
Mexican harvest last year as defined in the FMP. Historically, the
Mexican fishery has been based on availability and not on abundance.
Recent harvests are not a reliable predictor of Mexican harvest under
conditions of sudden increased abundance.
After considering the above, the Regional Director has made the
following determinations for the 1996-97 fishing season by applying the
formulas in the FMP and in 50 CFR 662.20.
1. The total OY for northern anchovy is 66,500 mt, plus an
unspecified amount for use as live bait.
2. The total U.S. harvest quota for reduction purposes is 13,000
mt.
a. Of the total reduction harvest quota, 1,300 mt is reserved for
the reduction fishery in Subarea A (north of Pt. Buchon). The FMP
requires that 10 percent of the U.S. reduction quota or 9,072 mt,
whichever is less, be reserved for the northern fishery. This is not a
special quota, but only a reduction in the amount allocated to the
southern fishery south of Pt. Buchon (Subarea B). After the northern
fishery has harvested 1,300 mt, any unused portion of the Subarea B
allocation may also be harvested north of Pt. Buchon.
b. The reduction quota for Subarea B (south of Pt. Buchon) is
11,700 mt.
3. The U.S. harvest quota for non-reduction fishing (i.e., fishing
for anchovy for use as dead bait or human consumption) is 4,900 mt (as
set by Sec. 662.20).
4. There is no U.S. harvest limit for the live bait fishery.
5. The domestic annual processing capacity (DAP) is 13,000 mt.
6. The amount allocated to joint venture processing (JVP) is zero,
because there is no history of, nor are there applications for, joint
ventures.
7. Domestic annual harvest capacity (DAH) is 13,000 mt. DAH is the
sum of DAP and JVP.
8. The TALFF is 48,600 mt.
The fishery will be monitored during the year and evaluated with
respect to the OY and the estimated needs of the fishing industry.
Adjustments may be made to comply with the requirements of the FMP and
its implementing regulations.
This action is authorized by 50 CFR part 662 and is exempt from
review under E.O. 12866.
Authority: 16 U.S.C. 1801 et seq.
Dated: September 11, 1996.
Rolland A. Schmitten,
Assistant Administrator for Fisheries, National Marine Fisheries
Service.
[FR Doc. 96-23770 Filed 9-12-96; 12:32 pm]
BILLING CODE 3510-22-F
Complete official Federal Register PDF
FR Doc. 96-23769 Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Coastal Migratory Pelagic Resources of the Gulf of Mexico and South Atlantic; Changes in Catch Limits
[Federal Register Volume 61, Number 181 (Tuesday, September 17, 1996)]
[Rules and Regulations]
[Pages 48848-48852]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-23769]
=======================================================================
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 622
[Docket No. 950725189-6245-04 ; I.D. 060696A]
RIN 0648-AI92
Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic;
Coastal Migratory Pelagic Resources of the Gulf of Mexico and South
Atlantic; Changes in Catch Limits
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: In accordance with the framework procedure for adjusting
management measures of the Fishery Management Plan for the Coastal
Migratory Pelagic Resources of the Gulf of Mexico and South Atlantic
(FMP), NMFS implements commercial vessel trip limits for the Atlantic
migratory group of king mackerel. The intended effects of this rule are
to preclude an early closure of the commercial fishery, protect king
mackerel from overfishing, and maintain healthy stocks while still
allowing catches by important commercial fisheries.
EFFECTIVE DATE: September 23, 1996.
FOR FURTHER INFORMATION CONTACT: Mark F. Godcharles, 813-570-5305.
SUPPLEMENTARY INFORMATION: The fisheries for coastal migratory pelagic
resources are managed under the FMP. The FMP was prepared by the Gulf
of Mexico and South Atlantic Fishery Management Councils and is
implemented by regulations at 50 CFR part 622 under the authority of
the Magnuson Fishery Conservation and Management Act (Magnuson Act).
In accordance with the framework rulemaking procedures of the FMP,
the South Atlantic Council (Council) recommended, and NMFS published, a
proposed rule to establish commercial vessel trip limits for the
Atlantic migratory group of king mackerel (61 FR 34785, July 3, 1996).
That proposed rule described the FMP framework procedures through which
the Council recommended the trip limits and explained the need and
rationale for
[[Page 48849]]
them. Those descriptions are not repeated here.
Comments and Responses
Three letters were received during the comment period. One from the
Council supported the proposed trip limits and requested approval and
expedient implementation to forestall a possible closure during the
1996-97 season. The other two--from a gillnet fisherman and a
commercial fishermen's organization--opposed the trip limits. Similar
comments were addressed in the final rule implementing the partially
approved 1995-96 mackerel catch specifications (60 FR 57686; November
17, 1995) and in the proposed rule announcing this action (61 FR 34785;
July 3, 1996).
National Standard 1
Comment: One commenter stated that trip limits for Atlantic group
king mackerel are unnecessary and inconsistent with maintaining optimum
yield (OY) and maximizing benefits to everyone. He further commented
that such proposals designed to decrease efficiency and prevent quota
overruns are not justifiable considering that the annual commercial
quota has not been harvested since the 1988-89 season and that the
resource is not considered overfished.
Response: National Standard 1 requires conservation and management
measures to prevent overfishing while achieving, on a continuing basis,
the OY from each fishery. NMFS believes the trip limits will not
preclude harvest of the commercial quota or achievement of OY. Rather,
in consideration of newly available stock assessment information and
the Council's recent actions to reduce total allowable catch (TAC) and
quotas, NMFS has determined that the trip limits are necessary to
achieve the objectives of the FMP and those specified for this action.
Specifically, the trip limits should: Prevent user groups from
exceeding their traditional portion of the quota; reduce the likelihood
of a closure that would negatively impact commercial fisheries north of
Florida; limit harvest during the spawning period, and, thus protect
the stock from recruitment overfishing and help in rebuilding it to the
level capable of meeting the long-term OY target of the FMP; and
minimize gear and user group conflicts resulting from possible effort
shifts by fishermen displaced from other fisheries.
This year's stock assessment for Atlantic group king mackerel
provided much lower estimates of the spawning potential ratio (SPR) and
the acceptable biological catch (ABC) range than in previous years.
Levels of SPR form the basis of the FMP definitions for ``overfished,''
``overfishing,'' and ``OY.'' The recommended ABC range establishes the
boundaries for the Council's selection of the annual TAC. The 1996 SPR
estimate, which declined to 32 percent from last year's estimate of 55
percent, is above the 20 percent SPR level delineating overfished
stocks but is below the 40 percent SPR level required to meet the long-
term, target level OY proposed by the Council in FMP Amendment 8. The
estimated 1996 range of ABC decreased to 4.4 - 6.8 million lb (1,996 -
3,084 mt) from the 1995 estimate of 7.3 - 15.5 million lb (3,311 -
7,031 mt). Accordingly, the Council recommended that the 1996-97 TAC be
decreased from 7.3 to 6.8 million lb (3,311 to 3,048 mt).
If the Council's recommended TAC is approved, the resulting 1996-97
commercial quota of 2.52 million lb (1,143 mt) will be somewhat above
levels harvested during the past 4 fishing years, which ranged from
about 2.0 - 2.2 million lb (907 - 998 mt). Moreover, this resulting
quota will be similar to catch levels during the preceding 3-year
period (1989-90 through 1991-92 fishing years), which ranged from 2.5 -
2.7 million lb (1,134 - 1,225 mt). Therefore, at the expected
commercial quota level of 2.52 million lb, implementation of vessel
trip limits is necessary to avoid an early closure of the fishery and
help ensure equitable distribution of the commercial quota among
traditional fisheries.
As discussed in detail in the preamble to the proposed rule (60 FR
34785; July 3, 1996), the Council also proposed the trip limits to
prevent excessive harvest of pre-spawning and spawning fish and, thus,
to avoid recruitment overfishing of both Atlantic and Gulf groups of
king mackerel. The trip limits should prevent excessive catches of the
Atlantic group king mackerel throughout the spring/summer spawning
season and of the Gulf group king mackerel during April. King mackerel
harvest in April, unrestricted by daily vessel trip limits, could
result in the unintentional taking of large quantities of Gulf group
king mackerel when such fish are still located within the boundaries of
the Atlantic group. The Council considers such catches ``double-
dipping,'' (i.e., overrunning of Gulf group quotas that have already
been harvested during the south Florida winter fishing season). Such
overruns contribute to exceeding TAC, or the yearly OY target, and
increase the risk of recruitment overfishing and of not achieving OY.
According to the Council's impact analyses, the trip limits would
alter or reduce the efficiency of operations for some fishermen. For
some years and areas, particularly south Florida, the trip limits would
have substantially reduced some individual vessel's landings as well as
the area's total catch. Nevertheless, given the estimated reduced stock
size and the lower commercial quota for the 1996-97 fishing year,
implementation of trip limits is necessary to prevent recruitment
overfishing, to avoid disproportionate and inequitable harvest of the
available quota by one user group compared to another, and to minimize
the possibility of an early closure of the commercial fishery.
Avoidance of such problems is consistent with National Standards 1, 3,
and 4 (as discussed herein) and with the objectives of the FMP (e.g.,
stabilize fishery yields at maximum sustainable yield (MSY) and
minimize gear and user group conflicts). For these reasons, NMFS
believes that the trip limits strike a reasonable balance between
achieving efficient resource utilization and promoting stability of the
socioeconomic and biological characteristics of the fishery.
National Standard 2
Comment: A commenter stated that the trip limits, particularly the
1,250-lb (567-kg) commercial trip limit proposed for off Monroe County
(Florida Keys), are not supported by the best available scientific
information. He submitted an annotated bibliography suggesting that the
trip limits are not designed to provide maximum protection for spawning
king mackerel. For example, the largest trip limit is proposed for an
area off the South Atlantic Bight, which he contends is a major
spawning area. However, the most restrictive trip limits are proposed
for south Florida in areas where the commenter suggests the
contribution of spawning fish is not important. He also states that off
North Carolina, king mackerel have a prolonged spawning season which
peaks June through August. Therefore, he infers that few, if any, king
mackerel spawn in the Florida Keys area. Finally, the commenter
speculates that the proposals were not reviewed by the Council's
Scientific and Statistical Committee (SSC).
Response: National Standard 2 requires conservation and management
measures to be based upon the best scientific information available.
The Director of NMFS' Southeast Fisheries Science Center has certified
that the trip limits are based on the best available scientific
information and appear risk-averse in maintaining the stock at a size
level not posing risks of recruitment
[[Page 48850]]
overfishing. Furthermore, the trip limit proposals have been reviewed
by the SSCs of both the South Atlantic and Gulf of Mexico Fishery
Management Councils.
The lower trip limits are designed to prevent excessive catches and
overfishing off south Florida where about half to two-thirds of the
commercial quotas for the Atlantic and Gulf groups of king mackerel are
taken annually. The trip limits off south Florida should protect
against double-dipping of quotas already taken during the winter season
and allow greater escapement for overwintering fish to migrate to
summer spawning grounds. They also would preclude excessive harvest
during summer spawning months.
Although larval collection surveys have provided some information
on the location of king mackerel spawning grounds, the findings of the
surveys are not considered conclusive because the patchy occurrence of
larvae in oceanic waters has made biological sampling difficult.
Therefore, information yielded from sparse larval data collections off
south Florida is unlikely to be representative or an accurate indicator
of the actual spawning contribution of this area. Presently,
determination of this type of information is confounded by seasonal
migrations, protracted spawning seasons, and inconclusive findings of
stock identification genetics studies. Until further scientific
information becomes available, protection of spawners by trip limits,
even in areas considered as minor spawning grounds, is a conservative
approach in a risk-averse management program that prevents overfishing
and rebuilds stocks to long-term OY target levels. As indicated by the
1996 stock assessment, both groups of king mackerel are below SPR
target levels representing the long-term OY.
National Standard 3
Comment: One commenter stated that the different trip limits do not
provide uniform management for the stock throughout its range. He
reasoned that if Atlantic group king mackerel is in jeopardy, fishing
mortality from commercial fishing should be reduced uniformly
throughout its range.
Response: National Standard 3 requires that an individual stock of
fish, to the extent practicable, be managed as a unit throughout its
range, and that interrelated stocks of fish be managed as a unit or in
close coordination. The goal of National Standard 3 is not to manage
stocks with identical measures but to manage a given stock as a unit
throughout its range. Indeed, National Standard 6 requires conservation
and management measures to take into account and allow for variations
among, and contingencies in, fisheries, fishery resources, and catches.
The comments received in opposition to the proposed rule were
considered to be rigid interpretations of the national standards that
do not reflect accurately the flexibility described in the Guidelines
for Fishery Management Plans and the legislative history of the
Magnuson Act. Consequently, NMFS has determined that the trip limits
are an important part of a risk-adverse program to protect against
overfishing, distribute the annual commercial quota equitably among
resource users throughout the management area, preclude in-season
closure and resultant negative socioeconomic impacts, rebuild the stock
to long-term OY target levels, and, thus, provide the socioeconomic and
conservation benefits intended by the Council.
National Standard 4
Comment: One commenter believed that the trip limit proposals were
not fair and equitable to the commercial fishermen of Monroe County. He
did not believe that, compared to the lower trip limits proposed for
Florida's southeast and Florida Keys fisheries, the higher trip limit
proposed for the northern area logically follows from the Council's
projection of an additional effort shift from nearby fishermen
displaced from New England fishery closures. He stated, ``Ideally, all
users should bear the burden of resource conservation.''
Another commenter indicated that the trip limit proposals were
unjust and unfair to Florida east coast net fishermen. He believed that
the proposed trip limits would eliminate nets in favor of hook-and-line
fishermen. Net fishermen, he stated, should have a share of the east
coast subzone quota similar to that provided by the gillnet quota for
the Florida west coast subzone.
Response: National Standard 4 requires conservation and management
measures to not discriminate between residents of different states; the
allocation or assignment of fishing privileges among U.S. fishermen
must be fair and equitable to all affected fishermen, reasonably
designed to promote conservation, and implemented in a way so as to
prevent any particular individual, corporation, or other entity from
acquiring an excessive share of such privileges.
NMFS believes the trip limits are consistent with National Standard
4. From the perspective of assigning fishing privileges, they would be
fair and equitable, reasonably calculated to promote conservation, and
carried out in such a manner that no particular entity acquires an
excessive share of such privileges. Although there will be some
disadvantage to more efficient fishermen (e.g., high liners or net gear
users), the trip limits are necessary to achieve long-term OY targets
and to maximize overall benefits from the fishery to participants
throughout the management area.
In response to previous comments received, the Council increased
the trip limit proposed for the Florida Keys from 50 fish to 1,250-lb
(567-kg) (about 125 fish) per day. The higher limit was proposed to
help offset costs of producing Atlantic group king mackerel from more
distant fishing grounds and, thus, allow a more efficient and
profitable operation of vessels in that area. The different trip limits
in different areas of the coast may disadvantage some mackerel
fishermen over others. However, the overall benefits to the entire
community of resource users should offset any adverse impacts on
specific fishermen. The 1,250-lb (567-kg) trip limit for the Florida
Keys and the 500-lb (227-kg) trip limit for the Florida east coast
should provide fair access while preventing excessive catches, early
closures, and quota overruns. For these reasons, NMFS believes that the
trip limits satisfy the requirements of National Standard 4 regarding
fairness and equity to all fishery participants throughout the
management area, while providing a rational management approach to
achieve OY.
Concern about the possibilities of effort increasing from displaced
fishermen entering the fishery was only one of several factors
supporting the implementation of trip limits. Some protection from
potential effort shifts will be provided by all the trip limits.
The comment suggesting a separate gillnet quota for Florida
southeast coast fishermen is not within the scope of this action,
therefore, no response is provided.
Other Comments
Comment: The Council chairman stated that, after reviewing the 1996
stock assessment and the decreased SPR estimate, the Council remains
concerned about the status of Atlantic group king mackerel. In
addition, he expressed concern that the TAC reduction recommended by
the Council in response to the lower 1996 ABC range would result in an
early closure of the 1996-97 fishing season, thereby negatively
impacting states north of Florida. To avoid this potential
[[Page 48851]]
situation, he expressed the Council's support and request to implement
the trip limits as soon as possible.
Response: During agency review of the proposed action, NMFS
carefully considered these and other comments before approving the
Council's regulatory amendment and issuing this implementing final
rule. NMFS issued this final rule in as timely a manner as practicable
consistent with the Council's stated objectives and concerns about the
effects of an early fishery closure.
Changes from the Proposed Rule
Since the proposed rule was published, NMFS has consolidated most
of its fishery regulations for the Southeast Region into one set of
regulations at 50 CFR part 622 (61 FR 34930, July 3, 1996).
Accordingly, this final rule amends the regulations for coastal
migratory pelagic resources in 50 CFR part 622 in lieu of an amendment
to similar regulations previously contained in part 642. Minor changes
in language have been made to conform to the standards in part 622.
Further, the addition, in logical order, of commercial trip limits for
Atlantic group king mackerel, as contained in this final rule, requires
redesignation of existing paragraphs in Sec. 622.44(a). For convenience
and ease of understanding, this final rule redesignates and reprints
the existing commercial trip limits for Gulf group king mackerel
contained in that paragraph without substantive change.
Classification
This final rule has been determined to be not significant for
purposes of E.O. 12866.
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 the proposed rule, if adopted,
would not have a significant economic impact on a substantial number of
small entities. The reasons for this certification were published in
the preamble to the proposed rule (61 FR 34966, July 3, 1996) and are
not repeated here. No comments were received in response to the
proposed rule that required a change in that assessment. As a result, a
regulatory flexibility analysis was not prepared.
To avoid early closure of the commercial Atlantic group king
mackerel fishery and disproportionate harvest of the quota by certain
user groups, it is essential that the trip limits for commercial
vessels that harvest Atlantic group king mackerel from New York through
southwest Florida be implemented as soon as possible. The Assistant
Administrator for Fisheries, NOAA, therefore, finds that good cause
exists, under 5 U.S.C. 553(d)(3), to establish an effective date of
less than 30 days after the date of publication of this final rule. To
provide sufficient notification of the trip limits, particularly to
vessels that may be at sea, NMFS makes the final rule effective
September 23, 1996.
List of Subjects in 50 CFR Part 622
Fisheries, Fishing, Puerto Rico. Reporting and recordkeeping
requirements, Virgin Islands.
Dated: September 11, 1996.
Nancy Foster,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries
Service.
For the reasons set out in the preamble, 50 CFR part 622 is amended
as follows:
PART 622--FISHERIES OF THE CARIBBEAN, GULF, AND SOUTH ATLANTIC
1. The authority citation for part 622 continues to read as
follows:
Authority: 16 U.S.C. 1801 et seq.
2. In Sec. 622.44, paragraph (a) is revised to read as follows:
Sec. 622.44 Commercial trip limits.
* * * * *
(a) King mackerel--(1) Atlantic group. (i) North of 29 deg.25' N.
lat., which is a line directly east from the Flagler/Volusia County,
FL, boundary, king mackerel in or from the EEZ may not be possessed on
board or landed from a vessel in a day in amounts exceeding 3,500 lb
(1,588 kg).
(ii) In the area between 29 deg.25' N. lat. and 28 deg.47.8' N.
lat., which is a line directly east from the Volusia/Brevard County, FL
boundary, king mackerel in or from the EEZ may not be possessed on
board or landed from a vessel in a day in amounts exceeding 3,500 lb
(1,588 kg) from April 1 through October 31.
(iii) In the area between 28 deg.47.8' N. lat. and 25 deg.20.4' N.
lat., which is a line directly east from the Dade/Monroe County, FL
boundary, king mackerel in or from the EEZ may not be possessed on
board or landed from a vessel in a day in amounts exceeding 500 lb (227
kg) from April 1 through October 31.
(iv) In the area between 25 deg.20.4' N. lat. and 25 deg.48' N.
lat., which is a line directly west from the Monroe/Collier County, FL
boundary, king mackerel in or from the EEZ may not be possessed on
board or landed from a vessel in a day in amounts exceeding 1,250 lb
(567 kg) from April 1 through October 31.
(2) Gulf group. Commercial trip limits are established in the
eastern zone as follows. (See Sec. 622.42(c)(1)(i) for specification of
the eastern zone and Sec. 622.42(c)(1)(i)(A)(3) for specifications of
the subzones in the eastern zone.)
(i) Florida east coast subzone. In the Florida east coast subzone,
king mackerel in or from the EEZ may be possessed on board or landed
from a vessel for which a commercial permit for king and Spanish
mackerel has been issued, as required under Sec. 622.4(a)(2)(iv)--
(A) From November 1, each fishing year, until 75 percent of the
subzone's fishing year quota of king mackerel has been harvested--in
amounts not exceeding 50 king mackerel per day.
(B) From the date that 75 percent of the subzone's fishing year
quota of king mackerel has been harvested until a closure of the
Florida east coast subzone has been effected under Sec. 622.43(a)--in
amounts not exceeding 25 king mackerel per day. However, if 75 percent
of the subzone's quota has not been harvested by March 1, the vessel
limit remains at 50 king mackerel per day until the subzone's quota is
filled or until March 31, whichever occurs first.
(ii) Florida west coast subzone--(A) Gillnet gear. (1) In the
Florida west coast subzone, king mackerel in or from the EEZ may be
possessed on board or landed from a vessel for which a commercial
permit with a gillnet endorsement has been issued, as required under
Sec. 622.4(a)(2)(ii), from July 1, each fishing year, until a closure
of the Florida west coast subzone's fishery for vessels fishing with
run-around gillnets has been effected under Sec. 622.43(a)--in amounts
not exceeding 25,000 lb (11,340 kg) per day.
(2) In the Florida west coast subzone:
(i) King mackerel in or from the EEZ may be possessed on board or
landed from a vessel that uses or has on board a run-around gillnet on
a trip only when such vessel has on board a commercial permit for king
and Spanish mackerel with a gillnet endorsement.
(ii) King mackerel from the west coast subzone landed by a vessel
for which such commercial permit with endorsement has been issued will
be counted against the run-around gillnet quota of
Sec. 622.42(c)(1)(i)(A)(2)(ii).
(iii) King mackerel in or from the EEZ harvested with gear other
than run-around gillnet may not be retained on board a vessel for which
such commercial permit with endorsement has been issued.
(B) Hook-and-line gear. In the Florida west coast subzone, king
mackerel in or
[[Page 48852]]
from the EEZ may be possessed on board or landed from a vessel with a
commercial permit for king and Spanish mackerel, as required by
Sec. 622.4(a)(2)(iv), and operating under the hook-and-line gear quota
in Sec. 622.42(c)(1)(i)(A)(2)(i):
(1) From July 1, each fishing year, until 75 percent of the
subzone's hook-and-line gear quota has been harvested--in amounts not
exceeding 125 king mackerel per day.
(2) From the date that 75 percent of the subzone's hook-and-line
gear quota has been harvested until a closure of the west coast
subzone's hook-and-line fishery has been effected under
Sec. 622.43(a)--in amounts not exceeding 50 king mackerel per day.
(iii) Notice of trip limit changes. The Assistant Administrator, by
filing a notification of trip limit change with the Office of the
Federal Register, will effect the trip limit changes specified in
paragraphs (a)(2)(i) and (a)(2)(ii)(B) of this section when the
requisite harvest level has been reached or is projected to be reached.
* * * * *
[FR Doc. 96-23769 Filed 9-16-96; 8:45 am]
BILLING CODE 3510-22-F
Complete official Federal Register PDF
FR Doc. 96-23758 Implantation or Injectable Dosage Form New Animal Drugs; Atipamezole
[Federal Register Volume 61, Number 181 (Tuesday, September 17, 1996)]
[Rules and Regulations]
[Pages 48829-48830]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-23758]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF HEALTH AND HUMAN SERVICES
Food and Drug Administration
21 CFR Part 522
Implantation or Injectable Dosage Form New Animal Drugs;
Atipamezole
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 a new animal drug application
(NADA) filed by Pfizer, Inc. The NADA provides for intramuscular use of
atipamezole hydrochloride sterile injectable solution in dogs as a
medetomidine reversing agent.
EFFECTIVE DATE: September 17, 1996.
FOR FURTHER INFORMATION CONTACT: Marcia K. Larkins, Center for
Veterinary Medicine (HFV-112), Food and Drug Administration, 7500
Standish Pl., Rockville, MD 20855, 301-594-0614.
SUPPLEMENTARY INFORMATION: Pfizer, Inc., 235 East 42d St., New York, NY
10017, has filed NADA 141-033, which provides for intramuscular use of
Antisedan (atipamezole hydrochloride) sterile injectable
solution in dogs as a reversing agent for Domitor
(medetomidine). Medetomidine is a sedative and analgesic agent approved
for use in dogs. The NADA is approved as of August 6, 1996, and the
regulations are amended in part 522 (21 CFR part 522) by adding new
Sec. 522.147 to reflect the approval. The basis of approval is
discussed in the freedom of information summary.
In accordance with the freedom of information provisions of part 20
(21 CFR part 20) and Sec. 514.11(e)(2)(ii) (21 CFR 514.11(e)(2)(ii)), a
summary of safety and effectiveness data and information submitted to
support approval of this application may be seen in the Dockets
Management Branch (HFA-305), Food and Drug Administration, 12420
Parklawn Dr., rm. 1-23, Rockville, MD 20857, between 9 a.m. and 4 p.m.,
Monday through Friday.
Under section 512(c)(2)(F)(i) of the Federal Food, Drug, and
Cosmetic Act (the act) (21 U.S.C. 360b(c)(2)(F)(i)), this approval
qualifies for 5 years of marketing exclusivity beginning August 6,
1996, because no active ingredient (including any ester or salt of the
drug)
[[Page 48830]]
has been previously approved in any other application filed under
section 512(b)(1) of the act.
The agency has carefully considered the potential environmental
effects of this action. FDA has concluded that the action will not have
a significant impact on the human environment, and that an
environmental impact statement is not required. The agency's finding of
no significant impact and the evidence supporting that finding,
contained in an environmental assessment, may be seen in the Dockets
Management Branch (address above) between 9 a.m. and 4 p.m., Monday
through Friday.
List of Subjects in 21 CFR Part 522
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 522 is
amended as follows:
PART 522--IMPLANTATION OR INJECTABLE DOSAGE FORM NEW ANIMAL DRUGS
1. The authority citation for 21 CFR part 522 continues to read as
follows:
Authority: Sec. 512 of the Federal Food, Drug, and Cosmetic Act
(21 U.S.C. 360b).
2. New Sec. 522.147 is added to read as follows:
Sec. 522.147 Atipamezole hydrochloride.
(a) Specifications. Each milliliter of sterile injectable solution
contains 5.0 milligrams of atipamezole hydrochloride.
(b) Sponsor. See No. 000069 in Sec. 510.600(c) of this chapter.
(c) Conditions of use in dogs--(1) Amount. Inject intramuscularly
the same volume as that of medetomidine used.
(2) Indications for use. To reverse clinical effects of the
sedative and analgesic agent medetomidine hydrochloride.
(3) Limitations. For intramuscular use only. Not recommended for
use in pregnant or lactating animals, or animals intended for breeding.
Atipamezole has not been evaluated in breeding animals. Federal law
restricts this drug to use by or on the order of a licensed
veterinarian.
Dated: September 4, 1996.
Stephen F. Sundlof,
Director, Center for Veterinary Medicine.
[FR Doc. 96-23758 Filed 9-16-96; 8:45 am]
BILLING CODE 4160-01-F
Complete official Federal Register PDF
FR Doc. 96-23724 Royalty Relief for Producing Leases and Certain Existing Leases in Deep Water
[Federal Register Volume 61, Number 181 (Tuesday, September 17, 1996)]
[Rules and Regulations]
[Pages 48834-48835]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-23724]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Minerals Management Service
30 CFR Part 203
RIN 1010-AC13
Royalty Relief for Producing Leases and Certain Existing Leases
in Deep Water
AGENCY: Minerals Management Service (MMS), Interior.
ACTION: Extension of comment period for interim rule.
-----------------------------------------------------------------------
SUMMARY: This document extends to October 30, 1996, the deadline for
the submission of comments on the interim rule governing royalty relief
for producing leases and certain existing leases in deep water that was
published May 31, 1996.
DATES: MMS will consider all comments we receive by October 30, 1996.
We will begin reviewing comments at that time and may not fully
consider comments we receive after October 30, 1996.
ADDRESSES: Mail or hand-carry comments to the Department of the
Interior; Minerals Management Service; Mail Stop 4700; 381 Elden
Street; Herndon, Virginia 20170-4817; Attention: Chief, Engineering and
Standards Division.
FOR FURTHER INFORMATION CONTACT:
Dr. Marshall Rose, Economic Evaluation Branch, telephone (703) 787-
1536.
SUPPLEMENTARY INFORMATION: The MMS has been asked to extend the
deadline for respondents to submit comments to the interim regulations
governing royalty relief on producing and certain existing leases in
deep water that were published May 31, 1996 (61 FR 27263). More time is
needed to allow respondents time to work on certain aspects and problem
areas of the interim rule and guidelines for royalty relief for
existing deep water leases.
[[Page 48835]]
Dated: September 9, 1996.
Lucy R. Querques,
Acting Associate Director for Offshore Minerals Management.
[FR Doc. 96-23724 Filed 9-16-96; 8:45 am]
BILLING CODE 4310-MR-M
Complete official Federal Register PDF
FR Doc. 96-23717 Office of the Assistant Secretary for Housing-Federal Housing Commissioner; Home Equity Conversion Mortgage Insurance Demonstration: Additional Streamlining
[Federal Register Volume 61, Number 181 (Tuesday, September 17, 1996)]
[Rules and Regulations]
[Pages 49030-49034]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-23717]
[[Page 49029]]
_______________________________________________________________________
Part III
Department of Housing and Urban Development
_______________________________________________________________________
24 CFR Part 206
Home Equity Conversion Mortgage Insurance Demonstration: Additional
Streamlining; Final Rule
Federal Register / Vol. 61, No. 181 / Tuesday, September 17, 1996 /
Rules and Regulations
[[Page 49030]]
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
24 CFR Part 206
[Docket No. FR-2958-F-05]
RIN 2502-AF32
Office of the Assistant Secretary for Housing-Federal Housing
Commissioner; Home Equity Conversion Mortgage Insurance Demonstration:
Additional Streamlining
AGENCY: Office of the Assistant Secretary for Housing-Federal Housing
Commissioner, HUD.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This rule makes final the proposed rule issued by the
Department on May 10, 1996, which proposed changes to the Home Equity
Conversion Mortgage (HECM) Insurance Demonstration, including technical
and clarifying changes, to improve and streamline the program as a
supplement to the changes made through the interim rule, published on
August 16, 1995, and made final on December 21, 1995. This rule also
makes further streamlining amendments.
EFFECTIVE DATE: October 17, 1996; except that the amendment to the
definition of ``principal limit'' in Sec. 206.3, as made by this rule,
shall have an effective date of January 5, 1997.
FOR FURTHER INFORMATION CONTACT: Richard K. Manuel, Acting Director,
Single Family Development Division, Office of Insured Single Family
Housing, Room number 9272, Department of Housing and Urban Development,
451 Seventh Street, SW, Washington, DC 20410, telephone (202) 708-2700;
TTY (202) 708-4594. (These are not toll-free telephone numbers.)
SUPPLEMENTARY INFORMATION:
Background
The Home Equity Conversion Mortgage (HECM) Insurance Demonstration
was authorized by section 417 of the Housing and Community Development
Act of 1987, Pub.L. 100-242, 101 STAT. 1908, which amended the National
Housing Act, Pub.L. 73-479, 48 STAT. 1246 (12 U.S.C. 1715z-20) to add
new section 255 to permit elderly homeowners to borrow against the
equity in their homes. The regulations for the HECM program were
established as part 206 of title 24 of the Code of Federal Regulations
(June 9, 1989, 54 FR 24833).
The interim rule published on August 16, 1995, at 60 FR 42754,
revised 24 CFR part 206 to include improvements to the program that did
not require prior public comment before implementation. The interim
rule was made final on December 21, 1995, at 60 FR 66476.
On May 10, 1996, at 61 FR 21918, the Department published a
proposed rule which reflected additional ideas for improving the
program regulations for which the Department desired public comment
prior to implementation. The public was afforded a 60-day comment
period which expired on July 9, 1996. Seven commenters responded: two
attorneys (one on behalf of a mortgagee), three mortgagees, and two
national cooperative associations. Below is a listing of the comments
presented. Following each comment is the Department's response.
Comment: Section 206.8 would expressly preempt contrary State laws.
Nothing in the statute suggests that Congress intended to preempt any
State laws. This could be detrimental to HECM lenders if they rely on
such provisions which are later over-turned. This section should not be
included in the final rule.
Response: The Department has considered the legal arguments made by
the commentor and concludes that the Department does have the authority
to ensure that all HECM debt will have a first lien priority. As stated
in the proposed rule, ``(t)hat priority is a basic assumption in the
computer model used to determine the amount of payments to the
mortgagor.''
Comment: In Sec. 206.21(b)(3), HUD is proposing to provide itself
the unilateral right to make annual adjustments to a HECM loan's
interest rate, even in those cases where the underlying contract
assigned to HUD provides for monthly adjustments. The commenter
challenges the right for HUD to make unilateral changes to the original
contract and make annual interest rate adjustments. A yearly adjustment
could have a serious adverse effect on consumers when the interest
rates are going down, and the consumers cannot enjoy the benefits of
decreasing interest charges. This section is inappropriate and should
not be included in the final rule.
Response: The Department withdraws this proposed change to convert
monthly adjustments to the interest rate to annual adjustments if the
mortgage is assigned. It should be noted that the commentor
misunderstood the intent of the proposed change. It would not have
applied to existing mortgages, but prospectively to mortgages newly
originated.
Comment: Several commenters oppose altering the HECM from an open-
end credit instrument to a closed-end instrument. The change would deny
future HECM users an important freedom enjoyed by current HECM users:
the option to conserve the estates they will leave to their heirs by
reducing outstanding loan balances when circumstances permit it, while
retaining the right to draw again upon this revolving credit should
needs arise. This change would make HECMs less attractive and less
functional to older people and would be a significant change for the
worse in the HECM program. Although the ability to redraw may not be a
frequently used feature by HECM borrowers, the ability to re-borrow
raises the ``comfort level'' of some HECM borrowers who may already be
confused and uncertain about this mortgage loan product.
The Truth in Lending Act (TILA) rules for open-end credit are not
burdensome in the origination process. For example, the disclosures
provided pursuant to Regulation Z can be generated on a printed form
with a minimal number of blanks completed with costs for a particular
State. These disclosures can then be copied and used for multiple
transactions. Furthermore, if the change is adopted, in addition to
standard closed-end truth in lending disclosure, lenders will have to
produce closed-end credit variable rate transaction program disclosures
pursuant to Regulation Z because virtually all HECM loans have
adjustable rates. In many respects these disclosures are similar to the
home equity open-end credit disclosures currently provided pursuant to
Regulation Z at application, and therefore, nothing is gained from the
change to closed-end requirements with respect to disclosures given at
application.
FNMA has recently introduced the Home Keeper open-end credit
reverse mortgage program and has no current plans to change its program
to closed-end credit. Therefore, lenders will still have to be familiar
with open-end credit requirements, and it will be confusing to both
lenders and applicants to have two similar programs, one open-end
credit and one closed-end credit.
Response: We agree with commenters and withdraw the proposed rule
change that would make HECMs ``closed end'' credit for purposes of the
regulations implementing the Truth in Lending Act.
Comment: One commenter recommends an improvement in the way
servicing firms present periodic HECM statements of account to
borrowers. Currently, most HECM servicers omit a statement of the line
of credit funds available to the borrower, and all servicers have
declined to
[[Page 49031]]
inform borrowers of the rate of growth in effect for these available
funds as of the statement date.
Response: This comment does not apply to this rule. We will review,
however, the actual practices and requirements for lender statements of
account to the borrower and determine if they include adequate
disclosures of the loan balances and account activities.
Comment: The HECM regulations should be expanded to include housing
cooperatives; elderly residents of housing cooperatives should not be
excluded. This will have an enormous impact on the ability of elderly
homeowners to afford to live on their own.
If HUD expands the HECM regulations to include housing
cooperatives, the regulations should also be changed to allow HUD to
insure a HECM on a unit in a condominium or housing cooperative project
even if the project does not meet usual HUD policy regarding ``rights
of first refusal.'' In both a condominium and a housing cooperative,
rights of first refusal are a necessary safeguard for the project. In
addition, it is an industry-wide accepted practice that protects the
investment of these homeowners as well as the mortgage holder. Rights
of first refusal do not prevent the unit from being widely marketable
without restrictions to a wide potential market. Rather, it should be
viewed as enhancing the value of the unit as well as providing a
necessary protection for future purchasers.
Response: The single family insurance program for cooperative units
is inactive. Cooperative units, therefore, are not eligible for the
HECM program. At this time, HUD lacks the field and headquarters
resources to undertake this type of effort which would require us to
first study the feasibility of including cooperative units in the HECM
program.
Comment: The commenter agrees with HUD's proposal to give the
Secretary the option to eliminate the HUD-held second mortgage. It has
proven to be cumbersome and costly. A lot of time is spent explaining
the function of the second mortgage to lenders, borrowers, title
companies, and recorders.
Response: HUD will keep this proposal in the final rule.
This Final Rule
This rule makes final the provisions proposed in the May 10, 1996
proposed rule. In light of the comments discussed above, the Department
withdraws the proposed change to Sec. 206.21(b)(3) to convert monthly
adjustments to the interest rate to annual adjustments if the mortgage
is assigned. The Department also withdraws the proposed change to
Sec. 206.3 to add a new definition of ``mortgage balance'' that would
make HECMs ``closed end'' credit and a related proposed change in
Sec. 206.209(a).
The effective date for the amendment to the definition of
``principal limit'' in Sec. 206.3, is delayed until 120 days from date
of publication. Desktop HECM software will have to be modified, and the
Lockheed/Martin (CDSI) system will also have to be changed. Also,
lenders, servicers, and FNMA will probably have to make system changes.
The extended delayed effective date for this particular amendment will
provide the time necessary for the various system changes to be made.
Streamlining
President Clinton's memorandum of March 4, 1995, titled
``Regulatory Reinvention Initiative'' directed heads of Federal
departments and agencies to review all existing regulations to
eliminate those that are outdated and modify others to increase
flexibility and reduce burden. As a part of HUD's overall effort to
reduce regulatory burden and streamline the content of title 24 of the
Code of Federal Regulations, this rule removes those provisions which
are unnecessary to be codified because they are duplicative of
statutory language or because they can be made available through other
non-rulemaking means.
The August 16, 1995 interim rule (as made final on December 21,
1995) made changes to part 206 to improve and streamline the program
based on the first five years of the demonstration. This final rule
also makes additional streamlining changes by removing several
provisions of the HECM regulations which repeat statutory language from
the legislation. It is unnecessary to maintain statutory requirements
in the Code of Federal Regulations (CFR), since these requirements are
otherwise fully accessible and binding. Furthermore, if regulations
contain statutory language, HUD must amend the regulations whenever
Congress amends the statute. This final rule removes repetitious
statutory language and replaces it with a citation to the specific
statutory section for easy reference. The following streamlining
amendments are made, therefore, by this rule:
1. Section 206.1 Purpose is amended to state that the purpose is
set out in section 255(a) of the National Housing Act (NHA).
2. Section 206.3 Definitions is amended to delete an unnecessary
definition and, for certain other definitions, to cross-reference to
the statute or other sections of the CFR in order to avoid duplication.
3. Section 206.9 Eligible mortgagees is amended to revise
paragraph (a) so that it cross-references in order to the statute to
avoid duplication.
4. Section 206.33 Age of mortgagor is amended to remove an
outdated reference.
5. Section 206.41 Counseling is amended to revise paragraph (b) so
that it cross-references to the statute in order to avoid duplication.
6. Section 206.43 Information to mortgagor is deleted because it
pertains to material to be given by the mortgagee to the mortgagor and
can be handled in a handbook or other issuance.
7. The last sentence of Sec. 206.47(c) is deleted because it merely
repeats the substance of Sec. 206.31(b).
8. Section 206.115 Termination is deleted because the provisions
are combined with Sec. 206.133(f) Termination of insurance contract--
Effect of termination.
9. Section 206.119 Written statement of procedures to mortgagor is
deleted because it pertains to material that can be handled in a
handbook or other issuance.
10. A technical correction is made to Sec. 206.121(b) to substitute
and incorrect reference to the Treasury Financial Manual.
Findings and Certifications
Information Collection Requirements. The information collection
requirements for the Home Equity Conversion Mortgage Insurance
Demonstration have been approved by the Office of Management and Budget
under the Paperwork Reduction Act of 1995, and have been assigned OMB
Control Number 2528-0133. 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. This rule does
not contain additional information collection requirements.
Environmental Impact. A Finding of No Significant Impact with
respect to the environment has been made in accordance with HUD
regulations at 24 CFR part 50, which implements section 102(2)(C) of
the National Environmental Policy Act of 1969 (NEPA). This 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,
Office of the General Counsel, Department of Housing and Urban
Development Room 10276, 451 Seventh Street, SW, Washington, DC 20410.
[[Page 49032]]
Impact on Small Entities. 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 would
not have a significant economic impact on a substantial number of small
entities. The rule is limited to revision of the Home Equity Conversion
Mortgage Demonstration. Specifically, the requirements of the rule are
directed to making the program more efficient for participating
mortgagees, mortgagors and the Department.
Executive Order 12612, Federalism. The General Counsel, as the
Designated Official under section 6(a) of Executive Order 12612, has
determined that Sec. 206.8 of the rule has federalism implications.
Specifically, the rule provides that State law on lien priority would
be preempted if HECM loan advances made by private mortgagees would not
have a first lien priority (subject only to liens for State or local
taxes or special assessments). (Preemption is not an issue for loan
advances made by HUD because Federal law rather than State law would
apply under United States v. Kimbell Foods, Inc., 440 U.S. 715 (1979).
The purpose of the rule is to permit a mortgagee to be able to
continue to make loan advances in accordance with the loan agreement
(including advances for accruing interest and mortgage insurance
premiums) as long as the elderly homeowner/mortgagor desires to
continue to occupy his or her home, while still maintaining a first
lien priority for all advances. If State law was applied and resulted
in granting priority to some other lien created after the HECM was
recorded, the mortgagee would need to stop further payments to the
mortgagor. The mortgagee might also need to foreclose to stop the
continuing accrual of items such as interest and mortgage insurance
premium with a junior lien priority. Either result would conflict with
the HECM program goal of preventing displacement of the elderly
homeowner, either directly from foreclosure or indirectly because of
lack of funds available to the homeowner for the expenses of
homeownership.
This conflict itself might result in preemption of State law under
relevant Supreme Court opinions. The rule removes any doubt and
provides needed clarification for HUD, mortgagees, and other creditors
who may rely on the mortgagor's equity. HUD has concluded that State
law would ordinarily result in a first lien status for all HECM loan
advances, but is concerned that applicable law is not always clear and
that some situations might occur in which the application of State law
would leave the first lien status in doubt. The effect of the
preemption is likely to be small but it is important to ensure that the
HECM program remains a first mortgage program as intended by Congress.
HUD has concluded that it is not necessary to preempt laws that
would give priority to liens for unpaid State or local taxes or special
assessments. If the mortgagee pays them and later files an insurance
claim, HUD would reimburse the mortgagee for those amounts as part of
the insurance benefits. This distinguishes these liens from other liens
and there is therefore no need to object to a superior lien position.
This exception permitting superior liens for unpaid taxes and special
assessments means that the proposed rule would have no substantial
direct effects on States or their political subdivisions, or the
relationship between the Federal government and the States.
The Department believes that although the rule might have
federalism implications, it is designed to achieve a legitimate Federal
purpose and is carefully crafted to limit its effects to those
necessary to achieve that end. In these circumstances, the Department
believes that the Order imposes no bar to implementation of the rule.
For these reasons, the General Counsel has determined that the rule's
federalism implications are not sufficiently significant to warrant
preparation of a Federalism Assessment under section 6(b) of the Order.
Executive Order 12606, The Family. The General Counsel, as the
Designated Official under Executive Order 12606, The Family, has
determined that this rule does not have potential for significant
impact on family formation, maintenance, and general well-being, and,
thus, is not subject to review under the order. No significant change
in existing HUD policies or programs will result from promulgation of
this rule, as those policies and programs relate to family concerns.
Unfunded Mandates Reform Act. Title II of the Unfunded Mandates
Reform Act of 1995, Public Law 104-4, established requirements for
Federal agencies to assess the effects of their regulatory actions on
State, local, and tribal governments and the private sector. This rule
does not impose any Federal mandates on any State, local, or tribal
governments or the private sector within the meaning of the Unfunded
Mandates Reform Act of 1995.
Catalog of Federal Domestic Assistance. The Catalog of Federal
Domestic Assistance number for the HECM progam is 14.183.
List of Subjects for 24 CFR Part 206
Aged, Condominiums, Loan programs--housing and community
development, Mortgage insurance, Reporting and recordkeeping
requirements.
Accordingly, 24 CFR part 206 is amended as follows:
PART 206--HOME EQUITY CONVERSION MORTGAGE INSURANCE
1. The authority citation for part 206 continues to read as
follows:
Authority: 12 U.S.C. 1715b, 1715z-20; 42 U.S.C. 3535(d).
2. Section 206.1 is revised to read as follows:
Sec. 206.1 Purpose.
The purposes of the Home Equity Conversion Mortgage Insurance
program are set out in section 255(a) of the National Housing Act,
Public Law 73-479, 48 STAT. 1246 (12 U.S.C. 1715z-20) (``NHA'').
3. Section 206.3 is amended by removing the term ``assessment,'' by
revising the first sentence of the definition of ``expected average
mortgage interest rate,'' and by revising the definitions of ``Contract
of insurance,'' ``MIP,'' ``Mortgagee,'' ``principal limit,'' and
``Secretary,'' to read as follows:
Sec. 206.3 Definitions.
* * * * *
Contract of insurance (See 24 CFR 203.251(j)).
* * * * *
Expected average mortgage interest rate means the mortgage interest
rate used to calculate future payments to the mortgagor and is
established when the mortgage interest rate is established. * * *
* * * * *
MIP (See 24 CFR 203.251(k)).
* * * * *
Mortgagee (See section 255(b)(2) of NHA).
* * * * *
Principal limit means the maximum disbursement that could be
received in any month under a mortgage, assuming that no other
disbursements are made, taking into account the age of the youngest
mortgagor, the mortgage interest rate, and the maximum claim amount.
Mortgagors over the age of 95 will be treated as though they are 95 for
purposes of calculating the principal limit. The principal limit is
used to calculate payments to a mortgagor. It is calculated for the
first month that a mortgage could be outstanding using
[[Page 49033]]
factors provided by the Secretary. It increases each month thereafter
at a rate equal to one-twelfth of the mortgage interest rate in effect
at that time, plus one-twelfth of one-half percent per annum, unless
the mortgage was executed on or after January 5, 1997. If the mortgage
was executed before January 5, 1997, the principal limit increases at a
rate equal to the expected average mortgage interest rate plus one-
twelfth of one-half percent per annum. The principal limit may decrease
because of insurance or condemnation proceeds applied to the mortgage
balance under Sec. 209.209(b) of this chapter.
* * * * *
Secretary (See 24 CFR 5.100).
4. Subpart A is amended to add a new Sec. 206.8 to read as follows:
Sec. 206.8 Preemption.
(a) Lien priority. The full amount secured by the mortgage shall
have the same priority over any other liens on the property as if the
full amount had been disbursed on the date the initial disbursement was
made, regardless of the actual date of any disbursement. The amount
secured by the mortgage shall include all direct payments by the
mortgagee to the mortgagor and all other loan advances permitted by the
mortgage for any purpose including loan advances for interest, taxes
and special assessments, premiums for hazard or mortgage insurance,
servicing charges and costs of collection, regardless of when the
payments or loan advances were made. The priority provided by this
section shall apply notwithstanding any State constitution, law or
regulation.
(b) Second mortgage. If the Secretary holds a second mortgage, it
shall have a priority subordinate only to the first mortgage (and any
senior liens permitted by paragraph (a) of this section).
5. Section 206.9 is amended by revising paragraph (a) to read as
follows:
Sec. 206.9 Eligible mortgagees.
(a) Statutory requirements. (See section 255(b)(3) of NHA).
* * * * *
6. Section 206.19 is amended to revise paragraph (c) to read as
follows:
Sec. 206.19 Payment options.
* * * * *
(c) Line of credit payment option. Under the line of credit payment
option, payments are made by the mortgagee to the mortgagor at times
and in amounts determined by the mortgagor as long as the amounts do
not exceed the payment amounts permitted by Sec. 206.25(d).
* * * * *
7. Section 206.25 is amended to revise paragraph (d) to read as
follows:
Sec. 206.25 Calculation of payments.
* * * * *
(d) Line of credit separately or with monthly payments. If the
mortgagor has a line of credit, separately or combined with the term or
tenure payment option, the principal limit is divided into an amount
set aside for servicing charges under Sec. 206.19(d), an amount equal
to the line of credit (including any portion of the principal limit set
aside for repairs or property charges under Sec. 206.19(d)), and the
remaining amount of the principal limit (if any). The line of credit
amount increases at the same rate as the total principal limit
increases under Sec. 206.3. A payment under the line of credit may not
exceed the difference between the current amount of the principal limit
for the line of credit and the portion of the mortgage balance,
including accrued interest and MIP, attributable to draws on the line
of credit.
* * * * *
8. Section 206.26 is amended to revise paragraph (d) to read as
follows:
Sec. 206.26 Change in payment option.
* * * * *
(d) Fee for change in payment. The mortgagee may charge a fee, not
to exceed an amount determined by the Secretary, whenever payments are
recalculated.
* * * * *
9. Section 206.27 is amended to revise paragraphs (c)(1) and (d) to
read as follows:
Sec. 206.27 Mortgage provisions.
* * * * *
(c) * * *
(1) The mortgage shall state that the mortgage balance will be due
and payable in full if a mortgagor dies and the property is not the
principal residence of at least one surviving mortgagor, or a mortgagor
conveys all or his or her title in the property and no other mortgagor
retains title to the property. For purposes of the preceding sentence,
a mortgagor retains title in the property if the mortgagor continues to
hold title to any part of the property in fee simple, as a leasehold
interest as set forth in Sec. 206.45(a), or as a life estate.
* * * * *
(d) Second mortgage to Secretary. Unless otherwise provided by the
Secretary, a second mortgage to secure any payments by the Secretary as
provided in Sec. 206.121(c) must be given to the Secretary before a
Mortgage Insurance Certificate is issued for the mortgage.
* * * * *
10. Section 205.33 is revised to read as follows:
Sec. 206.33 Age of mortgagor.
The youngest mortgagor shall be 62 years of age or older at the
time the mortgagee submits the application for insurance.
11. Section 206.35 is amended to add a new sentence at the end, to
read as follows:
Sec. 206.35 Eligibility of title.
* * * If one or more mortgagors hold a life estate in the property,
for purposes of this section only the term ``mortgagor'' shall include
each holder of a future interest in the property (remainder or
reversion) who has executed the mortgage.
12. Section 206.41 is amended by revising paragraph (b) to read as
follows:
Sec. 206.41 Counseling.
* * * * *
(b) Information to be provided. (See section 255(f) of NHA).
* * * * *
Sec. 206.43 [Removed and reserved]
13. Section 206.43 is removed and reserved.
14. Section 206.47 is amended to add a new paragraph (e) to read as
follows:
Sec. 206.47 Eligible properties.
* * * * *
(e) Freely marketable. The property must be freely marketable.
Conveyance of the property may only be restricted as permitted under 24
CFR 203.41 or 24 CFR 234.66 and this part.
* * * * *
Sec. 206.47 [Amended]
15. Section 206.47 is amended to remove the last sentence of
paragraph (c).
Sec. 206.115 [Removed and reserved]
16. Section 206.115 is removed and reserved.
17. Section 206.117 is revised to read as follows:
Sec. 206.117 General.
The Secretary is required by statute to take any action necessary
to provide a mortgagor with funds to which the mortgagor is entitled
under the mortgage and which the mortgagor does not receive because of
the default of the mortgagee. The Secretary may hold a second mortgage
to secure repayment by
[[Page 49034]]
the mortgagor under Sec. 206.27(d) or may accept assignment of the
first mortgage.
Sec. 206.119 [Removed and reserved]
18. Section 206.119 is removed and reserved.
19. In Sec. 206.121 paragraph (b) is amended by removing the term
``Treasury Fiscal Requirements Manual'' from the second sentence and to
add in its place the term ``Treasury Financial Manual'', and paragraph
(c) is amended by revising the first and second sentences to read as
follows:
Sec. 206.121 Secretary authorized to make payments.
* * * * *
(c) Second mortgage. If the contract of insurance is terminated as
provided in Sec. 206.133(c), all payments to the mortgagor by the
Secretary will be secured by the second mortgage, if any. Payments will
be due and payable in the same manner as under the insured first
mortgage, except that if the first mortgage provided for monthly
adjustments to the interest rate under Sec. 206.21(b)(2) then the
Secretary may convert the second mortgage to an annually adjustable
interest rate under Sec. 206.21(b)(1) at any time by providing notice
to the mortgagor. * * *
* * * * *
20. Section 206.125 is amended to revise paragraph (d)(3) to read
as follows:
Sec. 206.125 Acquisition and sale of the property.
* * * * *
(d) * * *
(3) The mortgagee must give written notice to the Secretary within
30 days after the initiation of foreclosure proceedings, and must
exercise reasonable diligence in prosecuting the foreclosure
proceedings to completion and in acquiring title to and possession of
the property. A time frame that is determined by the Secretary to
constitute ``reasonable diligence'' for each State is made available to
mortgagees.
* * * * *
21. Section 206.133 is amended to revise paragraph (f) to read as
follows:
Sec. 206.133 Termination of insurance contract.
* * * * *
(f) Effect of termination. When the insurance contract is
terminated, the mortgagee shall pay the monthly MIP which has accrued
for the current month and which has not yet been paid to the Secretary,
but the obligation to pay any subsequent MIP shall cease and all rights
of the mortgagor and mortgagee shall be terminated except as otherwise
provided in this part.
* * * * *
22. Section 206.209 is revised to read as follows:
Sec. 206.209 Prepayment.
(a) No charge or penalty. The mortgagor may prepay a mortgage in
full or in part without charge or penalty at any time, regardless of
any limitations on prepayment stated in a mortgage.
(b) Insurance and condemnation proceeds. If insurance or
condemnation proceeds are paid to the mortgagee, the principal limit
and the mortgage balance shall be reduced by the amount of the proceeds
not applied to restoration or repair of the damaged property.
Dated: September 6, 1996.
Nicolas P. Retsinas,
Assistant Secretary for Housing-Federal Housing Commissioner.
[FR Doc. 96-23717 Filed 9-16-96; 8:45 am]
BILLING CODE 4210-27-P
Complete official Federal Register PDF
FR Doc. 96-23716 Office of the Assistant Secretary for HousingFederal Housing Commissioner; Conversion From Coinsurance to Full Insurance
[Federal Register Volume 61, Number 181 (Tuesday, September 17, 1996)]
[Rules and Regulations]
[Pages 49036-49038]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-23716]
[[Page 49035]]
_______________________________________________________________________
Part IV
Department of Housing and Urban Development
_______________________________________________________________________
24 CFR Part 207, et al.
Office of the Assistant Secretary for Housing--Federal Housing
Commissioner; Conversion From Coinsurance to Full Insurance; Final Rule
Federal Register / Vol. 61, No. 181 / Tuesday, September 17, 1996 /
Rules and Regulations
[[Page 49036]]
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
24 CFR Parts 207, 251, 252; and 255
[Docket No. FR-3813-F-02]
RIN 2502-AG50
Office of the Assistant Secretary for Housing--Federal Housing
Commissioner; Conversion From Coinsurance to Full Insurance
AGENCY: Office of the Assistant Secretary for Housing--Federal Housing
Commissioner, HUD.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: On September 19, 1995 (60 FR 48596), HUD published an interim
rule which amended its multifamily coinsurance regulations. The
September 19, 1995 interim rule provided coinsuring lenders with two
new options in dealing with defaulted coinsured mortgages.
Specifically, the interim rule permitted certain coinsuring lenders to
request that HUD endorse defaulted mortgages for full insurance.
Additionally, the interim rule established a partial payment of claim
procedure which permitted coinsuring lenders to advance funds to cure
mortgage delinquencies on a coinsured mortgage and to reduce principal
on that mortgage to a level that restored the financial viability of
the project. This rule finalizes the policies and procedures set forth
in the September 19, 1995 interim rule. Further, this final rule makes
several clarifying and streamlining amendments to the September 19,
1995 interim rule.
EFFECTIVE DATE: October 17, 1996.
FOR FURTHER INFORMATION CONTACT:
Steven J. Hans, Housing Policy Officer, Department of Housing and Urban
Development, 451 Seventh Street, SW, Washington, DC 20410-0500, Room
6278, telephone (202) 708-3730 ext. 2682. Hearing or speech-impaired
individuals may access this number via TTY by calling the Federal
Information Relay Service at 1-800-877-8339. (Other than the ``800''
number, these telephone numbers are not toll free.)
SUPPLEMENTARY INFORMATION:
I. The September 19, 1995 Interim Rule
On October 10, 1994 (55 FR 41312), HUD published a final rule
terminating the authority of the FHA Commissioner to insure mortgage
loans under the coinsurance program. The final rule also reduced HUD's
coinsurance regulations at 24 CFR parts 251, 252, and 255 to a single
section concerning the program phase-out process. However, those
regulations removed by the October 10, 1994 final rule continue to
govern the rights and obligations of mortgagors, coinsuring lenders,
and HUD under coinsurance contracts entered into before the termination
of the coinsurance programs.
On September 19, 1995 (60 FR 48596), HUD published an interim rule
amending 24 CFR parts 251, 252, 255. The September 19, 1995 interim
rule, which became effective on October 19, 1995, provided coinsuring
lenders with two new options for dealing with defaulted coinsured
mortgages. The changes made by the rule were designed to reduce
Government costs, benefit coinsuring lenders by minimizing their risk
of default under a GNMA guaranty agreement, and encourage the continued
viability of housing financed with coinsured mortgages. The first
amendment permitted coinsuring lenders to request that HUD endorse
certain coinsured mortgages for full insurance. The second amendment
established a partial payment of claim mechanism for coinsuring
lenders. The September 19, 1995 interim rule described in detail the
amendments to 24 CFR parts 251, 252, and 255.
II. This Final Rule
The public comment period on the September 19, 1995 interim rule
expired on November 20, 1995. No public comments were submitted.
Although no changes are being made as a result of public comment, HUD
has determined that it is necessary to make several revisions to the
September 19, 1995 interim rule.
First, as part of HUD's continuing efforts to implement the
President's regulatory reform initiative, this final rule makes several
streamlining amendments to the interim rule. These changes will
increase flexibility and remove unnecessary regulatory provisions.
Further, this rule requires that a coinsuring lender convert to full
insurance before accepting a partial payment of claim. This final rule
also clarifies that coinsuring lenders must file an insurance claim
upon conversion to full insurance. Finally, the rule amends HUD's
multifamily mortgage insurance regulations at 24 CFR part 207 to
reflect the procedures established by the September 19, 1995 interim
rule.
A. Streamlining Parts 251, 252, and 255
In response to President Clinton's regulatory reform initiative,
HUD conducted a page-by page review of its regulations to determine
which could be eliminated, consolidated, or otherwise improved. As a
result of this review, HUD has made several streamlining amendments to
the September 19, 1995 interim rule.
One of the goals of the President's initiative is to increase
regulatory flexibility. The September 19, 1995 interim rule made
conversion to full insurance available only to coinsured mortgages
which back GNMA guaranteed securities. HUD originally developed the
conversion procedure to assist such lender-issuers. Under the former
regulations, the option to have a mortgage endorsed for full insurance
was available only to GNMA after it had taken over all loans in a
coinsuring lender-issuer's portfolio following the lender-issuer's
default under the GNMA guaranty agreement. In response to the
President's call for increased flexibility, HUD has decided to make
conversion available to all coinsuring lenders. Coinsuring lenders
electing to convert to full insurance will still be required to meet
all the other regulatory requirements for conversion established by the
September 19, 1995 interim rule.
This final rule contains several fees. However, the fee amounts may
change over time. To prevent the necessity for cumbersome rulemaking
procedures each time a fee is revised, HUD has set forth all the
required fees in an appendix to this final rule. The regulatory text
still establishes the requirement for the payment of the fees, and
directs lenders to the appendix. This appendix will not be codified in
title 24 of the Code of Federal Regulations. HUD will update and revise
the appendix as necessary.
The September 19, 1995 interim rule made identical amendments to 24
CFR parts 251, 252, and 255. Another goal of President Clinton's
regulatory reform initiative is the elimination of repetitious
regulatory provisions. Accordingly, this final rule amends 24 CFR parts
252 and 255 to simply cross-reference to the conversion and partial
payment of claim requirements set forth in 24 CFR part 251.
B. Revision to Partial Payment of Claim Procedures
This final rule requires that coinsuring lenders convert to full
insurance prior to accepting a partial payment of claim. Subsequent to
conversion, the full insurance requirements at 24 CFR part 207 will
govern any partial payment of claim. Unlike the September 19, 1995
interim rule, therefore, this final rule does not establish a separate
partial payment of claim mechanism for coinsuring lenders under 24 CFR
parts 251, 252, or 255.
HUD determined that the costs it would incur in administering the
separate partial payment of claim
[[Page 49037]]
procedure might be excessive. HUD's regulation at 24 CFR part 207
already contains a partial payment of claim mechanism which has proven
its effectiveness in, both restoring the financial viability of
troubled projects and in minimizing government costs. Accordingly, this
final rule requires that coinsuring lenders wishing a partial payment
of claim utilize the procedure set forth in 24 CFR part 207.
C. Claim Required Upon Conversion
HUD developed the procedure for conversion to full insurance as a
means of assisting coinsuring lenders who are dealing with defaulted
coinsured mortgages and who are eligible for insurance benefits. HUD
always intended that coinsuring lenders immediately file an insurance
claim upon conversion. This final rule clarifies HUD's intent by
amending Sec. 251.3 to require that lenders file a claim for insurance
benefits upon the Commissioner's endorsement of the mortgage for full
insurance.
D. Amendments to Full Insurance Regulations
The September 19, 1995 interim rule established a fee on coinsuring
lenders converting to full insurance. Further, the rule set forth
additional fees on lenders who, subsequent to converting to full
insurance, receive payment for the full or partial insurance mortgage
amount. The September 19, 1995 interim rule established these
additional fees through amendments to HUD's coinsurance regulations at
24 CFR parts 251, 252, and 255. However, once the FHA Commissioner
endorses a coinsured mortgage for full insurance, the lender is no
longer governed by the coinsurance program regulations. Rather, the
lender must now abide by HUD's multifamily mortgage insurance
regulations at 24 CFR part 207. This final rule amends part 207 to
incorporate the fees. Specifically, the rule revises Sec. 207.259,
which sets forth the requirements for full insurance benefits.
III. Findings and Certifications
Environmental Impact
A Finding of No Significant Impact with respect to the environment
was made at the interim rule stage in accordance with HUD regulations
at 24 CFR part 50, which implements section 102(2)(C) of the National
Environmental Policy Act of 1969 (NEPA). This 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, Office of the
General Counsel, Department of Housing and Urban Development, Room
10276, 451 Seventh Street, SW., Washington, DC 20410-0500.
Executive Order 12612, Federalism
The General Counsel, as the Designated Official under section 6(a)
of Executive Order 12612, Federalism, has determined that he policies
contained in this final rule will 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.
Specifically, the requirements of this final rule are directed toward
participants in the FHA multifamily coinsurance programs. It effects no
changes in the current relationships between the Federal government,
the States and their political subdivisions in connection with this
program.
Executive Order 12606, The Family
The General Counsel, as the Designated Official under Executive
Order 12606, The Family, has determined that this final rule does not
have potential for significant impact on family formation, maintenance,
and general well-being, and, thus, is not subject to review under the
order. The final rule merely amends the regulations governing HUD's
multifamily coinsurance programs. No significant change in existing HUD
policies or programs will result from promulgation of this final rule,
as those policies and programs related to family concerns.
Regulatory Flexibility Act
The Secretary, in accordance with the Regulatory Flexibility Act (5
U.S.C. 605(b)), has reviewed and approved this final rule, and in so
doing certifies that his final rule not have a significant economic
impact on a substantial number of small entities. This rule finalizes
the policies and procedures set forth in the September 19, 1995 interim
rule. It permits coinsuring lenders to request that HUD endorse certain
defaulted mortgages for full insurance. Further, the rule makes several
streamlining and clarifying amendments to the interim rule. These
changes will increase flexibility, remove unnecessary regulatory
provisions, and permit the continued viability of housing financed with
coinsured mortgages. This final rule will not have any meaningful
impact on any entity.
Unfunded Mandates Reform Act
The Secretary has reviewed this rule before publication and by
approving it certifies, in accordance with the Unfunded Mandates Reform
Act of 1995 (2 U.S.C. 1532), that this rule does not impose a Federal
mandate that will result in the expenditure by State, local, and tribal
governments, in the aggregate, or by the private sector, of $100
million or more in any one year.
Executive Order 12866, Regulatory Planning and Review
The Office of Management and Budget (OMB) reviewed this rule under
Executive Order 12866, Regulatory Planning and Review. OMB determined
that this rule is a ``significant regulatory action,'' as defined in
section 3(f) of the Order (although not economically significant, as
provided in section 3(f)(1) of the Order). Any changes made to the
final rule subsequent to its submission to OMB are 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 20410-0500.
List of Subjects
24 CFR Part 207
Manufactured homes, Mortgages insurance, Reporting and
recordkeeping requirements, Solar energy.
24 CFR Part 251
Low and moderate income housing, Mortgage insurance, Reporting and
recordkeeping requirements.
24 CFR Part 252
Health facilities, Loan programs--health, Loan programs--housing
and community development, Mortgage insurance, Nursing homes, Reporting
and recordkeeping requirements.
24 CFR Part 255
Low and moderate income housing, Mortgage insurance, Reporting and
recordkeeping requirements.
Accordingly, 24 CFR parts 207, 251, 252, and 255 are amended as
follows:
PART 207--MULTIFAMILY HOUSING MORTGAGE INSURANCE
1. The authority citation for part 207 continues to read as
follows:
Authority: 12 U.S.C. 1701z-11(e), 1713 and 1715b; 42 U.S.C.
3535(d).
2. Section 207.258b is amended by adding a new paragraph (e) to
read as follows:
Sec. 207.258b Partial payment of claim.
* * * * *
(e) Lenders receiving a partial payment of claim following the
Commissioner's endorsement of the
[[Page 49038]]
Mortgage for full insurance under parts 251, 252, or 255 of this
chapter, will pay HUD a fee in an amount set forth through Federal
Register notice. HUD, in its discretion, may collect this fee or deduct
the fee from any payment it makes in the claim process.
3. Section 207.259 is amended by adding a new paragraph (b)(2)(v)
to read as follows:
Sec. 207.259 Insurance benefits.
* * * * *
(b) * * *
(2) * * *
(v) In the case of a lender receiving insurance benefits for the
full Mortgage amount upon the Commissioner's endorsement of the
Mortgage for full insurance pursuant to 24 CFR parts 251, 252, or 255,
the amount of the fee set forth through Federal Register notice. HUD
may, in its discretion, collect this fee rather than deducting the fee
from the total of the items computed under paragraph (b)(1) of this
section.
PART 251--COINSURANCE FOR THE CONSTRUCTION OR SUBSTANTIAL
REHABILITATION OF MULTIFAMILY HOUSING PROJECTS
4. The authority citation for 24 CFR part 251 continues to read as
follows:
Authority: 12 U.S.C. 1715b, 1715z-9; 42 U.S.C. 3535(d).
5. Section 251.3 is revised to read as follows:
Sec. 251.3 Case-by-case conversion to full insurance.
Upon the request of a coinsuring lender, the Commissioner may
endorse a coinsured Mortgage for full insurance, effective as of the
date of such endorsement, if the Commissioner is satisfied that:
(a) Continuing the Mortgage under coinsurance could jeopardize the
lender's viability and ability to service its remaining portfolio of
coinsured Mortgages;
(b) The lender has made reasonable efforts to work out any Mortgage
default consistent under 24 CFR 251.811 (1990), but the remedies
available to the lender have not been adequate to reinstate the
Mortgage;
(c) The conversion would be less costly to HUD than if the Mortgage
remained coinsured;
(d) The lender has paid HUD the fee set forth through Federal
Register notice; and
(e) The lender agrees to give the Commissioner written notice under
24 CFR 207.258 of its intent to file an insurance claim upon the
Commissioner's endorsement of the Mortgage for full insurance.
Secs. 251.4 and 251.5 [Removed]
6. Sections 251.4 and 251.5 are removed.
PART 252--COINSURANCE OF MORTGAGES COVERING NURSING HOMES,
INTERMEDIATE CARE FACILITIES, AND BOARD AND CARE HOMES.
7. The authority citation for 24 CFR part 252 continues to read as
follows:
Authority: 12 U.S.C. 1715b, 1715z-9; 42 U.S.C. 3535(d).
8. Section 252.3 is revised to read as follows:
Sec. 252.3 Case-by-case conversion to full insurance.
Cross-reference. The provisions of 24 CFR 251.3 apply to this part.
Secs. 252.4 and 252.5 [Removed]
PART 255--COINSURANCE FOR THE PURCHASE OR REFINANCING OF EXISTING
MULTIFAMILY HOUSING PROJECTS
10. The authority citation for 24 CFR part 255 continues to read as
follows:
Authority: 12 U.S.C. 1715b, 1715z-9; 42 U.S.C. 3535(d).
11. Section 255.3 revised to read as follows:
Sec. 255.3 Case-by-case conversion to full insurance.
Cross-reference. The provisions of 24 CFR 251.3 apply to this part.
Secs. 255.4 and 255.5 [Removed]
12. Sections 255.4 and 255.5 are removed.
Dated: June 28, 1996.
Nicolas P. Retsinas,
Assistant Secretary for Housing--Federal Housing Commissioner.
Note: This appendix will not appear in Title 24 of the CFR.
Appendix--Fees for Conversion to Full Insurance and Partial Payment of
Claim Under 24 CFR Parts 207, 251, 252, and 255
Sections
1. Purpose
2. Fee for conversion to full insurance under 24 CFR parts 251, 252,
and 255.
3. Fees for former coinsuring lenders under 24 CFR part 207.
4. Future revisions to this appendix.
1. Purpose. HUD's regulation at 24 CFR 251.3 permits certain
coinsuring lenders under 24 CFR parts 251, 252, and 255 to request
that HUD endorse the coinsured Mortgage for full insurance. Section
251.3 states that coinsuring lenders who elect to convert to full
insurance must pay HUD a fee in an amount ``set forth through
Federal Register notice.'' One of the purposes of this appendix is
to identify this fee.
HUD's regulations at 24 CFR part 207 govern its multifamily
Mortgage insurance program. Part 207 establishes certain fees on
formerly coinsured lenders who have converted to full insurance and
subsequently receive payment for the full or partial insured
Mortgage amount. Section 207.258b, which governs partial payment of
claims, and Sec. 207.259, which sets forth the requirements for full
insurance benefits, state that these fees will be in an amount ``set
forth through Federal Register notice.'' This appendix sets forth
these fees.
2. Fee for conversion to full insurance under 24 CFR parts 251,
252, or 255. Coinsuring lenders requesting the Commissioner's
endorsement of a coinsured Mortgage for full insurance under 24 CFR
part 251, 252, or 255, will pay HUD a fee in an amount equal to 5
dollars for every 1,000 dollars of the unpaid principal balance. The
coinsuring lender must pay this fee concurrently with submission of
the request for the Commission's endorsement. HUD will not process
requests for conversion to full insurance until this fee is paid.
3. Fees for former coinsuring lenders under 24 CFR part 207.
(a) Lenders receiving payment of insurance benefits for the full
Mortgage amount under 24 CFR part 207, upon the Commissioner's
endorsement of the Mortgage for full insurance pursuant to 24 CFR
part 251, 252, or 255, must pay HUD a fee in an amount equal to 10
percent of the outstanding principal balance on the Mortgage. HUD
may, in its discretion, collect this fee or deduct the fee from any
payment it makes in the claim process.
(b) Lenders receiving a partial payment of claim under 24 CFR
part 207, upon the Commission's endorsement of the Mortgage for full
insurance pursuant to 24 CFR part 251, 252, or 255, must pay HUD a
fee in an amount equal to 10 percent of the reduction in the unpaid
principal balance resulting from the partial payment. HUD may, in
its discretion, collect this fee or deduct the fee from any payment
it makes in the claim process.
(c) The fees described in paragraphs (a) and (b) of this section
are in addition to the fee established by section 2. of this notice.
4. Future revisions to this appendix.
HUD may update or revise this appendix as necessary.
[FR Doc. 96-23716 Filed 9-16-96; 8:45 am]
BILLING CODE 4210-27-M
Complete official Federal Register PDF
FR Doc. 96-23710 Airworthiness Directives; Gates Learjet Model 35 and 36 Series Airplanes Modified by Raisbeck Supplemental Type Certificate (STC) SA766NW
[Federal Register Volume 61, Number 181 (Tuesday, September 17, 1996)]
[Rules and Regulations]
[Pages 48822-48824]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-23710]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
14 CFR Part 39
[Docket No. 96-NM-63-AD; Amendment 39-9759; AD 96-19-13]
RIN 2120-AA64
Airworthiness Directives; Gates Learjet Model 35 and 36 Series
Airplanes Modified by Raisbeck Supplemental Type Certificate (STC)
SA766NW
AGENCY: Federal Aviation Administration, DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This amendment adopts a new airworthiness directive (AD),
applicable to certain Gates Learjet Model 35 and 36 series airplanes
that have been modified in accordance with Raisbeck Supplemental Type
Certificate (STC) SA766NW, that requires a reduction of the maximum
operating limit speed on the affected airplanes to prevent encountering
certain potentially hazardous conditions. This amendment is prompted by
reports of incidents of aileron buffet or buzz experienced during high
speed cruise. The actions specified by this AD are intended to prevent
aileron buffet or buzz conditions, which can result in the
deterioration of the aircraft lateral control system characteristics to
an unacceptable level.
EFFECTIVE DATE: October 22, 1996.
ADDRESSES: Information concerning the subject of this rule may be
obtained from Jet Air Corporation, P.O. Box 245, Bellevue, Washington
98009. Information concerning this rulemaking action may be examined at
the Federal Aviation Administration (FAA), Transport Airplane
Directorate, Rules Docket, 1601 Lind Avenue, SW., Renton, Washington.
FOR FURTHER INFORMATION CONTACT: Stan Wood, Aerospace Engineer,
Airframe Branch, ANM-120S, FAA, Seattle Aircraft Certification Office,
1601 Lind Avenue, SW., Renton, Washington; telephone (206) 227-2772;
fax (206) 227-1181.
SUPPLEMENTARY INFORMATION: A proposal to amend part 39 of the Federal
Aviation Regulations (14 CFR part 39) to include an airworthiness
directive (AD) that is applicable to certain Gates Learjet Model 35 and
36 series airplanes that have been modified in accordance with Raisbeck
Supplemental Type Certificate (STC) SA766NW was published in the
Federal Register on May 13, 1996 (61 FR 21982). That action proposed to
require a reduction of the maximum operating limit speed on the
affected airplanes to prevent encountering certain potentially
hazardous conditions.
Interested persons have been afforded an opportunity to participate
in the making of this amendment. Due consideration has been given to
the single comment received.
Request to Require New Part Numbers of Modified Parts
One commenter requests that the proposal be revised to require
that, once the overspeed warning switch is recalibrated and the
airspeed indicators are modified [in accordance with OPTION I of the
proposed AD], new part numbers should be assigned to those items.
Additionally, the commenter requests that a parts catalog supplement be
issued with the STC, calling out the correct new part number of the
devices for future reference by maintenance personnel. The commenter
considers that merely ink-stamping
[[Page 48823]]
these parts once the required actions have been accomplished on them,
as the proposed rule specifies, is not generally acceptable practice.
The commenter states that, if either of those items is replaced in the
future, there is no mechanism in place that would prevent the
installation of a standard (unmodified) part number device in the
airplane. Therefore, the airplane would no longer be in compliance with
the AD, and would not be airworthy.
. The FAA does not concur with the commenters request for two
reasons:
1. First, assigning and changing part numbers, and developing a
parts catalog supplement, would be more labor-intensive and time
consuming than ink-stamping a recalibrated or modified part.
Additionally, the FAA is not convinced that the actions suggested by
the commenter would be any more effective than the requirements of this
AD.
2. Second, to show that actions specified in this AD have been
complied with, it is necessary for the operator to make a maintenance
log book entry indicating that the modified and ink-stamped warning
switch and airspeed indicators are installed. If these items are
replaced in the future (with parts that are not modified and not ink-
stamped), a review of the log book entry would readily inform the
mechanic or inspector that the airplane is not in compliance with the
AD. Further, this process for verifying compliance would be identical
whether the part is ink-stamped or has a new part number.
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.
Petitioning for an Exemption of the Requirements of the Final Rule
Affected operators should note that the aileron instability that is
the subject of this AD is a condition affected by the contour of the
wing leading edge, which is a function of manufacturing tolerances. In
light of this, the FAA recognizes that not all airplanes modified in
accordance with Raisbeck STC SA766NW may exhibit the problem of aileron
buffet or buzz below .83 Mach. Operators of those airplanes may wish to
petition the FAA for an exemption from the requirements of the rule,
under the provisions of part 11 of the Federal Aviation Regulations (14
CFR 11), ``General Rulemaking Procedures.''
Petitioners for such an exemption must provide data that would
justify a grant of exemption, including, but not limited to,
information concerning:
--the number of flights the airplane has flown in conditions involving
high weight, high altitude, and high speed; and
--if any incident of buffet or buzz was observed during flight in those
conditions.
Based on the data submitted with the petition, the FAA will
determine on a case- by-case basis if a flight evaluation or other
additional data are necessary to determine if granting the petition
would not adversely affect safety, and would be in the public interest.
Cost Impact
There are approximately 29 Gates Learjet Model 35 and 36 series
airplanes of the affected design in the worldwide fleet. The FAA
estimates that at least 1 airplane of U.S. registry will be affected by
this proposed AD.
To accomplish the removal and recalibration of the airspeed
indicators and Mach overspeed warning switch, and to revise the AFM
Supplement, as provided by ``Option I'' of the proposed rule, it will
take approximately 5 work hours per airplane, at an average labor rate
of $60 per work hour. The FAA estimates that it will cost approximately
$1,000 per airplane to reset the airspeed indicators and Mach overspeed
warning switch. Based on these figures, the cost impact of this action
(Option 1 of the AD) on U.S. operators is estimated to be $1,300 per
airplane.
To accomplish the removal of the STC modifications, as provided by
``Option II'' of the rule, it will take approximately 100 work hours
per airplane, at an average labor rate of $60 per work hour. Based on
these figures, the cost impact of this action (Option II of the AD) on
U.S. operators is estimated to be $6,000 per airplane.
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, 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 adding the following new
airworthiness directive:
96-19-13 Gates Learjet: Amendment 39-9759. Docket 96-NM-63-AD.
Applicability: Model 35, 35A, 36, and 36A series airplanes;
certificated in any category; that have been modified in accordance
with Raisbeck Group Supplemental Type Certificate (STC) SA766NW, and
that do not have one of the airplane serial numbers listed in Table
1 of this AD.
Table 1.--Serial Numbers* NOT affected by this AD
35-023 35A-092 35A-192 36-004
35-034 35A-093 35A-203 36-017
35-042 35A-095 35A-206 36-028
35-044 35A-118 35A-207 36A-029
35-047 35A-127 35A-209 36A-031
35A-068 35A-132 35A-228 36A-038
35A-073 35A-135 35A-231 36A-043
35A-075 35A-145 35A-244 36A-044
35A-076 35A-172 35A-245 ................
35A-086 35A-185 36-003 ................
*Airplanes having the serial numbers listed in Table 1 are subject to
similar requirements mandated by AD 85-16-04, amendment 39-5110.
Note 1: This AD applies to each airplane as indicated in the
preceding applicability provision, regardless of whether it has been
[[Page 48824]]
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 (b) 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 deterioration of the airplane's lateral control
characteristics as a result of aileron buffet or buzz, accomplish
the following:
(a) Within 200 hours time-in-service after the effective date of
this AD, or within 6 months after the effective date of this AD,
whichever occurs first, accomplish either paragraph (a)(1) (``OPTION
I'') or (a)(2) (``OPTION II'') of this AD:
(1) OPTION I. Permanently reduce the airplane's maximum
operating Mach limit (MMO) by accomplishing the actions
specified in paragraphs (a)(1)(i), (a)(1)(ii), and (a)(1)(iii) of
this AD:
(i) Submit the FAA-approved STC SA766NW Airplane Flight Manual
Supplement to the Manager, Flight Test Branch, ANM-160S, Seattle
Aircraft Certification Office, FAA, Transport Airplane Directorate,
1601 Lind Avenue SW., Renton, Washington 98055-4056; to change the
limit Mach number from .83 to .80. And
(ii) Remove the Mach overspeed warning switch and have it reset
from Mach .83 to Mach .80. Contact the manufacturer, PRECISION
SENSOR, P.O. Box 509, Milford, Connecticut 06460; telephone number
(203) 877-2795; to have the instrument recalibrated. Reidentify the
recalibrated Mach overspeed warning switch by ink-stamping the words
``Mach limit .80'' adjacent to the part number. Reinstall the Mach
overspeed warning switch after it has been so recalibrated. And
(iii) Remove the pilot's and copilot's airspeed indicators and
have them modified by changing the ``barber pole'' from Mach number
.83 to Mach number .80. The instrument must be recalibrated by the
instrument manufacturer or a certified repair station. Reidentify
the modified airspeed indicators by ink stamping ``Mach limit .80''
adjacent to the part number. Reinstall the pilot's and copilot's
airspeed indicators after they have been so modified.
(2) OPTION II. Remove the modifications installed in accordance
with Raisbeck Group STC SA766NW, and return the aircraft either to
the original type design configuration, or to the Gates Learjet
``Softflight'' configuration.
(b) 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, Seattle 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, Seattle ACO.
Note 2: Information concerning the existence of approved
alternative methods of compliance with this AD, if any, may be
obtained from the Seattle ACO.
(c) 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.
(d) This amendment becomes effective on October 22, 1996.
Issued in Renton, Washington, on September 10, 1996.
James V. Devany,
Acting Manager, Transport Airplane Directorate, Aircraft Certification
Service.
[FR Doc. 96-23710 Filed 9-16-96; 8:45 am]
BILLING CODE 4910-13-U
Complete official Federal Register PDF
FR Doc. 96-23706 Airworthiness Directives; American Champion Aircraft Corporation Models 8KCAB, 8GCBC, 7GCBC, 7ECA, 7GCAA, and 7KCAB Airplanes; Correction
[Federal Register Volume 61, Number 181 (Tuesday, September 17, 1996)]
[Rules and Regulations]
[Page 48822]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-23706]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
14 CFR Part 39
[Docket No. 96-CE-36-AD; Amendment 39-9726; AD 96-18-02]
RIN 2120-AA64
Airworthiness Directives; American Champion Aircraft Corporation
Models 8KCAB, 8GCBC, 7GCBC, 7ECA, 7GCAA, and 7KCAB Airplanes;
Correction
AGENCY: Federal Aviation Administration, DOT.
ACTION: Final rule; correction.
-----------------------------------------------------------------------
SUMMARY: This action makes a correction to Airworthiness Directive (AD)
96-18-02, which was published in the Federal Register on August 28,
1996 (61 FR 44157), and concerns American Champion Aircraft Corporation
Models 8KCAB, 8GCBC, 7GCBC, 7ECA, 7GCAA, and 7KCAB airplanes. Reference
to the Model 7GCAA airplanes in the Applicability section of that AD is
incorrect (referred to as Model 7GCCA airplanes). All other reference
is correct. The AD currently requires installing removable inspection
hole covers for the wing front strut attach fittings, and replacing the
wing front strut attach fittings with fittings of improved design. This
action corrects the AD to reflect the correct airplane model
designation in the Applicability section.
EFFECTIVE DATE: September 20, 1996.
FOR FURTHER INFORMATION CONTACT: Ms. Karen Forest, Aerospace Engineer,
Federal Aviation Administration (FAA), Chicago Aircraft Certification
Office, 2300 E. Devon Avenue, Des Plaines, Illinois 60018; telephone
(847) 294-7697; facsimile (847) 294-7834.
SUPPLEMENTARY INFORMATION: On August 20, 1996, the FAA issued AD 96-18-
02, Amendment 39-9726 (61 FR 44157, August 28, 1996), which applies to
American Champion Aircraft Corporation Models 8KCAB, 8GCBC, 7GCBC,
7ECA, 7GCAA, and 7KCAB airplanes. This AD requires installing removable
inspection hole covers for the wing front strut attach fittings, and
replacing the wing front strut attach fittings with fittings of
improved design.
Need for the Correction
Reference to the Model 7GCAA airplanes in the Applicability section
of AD 96-18-02 is incorrect (referred to as Model 7GCCA airplanes). All
other reference is correct. As written, operators of the American
Champion Aircraft Corporation Model 7GCAA airplanes would not know that
AD 96-18-02 applied to their airplanes if the Applicability section was
the only part of the AD they referenced.
Correction of Publication
Accordingly, the publication of August 28, 1996 (61 FR 44157), of
Amendment 39-9726; AD 96-18-02, which was the subject of FR Doc. 96-
21746, is corrected as follows:
Sec. 39.13 [Corrected]
On page 44159, in the second column, Sec. 39.13, the Applicability
section of the AD, the 34th line from the top of the column, correct
``7GCCA'' to ``7GCAA''.
Action is taken herein to correct this reference in AD 96-18-02 and
to add this AD correction to section 39.13 of the Federal Aviation
Regulations (14 CFR 39.13).
The effective date remains September 20, 1996.
Issued in Kansas City, Missouri on September 10, 1996.
Henry A. Armstrong,
Acting Manager, Small Airplane Directorate, Aircraft Certification
Service.
[FR Doc. 96-23706 Filed 9-16-96; 8:45 am]
BILLING CODE 4910-13-U
Complete official Federal Register PDF
FR Doc. 96-23677 Alaska Regulatory Program
[Federal Register Volume 61, Number 181 (Tuesday, September 17, 1996)]
[Rules and Regulations]
[Pages 48835-48843]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-23677]
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 902
[AK-004-FOR; Alaska Amendment IV]
Alaska Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Final rule; approval of amendment.
-----------------------------------------------------------------------
SUMMARY: The Office of Surface Mining Reclamation and Enforcement (OSM)
is approving, with certain exceptions and additional requirements, a
proposed amendment to the Alaska regulatory program (hereinafter
referred to as the ``Alaska program'') under the Surface Mining Control
and Reclamation Act of 1977 (SMCRA). Alaska proposed revisions to and
additions of rules pertaining to fees for services, general permitting
requirements, general permit application information requirements,
environmental resource information requirements, reclamation and
operation plan requirements, processing of permit applications,
permitting for special categories of mining, exploration, the small
operator assistance program, bonding, performance standards, inspection
and enforcement, and general provisions. The amendment revised the
Alaska program to be consistent with the corresponding Federal
regulations, to clarify ambiguities, and to improve operational
efficiency.
EFFECTIVE DATE: September 17, 1996.
FOR FURTHER INFORMATION CONTACT: James F. Fulton, Telephone: (303) 672-
5524.
SUPPLEMENTARY INFORMATION:
I. Background on the Alaska Program
On March 23, 1983, the Secretary of the Interior conditionally
approved the Alaska program. General background information on the
Alaska program, including the Secretary's findings, the disposition of
comments, and conditions of approval of the Alaska program can be found
in the March 23, 1983, Federal Register (48 FR 12274). Subsequent
actions concerning Alaska's program and program amendments can be found
at 30 CFR 902.15 and 902.16.
II. Proposed Amendment
By letter dated January 26, 1995, and FAX transmittals dated
February 13 and 14, 1995, Alaska submitted a proposed amendment
(Amendment IV, administrative record No. AK-E-01) to its program
pursuant to SMCRA (30 U.S.C. 1201 et seq.). Alaska submitted the
proposed amendment at its own initiative and in response to (1) letters
dated November 1, 1989, and February 7, 1990 (administrative record
Nos. AK-60-05 and AK-60-06), that OSM sent to Alaska in accordance with
30 CFR 732.17(c), and (2) required program amendments at 30 CFR Part
902.16(a)(1), (2), (3), (6) through (14), and (16).
The provisions of the Alaska Administrative Code (AAC) that Alaska
proposed to revise, repeal, and add were: 11 AAC 05.010(a)(9)(D), fees
for incidental boundary revisions; 11 AAC 90.002, responsibilities; 11
AAC 90.003, continued operation under interim permits; 11 AAC 90.011,
permit fees; 11 AAC 90.023, identification of interests and compliance
information; 11 AAC 90.025, authority to enter and ownership
information; 11 AAC 90.045(a), geology description; 11 AAC 90.049(2),
surface water information; 11 AAC 90.083(b), reclamation plan general
requirements; 11 AAC 90.097, transportation facilities; 11 AAC 90.099,
return of coal mine waste to abandoned underground workings; 11 AAC
90.117, administrative processing of permit applications; 11 AAC
90.125, Commissioner's [of Natural Resources] findings; 11 AAC 90.126,
improvidently issued permits; 11 AAC 90.127, permit conditions; 11 AAC
90.129, permit revisions and renewals; 11 AAC 90.149(d), operations
near alluvial valley floors; 11 AAC 90.163, exploration that
substantially disturbs the natural land surface or occurs in areas
designated unsuitable for mining; 11 AAC 90.173(b), eligibility for
small operator assistance; 11 AAC 90.207(f), self-bonding provisions;
11 AAC 90.321(d), hydrologic balance; 11 AAC 90.323(a), water quality
standards; 11 AAC 90.325(a), diversions and conveyance of flows; 11 AAC
90.327 (b) and (c), stream channel diversions; 11 AAC 90.336(b),
impoundment design and construction; 111 AAC 90.337(f), impoundment
inspection; 11 AAC 90.341(b), underground mine entry and access
discharges; 11 AAC 90.345(e), surface and ground water monitoring; 11
AAC 90.375(f), public notice of blasting; 11 AAC 90.391, disposal of
excess spoil or coal mine waste; 11 AAC 90.401(e), coal mine waste,
refuse piles; 11 AAC 90.407(e), coal mine waste, dams and embankments;
11 AAC 90.409, return of coal mine waste to underground workings; 11
AAC 90.423(b), protection of fish and wildlife; 11 AAC 90.443 (d) and
(k), backfilling and grading; 11 AAC 90.457 (c) and (d), standards for
revegetation success; 11 AAC 90.491, construction and maintenance of
roads, transportation and support facilities, and utility
installations; 11 AAC 90.601, inspections; 11 AAC 90.613, cessation
orders; 11 AAC 90.901, applicability; 11 AAC 90.902, exemption for coal
extraction incidental to the extraction of other minerals; 11 AAC
90.907, public participation; and 11 AAC 90.911, definitions.
Additionally, Alaska proposed several minor editorial revisions.
OSM announced receipt of the proposed amendment in the February 27,
1995, Federal Register (60 FR 10520), provided an opportunity for a
public hearing or meeting on its substantive adequacy, and invited
public comment on its adequacy (administrative record No. AK-E-05).
Because no one requested a public hearing or meeting, none was held.
The public comment period ended on March 29, 1995.
During its review of the amendment, OSM identified concerns
relating to the provisions of the Alaska Administrative Code at 11 AAC
05.010(a)(9)(D) and 11 AAC 90.011, fees; 11 AAC 90.023, identification
of interests and compliance information; 11 AAC 90.117, administrative
processing of permit applications; 11 AAC 90.125, Commissioner's
findings; 11 AAC 90.126, improvidently issued permits; 11 AAC 90.129,
permit revisions and renewals; 11 AAC 90.149(d), operations near
alluvial valley floors; 11 AAC 90.173, eligibility for small operator
assistance; 11 AAC 90.207(f), self-bonding provisions; 11 AAC 90.327,
stream channel diversions; 11 AAC 90.336, impoundment design and
construction; 11 AAC 90.391, disposal of excess spoil or coal mine
waste; 11 AAC 90.409, return of materials to underground workings; 11
AAC 90.423, protection of fish and wildlife; 11 AAC 90.443, backfilling
and grading; 11 AAC 90.457, revegetation success standards; 11 AAC
90.491, construction and maintenance of roads, transportation and
support facilities, and utility installations; 11 AAC 90.601,
inspections; 11 AAC 90.901, applicability; 11 AAC 90.902, exemption for
coal extraction incidental to the extraction of other minerals; 11 AAC
90.907, public participation; and 11 AAC 90.911, definitions. OSM
notified Alaska of the concerns by letter
[[Page 48836]]
dated July 19, 1995 (administrative record No. AK-E-12).
Alaska responded in letters dated October 11 and 24, 1995, and by a
FAX transmittal dated October 23, 1995, by submitting a revised
amendment and additional explanatory information and withdrawing
certain provisions (administrative record No. AK-E-14). Alaska proposed
revisions to and additional explanatory information for: 11 AAC
05.010(a)(9)(D) and 11 AAC 90.011, fees; 11 AAC 90.045(a), geology
description; 11 AAC 90.099, return of coal mine waste and excess spoil
to abandoned underground workings; 11 AAC 90.149(d), operations near
alluvial valley floors; 11 AAC 90.163, exploration that occurs in an
area designated unsuitable for surface coal mining; 11 AAC 90.207,
self-bonding provisions; 11 AAC 90.327, stream channel diversions; 11
AAC 90.391, disposal of excess spoil or coal mine waste; 11 AAC 90.409,
coal mine waste, return to underground workings; 11 AAC 90.423,
protection of fish and wildlife; 11 AAC 90.443, backfilling and
grading; 11 AAC 90491, construction and maintenance of roads,
transportation and support facilities, and utility installations; 11
AAC 90.901, applicability; and 11 AAC 90907, public participation.
In addition, Alaska withdrew proposed revisions and additions at:
11 AAC 90.023, identification of interests and compliance information;
11 AAC 90.117, administrative processing of permit applications; 11 AAC
90.125, Commissioner's findings; 11 ACC 90.126, improvidently issued
permits; 11 AAC 90.127, permit conditions; 11 AAC 90.129, permit
revisions and renewals; 11 AAC 90.336, impoundment design and
construction; 11 AAC 90.457, revegetation success standards; 11 AAC
90.601, inspections; 11 AAC 90.613, cessation order; 11 AAC 90.902,
exemption for coal extraction incidental to the extraction of other
minerals; and 11 AAC 90.911, definitions.
Based upon the revisions to and additional explanatory information
for the proposed amendment submitted by Alaska and the withdrawal of
certain proposed provisions, OSM reopened the public comment period in
the November 9, 1995, Federal Register (60 FR 56547; administrative
record No. AK-E-21). The public comment period ended on November 24,
1995.
III. Director's Findings
As discussed below, the Director, in accordance with SMCRA and 30
CFR 732.15 and 732.17, finds, with certain exceptions and additional
requirements, that the proposed program amendment submitted by Alaska
on January 26 and February 13 and 14, 1995, and as revised by it and
supplemented with additional explanatory information on October 11, 23,
and 24, 1995, is no less effective than the corresponding Federal
regulations. Accordingly, the Director approves the proposed amendment.
1. Nonsubstantive Revisions to Alaska's Rules
Alaska proposed revisions to the following previously-approved
rules that are non substantive in nature and consist of minor
editorial, punctuation, grammatical, and recodification changes
(corresponding Federal regulation provisions are listed in
parentheses):
11 AAC 90.025(b) and (c) (30 CFR 778.15(a) and (b)), right of entry
information,
11 AAC 90.049(2) and (2)(E) through (H) (30 CFR 780.21(b)(2) and
784.14(b)(2)), surface water information,
11 AAC 90.083(b)(10) and (11) (30 CFR 780.27, 780.37(a)(4), and
784.24(a)(4)), reclamation plan general requirements,
11 AAC 90.149(d) (30 CFR 785.19(b)(2)), operations near alluvial
valley floors,
11 AAC 90.163(b), (c), and (c)(3)(B) (30 CFR 772.14(b)(1), and
(b)(2)(i), exploration that substantially disturbs the natural land
surface or occurs in an area designated unsuitable for mining,
11 AAC 90.391(b) (30 CFR 816.71(b) and 817.71(b)), disposal of
excess spoil or coal mine waste,
11 AAC 90.401(e) (30 CFR 816.83(c)(4) and 817.83(c)(4)), coal mine
waste refuse piles,
11 AAC 90.491(a), (a)(7), (c)(4), and (c)(8) (30 CFR 816.150(b),
(b)(4), (f)(4), and (f)(6) and 817.150(b), (b)(4), (f)(4), and
(f)(6)), construction and maintenance of roads, transportation and
support facilities, and utility installations, and
11 AAC 90.907(e), (f), (g), (h), and (j) (30 CFR 740.13(c),
772.12(c), 773.13, 774.17(c), 785.13(h), 800.40, and 840.15), public
participation.
Because the proposed revisions to these previously-approved rules
are nonsubstantive in nature, the Director finds that these proposed
Alaska rules are no less effective than the Federal regulations. The
Director approves these proposed rules.
2. Substantive Revisions to Alaska's Rules That Are Substantively
Identical to the Corresponding Provisions of the Federal Regulations
Alaska proposed revisions to the following rules that are
substantive in nature and contain language that is substantively
identical to the requirements of the corresponding Federal regulation
provisions (listed in parentheses):
11 AAC 05.010(a)(11)(D) and 11 AAC 90.011 (30 CFR 777.17), permit
fees,
11 AAC 90.002 (30 CFR Part 772 and 773.11), responsibilities under
general permitting requirements,
11 AAC 90.025(a) (30 CFR 778.13(e) and (f)), authority to enter and
ownership information,
11 AAC 90.045(a) (30 CFR 780.22(b)(1) and 784.22(b)(1)), geology
description,
11 AAC 90.049(2)(D) (30 CFR 780.21(b)(2) and 784.14(b)(1)), surface
water information,
11 AAC 90.083(b)(12) (30 CFR 780.37(a)(6) and 784.24(a)(6)),
reclamation plan general requirements,
11 AAC 90.097 (30 CFR 780.37(a)(1), (3), and (5) and 784.24(a)(1),
(3), and (5)), transportation facilities,
11 AAC 90.149(d)(1) (30 CFR 785.19(d)(2)(1)), operations near
alluvial valley floors,
11 AAC 90.163, (a), (b)(1), (c)(4), and (c)(5) (30 CFR 772.12(a) and
772.14(b), (b)(1), (3), and (4)), exploration that substantially
disturbs the natural land surface or occurs in an area designated
unsuitable for mining,
11 AAC 90.207(f)(1), (2), and (4) through (7) (30 CFR 800.16(e)(2)
and 800.23(b), (c)(1), and (d) through (g)), requirements for self-
bonding,
11 AAC 90.375 (30 CFR 816.64(b) and 817.64(b)), public notice of
blasting,
11 AAC 90.391 (h) and (s) (30 CFR 816.71 (g) and (i) and 817.71 (g)
and (i)), disposal of excess spoil or coal mine waste,
11 AAC 90.407(e) (30 CFR 816.84(b)(2) and 817.84(b)(2)), coal mine
waste, dams and embankments,
11 AAC 90.409 (30 CFR 816.71(j), 817.71(j), 816.81(f), and
817.81(f), return to underground workings,
11 AAC 90.423(b) and (h) (30 CFR 780.16(c), 784.21(c), 816.97(b),
and 817.91(b)), protection of fish and wildlife,
11 AAC 90.443(d)(1) (30 CFR 816.106(b)(1) and 817.106(b)(1)),
backfilling and grading of previously mined areas,
11 AAC 90.491(a)(1), (6), and (8), (c) (5) through (7), and (e) (30
CFR 816.150(b)(1), (3), (7), (d), and (f) (3) and (6); 816.181(b)
(1) and (2)(ii), 817.150(b)(1), (3), and (7), (d), and (f) (3) and
(6); and 817.181(b) (1) and (2)(ii)), construction and maintenance
of roads, transportation and support facilities, and utility
installations,
11 AAC 90.901(e) (30 CFR 700.11(d)(1)(ii)), applicability, and
11 AAC 90.907 (c) and (d) (30 CFR 840.14 (b) and (c)(2)), public
participation.
Because these proposed Alaska rules are substantively identical to
the corresponding provisions of the Federal regulations, the Director
finds that they are no less effective than the Federal regulations. The
Director approves these proposed rules.
3. 11 AAC 90.003. Continued Operation Under Interim Permits
Alaska proposed to repeal 11 AAC 90.003, which provides that a
person operation under a permit issued or amended by the Commissioner
in accordance with section 502 of SMCRA
[[Page 48837]]
may conduct operations more than eight months after approval of the
Alaska program if certain criteria are met. 11 AAC 90.003 is
substantively the same as the counterpart Federal regulations at 30 CFR
773.11(b)(2), which provide for continuation of initial program
operations when certain conditions are met. Alaska has informed OSM
that there are no interim permits within the State. Therefore, the
Director finds that 11 AAC 90.003 is no longer applicable in Alaska's
program. The Director approves the repeal of this rule.
4. 11 AAC 90.099, Return of Coal Mine Waste and Excess Spoil to
Abandoned Underground Workings
Alaska proposed to revise 11 AAC 90.099 to require that the
underground mining plan must describe the design, operation, and
maintenance of any proposed facility to return coal mine waste and
excess spoil to underground workings, including flow diagrams and other
drawing and maps required by the Commissioner, and that the permit
application also include any plans required to be submitted to the
Federal Mine Safety and Health Administration (MSHA) under 30 CFR
817.81(f). The Federal regulations at 30 CFR 784.25(a) provide, in
pertinent part, that each plan shall describe the design, operation and
maintenance of any proposed coal processing waste disposal facility,
for the approval of the regulatory authority and MSHA under 30 CFR
817.81(f). The performance standards at reference 30 CFR 817.81(f) and
those concerning excess spoil at 30 CFR 817.71(j) allow for the
disposal of coal mine waste and excess spoil in underground mine
workings in accordance with a plan approved by the regulatory authority
and MSHA under 30 CFR 784.25. Despite the fact that the plan
requirements at 30 CFR 784.25 do not specifically provide for the
underground disposal of excess spoil, the reference to 30 CFR 784.24 in
the performance standard at 30 CFR 817.71(j), which provides that
excess spoil may be disposed of in underground workings, clearly does
provide for such disposal. Therefore, the Director finds that the
proposed revision by Alaska at 11 AAC 90.099 is no less effective than
the Federal regulations at 30 CFR 784.25(a), 817.81(f) and 817.71(j).
The Director approves the revisions to this rule.
5. 11 AAC 90.163(C) (4) and (5), Exploration That Substantially
Disturbs the Natural Land Surface or Occurs in an Area Designated
Unsuitable for Surface Coal Mining
Alaska proposed the addition of new provisions at 11 AAC 90.163(c)
(4) and (5) to require that the demonstration that coal testing is
necessary for the development of a surface coal mining and reclamation
operation must also include evidence that sufficient reserves of coal
are available to the applicant for future commercial use or sale and an
explanation of why other mean of exploration are not adequate. Proposed
11 AAC 90.163(c) (4) and (5) are substantively the same as the
counterpart Federal regulations at 30 CFR 772.14(b) (3) and (4). They
are also identical to existing 11 AAC 90.163(d) (1) and (2). It is not
clear to OSM why Alaska choose to add 11 AAC 90.163(c) (4) & (5) to its
rules when the same requirements already existed at 11 AAC 90.163(d)
(1) and (2). The Director finds that the addition of the provisions at
11 AAC 90.163(c) (4) and (5) is superfluous; however, the addition of
these provisions does not render Alaska's rule less effective than the
counterpart Federal regulations at 30 CFR 772.14(b) (3) and (4).
Therefore, the Director approves the addition of these rules.
6. 11 AAC 90.207(f), Requirements for Self-Bonding
Alaska proposed new rules at 11 AAC 90.207(f) to provide specific
requirements for self-bonding. With the exceptions discussed below, the
proposed 11 AAC 90.207(f) is substantively similar to the requirements
of the counterpart Federal regulations at 30 CFR 800.23. Therefore, the
Director finds proposed 11 AAC 90.207(f) to be no less effective than
the Federal regulations and approves it.
a. 11 AAC 90.207(f), Definitions of ``self-bond'' and other terms
concerning financial statements.--Alaska's rules at 11 AAC 90.207 do
not define ``self-bond,'' which is an allowable form of bond under the
Federal regulations at 30 CFR 800.23. The term `'self-bond'' as defined
at 30 CFR 800.5(c) means ``an indemnity agreement in a sum certain
executed by the applicant or by the applicant and any corporate
guarantor and made payable to the regulatory authority with or without
a separate surety.''
OSM, in its July 19, 1995, issue letter, notified Alaska of the
lack of a counterpart definition in its rules (issue No. 9). Alaska's
response, dated October 11 and 24, 1995, provided that the term ``self-
bond'' was defined at Alaska Statute (AS) 27.21.160(d). AS 27.21.160(d)
is Alaska's statutory counterpart to section 509(c) of SMCRA, which
provides the conditions under which the regulatory authority may accept
a self-bond. Neither the Alaska statute nor the cited section of SMCRA
define ``self-bond.'' Therefore, the Director finds that the lack of a
definition of ``self-bond'' at 11 AAC 90.207(f) is less effective than
the Federal regulations and is requiring Alaska to add a definition of
`'self-bond'' to its rules or otherwise revise its program to define
``self-bond'' consistent with the Federal regulations at 30 CFR
800.5(c).
In addition, Alaska's proposed rules at 11 AAC 90.207(f) do not
include definitions for financial statement terms associated with self-
bonding such as ``current assets,'' ``current liabilities,'' ``fixed
assets,'' ``liabilities,'' ``net worth,'' and ``tangible net worth.''
The Federal regulations at 30 CFR 800.23(a) provide definitions for
financial statement terms because they are terms used in the provisions
concerning self-bonding to clarify what is meant or required by the
self-bonding financial tests. The terms are defined to avoid
misunderstandings about what an applicant can and cannot include in its
self-bonding application. This is necessary because not all financial
term definitions are consistent with standard accounting definitions.
For example, `'fixed assets,'' as defined for self-bonding, does not
allow land and coal in place to be counted as fixed assets because they
are difficult to evaluate and to liquidate. Standard accounting
principles, on the other hand, allow land and coal in place to be
counted as an asset when calculating total assets.
Therefore, the Director finds 11 AAC 90.207(f) to be less effective
than the counterpart Federal regulations at 30 CFR 800.23(a) to the
extent that the Alaska rule does not define the financial statement
terms used specifically for self-bonding. The Director requires Alaska
to provide financial statement definitions that are similar to the
definitions provided in the Federal regulations or otherwise revise its
program to be consistent with and no less effective than the Federal
regulations at 30 CFR 800.23(a)
b. 11 90.207(f)(3), Agent for service.--The rules proposed by
Alaska at 11 AAC 90.207(f)(3) provide requirements for acceptance of a
corporate guarantee of an applicant's self-bond, including requirements
concerning business history, submission of financial statements, and an
agent for service of process in Alaska. These requirements are
consistent with the Federal regulations at 30 CFR 800.23(c)(2), except
that the Federal regulations contain an additional requirement
concerning an agent for service for the applicant. The Director finds,
to the extent that 11 AAC 90.207(f)(3) does not require an applicant
whose self-bond is
[[Page 48838]]
guaranteed by a corporate guarantor to maintain its own agent for
service of process in Alaska, that Alaska's rule is less effective than
the counterpart Federal regulations at 30 CFR 800.23(c)(2). The
Director requires Alaska to amend its rule to require an applicant for
a self-bond to meet the requirements of 11 AAC 90.207(f)(1) (A), (C),
and (D), otherwise revise its program to require the permittee to
maintain an agent for service of process while its self-bond is
guaranteed by a corporate guarantor.
7. 11 AAC 90.321(d), Hydrologic Balance
Alaska proposed at 11 AAC 90.321(d) to require that the
Commissioner will, in the Commissioner's discretion, require operation
of necessary ``siltation structures,'' rather than water treatment
facilities, for as long as treatment is required. The counterpart
Federal regulations at 30 CFR 816.41 (a) and (d) provide, in pertinent
part, that the regulatory authority may require additional
preventative, remedial, or monitoring measures to assure that material
damage to the hydrologic balance outside the permit area is prevented
and that if drainage control, restabilization and revegetation of
disturbed areas, diversion of runoff, mulching, or other reclamation
and remedial practices are not adequate, the operator shall use and
maintain the necessary water-treatment facilities or water quality
controls. Further, the Federal regulations at 30 CFR 701.5 define
``siltation structure'' to mean ``a sedimentation pond, a series of
sedimentation ponds, or other treatment facility.'' Alaska has no
counterpart definition for ``siltation structure.'' Because Alaska's
rule lacks the requirement that the operator maintain and use necessary
water-treatment facilities, not just siltation structures, the Director
finds 11 AAC 90.321(d) to be less effective than the Federal
regulations at 30 CFR 816.41 (a) and (d) and 817.41 (a) and (d). The
Director does not approve 11 AAC 90.321(d) and requires Alaska to
revise it by ensuring that water treatment facilities will be operated
for as long as necessary or by adding a definition of ``siltation
structure'' to its rules that is no less effective than the Federal
definition of this term at 30 CFR 701.5.
8. 11 AAC 90.323(a), Water Quality Standards
Alaska proposed nonsubstantive editorial changes at 11 AAC
90.323(a), which are approved by the Director (see finding No. 1);
however, existing language contained in this provision provides that
discharges from underground workings to surface water and surface
drainage from the disturbed area must pass through one or more
``siltation structures.'' As discussed in finding No. 7 above, the
Director finds use of the term ``siltation structure'' to be less
effective than the Federal regulations at 30 CFR 816.41 (a) and (d) and
817.41 (a) and (d). The Director requires Alaska to revise 11 AAC
90.323 (a) to replace ``siltation structures'' with ``sedimentation
ponds or a treatment facility,'' or otherwise amend its regulatory
program to provide a definition of ``siltation structures'' that is no
less effective than the Federal definition of this term at 30 CFR
701.5.
9. 11 AAC 90.325(a), Diversions and Conveyance of Flow
Alaska proposed at 11 AACV 90.325(a) to require that all diversions
and collection drains that are used to transport water into ``siltation
structures,'' rather than ``treatment facilities,'' must meet the
requirements of this section for diversions and conveyance of flow. The
counterpart Federal regulations at 30 CFR 816.43(a) and (c)(2) and
817.43(a) and (c)(2) provide, in pertinent part, that all diversions
shall be designed to minimize the adverse impacts to the hydrologic
balance, which includes, as provided at 30 CFR 816.41(d)(1) and
817.41(d)(1), the use and maintenance of necessary water-treatment
facilities or water quality controls if drainage control,
restabilization and revegetation of disturbed areas, diversion of
runoff, mulching, or other reclamation or remedial practices are not
adequate to meet the hydrologic-balance protection requirements and the
water quality standards and effluent limitations. Therefore, because
Alaska's rule uses the term ``siltation structure,'' which is not
defined in the Alaska program, and because the rule lacks the
requirement that the operator maintain and use necessary water-
treatment facilities, not just siltation structures, the Director finds
11 AAC 90.325(a) to be less effective than the Federal regulations at
30 CFR 816.41(d)(1) and 817.41(d)(1), and does not approve the
replacement of ``treatment facilities'' with ``siltation structures.''
The Director requires Alaska to revise 11 AAC 90.325(a) by ensuring
that water treatment facilities will be operated for as long as
necessary or by adding a definition of ``siltation structure'' to its
rules that is no less effective than the Federal definition of this
term at 30 CFR 701. 5.
10. 11 AAC 90.327(b)(1) and (c), Stream Channel Diversions
Alaska proposed at 11 AAC 90.327 (b)(1) and (c) to replace
``erosion control structures'' and ``water treatment facilities'' with
the term ``siltation structures.'' The Director finds such replacement
to be less effective than the counterpart Federal regulations at 30 CFR
816.43 (a)(1) and (3) and 817.43 (a)(1) and (3) for the reasons
discussed below.
a. 11 AAC 90.327(b)(2), Design and Construction of stream channel
diversions.--Alaska proposed at 11 AAC 90.327(b)(1) to require that
``siltation structures'' rather than ``erosion control structures''
must be approved by the Commissioner and should be used only if
necessary to control erosion.
In the context of describing Federal performance standards for
stream channel diversions, ``erosion control structures'' and
``siltation structures'' are different kinds of structures and not
inter-changeable. The preamble for the Federal regulations at 30 CFR
816.44(b)(1) (44 FR 15399, March 13, 1979) stated that ``erosion
control structures such as channel lining structures, retention basins,
and artificial channel roughness structures shall be used in diversions
only when approved by the regulatory authority as being necessary to
control erosion.'' Because the Alaska program lacks a definition for
``siltation structures,'' it is not known whether ``siltation
structures,'' as used here, would include structures such as channel
linings, gabions, or retention basins. Therefore, the Director does not
approve at proposed 11 AAC 90.327(b)(1) the replacement of the term
``erosion control structures'' with ``siltation structures,'' and
requires Alaska to continue to use ``erosion control structures'' when
describing standards for stream channel diversions used to control
erosion.
b. 11 AAC 90.327(c), Removal of temporary stream channel
diversions.--Alaska proposed at 11 AAC 90.327(c) to require that
downstream ``siltation structures,'' rather than ``water treatment
facilities,'' previously protected by the diversion, must be modified
or removed at the time diversions are removed to prevent overtopping or
failure of the facilities, and that this requirement does not relieve
the operator from maintenance of a ``siltation structure,'' rather than
a ``water treatment facility,'' otherwise required under this chapter
or the permit. The counterpart Federal regulations at 30 CFR
816.43(a)(3) and
[[Page 48839]]
817.43(a)(3) require, in pertinent part, that downstream water-
treatment facilities previously protected by a diversion shall be
modified or removed, as necessary, to prevent overtopping or failure of
the facilities, and that this requirement shall not relieve the
operator from maintaining water-treatment facilities as otherwise
required. Because Alaska has not defined ``siltation structures,'' the
Director finds that replacement of ``water treatment facilities'' or
water treatment facility'' with ``siltation structures'' or ``siltation
structure'' is less effective than 30 CFR 816.43(a)(3) and
817.43(a)(3). The Director is not approving proposed 11 AAC 90.327(c)
and is requiring Alaska to revise it by retaining the terms ``water
treatment facilities'' and ``water treatment facility,'' or to provide
a definition of ``siltation structures'' that includes ``water-
treatment facilities.''
11. 11 AAC 90.337(f), Impoundment Inspection
Alaska proposed at 11 AAC 90.337(f) to require that in addition to
the formal inspections required under 11 AAC 90.337(a) through (e), all
impoundments must be examined at least once a quarter by a qualified
person for any appearances of structural weakness or other hazardous
conditions. The Federal regulations at 30 CFR 816.49(a)(12) and
817.49(a)(12) require, in pertinent part, that impoundments not meeting
the SCS (Soil Conservation Service, now Natural Resources Conservation
Service) class B or C criteria for dams in TR-60, or subject to 30 CFR
77.216-3, shall be examined at least quarterly. The Director finds 11
AAC 90.337(f), which requires that all impoundments must be examined at
least quarterly, is no less effective than the Federal regulations and
approves the revisions to this rule.
12. 11 AAC 90.341(b)(2), Underground Mine Entry and Access Discharges
Alaska proposed at 11 AAC 90.341(b)(2) to replace ``treatment
facility'' with ``siltation structure,'' and allow gravity discharge of
water from an underground mine if all water discharged, whether treated
or not, meets applicable State and Federal laws and regulations, and
the Commissioner finds that consistent maintenance of any siltation
structure required under 11 AAC 90.323 will occur throughout the
anticipated period of gravity discharge. The Federal regulations at 30
CFR 817.41(i)(1) require, in pertinent part, that gravity discharges of
water from underground mines may be allowed by the regulatory authority
if it is demonstrated that the untreated or treated discharge complies
with the performance standards of this part. This part includes the
provisions at 817.41(d)(1), concerning protection of the hydrologic
balance and monitoring, 817.42, concerning water quality standards, and
817.46(b)(5), concerning maintenance of siltation structures until
removal is authorized by the regulatory authority. As discussed in
previous findings, because Alaska has not defined ``siltation
structures,'' the Director finds that use of the term ``siltation
structures'' is less effective than the Federal regulations at 30 CFR
817.46(b)(5). The Director does not approve proposed 11 AAC
90.341(b)(2) and requires Alaska to revise it to provide for consistent
maintenance of any treatment facility used during the anticipated
period of gravity discharge, or otherwise revise its regulatory program
to ensure that ``siltation structure'' is defined in accordance with 30
CFR 701.5.
13. 11 AAC 90.345(e), Surface and Ground Water Monitoring
Alaska proposed at 11 AAC 90.345(e), concerning the monitoring of
stream, lake, and other surface water bodies that may be affected by
the mining operation or that will receive a discharge, to require that
the monitoring must be conducted at both upstream and downstream
locations in all receiving water bodies. The Federal regulations
concerning ground-water and surface-water monitoring at 30 CFR
816.41(c) and (e) and 817.41(c) and (e) require that monitoring shall
be conducted according to the ground-water monitoring plan and surface-
water monitoring plan approved under 30 CFR 780.21(i) and (j) for
surface mining activities and 30 CFR 784.14(h) and (i) for underground
mining activities, and that the regulatory authority may require
additional monitoring when necessary. There is no specific Federal
regulatory counterpart to Alaska's proposed rule at 11 AAC 90.345(e),
which requires both upstream and downstream monitoring locations.
However, the proposed requirement is not inconsistent with the Federal
regulations. Therefore, the Director finds that proposed 11 AAC
90.345(e) is no less effective than 30 CFR 816.41(c) and (e) and
817.41(c) and (e), which provide, in addition to conducting monitoring
in accordance with the approved monitoring plan, that the regulatory
authority may require additional monitoring when necessary. The
Director approves the proposed revisions to this rule.
14. 11 AAC 90.443(k), Backfilling and Grading
Alaska proposed new language at 11 AAC 90.443(k) to provide that spoil
shall be returned to the mined-out area, except for (1) excess spoil
disposed of in accordance with 11 AAC 90.391, and (2) spoil necessary
to blend regraded areas into the surrounding terrain in non-steep slope
areas so long as all vegetative and organic material is removed. The
counterpart Federal regulations at 30 CFR 816.102(b) provide that
spoil, except excess spoil disposed of in accordance with 30 CFR 816.71
through 816.74, shall be returned to the mined-out area. In addition,
30 CFR 816.102(d) (1) through (3) provide that spoil may be placed on
the area outside the mined-out area in nonsteep slope areas to restore
the approximate original contour by blending the spoil into the
surrounding terrain if certain requirements are met, including removal
of all vegetative and organic material, removal, segregation, storage
and redistribution of topsoil, and backfilling and grading of the spoil
in accordance with the requirements of 30 CFR 816.102.
Alaska's proposed rule at 11 AAC 90.443(k) is similar to the
Federal regulations at 30 CFR 816.102 (b) and (d), except that Alaska's
rule does not require that (1) the topsoil on the area outside the
mined-out area in nonsteep slope areas be removed, segregated, stored,
and redistributed in accordance with Alaska's counterpart to the cited
Federal regulation at 30 CFR 816.22, and (2) the spoil to be placed on
the area outside the mined-out area in nonsteep slope areas be
backfilled and graded in accordance with the requirements of Alaska's
counterpart to the cited Federal regulation at 30 CFR 816.102.
Therefore, the Director finds, to the extent that Alaska's rule at 11
AAC 90.443(k) lacks the counterpart requirements of the Federal
regulations at 30 CFR 816.102(d) (2) and (3), 11 AAC 90.443(k) to be
less effective than the Federal regulations. The Director approves
proposed 11 AAC 90.443(k), but requires Alaska to revise it to provide
that the topsoil on the area outside the mined-out area in nonsteep
slope areas shall be removed, segregated, stored and redistributed in
accordance with its topsoil removal provisions and that the spoil be
backfilled and graded on the area in accordance with its provisions
concerning performance standards for backfilling and grading, or
otherwise amend its program to ensure that the disposal of spoil
provisions are no less effective than the Federal regulations at 30 CFR
816.102(d) (2) and (3).
[[Page 48840]]
15. 11 AAC 90.491(f) Construction and Maintenance of Roads
Alaska proposed at 11 AAC 90.491(f) that any road used to transport
coal or spoil, frequently used in excess of six months for access or
other purposes, or retained for an approved postmining land use, must
meet several additional requirements, including certification, safety
factor, location, drainage control, and surfacing. Proposed 11 AAC
90.491(f) is substantively the same as the counterpart Federal
regulations at 30 CFR 816.150(b) and 817.150(b) and 816.151 (a) through
(c), (d) (1) through (4), and (e) and 817.151 (a) through (c), (d) (1)
through (4), and (e). However, proposed 11 AAC 90.491(f) lacks
provisions that are required by the Federal regulations at 30 CFR
816.151(c)(2), (d)(5), and (d)(6) and 817.151(c)(2), (d)(5) and (d)(6),
concerning fords of perennial or intermittent streams, the alteration
or relocation of natural stream channels, and structures for perennial
or intermittent stream channel crossings. Alaska proposed new language
at 11 AAC 90.097 concerning reclamation plan general requirements for
transportation facilities, to require that the surface coal mining
application contain the specifications for each low water crossing and
temporary stream ford (see finding No. 2), but Alaska did not include
all the necessary performance standards concerning location and
drainage control. With the exception of the lack of necessary
provisions discussed above, the Director finds that proposed 11 AAC
90.491(f) is no less effective than the Federal regulations at 30 CFR
816.151 and 817.151 and approves it. The Director is, however,
requiring Alaska to revise 11 AAC 90.491(f) to ensure that its
performance standards for primary roads include requirements concerning
fords, alteration or relocation of natural stream channels, and stream
crossings, or otherwise revise its program to provide counterpart
provisions to the Federal regulations at 30 CFR 816.151(c)(2), (d)(5),
and (d)(6) and 817.151(c)(2), (d)(5), and (d)(6).
IV. Summary and Disposition of Comments
Following are summaries of all substantive written comments on the
proposed amendment that were received by OSM, and OSM's responses to
them.
1. Public Comments
OSM invited public comments on the proposed amendment, but none
were received.
2. Federal Agency Comments
Pursuant to 732.17(h)(11)(i), OSM solicited comments on the
proposed amendment from various Federal agencies with an actual or
potential interest in the Alaska program (administrative record Nos.
AK-E-2 and AK-E-16).
U.S. Bureau of Reclamation (BOR).--By letter dated March 15, 1995,
the BOR Washington, D.C. office responded that it does not have
jurisdiction in the Alaska area (administrative record No. AK-E-6). OSM
has, therefore, removed the BOR Washington, D.C. office from the
mailing list soliciting comments on Alaska amendments.
Bureau of Land Management (BLM).--By letters dated March 17 and
November 9, 1995, the BLM Alaska State Office responded that the
amendment created no potential conflicts with the management criteria
of the BLM surface management program in Alaska concerning mineral
development. Therefore, BLM had no comments on the proposed amendment
(administrative record Nos. AK-E-7 and AK-E-19).
U.S. Bureau of Mines (BOM).--The BOM Washington, D.C. office
responded on March 17 and November 2, 1995, that it had no comments
(administrative record Nos. AK-E-8 and AK-E-18). In addition, the BOM
Alaska Field Operations Center responded on March 27, 1995, that it had
no comments on the proposed revisions (administrative record No. AK-E-
11).
U.S. Fish and Wildlife Service (FWS).--FWS responded on March 22,
1995, that it was not able to thoroughly review the proposed changes to
Alaska's rules due to staffing and funding constraints, and therefore,
it had no specific comments (administrative record No. AK-E-9).
U.S. Department of Energy (DOE).--By letters dated March 21 and
November 1, 1995, the DOE Alaska Power Administration responded on that
it had no comments (administrative record Nos. AK-E-10 and AK-E-17).
Natural Resources Conservation Service (NRCS).--NRCS responded on
December 5, 1995, with comments on the proposed amendment
(administrative record No. AK-E-20).
NRCS commented that the ``history of farming'' at 11 AAC 90.149(d)
should be expanded to include ``or potential for farming.'' NRCS stated
that many alluvial valley floors have soil and climate characteristics
suitable for agriculture and that even though the total existing acres
in production in Alaska are limited due to market conditions, that
should not preclude maintaining hydrologic functions on areas with
agriculture potential. NRCS suggested that these areas can be
identified using existing Department of Natural Resources guidelines
for identifying lands with agricultural potential.
Alaska's rule at 11 AAC 90.149(d) provides, in pertinent part, that
certain information must be included in the permit application if the
proposed operation may affect an alluvial valley floor, unless the
Commissioner determines that some or all of the information is
unnecessary because the particular valley floor has no history of
farming, is not subirrigated, or has no deficiency of water. The
counterpart Federal regulations at 30 CFR 785.19(b)(2) and (d)(1)
provide, in pertinent part, for statutory exclusions concerning
alluvial valley floors, including determinations by the State
regulatory authority that (1) the premining land use is undeveloped
rangeland which is not significant to farming or (2) any farming on the
alluvial valley floor that would be affected by the surface coal mining
operation is of such small acreage as to be of negligible impact on the
farm's agricultural production. Farm, as used in these Federal
regulations, is one or more land units on which farming is conducted
and a farm is considered to be the combination of land units with
acreage and boundaries in existence prior to enactment of SMCRA, or if
established after August 3, 1977, with those boundaries based on
enhancement of the farm's agricultural productivity.
The Federal regulations do not specifically address ``history of
farming'' or ``potential for farming.'' However, OSM has determined
that Alaska's rule at 11 AAC 90.149(d) is no less effective than the
Federal regulations at 30 CFR 785.19(d)(2) (see finding No. 1). OSM
interprets the phrase ``history of farming'' to be consistent with the
exceptions provided at 30 CFR 785.19(b)(2) in that the Federal
regulations require the regulatory authority to determine the presence
or absence of an alluvial valley floor, and if an alluvial valley floor
is present, then the regulatory authority determines the premining land
use and extent of farming in relation to the farm's agricultural
production. If there is no history of farming on the lands, then the
premining land use was not farming nor will a surface coal mining
operation impact the farm's agricultural production. Therefore, OSM is
not requiring Alaska to revise 11 AAC 90.149(d).
NRCS questioned why areas with permafrost or ice-covered ponds are
[[Page 48841]]
excluded from the provisions at 11 AAC 90.323(a). NRCS stated that
permafrost or ice-covered ponds should have no impact on the need for
siltation structures to maintain water quality because many areas with
permafrost will, upon disturbance, mining or otherwise, release
considerable sediment-laden water as the permafrost thaws. NRCS also
commented that the relevancy of ice-covered ponds is not clear at all.
Alaska's rule at 11 AAC 90.323(a) provides for protection of the
hydrologic balance and requires, in pertinent part, that the
Commissioner must make a finding, when conditions such as permafrost or
ice-covered ponds are present, that the drainage will meet the
applicable State and Federal water quality laws and regulations without
treatment. What NCRA has interpreted to be an exclusion from the
requirements of 11 AAC 90.323(a) is not an exclusion from the
requirement to meet the State's water quality standards. Therefore, OSM
is not requiring Alaska to revise 11 AAC 90.323(a) to remove the
language concerning permafrost and ice-covered ponds.
Concerning proposed 11 AAC 90.391, NRCS questioned to what
standards must revegetation occur, whether this meant native species,
and if revegetation had to be compatible with the post-mining land use.
Proposed 11 AAC 90.391(s) requires, in pertinent part, that all
disturbed areas, including diversion channels that are not riprapped or
otherwise protected, shall be revegetated upon completion of
construction. The requirements of proposed 11 AAC 90.391(s) concern
stabilization of the surface area and are substantively the same as the
counterpart Federal regulations at 816.71(g) and 817.71(g) (see finding
No. 2). OSM states that the performance standards for revegetation are
provided at 30 CFR 816.111 and 817.111, including the use of native
species and compatibility with the approved postmining land use.
Therefore, vegetative cover used for surface area stabilization must
meet the specific requirements addressed by NRCS's questions concerning
revegetation.
3. Environmental Protection Agency (EPA) Concurrence
Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to solicit
the written concurrence of EPA with respect to those provisions of the
proposed program amendment that relate to air or water quality
standards promulgated under the authority of the Clean Water Act (33
U.S.C. 1251 et seq.) or the Clean Air Act (42 U.S.C. 7401 et seq.).
None of the revisions that Alaska proposed to make in its amendment
pertain to air or water quality standards. Nevertheless, OSM requested
EPA's concurrence with the proposed amendment (administrative record
No. AK-E-03). EPA did not respond to OSM's request.
4. State Historic Preservation Officer (SHPO) and the Advisory Council
on Historic Preservation (ACHP)
Pursuant to 30 CFR 732.17(h)(4), OSM solicited comments on the
proposed amendment from the SHPO and ACHP (administrative record No.
AK-E-02). Neither SHPO nor ACHP responded to OSM's request.
V. Director's Decision
Based on the above findings, the Director approves, with certain
exceptions and additional requirements, Alaska's proposed amendment as
submitted on January 26 and February 13 and 14, 1995, and as revised
and supplemented with additional explanatory information on October 11,
23, and 24, 1995.
With the requirement that Alaska further revise its rules, the
Director does not approve, as discussed in:
(1) Finding No. 7, 11 AAC 90.321(d), concerning hydrologic balance,
(2) Finding No. 9, 11 AAC 90.325(a), concerning diversions and
conveyance of flow,
(3) Finding No. 10(a) and (b), 11 AAC 90.327(b)(1) and (c),
concerning stream channel diversions, and
(4) Finding No. 12, 11 AAC 90.341(b)(2), concerning underground
mine entry and access discharges.
The Director approves, as discussed in:
(1) finding No. 1, 11 AAC 90.025(b) and (c), concerning right of
entry information, 11 AAC 90.049(2) and (2)(E) through (H), concerning
surface water information, 11 AAC 90.083(b)(10) and (11), concerning
reclamation plan general requirements, 11 AAC 90.149(d), concerning
operations near alluvial valley floors, 11 AAC 90.163(b), (c), and
(c)(3)(B), concerning exploration that substantially disturbs the
natural land surface or occurs in an area designated unsuitable for
mining, 11 AAC 90.391(b), concerning disposal of excess spoil or coal
mine waste, 11 AAC 90.401(e), concerning coal mine waste refuse piles,
11 AAC 90.491(a), (a)(7), (c)(4), and (c)(8), concerning construction
and maintenance of roads, transportation and support facilities, and
utility installations, and 11 AAC 90.907(e), (f), (g), (h), and (j),
concerning public participation;
(2) Finding No. 2, 11 AAC 05.010(a)(11)(D) and 11 AAC 90.011,
concerning permit fees, 11 AAC 90.002, concerning responsibilities, 11
AAC 90.025(a), concerning authority to enter and ownership information,
11 AAC 90.045(a), concerning geology description, 11 AAC 90.049(2)(D),
concerning surface water information, 11 AAC 90.083(b)(12), concerning
reclamation plan general requirements, 11 AAC 90.097, concerning
transportation facilities, 11 AAC 90.149(d)(1), concerning operations
near alluvial valley floors, 11 AAC 90.163, (a), (b)(1), (c)(4), and
(c)(5), concerning exploration that substantially disturbs the natural
land surface or occurs in an area designated unsuitable for mining, 11
AAC 90.207(f)(1), (2), and (4) through (7), concerning requirements for
self-bonding, 11 AAC 90.375, concerning public notice of blasting, 11
AAC 90.391(h) and (s), concerning disposal of excess spoil or coal mine
waste, 11 AAC 90.407(e), concerning coal mine waste dams and
embankments, 11 AAC 90.409, concerning return to underground workings,
11 AAC 90.423(b) and (h), concerning protection of fish and wildlife,
11 AAC 90.443(d)(1), concerning backfilling and grading previously
mined areas, 11 AAC 90.491(a)(1), (6), and (8), (c)(5) through (7),
(e), and (f)(1) through (9), concerning construction and maintenance of
roads, transportation and support facilities, and utility
installations, 11 AAC 90.901(e), concerning authority, and 11 AAC
90.907(c) and (d), concerning public participation;
(3) Finding No. 3, 11 AAC 90.003, repeal of provisions concerning
continued operation under interim permits;
(4) Finding No. 4, 11 AAC 90.099, concerning return of coal mine
waste and excess spoil to abandoned underground workings;
(5) Finding No. 5, 11 AAC 90.163(c)(4) and (5), concerning
exploration that substantially disturbs the natural land surface or
occurs in an area designated unsuitable for surface coal mining;
(6) Finding No. 11, 11 AAC 90.337(f), concerning impoundment
inspections; and
(7) Finding No. 13, 11 AAC 90.345(e), concerning surface and ground
water monitoring.
With the requirement that Alaska further revise its rules, the
Director approves, as discussed in:
(1) Finding No. 6a., 11 AAC 90.207(f), concerning definitions of
``self-bond'' and other terms concerning financial statements,
[[Page 48842]]
(2) Finding No. 6b, 11 AAC 90.207(f)(3), concerning an agent for
service,
(3) Finding No. 8, 11 AAC 90.323(a), concerning water quality
standards,
(4) Finding No. 14, 11 AAC 90.443(k), concerning backfilling and
grading, and
(5) Finding No. 15, concerning construction and maintenance of
roads.
In accordance with 30 CFR 732.17(f)(1), the Director is also taking
this opportunity to clarify in the required amendment section at 30 CFR
902.16 that, within 60 days of the publication of this final rule,
Alaska must either submit a proposed written amendment, or a
description of an amendment to be proposed that meets the requirements
of SMCRA and 30 CFR Chapter VII and a timetable for enactment that is
consistent with Alaska's established administrative or legislative
procedures.
The Director approves the rules as proposed by Alaska with the
provision that they be fully promulgated in identical form to the rules
submitted to and reviewed by OSM and the public.
The Federal regulations at 30 CFR Part 902, codifying decisions
concerning the Alaska program, are being amended to implement this
decision. This final rule is being made effective immediately to
expedite the State program amendment process and to encourage States to
bring their programs into conformity with the Federal standards without
undue delay. Consistency of State and Federal standards is required by
SMCRA.
Effect of Director's Decision
Section 503 of SMCRA provides that a State may not exercise
jurisdiction under SMCRA unless the State program is approved by the
Secretary. Similarly, 30 CFR 732.17(a) requires that any alteration of
an approved State program be submitted to OSM for review as a program
amendment. Thus, any changes to the State program are not enforceable
until approved by OSM. The Federal regulations at 30 CFR 732.17(g)
prohibit any unilateral changes to approved State programs. In the
oversight of the Alaska program, the Director will recognize only the
statutes, regulations and other materials approved by OSM, together
with any consistent implementing policies, directives and other
materials, and will require the enforcement by [State] of only such
provisions.
VI. Procedural Determinations
1. Executive Order 12866
This rule is exempted from review by the Office of Management and
Budget (OMB) under Executive Order 12866 (Regulatory Planning and
Review).
2. Executive Order 12988
The Department of the Interior has conducted the reviews required
by section 3 of Executive Order 12988 (Civil Justice Reform) and has
determined that this rule meets the applicable standards of subsections
(a) and (b) of that section. However, these standards are not
applicable to the actual language of State regulatory programs and
program amendments since each such program is drafted and promulgated
by a specific State, not by OSM. Under sections 503 and 505 of SMCRA
(30 U.S.C. 1253 and 1255) and the Federal regulations at 30 CFR 730.11,
732.15, and 732.17(h)(10), decisions on proposed State regulatory
programs and program amendments submitted by the States must be based
solely on a determination of whether the submittal is consistent with
SMCRA and its implementing Federal regulations and whether the other
requirements of 30 CFR Parts 730, 731, and 732 have been met.
3. National Environmental Policy Act
No environmental impact statement is required for this rule since
section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency
decisions on proposed State regulatory program provisions do not
constitute major Federal actions within the meaning of section
102(2)(C) of the National Environmental Policy Act (42 U.S.C.
4332(2)(C)).
4. Paperwork Reduction Act
This rule does not contain information collection requirements that
require approval by OMB under the Paperwork Reduction Act (44 U.S.C.
3507 et seq.).
5. Regulatory Flexibility Act
The Department of the Interior has determined that this rule will
not have a significant economic impact on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
The State submittal that is the subject of this rule is based upon
counterpart Federal regulations for which an economic analysis was
prepared and certification made that such regulations would not have a
significant economic effect upon a substantial number of small
entities. Accordingly, this rule will ensure that existing requirements
previously promulgated by OSM will be implemented by the State. In
making the determination as to whether this rule would have a
significant economic impact, the Department relied upon the data and
assumptions for the counterpart Federal regulations.
6. Unfunded Mandates Reform Act
This rule will not impose a cost of $100 million or more in any
given year on any governmental entity or the private sector.
List of Subjects in 30 CFR Part 902
Intergovernmental relations, Surface mining, Underground mining.
Dated: August 26, 1996.
James F. Fulton,
Acting Regional Director, Western Regional Coordinating Center.
For the reasons set out in the preamble, title 30, chapter VII,
subchapter T of the Code of Federal Regulations is amended as set forth
below:
PART 902--ALASKA
1. The authority citation for part 902 continues to read as
follows:
Authority: 30 U.S.C. 1201 et seq.
2. Section 902.15 is amended by adding paragraph (d) to read as
follows:
Sec. 902.15 Approval of regulatory program amendments.
* * * * *
(d) With the exception of 11 AAC 207(f), concerning requirements
for self-bonds, 11 AAC 90.321(d), concerning hydrologic balance, 11 AAC
90.323(a), concerning water quality standards, 11 AAC 90.325(a),
concerning diversions and conveyance of flow, 11 AAC 90.327(b)(1) and
(c), concerning stream channel diversions, 11 AAC 90.341(b)(2),
concerning underground mine entry and access discharges, 11 AAC
90.443(k), concerning backfilling and grading, and 11 AAC 90.491(f),
concerning construction and maintenance of roads, the revisions to and
additions of rules proposed in Alaska Amendment IV, as submitted to OSM
on January 26, 1995, and as revised on October 11, 23, and 24, are
approved effective September 17, 1996.
3. Section 902.16 is amended by adding the introductory paragraph
and paragraph (b) to read as follows:
Sec. 902.16 Required program amendments.
Pursuant to 30 CFR 732.17(f)(1), Alaska is required to submit to
OSM by the specified date the following written, proposed program
amendments, or a description of an amendment to be proposed that meets
the requirements of SMCRA and 30 CFR Chapter VII and a timetable for
enactment that is consistent with Alaska's established administrative
or legislative procedures.
* * * * *
[[Page 48843]]
(b) By November 18, 1996, Alaska shall revise the following rules,
or otherwise modify its program, to:
(1) At 11 AAC 90.207(f), require the addition of a definition for
the term ``self-bond'' and other financial terms used to describe self-
bonds consistent with the Federal regulations at 30 CFR 800.5(c) and
800.23(a), and to require the applicant for a self-bond that is
guaranteed by a corporate guarantor to retain his/her own agent for
service in Alaska.
(2) At 11 AAC 90.321(d), require that water treatment facilities
will be operated for as long as necessary, or add a definition of
``siltation structure'' that is no less effective than the Federal
definition of this term at 30 CFR 701.5.
(3) At 11 AAC 90.323(a), replace ``siltation structures'' with
``treatment facilities,'' or add a definition of ``siltation
structure'' that is no less effective than the Federal definition of
this term at 30 CFR 701.5.
(4) At 11 AAC 90.325(a), require that water treatment facilities
will be operated for as long as necessary or add a definition of
``siltation structure'' that is no less effective than the Federal
definition of this term at 30 CFR 701.5.
(5) At 11 AAC 90.327(b)(1) and (c), require that ``erosion control
structures'' be used when describing standards for stream channel
diversions used to control erosion, and that the terms ``water
treatment facilities'' and ``water treatment facility'' be retained or
provide a definition of ``siltation structures'' that includes ``water-
treatment facilities.''
(6) At 11 AAC 90.341(b)(2), require that any treatment facility
used during the anticipated period of gravity discharge will be
consistently maintained, or add a definition of ``siltation structure''
that is no less effective than the Federal definition of this term at
30 CFR 701.5.
(7) At 11 AAC 90.443(k), require that the topsoil on the area
outside the mined-out area in nonsteep slope areas shall be removed,
segregated, stored and redistributed in accordance with its topsoil
removal provisions and that the spoil be backfilled and graded on the
area in accordance with its provisions concerning performance standards
or backfilling and grading, or add provisions to ensure that the
disposal of spoil provisions are no less effective than the Federal
regulations at 30 CFR 816.102(d) (2) and (3).
(8) At 11 AAC 90.491(f), require the addition of provisions
concerning fords of perennial or intermittent streams, the alteration
or relocation of natural stream channels, and structures for perennial
or intermittent stream channel crossings that are no less effective
than 30 CFR 816.151(b)(2), (d)(5), and (d)(6) and 817.151(b)(2), (d)(5)
and (d)(6).
[FR Doc. 96-23677 Filed 9-16-96; 8:45 am]
BILLING CODE 4310-05-M
Complete official Federal Register PDF
FR Doc. 96-23659 Bureau of Political-Military Affairs; Amendments to the International Traffic in Arms Regulations
[Federal Register Volume 61, Number 181 (Tuesday, September 17, 1996)]
[Rules and Regulations]
[Pages 48830-48834]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-23659]
=======================================================================
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DEPARTMENT OF STATE
22 CFR Parts 120, 123, and 128
[Public Notice 2408]
Bureau of Political-Military Affairs; Amendments to the
International Traffic in Arms Regulations
AGENCY: Department of State.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This rule amends the International Traffic in Arms Regulations
(ITAR) to correct a typographical error in the definition of
``technical data;'' eliminate the requirement of reporting subsequent
exports of unclassified technical data; and clarify authority and use
the current names of any office, bureau, or titles of officers that
have changed since 1990.
EFFECTIVE DATE: September 17, 1996.
FOR FURTHER INFORMATION CONTACT:
Philips S. Rhoads, Chief, Compliance and Enforcement Branch, Office of
Defense Controls, Bureau of Political-Military Affairs, Department of
State (703 875-6650).
SUPPLEMENTARY INFORMATION: Federal Register Public Notice No. 1179,
dated March 29, 1990, announced that the Office of Munitions Control
had changed its name to the Office of Defense Trade Controls. (55 FR
11714.) Part 128 of the International Traffic in Arms Regulations
(ITAR) is being amended to reflect the current name of the Office of
Defense Trade Controls. Other amendments reflect the name change of the
Bureau of Politico-Military Affairs to its current name, the Bureau of
Political-Military Affairs.Additionally, references to the ``Under
Secretary of State for Security Assistance, Science and Technology''
are being amended to the current title of the ``Under Secretary of
State for Arms Control and International Security Affairs.''
Furthermore, cross references to other sections in the ITAR are being
[[Page 48831]]
amended for accuracy. The delivery address for the Office of Defense
Trade Controls was added to part 128.
These amendments involve a foreign affairs function of the United
States. They are exempt from review under Executive Order 12866 but
have been reviewed internally by the Department to ensure consistency
with the purposes thereof. They are also not subject to 5 U.S.C. 553
and 554., and do not require analysis under the Regulatory Flexibility
Act or the Unfunded Mandates Reform Act.
List of Subjects
22 CFR Part 120
Arms and munitions, Exports, Technical assistance.
22 CFR Part 123
Arms and munitions, Exports, Technical assistance.
22 CFR Part 128
Arms and munitions, Exports.
Accordingly, for the reasons set forth in the preamble, 22 CFR
chapter I, subchapter M, is amended as follows:
PART 120--PURPOSE AND DEFINITIONS
1. The authority citation for part 120 continues to read as
follows:
Authority: Secs. 2, 38, and 71, Pub. L. 90-629, 90 Stat. 744 (22
U.S.C. 2752, 2778, 2797); E.O. 11958, 42 FR 4311, 3 CFR, 1977 Comp.
p. 79; 22 U.S.C. 2658.
2. Section 120.10(a)(1) is revised to read as follows:
Sec. 120.10 Technical data.
(a) * * *
(1) Information, other than software as defined in Sec. 120.10(4),
which is required for the design, development, production, manufacture,
assembly, operation, repair, testing, maintenance or modification of
defense articles. This includes information in the form of blueprints,
drawings, photographs, plans, instructions and documentation.
* * * * *
PART 123--LICENSES FOR THE EXPORT OF DEFENSE ARTICLES
1. The authority citation for part 123 continues to read as
follows:
Authority: Secs. 2 and 38, Pub. L. 90-629, 90 Stat. 744 (22
U.S.C. 2752, 2778); E.O. 11958, 42 FR 4311, 3 CFR 1977 Comp. 79; 22
U.S.C. 2658.
2. Section 123.22(d) is revised to read as follows:
Sec. 123.22 Filing of export licenses and Shipper's Export
Declarations with District Directors of Customs.
* * * * *
(d) A Shipper's Export Declaration is not required for exports of
unclassified technical data. Exporters shall notify the Office of
Defense Trade Controls of the initial export of the data by either
returning the license after self endorsement or by sending a letter to
the Office of Defense Trade Controls. The letter shall provide the
method, date, license number and airway bill number (if applicable) of
the shipment. The letter must be signed by an empowered official of the
company and provided to the Office of Defense Trade Controls within
thirty days of the initial export.
* * * * *
PART 128--ADMINISTRATIVE PROCEDURES
1. The authority citation for 22 part 128 continues to read as
follows:
Authority: Secs. 2, 38, 40, 42, and 71, Arms Export Control Act.
90 Stat. 744 (22 U.S.C. 2752, 2778, 2780, 2791, and 2797); E.O.
11958, 42 FR 4311; 22 U.S.C. 2658; E.O. 12291, 46 FR 1981.
2. Section 128.1 is revised to read as follows:
Sec. 128.1 Exclusion of functions from the Administrative Procedure
Act.
The Arms Export Control Act authorizes the President to control the
import and export of defense articles and services in furtherance of
world peace and the security and foreign policy of the United States.
It authorizes the Secretary of State to make decisions on whether
license applications or other written requests for approval shall be
granted, or whether exemptions may be used. It also authorizes the
Secretary of State to revoke, suspend or amend licenses or other
written approvals whenever the Secretary deems such action to be
advisable. The administration of the Arms Export Control Act is a
foreign affairs function encompassed within the meaning of the military
and foreign affairs exclusion of the Administrative Procedure Act and
is thereby expressly exempt from various provisions of that Act.
Because the exercising of the foreign affairs function, including the
decisions required to implement the Arms Export Control Act, is highly
discretionary, it is excluded from review under the Administrative
Procedure Act.
3. Section 128.2 is revised to read as follows:
Sec. 128.2 Administrative Law Judge
The Administrative Law Judge referred to in this part is an
Administrative Law Judge appointed by the Department of State or of the
Department of Commerce, as provided in 15 CFR 788.2. The Administrative
Law Judge is authorized to exercise the powers and perform the duties
provided for in Secs. 127.7, 127.8, and 128.3 through 128.16 of this
subchapter.
4. Section 128.3 is revised to read as follows:
Sec. 128.3 Institution of Administrative Proceedings.
(a) Charging letters. The Director, Office of Defense Trade
Controls, with the concurrence of the Office of the Legal Adviser,
Department of State, may initiate proceedings to impose debarment or
civil penalties in accordance with Sec. 127.7 or Sec. 127.10 of this
subchapter respectively. Administrative proceedings shall be initiated
by means of a charging letter. The charging letter will state the
essential facts constituting the alleged violation and refer to the
regulatory or other provisions involved. It will give notice to the
respondent to answer the charges within 30 days, as provided in
Sec. 128.5(a), and indicate that a failure to answer will be taken as
an admission of the truth of the charges. It will inform the respondent
that he or she is entitled to an oral hearing if a written demand for
one is filed with the answer or within seven (7) days after service of
the answer. The respondent will also be informed that he or she may, if
so desired, be represented by counsel of his or her choosing. Charging
letters may be amended from time to time, upon reasonable notice.
(b) Service. A charging letter is served upon a respondent:
(1) If the respondent is a resident of the United States, when it
is mailed postage prepaid in a wrapper addressed to the respondent at
that person's last known address; or when left with the respondent or
the agent or employee of the respondent; or when left at the
respondent's dwelling with some person of suitable age and discretion
then residing herein; or
(2) If the respondent is a non-resident of the United States, when
served upon the respondent by any of the foregoing means. If such
methods of service are not practicable or appropriate, the charging
letter may be tendered for service on the respondent to an official of
the government of the country wherein the respondent resides, provided
that there is an agreement or understanding between the United States
Government and the government
[[Page 48832]]
of the country wherein the respondent resident permitting this action.
5. Section 128.4 is revised to read as follows:
Sec. 128.4 Default.
(a) Failure to answer. If the respondent fails to answer the
charging letter, the respondent may be held in default. The case shall
then be referred to the Administrative Law Judge for consideration in a
manner as the Administrative Law Judge may consider appropriate. Any
order issued shall have the same effect as an order issued following
the disposition of contested charges.
(b) Petition to set aside defaults. Upon showing good cause, any
respondent against whom a default order has been issued may apply to
set aside the default and vacate the order entered thereon. The
petition shall be submitted to duplicate to the Assistant Secretary for
Political-Military Affairs, U.S. Department of State, 2201 C Street,
NW., Washington, DC 20520. The Director will refer the petition to the
Administrative Law Judge for consideration and a recommendation. The
Administrative law Judge will consider the application and may order a
hearing and require the respondent to submit further evidence in
support of his or her petition. The filing of a petition to set aside a
default does not in any manner affect an order entered upon default and
such order continues in full force and effect unless a further order is
made modifying or terminating it.
6. In Sec. 128.5 paragraphs (b) and (c) are revised to read as
follows:
Sec. 128.5 Answer and demand for oral hearing.
* * * * *
(b) Contents of answer. An answer must be responsive to the
charging letter. It must fully set forth the nature of the respondent's
defense or defenses. In the answer, the respondent must admit or deny
specifically each separate allegation of the charging letter, unless
the respondent is without knowledge, in which case the respondent's
answer shall so state and the statement shall operate as denial.
Failure to deny or controvert any particular allegation will be deemed
an admission thereof. The answer may set forth such additional or new
matter as the respondent believes support a defense or claim of
mitigation. Any defense or partial defense not specifically set forth
in an answer shall be deemed waived. Evidence offered thereon by the
respondent at a hearing may be refused except upon good cause being
shown. If the respondent does not demand an oral hearing, he or she
shall transmit, within seven (7) days after the service of his or her
answer, original or photocopies of all correspondence, papers, records,
affidavits, and other documentary or written evidence having any
bearing upon or connection with the matters in issue. If any such
materials are in language other than English, translations into English
shall be submitted at the same time.
(c) Submission of answer. The answer, written demand for oral
hearing (if any) and supporting evidence required by Sec. 128.5(b)
shall be in duplicate and mailed or delivered to the Office of
Administrative Law Judge, United States Department of Commerce, Room H-
6716. 14th Street and Constitution Avenue, NW., Washington, DC 20230. A
copy shall be simultaneously mailed to the Director, Office of Defense
Trade Controls, SA-6, Room 200, Department of State, Washington, DC
20522-0602, or delivered to the 21st street entrance of the Department
of State, 2201 C Street, NW., Washington, DC addressed to Director,
Office of Defense Trade Controls, SA-6, Room 200, Department of State,
Washington, DC 20522-0602.
7. Section 128.6 is revised to read as follows:
Sec. 128.6 Discovery.
(a) Discovery by the respondent. The respondent, through the
Administrative Law Judge, may request from the Office of Defense Trade
Controls any relevant information, not privileged, that may be
necessary or helpful in preparing a defense. The Office of Defense
Trade Controls may provide any relevant information, not privileged,
that may be necessary or helpful in preparing a defense. The Office of
Defense Trade Controls may supply summaries in place or original
documents and may withhold information from discovery if the interests
of national security or foreign policy so require, or if necessary to
comply with any statute, executive order or regulation requiring that
the information may not be disclosed. The respondent may request the
Administrative Law Judge to request any relevant information, books,
records, or other evidence, from any other person or government agency
so long as the request is reasonable in scope and not unduly
burdensome.
(b) Discovery by the Office of Defense Trade Controls. The Office
of Defense Trade Controls or the Administrative Law Judge may request
from the respondent admissions of facts, answers to interrogatories,
the production of books, records, or other relevant evidence, so long
as the request is relevant and material, reasonable in scope, and not
unduly burdensome.
(c) Subpoenas. At the request of any party, the Administrative Law
Judge may issue subpoenas, returnable before him, requiring the
attendance of witnesses and the production of books, records, and other
documentary or physical evidence determined by he Administrative Law
Judge to be relevant and material to the proceedings, reasonable in
scope, and not unduly burdensome.
(d) Enforcement of discovery rights. If the Office of Defense Trade
Controls fails to provide the respondent with information in its
possession which is not otherwise available and which is necessary to
the respondent's defense, the Administrative Law Judge may dismiss the
charges on her or his own motion or on a motion of the respondent. If
the respondent fails to respond with reasonable diligence to the
requests for discovery by the Office of Defense Trade Controls or the
Administrative Law Judge, on her or his own motion or motion of the
Office of Defense Trade Controls, and upon such notice to the
respondent as the Administrative Law Judge may direct, may strike
respondent's answer and declare the respondent in default, or make any
other ruling which the Administrative Law Judge deems necessary and
just under the circumstances. If a third party fails to respond to the
request for information, the Administrative Law Judge shall consider
whether the evidence sought is necessary to a fair hearing, and if it
is so necessary that a fair hearing may not be held without it, the
Administrative Law Judge shall dismiss the charges.
8. Section 128.7 is revised to read as follows:
Sec. 128.7 Prehearing conference.
(a)(1) The Administrative Law Judge may, upon his own motion or
upon motion of any party, request the parties or their counsel to a
prehearing conference to consider:
(i) Simplification of issues;
(ii) The necessity of desirability of amendments to pleadings;
(iii) Obtaining stipulations of fact and of documents to avoid
unnecessary proof; or
(iv) Such other matter as may expedite the disposition of the
proceeding.
(2) The Administrative Law Judge will prepare a summary of the
action agreed upon or taken at the conference, and will incorporate
therein any written stipulations or agreements made by the parties.
[[Page 48833]]
(3) The conference proceedings may be recorded magnetically or
taken by a reporter and transcribed, and filed with the Administrative
Law Judge.
(b) If a conference is impracticable , the Administrative Law Judge
may request the parties to correspond with the person to achieve the
purposes of a conference. The Administrative Law Judge shall prepare a
summary of action taken as in the case of a conference.
9. Section 128.8 is revised to read as follows:
Sec. 128.8 Hearings.
(a) A respondent who had not filed a timely written answer is not
entitled to a hearing, and the case may be considered by the
Administrative Law Judge as provided in Sec. 128.4(a). If any answer is
filed, but no oral hearing demanded, the Administrative Law Judge may
proceed to consider the case upon the written pleadings and evidence
available. The Administrative Law Judge may provide for the making of
the record in such manner as the Administrative Law Judge deems
appropriate. If respondent answers and demands an oral hearing, the
Administrative Law Judge, upon due notice, shall set the case for
hearing, unless a respondent has raised in his answer no issues of
material fact to be determined. If respondent fails to appear at a
scheduled hearing, the hearing nevertheless may proceed in respondent's
absence. The respondent's failure to appear will not affect the
validity of the hearing or any proceedings or action thereafter.
(b) The Administrative Law Judge may administer oaths and
affirmations. Respondent may be represented by counsel. Unless
otherwise agreed by the parties and the Administrative Law Judge the
proceeding will be taken by a reporter or by magnetic recording,
transcribed, and filed with the Administrative Law Judge. Respondent
may examine the transcript and may obtain a copy upon payment of proper
costs.
10. Section 128.9 is revised to read as follows:
Sec. 128.9 Proceedings before and report of Administrative Law Judge.
(a) The Administrative Law Judge may conform any part of the
proceedings before him or her to the Federal Rules of Civil Procedure.
The record may be made available in any other administrative or other
proceeding involving the same respondent.
(b) The Administrative Law Judge, after considering the record,
will prepare a written report. The report will include findings of
fact, findings of law, a finding whether a law or regulation has been
violated, and the Administrative Law Judge's recommendations. It shall
be transmitted to the Assistant Secretary for Political-Military
Affairs, Department of State.
11. Section 128.10 is revised to read as follows:
Sec. 128.10 Disposition of proceedings.
Where the evidence is not sufficient to support the charges, the
Director, Office of Defense Trade Controls or the Administrative Law
Judge will dismiss the charges. Where the Administrative Law Judge
finds that a violation has been committed, the Administrative Law
Judge's recommendation shall be advisory only. The Assistant Secretary
for Political-Military Affairs will review the record, consider the
report of the Administrative Law Judge, and make an appropriate
disposition of the case. The Director may issue an order debarring the
respondent from participating in the export of defense articles or
technical data or the furnishing of defense services as provided in
Sec. 127.7 of this subchapter, impose a civil penalty as provided in
Sec. 127.10 of this subchapter or take such action as the
Administrative Law Judge deems appropriate. Any debarment order will be
effective for the period of time specified therein and may contain such
additional terms and conditions as are deemed appropriate. A copy of
the order together with a copy of the Administrative Law Judge's report
will be served upon the respondent.
12. Section 128.11 is revised to read as follows:
Sec. 128.11 Consent agreements.
(a) The Office of Defense Trade Controls and the respondent may, by
agreement, submit to the Administrative Law Judge a proposal for the
issuance of a consent order. The Administrative Law Judge will review
the facts of the case and the proposal and may conduct conferences with
the parties and may require the presentation of evidence in the case.
If the Administrative Law Judge does not approve the proposal, the
Administrative Law Judge will notify the parties and the case will
proceed as though no consent proposal had been made. If the proposal is
approved, the Administrative Law Judge will report the facts of the
case along with recommendations to the Assistant Secretary for
Political-Military Affairs. If the Assistant Secretary for Political-
Military Affairs does not approve the proposal, the case will proceed
as though no consent proposal had been made. If the Assistant Secretary
for Political-Military Affairs approves the proposal, an appropriate
order may be issued.
(b) Cases may also be settled prior to service of a charging
letter. In such an event, a proposed charging letter shall be prepared,
and a consent agreement and order shall be submitted for the approval
and signature of the Assistant Secretary for Political-Military
Affairs, and no action by the Administrative Law Judge shall be
required. Cases which are settled may not be reopened or appealed.
13. Section 128.12 is revised to read as follows:
Sec. 128.12 Rehearings.
The Administrative Law Judge may grant a rehearing or reopen a
proceeding at any time for the purpose of hearing any relevant and
material evidence which was not known or obtainable at the time of the
original hearing. A report for rehearing or reopening must contain a
summary of such evidence, and must explain the reasons why it could not
have been presented at the original hearing. The Administrative Law
Judge will inform the parties of any further hearing, and will conduct
such hearing and submit a report and recommendations in the same manner
as provided for the original proceeding (Described in Sec. 128.10).
14. In Sec. 128.13 paragraphs (a), (c), (e), and (f) are revised to
read as follows:
Sec. 128.13 Appeals.
(a) Filing of appeals. An appeal must be in writing, and be
addressed to and filed with the Under Secretary of State for Arms
Control and International Security Affairs, Department of State,
Washington, DC 20520. An appeal from a final order denying export
privileges or imposing civil penalties must be filed within 30 days
after receipt of a copy of the order. If the Under Secretary cannot for
any reason act on the appeal, he or she may designate another
Department of State official to receive and act on the appeal.
* * * * *
(c) Matters considered on appeal. An appeal will be considered upon
the basis of the assembled record. This record consists of (but is not
limited to) the charging letter, the respondent's answer, the
transcript or magnetic recording of the hearing before the
Administrative Law Judge, the report of the Administrative Law Judge,
the order of the Assistant Secretary for Political-Military Affairs,
and any other relevant documents involved in the proceedings before the
Administrative Law Judge. The Under Secretary of State for Arms Control
and International Security
[[Page 48834]]
Affairs may direct a rehearing and reopening before the Administrative
Law Judge if he or she finds that the record is insufficient or that
new evidence is relevant and material to the issues and was not known
and was not available to the respondent at the time of the original
hearings.
* * * * *
(e) Preparation of appeals.--(1) General requirements. An appeal
shall be in letter form. The appeal and accompanying material should be
filed in duplicate, unless otherwise indicated, and a copy
simultaneously mailed to the Director, Office of Defense Trade
Controls, SA-6, Room 200, Department of State, Washington, DC 20522-
0620 or delivered to the 21st street entrance of the Department of
State, 2201 C Street, NW., Washington, DC addressed to Director, Office
of Defense Trade Controls, SA-6, Room 200, Department of State,
Washington, DC 20522-0602.
(2) Oral presentation. The Under Secretary of State for Arms
Control and International Security Affairs may grant the appellant an
opportunity for oral argument and will set the time and place for oral
argument and will notify the parties, ordinarily at least 10 days
before the date set.
(f) Decisions. All appeals will be considered and decided within a
reasonable time after they are filed. An appeal may be granted or
denied in whole or in part, or dismissed at the request of the
appellant. The decision of the Under Secretary of State for Arms
Control and International Security Affairs will be final.
15. Section 128.14 is revised to read as follows:
Sec. 128.14 Confidentiality of proceedings.
Proceedings under this part are confidential. The documents
referred to in Sec. 128.17 are not, however, deemed to be confidential.
Reports of the Administrative Law Judge and copies of transcripts or
recordings of hearings will be available to parties and, to the extent
of their own testimony, to witnesses. All records are available to any
U.S. Government agency showing a proper interest therein.
16. Section 128.15 is revised to read as follows:
Sec. 128.15 Orders containing probationary periods.
(a) Revocation of probationary periods. A debarment or interim
suspension order may set a probationary period during which the order
may be held in abeyance for all or part of the debarment or suspension
period, subject to the conditions stated therein. The Director, Office
of Defense Trade Controls, may apply without notice to any person to be
affected thereby, to the Administrative Law Judge for an order revoking
probation when it appears that the conditions of the probation have
been breached. The facts in support of the application will be
presented to the Administrative Law Judge, who will report thereon and
make a recommendation to the Assistant Secretary for Political-Military
Affairs. The latter will make a determination whether to revoke
probation and will issue an appropriate order.
(b) Hearings--(1) Objections upon notice. Any person affected by an
application upon notice to revoke probation, within the time specified
in the notice, may file objections with the Administrative Law Judge.
(2) Objections to order without notice. Any person adversely
affected by an order revoking probation, without notice may request
that the order be set aside by filing his objections thereto with the
Administrative Law Judge. The request will not stay the effective date
of the order or revocation.
(3) Requirements for filing objections. Objections filed with the
Administrative Law Judge must be submitted in writing and in duplicate.
A copy must be simultaneously submitted to the Office of Defense Trade
Controls. Denials and admissions, as well as any mitigating
circumstances, which the person affected intends to present must be set
forth in or accompany the letter of objection and must be supported by
evidence. A request for an oral hearing may be made at the time of
filing objections.
(4) Determination. The application and objections thereto will be
referred to the Administrative Law Judge. An oral hearing if requested,
will be conducted at an early convenient date, unless the objections
filed raise no issues of material fact to be determined. The
Administrative Law Judge will report the facts and make a
recommendation to the Assistant Secretary for Political-Military
Affairs, who will determine whether the application should be granted
or denied and will issue an appropriate order. A copy of the order and
of the Administrative Law Judge's report will be furnished to any
person affected thereby.
(5) Effect of revocation on other actions. The revocation of a
probationary period will not preclude any other action concerning a
further violation, even where revocation is based on the further
violation.
17. Section 128.16 is revised to read as follows:
Sec. 128.16 Extension of time.
The Administrative Law Judge, for good cause shown, may extend the
time within which to prepare and submit an answer to a charging letter
or to perform any other act required by this part.
Dated: August 27, 1996.
Lynn E. Davis,
Under Secretary for Arms Control and International Security Affairs,
Department of State.
[FR Doc. 96-23659 Filed 9-16-96; 8:45 am]
BILLING CODE 4710-25-M
Complete official Federal Register PDF
FR Doc. 96-23556 Removal of Exemption for Certain Pseudoephedrine Products Marketed Under the Food, Drug, and Cosmetic Act (FD&C Act); Correction
[Federal Register Volume 61, Number 181 (Tuesday, September 17, 1996)]
[Rules and Regulations]
[Page 48830]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-23556]
=======================================================================
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
21 CFR parts 1309, 1310 and 1313
[DEA No. 138F]
Removal of Exemption for Certain Pseudoephedrine Products
Marketed Under the Food, Drug, and Cosmetic Act (FD&C Act); Correction
AGENCY: Drug Enforcement Administration (DEA), Justice.
ACTION: Correction to final regulations.
-----------------------------------------------------------------------
SUMMARY: This document contains corrections to the final regulations
which were published on Wednesday, August 7, 1996 (61 FR 40981). The
regulations related to the removal of the exemption for certain
pseudoephedrine products marketed under the Food, Drug, and Cosmetic
Act (FD&C Act).
EFFECTIVE DATE: October 7, 1996.
FOR FURTHER INFORMATION CONTACT:
Frank Sapienza, Acting Chief, Drug and Chemical Evaluation Section,
Office of Diversion Control, Drug Enforcement Administration,
Washington, D.C. 20537, Telephone (202) 307-7183.
SUPPLEMENTARY INFORMATION: The final regulations that are the subject
of these corrections remove the exemption for certain pseudoephedrine
products marketed under the Food, Drug, and Cosmetic Act (FD&C Act).
The regulations amend Title 21, Code of Federal Regulations, to revise
certain sections in Parts 1309, 1310 and 1313.
The final rule (61 FR 40981) added a new section designated as
``Section 1309.28''. This new section should have been designated as
``Section 1309.29''. Therefore, in each instance where the final rule
refers to the wording ``Section 1309.28'', the reader should substitute
the wording ``Section 1309.29''.
Accordingly, the publication on August 7, 1996 of the final
regulation (61 FR 40981) is corrected as follows:
PART 1309--[CORRECTED]
Sec. 1309.02 [Corrected]
1. On page 40989 in the second column Sec. 1309.02(f) is corrected
by removing ``Sec. 1309.28'' and adding ``Sec. 1309.29'' in its place.
Sec. 1309.29 [Corrected]
2. On page 40989, in the third column, amendatory instruction 3 is
corrected to read as follows:
``Section 1309.29 is added to read as follows:''
3. On page 40989, in the third column, the number and heading under
amendatory instruction 3 are corrected to read as follows:
``Sec. 1309.29 Exemption of retail distributors of certain
pseudoephedrine products.''
PART 1310--[CORRECTED]
Sec. 1310.04 [Corrected]
4. On page 40990, Sec. 1310.04, is corrected by removing
Sec. 1309.28'' and adding ``Sec. 1309.29'' in its place.
Dated: September 9, 1996.
Stephen H. Greene,
Deputy Administrator, Drug Enforcement Administration.
[FR Doc. 96-23556 Filed 9-16-96; 8:45 am]
BILLING CODE 4410-09-M
Complete official Federal Register PDF
FR Doc. 96-23447 Airworthiness Directives; Boeing Model 767 Series Airplanes
[Federal Register Volume 61, Number 181 (Tuesday, September 17, 1996)]
[Rules and Regulations]
[Pages 48820-48822]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-23447]
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DEPARTMENT OF TRANSPORTATION
14 CFR Part 39
[Docket No. 96-NM-216-AD; Amendment 39-9757; AD 96-19-10]
RIN 2120-AA64
Airworthiness Directives; Boeing Model 767 Series Airplanes
AGENCY: Federal Aviation Administration, DOT.
ACTION: Final rule; request for comments.
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SUMMARY: This amendment adopts a new airworthiness directive (AD) that
is applicable to certain Boeing Model 767 series airplanes. This action
requires a one-time inspection to detect discrepancies of the main
battery shunt, and replacement with a serviceable part, if necessary.
This action also requires inspection of certain wires, washers, and
brass jam nuts to detect any discrepancy, and replacement with a
serviceable part, if necessary. Additionally, this action requires
inspection, and adjustment if necessary, of the torque and resistance
of the installation of the main battery ground stud. This amendment is
prompted by reports of interruptions of electrical power during flight
due to improper installation of the main battery shunt and ground stud
connection of the main battery. The actions specified in this AD are
intended to prevent such electrical power interruptions, which could
result in loss of battery power to the source of standby power for the
airplane.
DATES: Effective October 2, 1996.
The incorporation by reference of certain publications listed in
the regulations is approved by the Director of the Federal Register as
of October 2, 1996.
Comments for inclusion in the Rules Docket must be received on or
before November 18, 1996.
ADDRESSES: Submit comments in triplicate to the Federal Aviation
Administration (FAA), Transport Airplane Directorate, ANM-103,
Attention: Rules Docket No. 96-NM-216-AD, 1601 Lind Avenue, SW.,
Renton, Washington 98055-4056.
The service information referenced in this AD may be obtained from
Boeing Commercial Airplane Group, P.O. Box 3707, Seattle, Washington
98124-2207. This information may be examined at the FAA, Transport
Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington; or at
the Office of the Federal Register, 800 North Capitol Street, NW.,
suite 700, Washington, DC.
FOR FURTHER INFORMATION CONTACT: Chris Hartonas, Aerospace Engineer,
Systems and Equipment Branch, ANM-130S, FAA, Seattle Aircraft
Certification Office, 1601 Lind Avenue, SW., Renton, Washington;
telephone (206) 227-2864; fax (206) 227-1181.
SUPPLEMENTARY INFORMATION: The FAA recently received a report
indicating that interruptions of electrical power occurred during
flight on a Boeing Model 767 series airplane. These power interruptions
resulted in the loss of battery power to the hot battery bus (HBB). The
HBB is the source of standby power to the airplane. Investigation
revealed that the reported loss of power to the HBB occurred due to
cracked shunts, improper installation of fasteners on the shunt studs,
and improper torque of shunt fasteners. It appears that the improper
installation of fasteners on the shunt studs and improper torque of
shunt fasteners occurred during manufacture.
Loose fasteners on the shunt studs can create an open circuit or
high resistance in the connection of the main battery ground stud,
which can cause an interruption of the battery charger and the loss of
the HBB. The loss of the HBB and associated loads will cause multiple
advisory level messages on the Engine Indication and Crew Alerting
System (EICAS); loss of power to the standby buses/loads during standby
operation; and the potential loss of center bus power. Such loss of
standby power could adversely affect the function of the following
systems:
1. the captain's standby instruments,
2. flight control electronics,
3. Very High Frequency (VHF) communications,
4. thrust reverser control,
5. standby ignition,
6. passenger oxygen,
7. fire detection and extinguishing, and
8. wing and engine anti-ice systems, among others.
Improper installation of the main battery shunt and ground stud
connection of the main battery, if not corrected, could cause an
interruption of electrical power and loss of battery power to the HBB
during flight.
Explanation of Relevant Service Information
The FAA has reviewed and approved Boeing Alert Service Bulletin
767-24A0112, Revision 1, dated August 8, 1996, which describes
procedures for inspection of the main battery shunt to detect
contaminated fasteners, missing pressure washers or washers having an
incorrect part number, or damage to the terminal posts or to the
plastic base, and replacement of the main battery shunt, if necessary.
The alert service bulletin also describes inspection of certain wire,
washers, and brass jam nuts to detect any discrepancy, and replacement
of any discrepant part with a serviceable part. Additionally, the alert
service bulletin describes procedures for an inspection of the main
battery ground stud to verify the torque and resistance, and adjustment
of the torque and resistance, if necessary.
Explanation of the Requirements of the Rule
Since an unsafe condition has been identified that is likely to
exist or develop on other Boeing Model 767 series airplanes of the same
type design, this AD is being issued to prevent interruption of the
electrical power during flight, which could result in loss of battery
power to the source of standby power for the airplane. This AD requires
inspection of the main battery shunt to detect contaminated fasteners,
missing pressure washers or washers having an incorrect part number, or
[[Page 48821]]
damage to the terminal posts or to the plastic base, and replacement of
the main battery shunt, if necessary. This AD also requires inspection
of certain wire, washers, and brass jam nuts to detect any discrepancy,
and replacement of any discrepant part with a serviceable part.
Additionally, this AD requires an inspection of the main battery ground
stud to verify the torque and resistance, and adjustment of the torque
and resistance, if necessary. The actions are required to be
accomplished in accordance with the alert service bulletin described
previously.
Determination of Rule's Effective Date
Since a situation exists that requires the immediate adoption of
this regulation, it is found that notice and opportunity for prior
public comment hereon are impracticable, and that good cause exists for
making this amendment effective in less than 30 days.
Comments Invited
Although this action is in the form of a final rule that involves
requirements affecting flight safety and, thus, was not preceded by
notice and an opportunity for public comment, comments are invited on
this rule. Interested persons are invited to comment on this rule by
submitting such written data, views, or arguments as they may desire.
Communications shall identify the Rules Docket number and be submitted
in triplicate to the address specified under the caption ADDRESSES. All
communications received on or before the closing date for comments will
be considered, and this rule may be amended in light of the comments
received. Factual information that supports the commenter's ideas and
suggestions is extremely helpful in evaluating the effectiveness of the
AD action and determining whether additional rulemaking action would be
needed.
Comments are specifically invited on the overall regulatory,
economic, environmental, and energy aspects of the rule that might
suggest a need to modify the rule. All comments submitted will be
available, both before and after the closing date for comments, in the
Rules Docket for examination by interested persons. A report that
summarizes each FAA-public contact concerned with the substance of this
AD will be filed in the Rules Docket.
Commenters wishing the FAA to acknowledge receipt of their comments
submitted in response to this rule must submit a self-addressed,
stamped postcard on which the following statement is made: ``Comments
to Docket Number 96-NM-216-AD.'' The postcard will be date stamped and
returned to the commenter.
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.
The FAA has determined that this regulation is an emergency
regulation that must be issued immediately to correct an unsafe
condition in aircraft, and that it is not a ``significant regulatory
action'' under Executive Order 12866. It has been determined further
that this action involves an emergency regulation under DOT Regulatory
Policies and Procedures (44 FR 11034, February 26, 1979). If it is
determined that this emergency regulation otherwise would be
significant under DOT Regulatory Policies and Procedures, a final
regulatory evaluation will be prepared and placed in the Rules Docket.
A copy of it, if filed, 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 adding the following new
airworthiness directive:
96-19-10 Boeing: Amendment 39-9757. Docket 96-NM-216-AD.
Applicability: Model 767 series airplanes, as listed in Boeing
Alert Service Bulletin 767-24A0112, Revision 1, dated August 8,
1996; certificated in any category.
Note 1: This AD applies to each airplane identified in the
preceding applicability provision, regardless of whether it has been
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 (b) 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 interruptions of electrical power during flight,
which could result in loss of battery power to the source of standby
power for the airplane, accomplish the following:
(a) Within 45 days after the effective date of this AD,
accomplish the actions specified in paragraphs (a)(1), (a)(2) and
(a)(3) of this AD, in accordance with Boeing Alert Service Bulletin
767-24A0112, Revision 1, August 8, 1996.
(1) Perform an inspection of the main battery shunt, to detect
any contaminated fasteners, missing pressure washers or washers
having an incorrect part number, or damage to terminal posts or to
the plastic base. If any discrepancy is found, prior to further
flight, replace the main battery shunt, in accordance with the alert
service bulletin.
(2) Perform an inspection of the wires, washers, and brass jam
nuts to detect any contamination or damage. If any discrepancy is
found, prior to further flight, replace the discrepant part with a
serviceable part, in accordance with the alert service bulletin.
(3) Inspect the torque and electrical resistance of the
installation of the main battery ground stud, and adjust the torque
and electrical resistance of the ground stud, in accordance with the
alert service bulletin.
(b) 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, Seattle 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, Seattle ACO.
Note 2: Information concerning the existence of approved
alternative methods of compliance with this AD, if any, may be
obtained from the Seattle ACO.
(c) 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.
(d) The actions shall be done in accordance with Boeing Alert
Service Bulletin 767-24A0112, Revision 1, dated August 8, 1996. 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 Boeing Commercial Airplane Group,
P.O. Box 3707, Seattle, Washington 98124-
[[Page 48822]]
2207. Copies may be inspected at the FAA, Transport Airplane
Directorate, 1601 Lind Avenue, SW., Renton, Washington; or at the
Office of the Federal Register, 800 North Capitol Street, NW., suite
700, Washington, DC.
(e) This amendment becomes effective on October 2, 1996.
Issued in Renton, Washington, on September 6, 1996.
Darrell M. Pederson,
Acting Manager, Transport Airplane Directorate, Aircraft Certification
Service.
[FR Doc. 96-23447 Filed 9-16-96; 8:45 am]
BILLING CODE 4910-13-U
Complete official Federal Register PDF
FR Doc. 96-23439 Technical Amendments to Rule Relating to Payments for the Distribution of Shares by a Registered Open-End Management Investment Company
[Federal Register Volume 61, Number 181 (Tuesday, September 17, 1996)]
[Rules and Regulations]
[Pages 49010-49011]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-23439]
[[Page 49009]]
_______________________________________________________________________
Part II
Securities and Exchange Commission
_______________________________________________________________________
17 CFR Part 200, et al.
Registered and Certain Open-End Management Investment Companies; Final
Rules
17 CFR Part 270
Multiple Class and Series Investment Companies; Rule Amendment;
Proposed Rule
Federal Register / Vol. 61, No. 181 / Tuesday, September 17, 1996 /
Rules and Regulations
[[Page 49010]]
SECURITIES AND EXCHANGE COMMISSION
17 CFR Parts 200, 239 and 270
[Release No. IC-22201; File No. S7-2-96]
RIN 3235-AG59
Technical Amendments to Rule Relating to Payments for the
Distribution of Shares by a Registered Open-End Management Investment
Company
AGENCY: Securities and Exchange Commission.
ACTION: Final rule.
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SUMMARY: The Commission is adopting a technical amendment to the rule
under the Investment Company Act of 1940 that governs the use of assets
of registered open-end management investment companies (``funds'') to
pay for the distribution of fund shares. The amendment provides that a
plan to use fund assets to pay for the distribution of fund shares
adopted prior to a fund's initial public offering does not have to be
approved by shareholders. Because the fund's directors must approve the
plan, and investors that buy their shares in the fund's public
offering, in effect, ``vote with their dollars'' to accept the plan,
shareholder approval of the plan prior to the fund's public offering is
not necessary.
EFFECTIVE DATE: The rule amendments will become effective October 17,
1996.
FOR FURTHER INFORMATION CONTACT: Marilyn K. Mann, Senior Counsel, or
Kenneth J. Berman, Assistant Director, at (202) 942-0690, Office of
Regulatory Policy, Division of Investment Management, 450 Fifth Street,
NW., Mail Stop 10-2, Washington, DC 20549. Requests for formal
interpretive advice should be directed to the Office of Chief Counsel
at (202) 942-0659, Division of Investment Management, Securities and
Exchange Commission, 450 Fifth Street, NW., Mail Stop 10-6, Washington,
DC 20549.
SUPPLEMENTARY INFORMATION: The Commission is adopting a technical
amendment to rule 12b-1 [17 CFR 270.12b-1] under the Investment Company
Act of 1940 [15 U.S.C. 80a] (the ``Investment Company Act''). The
Commission also is making technical corrections to rule 30-5 [17 CFR
200.30-5] and Form N-14 [17 CFR 239.23].
I. Discussion
The Commission is adopting a technical amendment to rule 12b-1
under the Investment Company Act, which governs the use of fund assets
to pay for the distribution of fund shares.1 The amendment
provides that a plan to use fund assets to pay for the distribution of
fund shares (a ``rule 12b-1 plan'') adopted prior to a fund's initial
public offering does not have to be approved by the fund's
shareholders. The Commission received four comments in response to the
proposal, all supporting the amendment.2
---------------------------------------------------------------------------
\1\ The Commission proposed this amendment on January 5, 1996.
Distribution of Shares by Registered Open-End Management Investment
Company, Investment Company Act Release No. 21660 (Jan. 5, 1996) [61
FR 1313 (Jan. 19, 1996)] [hereinafter Proposing Release].
\2\ The commenters were the Subcommittee on Investment Companies
and Investment Advisers, Committee on Federal Regulation of
Securities, Section of Business Law, American Bar Association; the
Investment Company Institute; Bank One Corporation; and Capital
Research and Management Company.
---------------------------------------------------------------------------
Shareholder approval of a rule 12b-1 plan is unnecessary when the
plan is adopted prior to a fund's initial public offering. Under these
circumstances, the shareholders voting typically are comprised of
persons involved in organizing the fund (i.e., the fund's investment
adviser or its affiliates). Shareholder approval, therefore, is
virtually automatic, mechanical, and offers no significant protection
to the fund's shareholders. Rule 12b-1 requires a rule 12b-1 plan to be
approved by a majority of the fund's board of directors, including a
majority of the independent directors, prior to the plan's
implementation.3 In addition, investors purchasing shares in a
fund's initial public offering, in effect, ``vote with their dollars''
to accept the fund's rule 12b-1 plan since the terms of the plan, and
its effects on fund expenses, are disclosed in the fund's
prospectus.4
---------------------------------------------------------------------------
\3\ Rule 12b-1(b)(2) [17 CFR 270.12b-1(b)(2)]. The fund's board
also must approve the continuation of the plan at least annually.
Rule 12b-1(b)(3)(i) [17 CFR 270.12b-1(b)(3)(i)].
\4\ Items 2 and 7 of Form N-1A under the Securities Act of 1933
and the Investment Company Act [17 CFR 239.15A and 274.11A]. In
addition, rule 12b-1 requires fund shareholders to approve any
changes in the rule 12b-1 plan that would materially increase the
amount of the asset-based sales load and gives shareholders the
right to terminate the plan at any time. Rule 12b-1(b)(3)(iii) and
(4) [17 CFR 270.12b-1(b)(3)(iii) and (4)].
---------------------------------------------------------------------------
The amended rule requires shareholder approval of a rule 12b-1 plan
that is adopted after a fund's initial public offering. Shareholder
approval also is required for a rule 12b-1 plan adopted prior to a
public offering when fund shares have been sold to persons other than
those involved in organizing the fund.5 Two commenters requested
the Commission to clarify how the amended rule would apply to a newly
created series or class of shares of an existing fund.6 The
commenters suggested that a series or class that had not been publicly
offered should be treated in the same manner as a fund that had not
been publicly offered. The Commission agrees. If an existing fund that
already offers its shares to the public adds a new series or class
subject to a rule 12b-1 plan, approval of the plan by shareholders of
the new series or class is not required prior to any public offering of
the shares of that series or class. This interpretation is consistent
with the approach that the Commission has taken with respect to series
funds.7 In addition, rule 12b-1 specifically provides that a plan
that covers more than one class of shares must be severable for each
class, and that whenever action is required to be taken with respect to
a class, that action must be taken separately for each class.8
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\5\ This provision addresses funds that adopt a rule 12b-1 plan
following the sale of shares to persons other than affiliates of the
fund or its promoter without engaging in a public offering. The
proposed amendment referred only to affiliates of the fund and their
affiliated persons. See Proposing Release, supra note 1, at n.6.
Consistent with the intent of the amendment and a commenter's
recommendation, the adopted amendment also refers to the fund's
promoter and its affiliated persons. See Section 2(a)(30) of the
Investment Company Act [15 U.S.C. 80a-2(a)(30)] (defining promoter
as a person who, alone or acting in concert, initiates or directs
the organization of a fund).
\6\ Funds often organize themselves as series funds and offer
investors an opportunity to invest in one or more ``portfolios''
each of which has a specific investment objective. The fund will
offer a series of shares that represents an interest in the
portfolio in which the investor desires to participate. A fund, or a
portfolio of a fund, also may offer different classes of shares that
have different distribution and shareholder service arrangements.
See rule 18f-3 under the Investment Company Act [17 CFR 270.18f-3].
\7\ See Exemption for Open-End Management Investment Companies
Issuing Multiple Classes of Shares; Disclosure by Multiple Class and
Master-Feeder Funds, Investment Company Act Release No. 19955 (Dec.
15, 1993) [58 FR 68074 (Dec. 23, 1993)] at n.53 (rule 12b-1 has been
interpreted to treat each series of a fund as a separate fund). See
also rule 18f-2 under the Investment Company Act [17 CFR 270.18f-2]
(requiring the shareholders of the series affected by the matter to
vote on that matter); Item 22 of Schedule 14A under the Securities
Exchange Act of 1934 [17 CFR 240.14a-101] (defining a fund for
purposes of the Commission's proxy rules as a registrant or a
separate series of a registrant).
\8\ Rule 12b-1(g) [17 CFR 270.12b-1(g)].
---------------------------------------------------------------------------
II. Technical Corrections
The Commission is making a technical correction to paragraph
(a)(8)(ii)(B) of rule 30-5, Delegation of Authority to Director of
Division of Investment Management.9 That paragraph currently
contains a reference to paragraphs (a)(9)(i) (A) and (C) of rule 30-5.
There are no such paragraphs in the rule. The reference instead should
be to paragraphs (a)(8)(i) (A) and (C) of
[[Page 49011]]
rule 30-5. The Commission also is making a technical correction to Item
16(10) of Form N-14.10 The last clause of Item 16(10) currently
includes the phrase ``a meeting of the minutes.'' That phrase should be
``the minutes of the meeting.''
---------------------------------------------------------------------------
\9\ 17 CFR 200.30-5(a)(8)(ii)(B).
\10\ 17 CFR 239.23.
---------------------------------------------------------------------------
III. Cost/Benefit Analysis
The amendment provides that a rule 12b-1 plan adopted prior to a
fund's initial public offering does not have to be approved by
shareholders. Shareholder approval in these circumstances is
unnecessary since the fund's board of directors must approve the rule
12b-1 plan, and investors participating in the fund's initial public
offering effectively ``vote with their dollars'' to accept the plan.
Under the amended rule, funds are no longer required to undergo the
perfunctory exercise of obtaining approval from persons who have
supplied the fund with its initial capital prior to the fund's initial
public offering.
IV. Regulatory Flexibility Act Certification
Pursuant to section 605(b) of the Regulatory Flexibility Act [5
U.S.C. 605(b)], the Chairman of the Commission certified, at the time
that the proposed technical amendment to rule 12b-1 was published for
public comment, that the amendment would not, if adopted, have a
significant economic impact on a substantial number of small entities.
No comments were received regarding the certification. The amendment
enables funds, including small entities, to forgo the minimal time and
expense associated with obtaining shareholder approval of rule 12b-1
plans from persons who have supplied the fund with its initial capital
prior to the fund's initial public offering.
V. Statutory Authority
The Commission is amending rule 12b-1 pursuant to the authority set
forth in sections 12(b) and 38(a) of the Investment Company Act [15
U.S.C. 12(b), 37(a)]. The Commission is making technical corrections to
rule 30-5 pursuant to section 4A of the Securities Exchange Act of 1934
[15 U.S.C. 78d-1] (``Exchange Act''), and Form N-14 pursuant to
sections 6, 7, 8, 10 and 19(a) of the Securities Act of 1933 [15 U.S.C.
77f, 77h, 77j and 77s(a)] and sections 14(a), 14(c) and 23(a) of the
Exchange Act [15 U.S.C. 78n(a), 78n(c) and 78w].
List of Subjects in 17 CFR Parts 200, 239 and 270
Authority delegations (Government agencies), Investment companies,
Reporting and recordkeeping requirements, Securities.
Text of Rule and Form Amendments
For the reasons set out in the preamble, Title 17, Chapter II of
the Code of Federal Regulations is amended as follows:
PART 200--ORGANIZATION; CONDUCT AND ETHICS; AND INFORMATION
REQUESTS
1. The authority citation for part 200, subpart A continues to read
in part as follows:
Authority: 15 U.S.C. 77s, 78d-1, 78d-2, 78w, 78ll(d), 79t,
77sss, 80a-37, 80b-11, unless otherwise noted.
* * * * *
2. Section 200.30-5 is amended in paragraph (a)(8)(ii)(B) by
removing the cite ``(a)(9)(i) (A) and (C)'' and adding ``(a)(8)(i) (A)
and (C)''.
PART 239--FORMS PRESCRIBED UNDER THE SECURITIES ACT OF 1933
3. The authority citation for Part 239 continues to read, in part,
as follows:
Authority: 15 U.S.C. 77f, 77g, 77h, 77j, 77s, 77sss, 78c, 78l,
78m, 78n, 78o(d), 78w(a), 78ll(d), 79e, 79f, 79g, 79j, 79l, 79m,
79n, 79q, 79t, 80a-8, 80a-29, 80a-30 and 80a-37, unless otherwise
noted.
* * * * *
4. Form N-14 [referenced in 17 CFR 239.23] is amended in the last
clause of Item 16(10) by removing the phrase ``a meeting of the
minutes'' and adding in its place ``the minutes of the meeting''.
Note: Form N-14 does not, and the amendment to Form N-14 will
not, appear in the Code of Federal Regulations.
PART 270--RULES AND REGULATIONS, INVESTMENT COMPANY ACT OF 1940
5. The authority citation for part 270 continues to read, in part,
as follows:
Authority: 15 U.S.C. 80a-1 et seq., 80a-37, 80a-39 unless
otherwise noted;
* * * * *
6. Section 270.12b-1 is amended by revising paragraph (b)(1) to
read as follows:
Sec. 270.12b-1 Distribution of shares by registered open-end
management investment company.
* * * * *
(b) * * *
(1) Such plan has been approved by a vote of at least a majority of
the outstanding voting securities of such company, if adopted after any
public offering of the company's voting securities or the sale of such
securities to persons who are not affiliated persons of the company,
affiliated persons of such persons, promoters of the company, or
affiliated persons of such promoters;
* * * * *
By the Commission.
Dated: September 9, 1996.
Margaret H. McFarland,
Deputy Secretary.
[FR Doc. 96-23439 Filed 9-16-96; 8:45 am]
BILLING CODE 8010-01-P
Complete official Federal Register PDF
FR Doc. 96-23438 Exemption for Certain Open-End Management Investment Companies to Impose Deferred Sales Loads
[Federal Register Volume 61, Number 181 (Tuesday, September 17, 1996)]
[Rules and Regulations]
[Pages 49011-49021]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-23438]
=======================================================================
-----------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
17 CFR Parts 239, 270, and 274
[Release Nos. 33-7328; IC-22202; File No. S7-8-95]
RIN 3235-AD18
Exemption for Certain Open-End Management Investment Companies to
Impose Deferred Sales Loads
AGENCY: Securities and Exchange Commission.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Commission is adopting amendments to the rule under the
Investment Company Act of 1940 that permits contingent deferred sales
loads to be imposed on the shares of certain registered open-end
management investment companies (``mutual funds'' or ``funds''). The
Commission also is adopting amendments to the registration form for
mutual funds, and publishing a staff guide to the registration form.
The rule amendments allow mutual funds to offer investors a wider
variety of deferred sales loads, including installment loads, and
eliminate certain requirements in the rule. The form amendments modify
the requirements for disclosing deferred sales loads in mutual fund
prospectuses to reflect the changes made by the rule amendments.
EFFECTIVE DATE: The rule and form amendments will become effective
October 17, 1996.
FOR FURTHER INFORMATION CONTACT: Nadya B. Roytblat, Assistant Chief, or
Kenneth J. Berman, Assistant Director, at (202) 942-0690, Office of
Regulatory Policy, Division of Investment Management, Securities and
Exchange Commission, 450 Fifth Street, N.W., Mail Stop 10-2,
Washington, D.C. 20549. Requests for formal interpretive advice should
be directed to the Office of Chief Counsel at (202) 942-0659,
[[Page 49012]]
Division of Investment Management, Securities and Exchange Commission,
450 Fifth Street, N.W., Mail Stop 10-6, Washington, D.C. 20549.
SUPPLEMENTARY INFORMATION: The Commission is adopting amendments to
rule 6c-10 [17 CFR 270.6c-10] under the Investment Company Act of 1940
[15 U.S.C. 80a] (the ``Investment Company Act'' or the ``Act''), and to
Form N-1A [17 CFR 239.15A, 274.11A] under the Securities Act of 1933
[15 U.S.C. 77a-77aa] (the ``Securities Act'') and the Investment
Company Act. The Commission also is adopting a conforming amendment to
rule 11a-3 [17 CFR 270.11a-3] under the Investment Company Act.
Table of Contents
I. Executive Summary
II. Background
III. Discussion of Amendments to Rule 6c-10
A. Scope of the Amended Rule
B. Deferred Load Calculation
C. Deferred Loads on Reinvested Distributions
D. ``No-Load'' Labeling
E. Rule 11a-3
IV. Discussion of Revised Disclosure Requirements
A. Changes to the Fee Table and the Example
B. General Prospectus Disclosure
C. Performance Data
1. Total Return
2. Yield
D. Dealer Compensation Disclosure
V. Compliance Date
VI. Cost/Benefit Analysis
VII. Summary of the Regulatory Flexibility Analysis
VIII. Statutory Authority
Text of Rule and Form Amendments
Appendix A--Illustration of Fee Table and Example
Appendix B--Illustration of Fee Table and Example
I. Executive Summary
The Commission is adopting amendments to rule 6c-10 under the
Investment Company Act to remove certain restrictions on the types of
deferred sales loads that may be imposed on the shares of mutual funds.
Rule 6c-10 currently permits only contingent deferred sales loads
(``CDSLs''). A CDSL is paid at redemption, but declines to zero if the
shares are held for a certain period of time. The amendments allow
sales charges paid upon redemption (``back-end loads'') that differ
from CDSLs (e.g., sales loads that do not decline to zero) as well as
loads paid after purchase during the term of a shareholder's investment
in a fund, for example, in installments (``installment loads''). These
new types of deferred sales loads would be alternatives to existing
load structures.
II. Background
The Commission is adopting amendments to rule 6c-10 under the
Investment Company Act, the rule that permits CDSLs to be imposed on
mutual fund shares. The amendments allow funds to offer other types of
deferred sales loads that may provide desirable flexibility for both
investors and funds.
Rule 6c-10 was adopted in February, 1995.1 The rule
essentially codified the conditions in the nearly 300 exemptive orders
permitting CDSLs that had been issued by the Commission since 1981. A
CDSL is paid at redemption, but declines to zero if the shares are held
for a certain period of time. CDSLs typically are imposed in
combination with an asset-based distribution fee charged in accordance
with rule 12b-1 under the Act (``rule 12b-1 fee''),2 an
arrangement commonly called a ``spread load.''
---------------------------------------------------------------------------
\1\ Exemption for Certain Open-End Management Investment
Companies to Impose Contingent Deferred Sales Loads, Investment
Company Act Release No. 20916 (Feb. 23, 1995) [60 FR 11887 (Mar. 2,
1995)].
\2\ 17 CFR 270.12b-1.
---------------------------------------------------------------------------
Contemporaneously with the adoption of rule 6c-10, the Commission
proposed amendments designed to allow greater flexibility in the types
of deferred sales load structures offered to investors, including loads
payable in installments.3 The Commission also proposed changes to
the prospectus disclosure requirements for deferred loads to complement
the proposed changes to rule 6c-10.
---------------------------------------------------------------------------
\3\ Exemption for Certain Open-End Management Investment
Companies to Impose Deferred Sales Loads, Investment Company Act
Release No. 20917 (Feb. 23, 1995) [60 FR 11890 (Mar. 2, 1995)]
[hereinafter Proposing Release].
---------------------------------------------------------------------------
The Commission received letters from three commenters, all of which
strongly supported the proposed amendments.4 In addition, when
rule 6c-10 was initially proposed in 1988 to allow various types of
deferred sales charges, the Commission received 33 comments, including
19 comments from individual investors.5 Both in 1988 and in
response to the proposed amendments, commenters indicated that
flexibility in deferred load structures would be desirable for both
funds and investors. Individual investors commenting on the 1988
proposal in particular supported installment loads as an option in
paying a sales charge.6 Some investors, for example, compared
installment loads to front-end loads and preferred the former as
allowing them to defer the payment of a sales charge; others compared
installment loads to rule 12b-1 fees, and believed that installment
loads represent a more precise charge, as well as one that would be
payable within a more definite term.7 The Commission is adopting
the amendments to rule 6c-10, and modifying the prospectus disclosure
requirements to reflect these comments as well as its continued study
of deferred sales charges.
---------------------------------------------------------------------------
\4\ The commenters were the American Bar Association
Subcommittee on Investment Companies and Investment Advisers, the
law firm of Davis Polk & Wardwell, and the Investment Company
Institute (``ICI'').
\5\ Exemptions for Certain Registered Open-End Management
Investment Companies to Impose Deferred Sales Loads, Investment
Company Act Release No. 16619 (Nov. 2, 1988) [53 FR 45275 (Nov. 19,
1988)].
\6\ All but one of 19 letters from individual investors favored
installment loads.
\7\ Industry commenters also suggested that installment loads
would offer greater certainty than CDSLs and spread load structures,
thereby making it easier for certain mutual fund sponsors to obtain
financing for their distribution expenses.
---------------------------------------------------------------------------
III. Discussion of Amendments to Rule 6c-10
The amendments to rule 6c-10 allow back-end sales loads other than
CDSLs, as well as loads payable during the term of a shareholder's
investment in a fund, such as in installments. The amendments remove
certain requirements in the rule regarding the way in which a load must
be calculated, as well as the current prohibition on imposing deferred
sales loads on shares purchased through reinvested dividends and other
distributions. The terms of any deferred sales load, however, must be
covered by the NASD Sales Charge Rule.8
---------------------------------------------------------------------------
\8\ The NASD Sales Charge Rule prohibits NASD members from
offering or selling shares of a mutual fund if the sales charges
described in the fund's prospectus are excessive. Aggregate sales
charges are deemed excessive under the Rule if they do not conform
to the specific provisions set forth in the Rule. NASD Conduct
Rules, Rule 2830(d) (1) and (2).
---------------------------------------------------------------------------
A. Scope of the Amended Rule
The rule as amended defines a deferred sales load as any amount
properly chargeable to sales or promotional expenses that is paid by a
shareholder after purchase but before or upon redemption.\9\ The
definition includes CDSLs as well as loads paid at redemption whose
amount may remain the same or change over time in a manner different
from a CDSL, for
[[Page 49013]]
example, not decline to zero. The definition also includes loads paid
after purchase during the term of a shareholder's investment in a fund,
such as in one or more installments that may (or may not) be
accelerated upon early redemption.\10\
---------------------------------------------------------------------------
\9\ Paragraph (b)(3) of rule 6c-10 as amended. The rule is not
applicable to certain charges that may be imposed by a mutual fund
to compensate the fund for the cost of redeeming shares and that are
paid directly to the fund. See, e.g., rule 11a-3 under the Act [17
CFR 270.11a-3(a)(7)] (defining a ``redemption fee''). The Commission
staff has taken the position that these charges may be imposed
without the need for exemptive relief under the Act. See, e.g., John
P. Reilly & Associates (pub. avail. July 12, 1979).
\10\ The NASD Sales Charge Rule currently governs only deferred
loads ``deducted from the proceeds of the redemption of shares by an
investor.'' NASD Conduct Rules, Rule 2830(b)(8)(B). A deferred load
paid other than upon redemption (e.g., an installment load) would
fall outside the current definition and would not be covered by the
Rule. Therefore, such a load could not be imposed until the NASD
Sales Charge Rule is amended to cover it. The Commission staff has
requested the NASD to review its Sales Charge Rule in light of the
amendments to rule 6c-10.
---------------------------------------------------------------------------
Rule 6c-10 does not apply to insurance company separate accounts,
which are permitted to deduct deferred loads under an existing
rule,\11\ or unit investment trusts (``UITs''). While commenters
generally supported extending the rule to UITs, they identified issues
related to disclosure, the method for calculating deferred sales loads
and the interplay of rules 6c-10 and 11a-3 (the Investment Company Act
rule governing exchanges of fund shares) \12\ that are unique to UITs.
The Commission will continue to study these issues, consider
applications for exemptive orders \13\ and, if appropriate, propose
amendments that would extend rule 6c-10 to UITs.
---------------------------------------------------------------------------
\11\ Rule 6c-8 under the Act [17 CFR 270.6c-8].
\12\ 17 CFR 270.11a-3.
\13\ See, e.g., Merrill Lynch, Pierce, Fenner & Smith, Inc.,
Investment Company Act Release Nos. 13801 (Feb. 29, 1984) [49 FR
8512 (Mar. 7, 1984)] (Notice of Application) and 13848 (Mar. 27,
1984) [30 SEC Docket 192] (Order), and 15120 (May 29, 1986) [51 FR
20389 (June 4, 1986)] (Notice of Application) and 15167 (June 24,
1986) [35 SEC Docket 1735] (Order); PaineWebber, Inc., Investment
Company Act Release Nos. 20755 (Dec. 6, 1994) [59 FR 64003 (Dec. 12,
1994)] (Notice of Application) and 20819 (Jan. 4, 1995) [58 SEC
Docket 1504] (Order) (allowing UITs to impose deferred sales loads
payable in installments).
---------------------------------------------------------------------------
B. Deferred Load Calculation
Rule 6c-10 currently contains two requirements relating to the
calculation of CDSLs. Under the first requirement, a CDSL must be based
on the lesser of the NAV of the shares at the time of purchase or the
NAV at the time of redemption.\14\ Under the second requirement, in a
partial redemption, the CDSL must be calculated by treating as
redeemed, first shares not subject to a load, and second other shares
as if redeemed in the order they were purchased.\15\
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\14\ Rule 6c-10(a)(1) [17 CFR 270.6c-10(a)(1)].
\15\ Rule 6c-10(a)(3) [17 CFR 270.6c-10(a)(3)].
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The Commission is eliminating both of these requirements and
deferring to the NASD to address these matters in its Sales Charge
Rule. The Commission is, however, limiting the amount of a deferred
sales load to an amount not to exceed a specified percentage of the NAV
of the fund's shares at the time of purchase.\16\ The effect of this
provision would be to require that investors be given the benefit, if
any, of deferring the load payment should there be an increase in the
shares' NAV.
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\16\ The deferred load amount will be specified by the fund in
its prospectus. See infra section IV.A.
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The Commission had proposed allowing a deferred load also to be
based on the higher of the NAV at the time of purchase or at the time
the load is paid.\17\ None of the commenters specifically addressed the
higher of standard. Upon reconsideration of the issue, the Commission
believes that allowing the higher of standard would be inconsistent
with the intent of the proposal and the approach the Commission has
taken to deferred loads generally.\18\ Allowing the higher of standard
would leave investors uncertain about the amount of the deferred load
they would pay and significantly reduce their ability to compare the
amounts they would pay under different load structures.
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\17\ For example, if a shareholder makes a $1000 investment that
subsequently increases in value to $2,000 by the time the
shareholder redeems his shares, a 3% deferred load based on the
higher of standard would result in the shareholder paying a $60
deferred load (3% of $2,000), which is 6% of the initial $1,000
investment.
\18\ See, e.g., Exemptive Relief for Separate Accounts to Impose
A Deferred Sales Load on Variable Annuity Contracts Participating in
Such Accounts and to Deduct from Such Contracts in Certain Instances
an Annual Fee for Administrative Services That is Not Prorated,
Investment Company Act Release No. 13048 (Feb. 28, 1983) [48 FR
9532, 9534 (Mar. 7, 1983)] (adopting rule 6c-8 and noting that a
deferred load is intended to reimburse the same expenses as a front-
end load).
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Rule 6c-10, as amended, permits any deferred load in the amount not
greater than a specified percentage of the NAV at the time of
purchase.\19\ This approach is consistent with existing deferred load
structures, and will permit deferred loads to be charged on the same
basis as front-end loads. This approach also will assure that investors
receive the benefit of any growth in the NAV subsequent to purchasing
the shares,\20\ and facilitate investor comparisons of sales load
structures. Unlike the current requirements, whereby fund underwriters
bear the risk of a decrease in NAV (because the amount of the deferred
load is based on the lesser of the NAV at the time of purchase or
redemption), amended rule 6c-10 will permit fund underwriters to
receive the amount they would have received had the sales load been
charged at the time of purchase.
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\19\ Paragraph (a)(1) of rule 6c-10 as amended. The requirement
that the deferred load amount not exceed a ``specified percentage''
of the NAV at the time of purchase does not mean that the load may
not be based on a percentage of the NAV at the time the load is
paid, even if the NAV at the time the load is paid is greater than
the NAV at the time of purchase. The total amount of the load paid
by an investor, however, could not exceed the amount represented by
the specified percentage of the shares' offering price. Thus, if the
final installment of an installment load would result in the
investor paying more than the amount permitted by the rule, the
amount of the final installment would have to be reduced
accordingly.
\20\ Industry representatives have suggested that the principal
benefit of a deferred sales load is that it allows all of an
investor's funds to ``go to work'' immediately rather than being
deducted to pay sales charges. If the deferred sales load is based
on the NAV at the time of payment, and the NAV has increased because
of investment gains, any benefit that would have inured to the
investor as a result of deferring the load payment would be
collected by the fund's distributor when the load is paid.
---------------------------------------------------------------------------
The amended rule does not require any particular method of
collecting installment loads. Installment load payments could be
collected, for example, out of distributions, by automatic redemptions,
or through separate billing of an investor's account. Different methods
of collecting installment load payments could result in different tax
consequences for investors.\21\ The method used, and any material tax
consequences of such method, must be described in the fund's
prospectus.\22\
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\21\ Commenters have pointed out, for example, that payment
through automatic redemptions would mean that a shareholder might
incur a capital gain or loss on each such redemption; if additional
shares then were purchased by the shareholder within 30 days of the
automatic redemption, any capital loss might be disallowed under the
``wash sale'' rule contained in the Internal Revenue Code. See,
e.g., Letter from the ICI to Jonathan G. Katz, Secretary, SEC (Jan.
9, 1989), File No. S7-8-95.
\22\ See infra section IV.A.
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C. Deferred Loads on Reinvested Distributions
Rule 6c-10 currently prohibits CDSLs to be imposed on shares
purchased through the reinvestment of dividends or capital gains
distributions.23 The Commission proposed to delete this
prohibition from the rule. The Commission reasoned, and the commenters
agreed, that this prohibition is unnecessary so long as a fund
appropriately discloses the manner in which loads are assessed and so
long as mutual fund sales loads are subject to the limits in the NASD
Sales Charge Rule. The prohibition has been deleted from the rule as
amended.
---------------------------------------------------------------------------
\23\ Rule 6c-10(a)(2) [17 CFR 270.6c-10(a)(2)].
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The NASD Sales Charge Rule currently does not cover deferred loads
on reinvested dividends, nor loads on reinvested capital gains
distributions or
[[Page 49014]]
returns of capital.24 Under amended rule 6c-10, therefore,
deferred loads may not be imposed on shares purchased with reinvested
distributions unless and until the NASD amends its Sales Charge Rule to
address this issue. Should the NASD Sales Charge Rule be so amended,
the prospectus disclosure requirements will require deferred sales
charges on shares purchased with reinvested dividends and other
distributions to be disclosed in fund prospectuses.25
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\24\ A return of capital generally occurs when a fund's
distribution exceeds the fund's aggregate amount of undistributed
net taxable income and net realized capital gains. See
Determination, Disclosure, and Financial Statement Presentation of
Income, Capital Gain, and Return of Capital Distributions by
Investment Companies, American Institute of Certified Public
Accountants, Statement of Position 93-2, 8 (Feb. 1, 1993).
\25\ See infra section IV.B.
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D. ``No-Load'' Labeling
The NASD Sales Charge Rule expressly prohibits NASD members and
their associated persons from describing a mutual fund as ``no load''
or as having ``no sales charge'' if the fund imposes a front-end load,
a back-end load, or a rule 12b-1 and/or service fee that exceeds .25%
of average net assets per year.26 When adopting rule 6c-10, the
Commission concluded that it was unnecessary to retain the provision in
the proposed rule which contained a similar ``no-load'' labeling
prohibition for a fund whose shares are subject to a CDSL. The
prohibition similarly is unnecessary for funds whose shares are subject
to deferred loads other than CDSLs under today's amendments to rule 6c-
10. If the NASD amends its Sales Charge Rule to permit installment
loads, the Commission anticipates that the NASD would address the
applicability of its ``no-load'' labeling policy to funds whose shares
are subject to such loads. The Commission reiterates that it would be
misleading and a violation of the federal securities laws for a mutual
fund whose shares are subject to a deferred sales load to be held out
to the public as a no-load fund.27
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\26\ NASD Conduct Rules, Rule 2830(d)(3).
\27\ See Proposing Release, supra note , at 11893.
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E. Rule 11a-3
The Commission requested comment whether the definition of deferred
sales load in rule 11a-3 under the Investment Company Act, governing
exchanges of fund shares, should be amended to correspond expressly
with the proposed definition in rule 6c-10. Commenters favored amending
the definition in rule 11a-3 to avoid any confusion over the
interaction of rules 6c-10 and 11a-3. The Commission is adopting the
conforming amendment.28
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\28\ Paragraph (a)(3) of rule 11a-3 as amended. 17 CFR 270.11a-
3. Commenters also suggested other, substantive amendments to rule
11a-3. The Commission will continue to study the issues raised by
the commenters and consider them in the context of a separate
proposal.
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IV. Discussion of Revised Disclosure Requirements
The Commission is tailoring the prospectus disclosure requirements
applicable to deferred sales loads in light of the changes to rule 6c-
10 discussed above. These modifications relate to the disclosure of
deferred sales loads in the fee table and the example in the front of
fund prospectuses. The modifications also relate to the general
prospectus disclosure about the deferred load calculation and payment.
Finally, the amendments address the manner in which deferred sales
loads are required to be reflected in calculations of fund performance
data.
A. Changes to the Fee Table and the Example
The front part of every mutual fund prospectus is required to
contain a fee table--a tabular presentation of the transactional
expenses paid by an investor, such as sales loads, and the annual fund
operating expenses, such as management and any rule 12b-1 fees. The fee
table is followed by an example that sets forth the cumulative amount
of various fund expenses over one, three, five and ten year periods
based on a hypothetical investment of $1000 and an annual 5% return
(``Example''). The Example was intended to provide a relatively
straight-forward means for investors to compare the expense levels of
funds with different fee structures over varying time periods.
The fee table requirements in Item 2 of Form N-1A, among other
things, currently require a line showing the maximum sales load imposed
on purchases (i.e., a front-end load) and a separate line showing any
deferred sales load based on the purchase price or redemption proceeds.
The fee table currently does not contemplate deferred loads payable
other than upon redemption (e.g., in installments) and based on a share
price or NAV other than that at purchase or redemption (i.e., at the
time an installment is paid). Similarly, Instructions to the Example
currently refer only to CDSLs.
The Commission proposed to amend the deferred sales load line in
the fee table so that the total installment load or the maximum
contingent deferred load (expressed as a percentage) would be shown
there. Specifically, the Commission proposed to replace most of the
current wording inside the parentheses following the words ``Deferred
Sales Load'' with a blank, requiring funds to insert the appropriate
description of the basis on which the load is computed. The Commission
is adopting this amendment.29 The Commission also is amending
Instruction 14(f) to Item 2 of Form N-1A to require deferred loads
other than CDSLs to be reflected in the Example as well.30
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\29\ The ``Deferred Sales Load'' line also is redesignated
``Maximum Deferred Sales Load.''
\30\ Amended Instruction 14(f) to Item 2 also requires a
deferred load that is calculated based on the shares' NAV at the
time the load is paid to be based on an account value that
incorporates the 5% annual return for each year during the period.
Under amended rule 6c-10, a deferred load may be calculated based on
the NAV at the time the load is paid, even if the NAV at the time
the load is paid is greater than the NAV at the purchase, provided
the total amount of the deferred load paid by an investor does not
exceed the amount represented by the specified percentage of the
offering price. See supra note 19.
In addition, as suggested by a commenter, the Commission is
clarifying that any deferred sales load, whether based on the offering
price or on the NAV, be shown in the fee table as a percentage of the
offering price. This is the same basis on which front-end loads are
presented.31 This presentation is intended to enable investors to
better compare sales loads (whether front-end or deferred), since the
percentage will be based on the same amount (the offering price).
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\31\ A fund that calculates its deferred load on the basis of
the NAV at the time of purchase that does not equal the offering
price (i.e., a fund with a front-end load), should explain in the
prospectus, in response to new Item 7(g) of Form N-1A, that the load
amount paid by investors is the same even though the percentage
amount used in load calculations is different from that shown in the
fee table.
When a combination of sales loads is imposed on a fund's shares
(e.g., a 1% front-end and a 5% deferred load), the fee table is
required to include a ``Maximum Sales Load'' line showing the
cumulative percentage of those charges; the terms of the particular
sales charges comprising that figure must be shown on separate lines
underneath the ``Maximum Sales Load'' line. This format is designed to
enable investors to better appreciate the cumulative effect of the
sales charges and compare one fund's sales charges to another's.
Finally, as proposed, the Commission is allowing funds to include
within the larger fee table a tabular presentation of the schedule of a
deferred sales load, including installment payments.32
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\32\ As currently required by Instruction 1 to the fee table, a
fund also must provide a reference following the fee table to the
discussion of any scheduled sales load variations and other
information about installment loads elsewhere in the prospectus.
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[[Page 49015]]
With regard to loads on shares purchased with reinvested
distributions, the fee table currently includes a line showing the
``Maximum Sales Load on Reinvested Dividends (as a percentage of the
offering price).'' The current format does not contemplate deferred
loads on reinvested capital gains distributions and returns of capital,
nor loads based on a price other than the offering price. The
Commission is modifying this line in the fee table to read ``Maximum
Sales Load on Reinvested Dividends [and other Distributions]'' and is
replacing most of the current wording in the parenthetical with a
blank. A fund that charges a deferred load on shares purchased with
reinvested capital gains distributions or returns of capital would
include the bracketed words in the caption. Funds will fill in the
blank in the parenthetical with the basis on which the load is
computed. A conforming amendment is made to Instruction 14(d) regarding
disclosure in the Example of deferred sales loads on shares purchased
with reinvested distributions.
An illustration of fee table disclosure reflecting the amendments
adopted today, and suggested calculation methodologies for the Example,
appear as Appendices A and B to this Release.
B. General Prospectus Disclosure
As proposed, the Commission is amending prospectus disclosure
requirements concerning the way in which a specific fund's deferred
sales load is imposed and computed.33 New Item 7(g) of Form N-1A
covers many operational details that have been mandatory for all funds
under current rule 6c-10 but are now subject to greater flexibility
under the amendments. These details include the price on which the load
is based, whether deferred sales loads may be imposed on shares
acquired through reinvested distributions, and the way in which the
load is calculated. In a change from the proposal, a deferred load
calculated based on the offering price or the NAV at the time of
purchase must be presented both as a percentage of the offering price
and of the NAV. This disclosure will demonstrate that, although the
percentage amount used in load calculation and that shown in the fee
table may be different, the dollar amount of the load paid by the
investor is the same.
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\33\ The Commission also is amending Instruction 2 to Item 5A of
Form N-1A, Management's Discussion of Fund Performance, to require
that deferred loads charged other than upon redemption (i.e.,
installment loads) be reflected in the line graph showing fund
performance. This change is similar to the amendment to Instruction
14(f) to Item 2 discussed in section IV.A above.
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If a deferred load is charged on shares acquired through reinvested
dividends or other distributions, Item 7(g) requires a statement to
that effect, but it does not require this disclosure if the fund does
not charge such a load. Item 7(g) also requires an explanation of the
way(s) in which a shareholder may be required to pay an installment
load, such as through the withholding of dividend payments, involuntary
redemptions, or separate billing of an investor's account. Because
different methods of collecting load payments could carry different
potential tax consequences for investors, the Commission also is
publishing a revision to staff Guide 30 of the Guidelines for Form N-1A
to require funds to describe briefly in the prospectus any material tax
consequences for investors related to an installment load.34
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\34\ See supra note 21 and accompanying text.
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C. Performance Data
1. Total Return
The Commission is amending Instruction 1 to Item 22(b)(i) of Form
N-1A, as proposed, to require deferred sales loads to be included in
calculations of advertised total return data. The amendment requires
the calculation to be based on the deduction of the maximum amount of a
deferred sales load at the times, in the amounts, and under the terms
disclosed in the prospectus.
2. Yield
CDSLs currently are not included in advertised yield calculations.
Under existing rule 482(a)(6) under the Securities Act, however,
advertisements containing yield data must disclose the maximum amount
of a CDSL, state that the performance figures do not reflect the load
and that, if reflected, the load would reduce the quoted
performance.\35\ In addition, rule 12b-1 fees that usually accompany
CDSLs are required to be included in the numerator in the yield formula
in Item 22(b)(ii) of Form N-1A as expenses, and thereby reflected in
the yield data. The amendments will not change the current approach
with regard to CDSLs.
---------------------------------------------------------------------------
\35\ 17 CFR 230.482(a)(6).
---------------------------------------------------------------------------
With regard to installment loads, the Commission requested comment
on two possible approaches to including them in the yield formula. The
first approach, modeled on the existing treatment of front-end loads,
would require that the total installment load be added to the NAV to
reach an assumed ``offering price'' in the denominator in the yield
formula (the ``gross-up'' approach). Under the second approach, a
thirty-day percentage amount of an installment load would be included
as an expense in calculating the yield formula (similar to the manner
in which rule 12b-1 fees are treated). This method would understate the
yield for those shareholders that have completed paying the installment
load.\36\
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\36\ This method also would have suggested that installment
loads should be reflected in a fund's expense ratio as are rule 12b-
1 fees. It is more appropriate, however, for transaction-specific
expenses such as installment loads to be considered separately
rather than as a component of the fund's expense structure.
---------------------------------------------------------------------------
Commenters believed that installment loads should not be reflected
in yield calculations, but that performance data should be accompanied
by disclosure of the existence of an installment load pursuant to rule
482(a)(6) under the Securities Act. The Commission, however, has
determined that installment loads should be reflected in fund yield
calculations, and that the ``gross-up'' approach is the most
appropriate way to do so. The fixed percentage amounts of installment
loads, and the certainty that the load will be paid, suggest similarity
to front-end loads. Installment loads also are assessed on the
shareholder account level, rather than deducted from fund assets as is
the case for rule 12b-1 fees. Therefore, new Instruction 10 is added to
Item 22(b)(ii) of Form N-1A to require installment loads to be
reflected in the yield calculations based on the gross-up approach.
D. Dealer Compensation Disclosure
Deferred sales charges are used to pay for a fund's sales or
promotional expenses, including commissions to persons who sell fund
shares. The amount of commissions paid from front-end sales loads and
rule 12b-1 fees currently is required to be disclosed in fund
prospectuses.\37\ The Commission requested comment whether it should
amend Item 7(b)(iv) of Form N-1A to require funds that impose deferred
sales loads to provide disclosure about the commissions comparable to
that now provided by funds with front-end loads. Alternatively, the
Commission requested comment whether proposed new Item 7(g) of Form N-
1A should be modified to require this disclosure.
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\37\ Item 7(b)(iv) of Form N-1A requires funds to show in a
tabular format in the prospectus the sales load reallowed to dealers
as a percentage of the public offering price. Item 7(c) requires
similar disclosure for payments to dealers from rule 12b-1 fees.
---------------------------------------------------------------------------
Commenters generally opposed any changes from the current
disclosure requirements for dealer compensation.
[[Page 49016]]
They pointed out that the NASD currently is studying dealer
compensation practices and that related disclosure issues would best be
addressed in that context. The Commission will consider revisiting the
issue of dealer compensation disclosure in fund prospectuses after the
NASD has had an opportunity to complete its study and after further
experience with installment loads.
V. Compliance Date
The rule and form amendments will become effective thirty days
after publication in the Federal Register. Funds may begin to comply
with amended rule 6c-10 on the effective date. Funds that have received
exemptive orders allowing deferred sales loads may continue to rely on
those orders for all the funds covered by the order.
Registration statements and post-effective amendments filed with
the Commission, and yield quotations appearing in fund advertisements
or other sales literature, after the effective date must be in
compliance with the form amendments. Post-effective amendments made for
the purpose of complying with the amendments to Form N-1A may be made
pursuant to the immediate effectiveness provisions of rule 485(b) under
the Securities Act [17 CFR 230.485(b)], provided the post-effective
amendment otherwise meets the conditions for immediate effectiveness
under that rule.
VI. Cost/Benefit Analysis
The amendments to rule 6c-10 and Form N-1A should not impose any
significant burdens on mutual funds. Rather, the amendments should
benefit funds by providing them with alternatives in financing their
sales and promotional expenses. The amendments also will enable
investors to defer the payment of a sales charge on the purchase of
mutual fund shares until redemption or over one or more installment
payments during the term of their investment.
VII. Summary of the Regulatory Flexibility Analysis
A summary of the Initial Regulatory Flexibility Analysis, which was
prepared in accordance with 5 U.S.C. 603, was published in Investment
Company Act Release No. 20917. No comments were received on that
analysis. The Commission has prepared a Final Regulatory Flexibility
Analysis in accordance with 5 U.S.C. 604. The Analysis explains that
the amendments to rule 6c-10 allow mutual funds to impose deferred
sales loads other than CDSLs and remove certain restrictions in the
rule. The Analysis further explains that the amendments to Form N-1A
modify the prospectus disclosure requirements for deferred loads to
reflect the changes to rule 6c-10, but provide for disclosure similar
to that currently made by funds and, therefore, do not impose any
additional burdens. A copy of the Analysis may be obtained by
contacting Nadya B. Roytblat, Mail Stop 10-2, Securities and Exchange
Commission, 450 Fifth Street, N.W., Washington, D.C. 20549.
VIII. Statutory Authority
The Commission is adopting the amendments to rules 6c-10 and 11a-3
under sections 6(c), 11(a) and 38(a) of the Investment Company Act [15
U.S.C. 80a-6(c), -11(a), and -37(a)]. The authority citations for the
amendments to Form N-1A precede the text of the amendments.
List of Subjects in 17 CFR Parts 239, 270 and 274
Investment companies, Reporting and recordkeeping requirements,
Securities.
Text of Rule and Form Amendments
For the reasons set out in the preamble, Title 17, Chapter II of
the Code of Federal Regulations is amended as follows:
PART 270--RULES AND REGULATIONS, INVESTMENT COMPANY ACT OF 1940
1. The authority citation for Part 270 continues to read, in part,
as follows:
Authority: 15 U.S.C. 80a-1 et seq., 80a-37, 80a-39 unless
otherwise noted;
* * * * *
2. Section 270.6c-10 is revised to read as follows:
Sec. 270.6c-10 Exemption for certain open-end management investment
companies to impose deferred sales loads.
(a) A company and any exempted person shall be exempt from the
provisions of sections 2(a)(32), 2(a)(35), and 22(d) of the Act [15
U.S.C. 80a-2(a)(32), 80a-2(a)(35), and 80a-22(d), respectively] and
Sec. 270.22c-1 to the extent necessary to permit a deferred sales load
to be imposed on shares issued by the company, Provided, that:
(1) The amount of the deferred sales load does not exceed a
specified percentage of the net asset value or the offering price at
the time of purchase;
(2) The terms of the deferred sales load are covered by the
provisions of Rule 2830 of the Conduct Rules of the National
Association of Securities Dealers, Inc.; and
(3) The same deferred sales load is imposed on all shareholders,
except that scheduled variations in or elimination of a deferred sales
load may be offered to a particular class of shareholders or
transactions, Provided, that the conditions in Sec. 270.22d-1 are
satisfied. Nothing in this paragraph (a) shall prevent a company from
offering to existing shareholders a new scheduled variation that would
waive or reduce the amount of a deferred sales load not yet paid.
(b) For purposes of this section:
(1) Company means a registered open-end management investment
company, other than a registered separate account, and includes a
separate series of the company;
(2) Exempted person means any principal underwriter of, dealer in,
and any other person authorized to consummate transactions in,
securities issued by a company; and
(3) Deferred sales load means any amount properly chargeable to
sales or promotional expenses that is paid by a shareholder after
purchase but before or upon redemption.
3. Section 270.11a-3 is amended by revising paragraph (a)(3) to
read as follows:
Sec. 270.11a-3 Offers of exchange by open-end investment companies
other than separate accounts.
(a) * * *
(3) Deferred sales load means any amount properly chargeable to
sales or promotional expenses that is paid by a shareholder after
purchase but before or upon redemption;
* * * * *
PART 239--FORMS PRESCRIBED UNDER THE SECURITIES ACT OF 1933
PART 274--FORMS PRESCRIBED UNDER THE INVESTMENT COMPANY ACT OF 1940
4. The authority citation for Part 239 continues to read, in part,
as follows:
Authority: 15 U.S.C. 77f, 77g, 77h, 77j, 77s, 77sss, 78c, 78l,
78m, 78n, 78o(d), 78w(a), 78ll(d), 79e, 79f, 79g, 79j, 79l, 79m,
79n, 79q, 79t, 80a-8, 80a-29, 80a-30 and 80a-37, unless otherwise
noted.
* * * * *
5. The authority citation for Part 274 continues to read as
follows:
Authority: 15 U.S.C. 77f, 77g, 77h, 77j, 77s, 78c(b), 78l, 78m,
78n, 78o(d), 80a-8, 80a-24, and 80a-29, unless otherwise noted.
Note: Form N-1A does not, and the amendments will not, appear in
the Code of Federal Regulations.
6. Item 2 of Part A of Form N-1A [referenced in sections 239.15A
and
[[Page 49017]]
274.11A] is amended by revising the caption ``Deferred Sales Load'' and
the parenthetical after such caption in paragraph (a)(i), and revising
the caption ``Maximum Sales Load Imposed on Reinvested Dividends'' and
the parenthetical in paragraph (a)(i), Instruction 5, the parenthetical
in Instruction 14(d), and Instruction 14(f) to read as follows:
Form N-1A
* * * * *
Part A. Information Required in a Prospectus
* * * * *
Item 2. Synopsis
(a)(i) * * *
* * * * *
Shareholder Transaction Expenses
* * * * *
Maximum Deferred Sales Load (as a percentage of
____________)............%
Maximum Sales Load Imposed on Reinvested Dividends [and other
Distributions]............% (as a percentage of____________)
* * * * *
Instructions:
* * * * *
Shareholder Transaction Expenses
5. ``Maximum Deferred Sales Load'' includes the maximum total
deferred sales load payable upon redemption, in installments, or
both, expressed as a percentage of the amount or amounts stated in
response to Item 7(g), provided that a sales load that is based on
the net asset value at the time of purchase shall be expressed as a
percentage of the offering price at the time of purchase. The fee
table may include a tabular presentation, within the larger table,
of the range over time of any deferred sales load (such as a
contingent deferred sales load) that may change over time, or a
schedule of any installment load payments.
If more than one type of sales load is charged (e.g., a deferred
sales load and a front-end sales load), the first line in the table
should read ``Maximum Sales Load'' and show the maximum cumulative
percentage. Show the percentage amounts and the terms of each sales
charge comprising that figure on separate lines just below.
If a sales charge is imposed on shares purchased with reinvested
capital gains distributions or returns of capital, the third line in
the table should include the bracketed words.
* * * * *
Example
14. For purposes of the Example in the table:
* * * * *
(d)* * * (A Registrant that charges a sales load on shares
purchased with reinvested dividends or other distributions should
not reflect these fees in the Example, but should explain in the
brief narrative following the table that the Example does not
reflect these fees and that the amounts shown would be increased if
the fees were reflected.)
* * * * *
(f) Reflect any contingent deferred sales load by assuming
redemption of the entire account on the last day of the year;
reflect any other type of deferred sales load as being paid at the
end of the year in which it is due. In the case of a deferred sales
load that is based on the Registrant's net asset value at the time
of payment, assume that the net asset value at the end of each year
includes the assumed 5% annual return for that and each preceding
year.
* * * * *
7. Instruction 2 to Item 5A of Part A of Form N-1A [referenced in
sections 239.15A and 274.11A] is amended by removing the phrase ``(or
other amounts at redemption or upon closing of an account)'' in the
third sentence and adding at the end a sentence to read as follows:
Form N-1A
* * * * *
Part A. Information Required in a Prospectus
* * * * *
Item 5A. Management's Discussion of Fund Performance
* * * * *
Instructions:
* * * * *
2. Sales Load. * * * In the case of any other deferred sales
load, assume the deduction in the amount(s) and at the time(s) the
load actually would have been deducted.
* * * * *
8. Item 7 of Part A of Form N-1A [referenced in sections 239.15A
and 274.11A] is amended by removing the word ``and'' at the end of
paragraph (e), removing the period at the end of paragraph (f) and
adding ``; and'' in its place, and adding paragraph (g) to read as
follows:
Form N-1A
* * * * *
Part A. Information Required in a Prospectus
* * * * *
Item 7. Purchase of Securities Being Offered
* * * * *
(g) a concise explanation of the way in which any deferred sales
load is imposed and computed, including: (i) an explanation of the
basis on which the specified percentage is calculated (i.e., the
offering price, or the lesser of the offering price or the net asset
value at the time the load is paid); (ii) the sales charges as a
percentage of both the offering price and the net asset value at the
time of purchase; (iii) if the method of determining the amount of
the load results in the load being applied to shares or amounts
representing shares acquired through the reinvestment of dividends
or other distributions, a statement to that effect; (iv) a
description of the way in which the load is calculated (e.g., in the
case of a partial redemption, whether or not the load is calculated
as if shares or amounts representing shares not subject to a load
are redeemed first, and other shares or amounts representing shares
are then redeemed in the order purchased); and (v) if applicable, an
explanation of the way(s) in which a shareholder may be required to
pay an installment load (e.g., through the withholding of dividend
payments, involuntary redemptions, separate billing of an investor's
account).
9. Item 22 of Part B of Form N-1A [referenced in sections 239.15A
and 274.11A] is amended by adding a sentence to the end of Instruction
1 to paragraph (b)(i) and an Instruction 10 to paragraph (b)(ii) to
read as follows:
Form N-1A
* * * * *
Part B. Information Required in a Statement of Additional
Information
* * * * *
Item 22. Calculation of Performance Data
* * * * *
(b) Other Registrants
(i) Total Return * * *
Instructions:
1. * * * If shareholders are charged a deferred sales load,
assume the maximum deferred sales load is deducted at the times, in
the amounts, and under the terms disclosed in the prospectus.
* * * * *
(ii) Yield * * *
Instructions:
* * * * *
10. If a Registrant (other than a Registrant described in
paragraph (a)) imposes, in connection with sales of its shares, a
deferred sales load payable in installments, the ``maximum public
offering price'' shall include the aggregate amount of such
installments (``installment load amount'').
10. Guide 30 to Form N-1A [referenced in sections 239.15A and
274.11A] is amended by adding a paragraph before the last paragraph to
read as follows:
Guidelines for Form N-1A
* * * * *
Guide 30. Tax Consequences
* * * * *
If the registrant imposes a sales load payable in installments
on the securities being offered, the registrant must describe
briefly in response to Item 6 any related material tax consequences
for investors.
* * * * *
By the Commission.
Dated: September 9, 1996.
Margaret H. McFarland,
Deputy Secretary.
BILLING CODE 8010-01-P
[[Page 49018]]
[GRAPHIC] [TIFF OMITTED] TR17SE96.000
BILLING CODE 8010-01-C
[[Page 49019]]
Appendix A Continued.--Example Calculations
Assuming Redemption at the End of Each Time Period
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Annual
Ending Average value Annual Deferred deferred Amount
Year Amount invested- Front-end load= Beginning value+(5%-1.4%)= value x 1.4%= expenses load @ load shown in
redemption installment table
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
(1)................................. $1,000.00- $10.00= $990.00+$35.64= $1,025.64 $1,007.82 $14.11 $50.00 [$10.00] $74
(2)................................. ....................... ..................... $1,015.64+$36.56= $1,052.20 $1,033.92 $14.47 $40.00 [$10.00] ..........
(3)................................. ....................... ..................... $1,042.20+$37.52= $1,079.72 $1,060.96 $14.85 $30.00 [$10.00] $103
(4)................................. ....................... ..................... $1,069.72+$38.51= $1,108.22 $1,088.98 $15.25 $20.00 [$10.00] ..........
(5)................................. ....................... ..................... $1,098.22+$39.54= $1,137.76 $1,117.99 $15.65 $10.00 [$10.00] $134
(6)................................. ....................... ..................... $1,127.76+$40.60= $1,168.36 $1,148.06 $16.07 .......... ........... ..........
(7)................................. ....................... ..................... $1,168.36+$42.06= $1,210.42 $1,189.39 $16.65 .......... ........... ..........
(8)................................. ....................... ..................... $1,210.42+$43.58= $1,254.00 $1,232.21 $17.25 .......... ........... ..........
(9)................................. ....................... ..................... $1,254.00+$45.14= $1,299.41 $1,276.57 $17.87 .......... ........... ..........
(10)................................ ....................... ..................... $1,299.14+$46.77= $1,345.91 $1,322.52 $18.52 .......... ........... $221
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Assuming No Redemption
--------------------------------------------------------------------------------------------------------------------------------------------------------
Annual
Amount invested- Front-end Beginning value+(5%- Ending Average value Annual deferred Amount
Year load= 1.4%)= value x 1.4%= expenses load shown in
installment table
--------------------------------------------------------------------------------------------------------------------------------------------------------
(1).......................... $1,000.00- $10.00= $990.00+$35.64= $1,025.64 $1,007.82 $14.11 $10.00 $34
(2).......................... ............... ............. $1,015.64+$36.56= $1,052.20 $1,033.92 $14.47 $10.00
(3).......................... ............... ............. $1,042.20+$37.52= $1,079.72 $1,060.96 $14.85 $10.00 $83
(4).......................... ............... ............. $1,069.72+$38.51= $1,108.22 $1,088.98 $15.25 $10.00 ..........
(5).......................... ............... ............. $1,098.22+$39.54= $1,137.76 $1,117.99 $15.65 $10.00 $134
(6).......................... ............... ............. $1,127.76+$40.60= $1,168.36 $1,148.06 $16.07 ........... ..........
(7).......................... ............... ............. $1,168.36+$42.06= $1,210.42 $1,189.39 $16.65 ........... ..........
(8).......................... ............... ............. $1,210.42+$43.58= $1,254.00 $1,232.21 $17.25 ........... ..........
(9).......................... ............... ............. $1,254.00+$45.14= $1,299.14 $1,276.57 $17.87 ........... ..........
(10)......................... ............... ............. $1,299.14+$46.77= $1,345.91 $1,322.52 $18.52 ........... $221
--------------------------------------------------------------------------------------------------------------------------------------------------------
BILLING CODE 8010-01-P
[[Page 49020]]
[GRAPHIC] [TIFF OMITTED] TR17SE96.001
BILLING CODE 8010-01-C
[[Page 49021]]
Appendix B Continued.--Example Calculations
Assuming Redemption at the End of Each Time Period
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Average Amount
Year Amount invested Front-end load = Beginning value+(5%-1.9%) = Ending value x 1.9% Annual Deferred shown in
value = expenses load table
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
(1)................................... $1,000.00- $0.00= $1,000.00+31.00= $1,031.00 $1,015.50 $19.29 $50.00 $69
(2)................................... ......................... ...................... 1,031.00+31.96= 1,062.96 1,046.98 19.89 40.00 ...........
(3)................................... ......................... ...................... 1,062.96+32.95= 1,095.91 1,079.44 20.51 30.00 90
(4)................................... ......................... ...................... 1,095.91+33.97= 1,129.88 1,112.90 21.15 20.00 ...........
(5)................................... ......................... ...................... 1,129.88+35.03= 1,164.91 1,147.39 21.80 10.00 113
(6)................................... ......................... ...................... 1,164.91+36.11= 1,201.02 1,182.97 22.48 ........... ...........
(7)................................... ......................... ...................... 1,201.02+37.23= 1,238.25 1,219.64 23.17 ........... ...........
(8)................................... ......................... ...................... 1,238.25+38.39= 1,276.64 1,257.44 23.89 ........... ...........
(9)................................... ......................... ...................... 1,276.64+39.58= 1,316.22 1,296.43 24.63 ........... ...........
(10).................................. ......................... ...................... 1,316.22+40.80= 1,357.02 1,336.62 25.40 ........... 222
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Assuming No Redemption
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Average Amount
Year Amount invested Front-end load = Beginning value+(5%-1.9%) = Ending value x 1.9% Annual Deferred shown in
value = expenses load table
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
(1)................................... $1,000.00- $0.00= $1,000+31.00= $1,031.00 $1,015.50 $19.29 $0.00 $19
(2)................................... ......................... ...................... 1,031.00+31.96= 1,062.96 1,046.98 19.89 0.00 ...........
(3)................................... ......................... ...................... 1,062.96+32.95= 1,095.91 1,079.44 20.51 0.00 60
(4)................................... ......................... ...................... 1,095.91+33.97= 1,129.88 1,112.90 21.15 0.00 ...........
(5)................................... ......................... ...................... 1,129.88+35.03= 1,164.91 1,147.39 21.80 0.00 103
(6)................................... ......................... ...................... 1,164.91+36.11= 1,201.02 1,182.97 22.48 0.00 ...........
(7)................................... ......................... ...................... 1,201.02+37.23= 1,238.25 1,219.64 23.17 0.00 ...........
(8)................................... ......................... ...................... 1,238.25+38.39= 1,276.64 1,257.44 23.89 0.00 ...........
(9)................................... ......................... ...................... 1,276.64+39.58= 1,316.22 1,296.43 24.63 0.00 ...........
(10).................................. ......................... ...................... 1,316.22+40.80= 1,357.02 1,336.62 25.40 0.00 222
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
[FR Doc. 96-23438 Filed 9-16-96; 8:45 am]
BILLING CODE 8010-01-P
Complete official Federal Register PDF
FR Doc. 96-22771 Airworthiness Directives; Pratt & Whitney JT9D-7R4 Series Turbofan Engines
[Federal Register Volume 61, Number 181 (Tuesday, September 17, 1996)]
[Rules and Regulations]
[Pages 48818-48820]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-22771]
[[Page 48818]]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 39
[Docket No. 94-ANE-51; Amendment 39-9721; AD 96-17-11]
RIN 2120-AA64
Airworthiness Directives; Pratt & Whitney JT9D-7R4 Series
Turbofan Engines
AGENCY: Federal Aviation Administration, DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This amendment adopts a new airworthiness directive (AD),
applicable to Pratt & Whitney (PW) JT9D-7R4 series turbofan engines,
that requires replacement of 3rd, 4th, and 5th stage low pressure
turbine (LPT) vane retention bolts and nuts, the removal of the 5th
stage vane configuration which includes an electro-discharge machined
(EDM) slot and replacement with a cast slot configuration, and
prohibits the use of uncured anti-gallant compound on vane retention
hardware. This amendment is prompted by reports of LPT failures that
resulted in uncontained engine failures. The actions specified by this
AD are intended to prevent LPT vane failures, which can result in
uncontained engine failure, fire, and possible damage to the aircraft.
DATES: Effective November 18, 1996.
The incorporation by reference of certain publications listed in
the regulations is approved by the Director of the Federal Register as
of November 18, 1996.
ADDRESSES: The service information referenced in this AD may be
obtained from Pratt & Whitney, Publications Department, Supervisor
Technical Publications Distribution, M/S 132-30,400 Main St., East
Hartford, CT 06108; telephone (860) 565-6600, fax (860) 565-4503. This
information may be examined at the Federal Aviation Administration
(FAA), New England Region, Office of the Assistant Chief Counsel, 12
New England Executive Park, Burlington, MA; or at the Office of the
Federal Register, 800 North Capitol Street, NW., Suite 700, Washington,
DC.
FOR FURTHER INFORMATION CONTACT: John Fisher, Aerospace Engineer,
Engine Certification Office, FAA, Engine and Propeller Directorate, 12
New England Executive Park, Burlington, MA 01803-5299; telephone (617)
238-7149, fax (617) 238-7199.
SUPPLEMENTARY INFORMATION: A proposal to amend part 39 of the Federal
Aviation Regulations (14 CFR part 39) to include an airworthiness
directive (AD) that is applicable to Pratt & Whitney (PW) JT9D-7R4
series turbofan engines was published in the Federal Register on
October 16, 1995 (60 FR 53556). That action proposed to require
replacement of 3rd, 4th, and 5th stage low pressure turbine (LPT) vane
retention bolts and nuts and the removal of the 5th stage vane
configuration which includes an electro-discharge machined (EDM) slot,
and replacement with a 5th stage vane featuring a cast slot
configuration. In addition, the proposed AD would prohibit use of
uncured anti-gallant compound on the bolts or nuts, as uncured anti-
gallant compound was a contributor to the unsafe condition. The actions
would be required to be accomplished in accordance with PW Service
Bulletin (SB) No. JT9D-7R4-72-473, Revision 2, dated February 8, 1993;
PW Alert Service Bulletin (ASB) No. JT9D-7R4-72-480, dated April 20,
1993; PW ASB No. JT9D-7R4-72-481, dated April 20, 1993; and PW SB No.
JT9D-7R4-72-484, Revision 1, dated October 9, 1993.
Interested persons have been afforded an opportunity to participate
in the making of this amendment. Due consideration has been given to
the comments received.
Two commenters basically concur with the intent of the AD, but
recommend a change in the accomplishment time, from the next shop visit
to the next LPT module disassembly. The commenters believe
accomplishment at the next shop visit causes an undue scheduling burden
and increases cost by an estimated $558,900. The FAA does not concur.
The FAA has reviewed the risk analysis, which predicts that if the
accomplishment time is extended, the risk would quadruple, which the
FAA considers unacceptable.
Two commenters recommend a change to the acceptable configurations.
They state that paragraph (b)(2) of the compliance section should be
revised to reference PW SB No. JT9D-7R4-72-488, Revision 1, dated
November 20, 1993, as an additional approved and acceptable
configuration, as the configuration defined by that SB became available
after the criteria for the NPRM was established. The FAA concurs in
part. Pratt & Whitney SB No. JT9D-7R4-72-488, Revision 1, dated
November 20, 1993, which describes modifying the vane retention stops,
is not an alternative to PW SB No. JT9D-7R4-72-484, Revision 1, dated
October 9, 1993, but can be added as a compliance option for an
additional acceptable configuration. The FAA has therefore revised this
final rule to include the following configurations as acceptable: (1)
PW ASB No. JT9D-7R4-72-481, dated April 20, 1993; (2) PW SB No. JT9D-
7R4-72-484, Revision 1, dated October 9, 1993; or (3) PW SB No. JT9D-
7R4-72-484, Revision 1, dated October 9, 1993, and PW SB No. JT9D-7R4-
72-488, Revision 1, dated November 20, 1993.
One commenter states that the reference to not using uncured anti-
gallant compound on the bolt threads in the compliance section should
be deleted, and that the issue should only be addressed in the
discussion section. The commenter believes that the prohibition against
using anti-gallant compound in the compliance section is not
appropriate as a maintenance action within an AD, and would result in
no terminating action being available to the airlines. The FAA does not
concur. The primary cause of the LPT vane retention hardware failures
was the use of uncured anti-gallant compound. Therefore, the FAA has
determined that the prohibition against using uncured anti-gallant
compound is a key element of the AD, and must be an integral part of
the compliance section.
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 with the changes described
previously. The FAA has determined that these changes will neither
increase the economic burden on any operator nor increase the scope of
the AD.
The FAA estimates that 600 engines installed on aircraft of U.S.
registry will be affected by this AD, that it will take approximately
22 work hours per engine to accomplish the required actions, and that
the average labor rate is $60 per work hour. Based on these figures,
the total cost impact of the AD on U.S. operators is estimated to be
$792,000.
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
[[Page 48819]]
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 USC 106(g), 40113, 44701.
Sec. 39.13 [AMENDED]
2. Section 39.13 is amended by adding the following new
airworthiness directive:
96-17-11 Pratt & Whitney: Amendment 39-9721. Docket 94-ANE-51.
Applicability: Pratt & Whitney (PW) JT9D-7R4 series turbofan
engines, installed on but not limited to Airbus A300 and A310
series, and Boeing 747 and 767 series aircraft.
Note: This airworthiness directive (AD) applies to each engine
identified in the preceding applicability provision, regardless of
whether it has been modified, altered, or repaired in the area
subject to the requirements of this AD. For engines 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 (e) 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 low pressure turbine (LPT) vane failures, which can
result in uncontained engine failure, fire, and possible damage to
the aircraft, accomplish the following, accomplish the following:
(a) Remove 5th stage LPT vane cluster segments that incorporate
electro-discharge machined (EDM) slots, Part Numbers (P/N) 787885 or
787885-001, and replace with the cast pocket vane configuration, P/N
796985, 795175, 796985-001, 808875, 811985, or 811985-001, at the
next shop visit, but not later than 5,000 cycles in service (CIS)
after the effective date of this AD, in accordance with PW Alert
Service Bulletin (ASB) No. JT9D-7R4-72-480, dated April 20, 1993.
Note: Pratt & Whitney SB No. JT9D-7R4-72-473, Revision 2, dated
February 8, 1993, may be used to segregate EDM slot from cast pocket
5th stage LPT vane clusters sharing the same P/N 787885 and 787885-
001.
(b) For LPT modules that previously have had the 3rd, 4th, or
5th stage vane retention hardware disassembled for any reason
perform paragraph (b)(1), (b)(2), or (b)(3) of this AD at the next
shop visit, but not later than 5,000 CIS after the effective date of
this AD, accomplish one of the following. Do not use uncured anti-
gallant compound on the bolts or nuts:
(1) Install new 3rd, 4th, and 5th stage LPT vane bolts and nuts,
in accordance with PW ASB No. JT9D-7R4-72-481, dated April 20, 1993;
or
(2) Install new 3rd, 4th, and 5th stage LPT vane bolts and nuts,
and install heat shield assemblies and air sealing ring stop
assemblies in accordance with PW SB No. JT9D-7R4-72-484, Revision 1,
dated October 9, 1993; or
(3) Install new 3rd, 4th, and 5th stage LPT vane bolts and nuts,
and install heat shield assemblies and air sealing ring stop
assemblies in accordance with PW SB No. JT9D-7R4-72-484, Revision 1,
dated October 9, 1993, and PW SB No. JT9D-7R4-72-488, Revision 1,
dated November 20, 1993.
(c) For LPT modules that have never had the 3rd, 4th, or 5th
stage vane retention hardware disassembled, perform paragraph
(b)(1), (b)(2), or (b)(3) of this AD at the first LPT module
disassembly. Do not use uncured anti-gallant compound on the bolts
or nuts.
(d) For the purpose of this AD, a shop visit is defined as the
induction of an engine into a maintenance facility for the purpose
of either:
(1) Separation of pairs of major mating engine flanges; or
(2) The removal of an engine disk, hub, or spool.
(e) 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, Engine Certification Office. The
request should be forwarded through an appropriate FAA Principal
Maintenance Inspector, who may add comments and then send it to the
Manager, Engine Certification Office.
Note: Information concerning the existence of approved
alternative methods of compliance with this airworthiness directive,
if any, may be obtained from the Engine Certification Office.
(f) 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 aircraft to a location where
the requirements of this AD can be accomplished.
(g) The actions required by this AD shall be done in accordance
with the following PW service documents:
----------------------------------------------------------------------------------------------------------------
Document No. Pages Revision Date
----------------------------------------------------------------------------------------------------------------
SB No. JT9D-7R4 -72-473......... 1.................. 2.................. February 8, 1993.
2-5................ Original........... November 11, 1992.
6, 7............... 2.................. February 8, 1993.
8.................. Original........... November 11, 1992.
9.................. 1.................. December 16, 1992.
10, 11............. 2.................. February 8, 1993.
Total Pages: 11...........
ASB No. JT9D-7R4-72-480......... 1-13............... Original........... April 20, 1993.
Total Pages: 13...........
ASB No. JT9D-7R4-72-481 1-11............... Original........... April 20, 1993.
Total Pages: 11...........
SB No. JT9D-7R4-72-484.......... 1.................. 1.................. October 9, 1993.
2-8................ Original........... August 2, 1993.
9.................. 1.................. October 9, 1993.
10-16.............. Original........... August 2, 1993.
17................. 1.................. October 9, 1993.
18-44.............. Original........... August 2, 1993.
Total Pages: 44...........
SB No. JT9D-7R4-72-488.......... 1.................. 1.................. November 20, 1993
2.................. Original........... October 7, 1993.
3.................. 1.................. November 20, 1993.
4-17............... Original........... October 7, 1993.
[[Page 48820]]
18................. 1.................. November 20, 1993.
Total Pages: 18...........
----------------------------------------------------------------------------------------------------------------
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 Pratt & Whitney, Publications
Department, Supervisor Technical Publications Distribution, M/S 132-
30,400 Main St., East Hartford, CT 06108; telephone (860) 565-6600,
fax (860) 565-4503. Copies may be inspected at the FAA, New England
Region, Office of the Assistant Chief Counsel, 12 New England
Executive Park, Burlington, MA; or at the Office of the Federal
Register, 800 North Capitol Street NW., suite 700, Washington, DC.
(h) This amendment becomes effective on November 18, 1996.
Issued in Burlington, Massachusetts, on August 15, 1996.
Jay J. Pardee,
Manager, Engine and Propeller Directorate, Aircraft Certification
Service.
[FR Doc. 96-22771 Filed 9-16-96; 8:45 am]
BILLING CODE 4910-13-U
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