issue-1996-03-26•Federal Register final rules — 1996-03-26
Federal Register final rules — 1996-03-26
issue-1996-03-26Federal Register final rules — 1996-03-26Regulation
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. 96-7305 Safety Zone; Lower Mississippi River, Mile 631.0 to Mile 635.0
[Federal Register Volume 61, Number 59 (Tuesday, March 26, 1996)]
[Rules and Regulations]
[Page 13100]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-7305]
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DEPARTMENT OF TRANSPORTATION
33 CFR Part 165
[CGD02-96-078]
RIN 2115-AA97
Safety Zone; Lower Mississippi River, Mile 631.0 to Mile 635.0
AGENCY: Coast Guard, DOT.
ACTION: Temporary rule.
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SUMMARY: The Coast Guard is establishing a temporary safety zone on the
Lower Mississippi River between mile 631.0 and mile 635.0. This
regulation is needed to restrict vessel traffic in the regulated area
to prevent a collision with a sunken barge, surveying and salvage
equipment and to provide a safe work area for survey and salvage
personnel.
DATES: This regulation is effective from 11 p.m. on March 12, 1996, and
terminates at 8 a.m. on September 31, 1996.
FOR FURTHER INFORMATION CONTACT:
LT Byron Black, Chief, Port Operations, Captain of the Port, 200
Jefferson Avenue, Suite 1301, Memphis, TN 38103, Phone: (901) 544-3941.
SUPPLEMENTARY INFORMATION:
Background and Purpose
At approximately 10:10 p.m. on March 12, 1996, the M/V ROBERT A
KYLE reported that one iron barge had sunk at approximate mile 633.0 on
the Lower Mississippi River. The sunken barge's exact location remains
unknown and survey operations at Lower Mississippi River mile 633.0
will commence shortly. The navigable channel will be blocked during
survey and salvage operations. A safety zone has been established on
the Lower Mississippi River from mile 631.0 to mile 635.0 in order to
facilitate safe vessel passage. Entry of vessels or persons into this
zone is prohibited unless specifically authorized by the Captain of the
Port.
In accordance with 5 U.S.C. 553, a notice of proposed rulemaking
was not published for this regulation and good cause exists for making
it effective in less than 30 days after Federal Register publication.
Publication of a notice of proposed rulemaking and delay of effective
date would be contrary to the public interest because immediate action
is necessary. Specifically, immediate action is necessary to facilitate
the survey for the sunken barge's exact location. Harm to the public or
environment may result if vessel traffic is not controlled during the
operations. As a result, the Coast Guard deems it to be in the public's
best interest to issue a regulation immediately.
Regulatory Evaluation
This rule is not a significant regulatory action under section 3(f)
of Executive Order 12866 and does not require and assessment of
potential costs and benefits under section 6(a)(3) of that order. It
has not been reviewed by the Office of Management and Budget under that
order. It is not significant under the regulatory policies and
procedures of the Department of Transportation (DOT) (44 FR 11040;
February 26, 1979). The Coast Guard expects the economic impact of this
proposal to be so minimal that a full Regulatory Evaluation under
paragraph 10e of the regulatory policies and procedures of DOT is
unnecessary.
Collection of information
This rule contains no information collection requirements under the
Paperwork Reduction Act (44 U.S.C. 3501 et seq.).
Federalism
The Coast Guard has analyzed this under the principles and criteria
contained in Executive Order 12612 and has determined that this rule
does not have sufficient federalism implications to warrant the
preparation of a Federalism Assessment.
Environment
Teh Coast Guard considered the environmental impact of this rule
and concluded that, under paragraph 2.B.2 of Commandant Instruction
M16475.1B (as revised by 59 FR 38654; July 29, 1994), this rule is
categorically excluded from further environmental documentation.
List of Subjects in 33 CFR Part 165
Harbors, Marine safety, Navigation (water), Reporting and
recordkeeping requirements, Security measures, Vessels, Waterways.
For the reasons set out in the preamble, the Coast Guard amends 33
CFR Part 165 as follows:
1. The authority citation for Part 165 continues to read as
follows:
Authority: 33 U.S.C. 1231; 50 U.S.C. 191; and 33 CFR 1.05-1(g),
6.04-1, 6.04-6, and 160.5; and 49 CFR 1.46.
2. A new temporary section 165.T02-078 is added to read as follows:
Sec. 165.T02-078 Safety Zone; Lower Mississippi River.
(a) Location. The following area is a Safety Zone: Lower
Mississippi River mile 631.0 to mile 635.0.
(b) Effective dates. This section is effective from 11 p.m. on
March 12, 1996, and terminates at 8 a.m. on September 31, 1996.
(c) Regulations. In accordance with the general regulations in
Sec. 165.23, entry into this zone is prohibited except as authorized by
the Captain of the Port. The Captain of the Port, Memphis, Tennessee,
will notify the maritime community of conditions affecting the area
covered by this safety zone by Marine Safety Information Radio
Broadcast on VHF Marine Band Radio, Channel 22 (157.1 MHz).
Dated: March 12, 1996.
P.L. Mountcastle,
Lieutenant Commander, USCG, Acting Captain of the Port.
[FR Doc. 96-7305 Filed 3-25-96; 8:45 am]
BILLING CODE 4910-14-M
Complete official Federal Register PDF
FR Doc. 96-7275 Identification and Listing of Hazardous Waste; Amendments to Definition of Solid Waste
[Federal Register Volume 61, Number 59 (Tuesday, March 26, 1996)]
[Rules and Regulations]
[Pages 13103-13106]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-7275]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 261
[FRL-5446-2]
RIN 2050-AE31
Identification and Listing of Hazardous Waste; Amendments to
Definition of Solid Waste
AGENCY: Environmental Protection Agency.
ACTION: Direct final rule.
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SUMMARY: EPA is correcting the text of a regulatory exclusion from the
regulatory definition of solid waste for recovered oil which is
inserted into the petroleum refining process. The current text of the
exclusion contains a factual error as to the location in the refining
process at which recovered oil can be inserted. The result of this
error is to inappropriately restrict legitimate recycling of recovered
oil. The corrected rule also in fact reflects the result EPA initially
intended, which was to condition the exclusion of recovered oil on that
oil being reinserted into the petroleum refining process at a point
where that process removes or will remove at least some contaminants.
In the proposed rules Section of today's Federal Register, EPA is
proposing this identical correction and soliciting public comment on
this correction. If adverse comments are received, EPA will withdraw
this direct final rule and address the comments in a subsequent final
rule. EPA will not provide additional opportunity for comment on the
correction.
DATES: This final action will become effective on May 28, 1996, unless
EPA is notified by April 9, 1996, that any person wishes to submit
adverse comment. If such notification is received and EPA withdraws
this final rule, then timely notice will be published in the Federal
Register.
ADDRESSES: Comments and materials supporting this rulemaking are
contained in Public Docket No. F-96-SW2F-FFFFF and are located in the
EPA RCRA docket, Crystal Gateway #1, 1st Floor, 1235 Jefferson Davis
Highway, Arlington, VA. The docket is open from 9:00 to 4:00, Monday
through Friday, except for Federal holidays. The public must make an
appointment to review docket materials by calling (703) 603-9230. The
public may copy a maximum of 100 pages from any one regulatory docket
at no cost. Additional copies cost Sec. .15 per page. Persons wishing
to notify EPA of their intent to submit adverse comments on this action
should contact Steven Silverman, Office of General Counsel (2366), 401
M Street, S.W., Washington, D.C. 20460.
FOR FURTHER INFORMATION CONTACT: Steven Silverman, (202) 260-7716,
Office of General Counsel at the above address.
SUPPLEMENTARY INFORMATION:
Outline of Today's Action
I. Authority
II. Background
III. Clarification of Issues Discussed in the Preamble
A. Status of Recovered Oil from Refineries with Synthetic
Organic Chemical Manufacturing Industry (SOCMI) Units
B. Status of Recovered Oil from Co-Located Petroleum Refineries
and Petrochemical Facilities
C. Recycling of Secondary Materials Between Industries
IV. State Authority
V. 60-Day Effective Date
VI. Regulatory Requirements
A. Executive Order No. 12866
B. Regulatory Flexibility Act
C. Paperwork Reduction Act
D. Unfunded Mandates Reform Act
I. Authority
These regulations are issued under the authority of Sections 2002
and 3001 et seq. of the Solid Waste Disposal Act, as amended by the
Resource Conservation and Recovery Act, as amended by the Hazardous and
Solid Waste Amendments of 1984, 42 U.S.C. 6912 and 6921 et seq.
II. Background
In this document, EPA is correcting a significant error in the text
of a regulatory exclusion relating to recycling of recovered oil--oil
that has been recovered from secondary materials such as wastewater
generated from normal petroleum exploration, refining, and transport
activities--back into the petroleum refining process. Although the
genesis of this error requires some detailed explanation (which appears
below), the ultimate resolution is straightforward: the Agency intended
to exclude from the definition of solid waste, and RCRA Subtitle C
authority, recovered oil that is inserted into a petroleum refining
process at a point at which the process removes or will remove at least
some contaminants. Today's document corrects the erroneous regulatory
text to restore this intended result.
The rule at issue is an exclusion for recovered oil found at 40 CFR
261.4(a)(12) (promulgated at 59 FR 38545 (July 28, 1994)). That rule
excludes recovered oil from the definition of solid waste, and RCRA
Subtitle C authority, provided the recovered oil is reinserted into a
petroleum refining process ``prior to crude distillation or catalytic
cracking.'' 40 CFR 261.4(a)(12). The purpose of the exclusion is to
exclude from RCRA regulation recovered oil which is used as a feedstock
in the petroleum refining process. 59 FR at 38538. Conditioning the
exclusion on insertion into the refining process at a point where the
process removes contaminants from the recovered oil also helps assure
the legitimacy and safety of the activity. 59 FR at 38542.
However, the rule's limitation on the point of reinsertion is, in
fact, erroneously restrictive. The correct formulation is that
reinsertion should be at, or before, any point in the petroleum
refining process where at least some
[[Page 13104]]
contaminants are removed (i.e. separated from the matrix). Crude
distillation and catalytic cracking are examples of such points but are
not the exclusive locations where the refining process removes
contaminants. See, e.g., 50 FR at 28725 (July 15, 1985).
The regulatory history of this rule, although tangled, indicates
that the Agency did not intend to impose the limiting condition
(insertion before crude distillation or catalytic cracking only) in
fact promulgated, but rather to condition the exclusion on insertion
into any part of the refining process that removes contaminants. Since
November 1985, EPA has exempted certain fuels resulting from refining
of materials derived from oil-containing petroleum industry hazardous
wastes. See 50 FR 49169, 49203 (Nov. 29, 1985) (codifying 40 CFR
261.6(a)(viii)(B)). The accompanying preamble explained that these
exemptions were based on the waste being inserted into a part of the
petroleum refining process ``designed to remove contaminants in the
normal operation of the refining process.'' 50 FR at 49169. The
preamble further explained that the source of the test was a comparable
statutory exemption from hazardous waste fuel labelling requirements
for fuels produced from oil-bearing refining wastes that are inserted
into the refining process at a point where ``contaminants are
removed.'' 50 FR at 49169, referring to RCRA sections 3004(r)(2)(B),
and (r)(3). As set out in the legislative history to those provisions,
the underlying principle is that ``(r)efineries often take oily wastes
and refining transportation wastes and reintroduce these wastes into
the refining process where the oil component is incorporated into a
product and contaminants are removed. Refineries should not
automatically have to place a warning label on these fuels.'' S. Rep.
No. 98-284, 98th Cong. 1st Sess. at 40.
The 1994 rule at issue here meant to retain this principle by
requiring that the recovered oil be inserted into the refining process
``at or before a point * * * designed to remove toxic metal and organic
contaminants * * *.'' 59 FR at 38542 (July 28, 1994). The preamble then
incorrectly stated that this means that insertion had to be ``prior to
crude distillation or catalytic cracking.'' Id. As noted above, this is
factually incorrect. The refining process removes contaminants at a
number of points after distillation and catalytic cracking, an example
being in fractionation units located downstream of catalytic crackers.
See letter from Ralph Colleli, Esq. to Ross Elliott, April 5, 1995;
letter from Ralph Colleli, Esq. to Mr. Michael Shapiro, June 20, 1995.
The 1994 regulatory text is consequently factually wrong, and
inappropriately reduces recycling opportunities for recovered oil
without corresponding environmental benefit. For these reasons, EPA is
correcting the text of the exclusion by revising the first sentence to
state that insertion of recovered oil must be into the refining process
``at or before a point where contaminants are removed.''
There is also one further caveat about the regulatory language. EPA
did not extend the scope of the exclusion to include situations where
recovered oil is inserted into a petroleum coker. 59 FR at 38542.
Instead, EPA deferred making a final decision on that issue until a
later rulemaking. 59 FR at 38536, 38541, 38542. In fact, EPA has
recently proposed that petroleum coking operations be expressly
encompassed within the scope of an expanded exclusion. 60 FR 57747,
57796 (Nov. 20, 1995). EPA will take final action on that proposal as
part of that separate rulemaking proceeding.
However, because a final decision on the status of petroleum cokers
is being made in that other rulemaking, and because petroleum cokers do
remove contaminants from incoming materials, at this time EPA is adding
to the amended regulatory text the qualification that insertion be into
or before a part of the process where contaminants are removed, but not
direct insertion to petroleum cokers. In addition, EPA wishes to
clarify that neither the July 28, 1994 rule nor this document is
intended to change the current regulatory status of petroleum cokers.
III. Clarification of Issues Discussed in the Preamble
In addition to the correction discussed above, EPA wishes to
clarify several issues discussed in the preamble to the July 28, 1994
recovered oil rule.
A. Status of Recovered Oil From Refineries With Synthetic Organic
Chemical Manufacturing Industry (SOCMI) Units
The recovered oil rule, as corrected by today's document, provides
an exclusion from RCRA regulation for oil that is recovered from
``normal'' petroleum refinery operations and inserted prior to points
in the petroleum refining process, other than direct insertion into a
coker, where contaminant removal occurs (Sec. 261.4(a)(12)). Under this
provision, oil recovered from a petroleum refinery's wastewater
treatment system is excluded from RCRA regulation if it is inserted
into designated refinery process points. Since promulgation of the
recovered oil rule, EPA has learned that a number of petroleum
refineries also operate petrochemical processing units on-site and that
wastewater from these units is discharged into the refinery's
wastewater treatment system. The wastewater from these units represents
2%-12% of the total refinery wastewater volumes and rarely contains
recoverable oil according to some petroleum industry sources. In
response to questions from the regulated community regarding whether
the recovered oil exclusion applies to oil recovered from petroleum
refineries with SOCMI units on-site, EPA provides the following
clarification.
While EPA did not specifically address this situation in the
recovered oil rule, the Agency intended that the exclusion apply to
refineries with on-site petrochemical processing units. EPA views these
SOCMI units as part of the normal petroleum refining operation.
Therefore, the presence of these units at a petroleum refining facility
does not preclude the refinery's eligibility for the recovered oil
exclusion.
B. Status of Recovered Oil From Co-Located Petroleum Refineries and
Petrochemical Facilities
The recovered oil rule also failed to specifically address how the
regulations apply in cases where co-located petroleum refineries and
petrochemical facilities share the same wastewater treatment system. In
these situations, the proximally located facilities are generally owned
and operated by the same parent company. However, the facilities may be
separately owned and operated in some instances. This situation
presents essentially the same issue as that posed by the previous case
involving on-site SOCMI units. The difference in this case is that the
petrochemical processes are located off-site of the petroleum refining
facility. In response to questions from the regulated community
regarding whether the recovered oil exclusion applies to oil recovered
from wastewater treatment systems that service both petrochemical and
petroleum refining operations, EPA provides the following
clarification.
The Agency's intent in crafting the recovered oil exclusion was to
limit its applicability to oil recovered from petroleum industry
sources for reasons explained in the preamble to the recovered oil
rule. 51 FR 38539. Accordingly, the exclusion specifically does not
apply to oil generated from non-petroleum industry operations. The
[[Page 13105]]
exclusion does, however, apply broadly to recovered oil generated from
both on- and off-site sources within the petroleum industry (e.g., the
exclusion applies to recovered oil from petroleum exploration and
production activities). It is EPA's position that, in cases where
petrochemical and petroleum refining operations are co-located and
share a common wastewater treatment system, the petrochemical
operations are appropriately considered part of normal petroleum
refining for purposes of the recovered oil exclusion. In these
situations, given the common wastewater treatment system and the
predominance of petroleum refining wastewater, the integration between
the two facilities is such that the petrochemical facility falls within
scope of the exclusion. The recovered oil exclusion therefore applies
to oil recovered from a wastewater treatment system that a refinery
shares with a co-located petrochemical facility. The exclusion does
not, however, apply to recovered oil from a petrochemical facility that
is sent to a petroleum refinery for recycling via any route other than
a shared wastewater treatment system (e.g., via truck, rail, etc).
However, in a separate document published in the Federal Register on
November 20, 1995 (60 FR 57747), EPA is proposing to expand the
exclusion to cover recovered oil that is sent from petrochemical
facilities to co-located or commonly owned refineries for recycling by
other means of transport.
C. Recycling of Secondary Materials Between Industries
With the above exceptions, the recovered oil exclusion does not
extend to recovered oil from non-petroleum industries. As explained in
the preamble to the July 28, 1994 rule, ``such an extension is beyond
the scope of the recovered oil rule. It is also beyond the scope of
judicial decisions construing the definition of solid waste'' which
indicated that, ``when one industry sends its residual materials to
another industry for recycling, the initial industry can be considered
to have discarded them.'' (emphasis added) 59 FR 38,539, July 28, 1994.
EPA wishes to clarify that this preamble discussion was not intended to
modify in any way the pre-existing state of law regarding EPA's
regulatory jurisdiction over recycling. More specifically, EPA wishes
to make clear that this discussion was not meant to imply that all
secondary materials that are sent off-site for recycling must be
considered to be discarded materials in all situations. Rather, the
intent of this discussion was merely to: (1) explain the court's and
EPA's position that recycling of secondary materials (on- or off-site)
may involve an element of discard and may therefore be subject to
regulation under RCRA subtitle C; and (2) make clear that the scope of
the recovered oil rule is limited to determining the Agency's
jurisdiction only over recycling that occurs within the petroleum
refining industry.
IV. State Authority
Under Section 3006 of RCRA, EPA may authorize qualified States to
administer and enforce the RCRA program within the State. Following
authorization, EPA retains enforcement authority under Sections 3008,
3013, and 7003 of RCRA, although authorized States have primary
enforcement responsibility. The standards and requirements for
authorization are found in 40 CFR Part 271.
Today's amendments are not imposed pursuant to the Hazardous and
Solid Waste Amendments of 1984 (HSWA). The rule changes, therefore,
will become effective immediately only in those States without interim
or final authorization, not in authorized States. The effect of the
rule changes on authorized State programs is discussed next.
Today's direct final rule eliminates a factual error, an error that
inappropriately restricts the location in the refining process at which
recovered oil can be inserted for the legitimate recycling of the
recovered oil. Therefore, today's rule restores the Agency's intended
result to exclude from the definition of solid waste, and RCRA Subtitle
C authority, recovered oil that is inserted into a petroleum refining
process at a point at which the process removes or will remove at least
some contaminants. The effect of today's direct final rule is therefore
considered to be less stringent than the existing federal standards.
Authorized States are only required to modify their programs when EPA
promulgates federal regulations that are more stringent or broader in
scope than the existing federal regulations. Therefore, States that are
authorized for the July 28, 1994 rule are not required to modify their
programs to adopt today's rule. However, EPA strongly urges States to
do so. EPA's authorization guidance to States will link the July 28,
1994 rule and today's final amendments.
Given the minor scope of today's amendment, those States that are
authorized for the July 28, 1994 rule may submit an abbreviated
authorization revision application to the Region for today's amendment.
This application should consist of a letter from the State to the
appropriate Regional office, certifying that it has adopted provisions
equivalent to and no less stringent than today's final rule (see the
December 19, 1994, memorandum from Michael Shapiro, Director of the
Office of Solid Waste, to the EPA Regional Division Directors that is
in the docket for today's rule). The State should also submit a copy of
its final rule or other authorizing authority. Revisions to the revised
Program Description, Memorandum of Agreement, and Attorney General's
statement are not necessary (see 40 CFR 271.21(b)(1)). EPA expects that
this simplified process will expedite the review of the authorization
submittal for this rule.
V. 60-Day Effective Date
Because the regulatory community does not need 6 months to come
into compliance with this rule, EPA finds, pursuant to RCRA section
3010(b)(1), that this rule can be made effective in less than six
months.
VI. Regulatory Requirements
A. Executive Order 12866
Under Executive Order 12866 (58 FR 51735, October 4, 1993), the
Agency must determine whether this regulatory action is ``significant''
and therefore subject to OMB review and the requirements of the
Executive Order. The Order defines ``significant'' regulatory action as
one that is likely to lead to a rule that may:
(1) have an annual effect on the economy of $100 million or more,
or adversely and materially affect a sector of the economy,
productivity, competition, jobs, the environment, public health or
safety, or State, local, or tribal governments or communities;
(2) create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) materially alter the budgetary impact of entitlement, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
It has been determined that this amendment to the final rule is not
a ``significant regulatory action'' under the terms of the Executive
Order and is therefore not subject to OMB review.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act, 5 U.S.C. 601-602, requires that
Federal agencies examine the impacts of their regulations on ``small
entities''. If a
[[Page 13106]]
rulemaking will have a significant impact on a substantial number of
small entities, agencies must consider regulatory alternatives that
minimize economic impact.
EPA believes that this amendment will have negligible impact on any
small entity because it expands the terms of an exclusion from
regulation. In addition, the underlying rule itself was deregulatory
and so did not have significant adverse economic impact on small
entities. See 59 FR 38545. Therefore, the Administrator certifies
pursuant to 5 U.S.C. 601 et seq., that this rule will not have a
significant impact on a substantial number of small entities because
this amendment reduces the scope of the RCRA subtitle C regulatory
program.
C. Paperwork Reduction Act
Under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., EPA must
consider the paperwork burden imposed by any information collection
request in a proposed or final rule. This rule will not impose any new
information collection requirements.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), P.L.
104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. When a written statement is needed for an EPA rule, section
205 of the UMRA generally requires EPA to identify and consider a
reasonable number of regulatory alternatives and adopt the least
costly, most cost-effective or least burdensome alternative that
achieves the objectives of the rule. The provisions of section 205 do
not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including tribal governments, it must have developed under
section 203 of the UMRA a small government agency plan. The plan must
provide for notifying potentially affected small governments, giving
them meaningful and timely input in the development of EPA regulatory
proposals with significant Federal intergovernmental mandates, and
informing, educating, and advising them on compliance with the
regulatory requirements.
Today's rule contains no Federal mandates (under the regulatory
provisions of Title II of the UMRA) for State, local, or tribal
governments or the private sector because it imposes no enforceable
duties on any of these governmental entities or the private sector. The
rule merely corrects a factual error in the regulatory text of the
regulatory definition of solid waste. In any event, EPA has determined
that this rule does not include a Federal mandate that may result in
estimated costs of $100 million or more to either State, local, or
tribal governments in the aggregate, or to the private sector in any
one year. Thus, today's rule is not subject to the requirements of
sections 202 and 205 of the UMRA. Similarly, EPA has determined that
this rule contains no regulatory requirements that might significantly
or uniquely affect small governments.
List of Subjects in 40 CFR Part 261
Environmental protection, Hazardous waste, Solid waste, Petroleum,
Recycling.
Dated: March 19, 1996.
Carol M. Browner,
Administrator.
For the reasons set out in the preamble, chapter I of title 40 of
the Code of Federal Regulations is amended as follows:
PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE
1. The authority citation for part 261 continues to read as
follows:
Authority: 42 U.S.C. 6905, 6912 (a), 6921, 6922 and 6938.
2. Section 261.4 is amended by revising paragraph (a)(12) to read
as follows:
Sec. 261.4 Exclusions.
(a) * * *
(12) Recovered oil from petroleum refining, exploration and
production, and from transportation incident thereto, which is to be
inserted into the petroleum refining process (SIC Code 2911) at or
before a point (other than direct insertion into a coker) where
contaminants are removed. This exclusion applies to recovered oil
stored or transported prior to insertion, except that the oil must not
be stored in a manner involving placement on the land, and must not be
accumulated speculatively, before being so recycled. Recovered oil is
oil that has been reclaimed from secondary materials (such as
wastewater) generated from normal petroleum refining, exploration and
production, and transportation practices. Recovered oil includes oil
that is recovered from refinery wastewater collection and treatment
systems, oil recovered from oil and gas drilling operations, and oil
recovered from wastes removed from crude oil storage tanks. Recovered
oil does not include (among other things) oil-bearing hazardous waste
listed in 40 CFR part 261 D (e.g., K048-K052, F037, F038). However, oil
recovered from such wastes may be considered recovered oil. Recovered
oil also does not include used oil as defined in 40 CFR 279.1.
* * * * *
[FR Doc. 96-7275 Filed 3-25-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-7226 Qualification of Drivers; Vision and Diabetes; Limited Exemptions
[Federal Register Volume 61, Number 59 (Tuesday, March 26, 1996)]
[Rules and Regulations]
[Pages 13338-13347]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-7226]
[[Page 13337]]
_______________________________________________________________________
Part XI
Department of Transportation
_______________________________________________________________________
Federal Highway Administration
_______________________________________________________________________
49 CFR Part 391
Qualifications of Drivers; Vision and Diabetes; Limited Exemptions;
Final Rule
Federal Register / Vol. 61, No. 59 / Tuesday, March 26, 1996 / Rules
and Regulations
[[Page 13338]]
DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
49 CFR Part 391
[FHWA Docket No. MC-96-2]
RIN 2125-AD73
Qualification of Drivers; Vision and Diabetes; Limited Exemptions
AGENCY: Federal Highway Administration (FHWA), DOT.
ACTION: Final rule.
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SUMMARY: The FHWA announces a final determination and final rule to
allow those drivers currently holding valid waivers from both the
vision and diabetes standards contained in the Federal Motor Carrier
Safety Regulations (FMCSRs) to continue to operate in interstate
commerce after March 31, 1996. This action is directed solely at those
drivers who have been granted temporary waivers to participate in
either the Federal vision waiver study or the Federal diabetes waiver
study, who numbered 2210 and 116, respectively, as of March 1, 1996.
The FHWA believes that allowing this special group of drivers to
continue to drive after March 31, 1996, is consistent with the public
interest and safe operation of commercial motor vehicles (CMV). This
action is necessary because the waiver program will be terminated on
March 31, 1996, and without this action, the drivers will no longer be
qualified to operate in interstate commerce after that date. With this
final rule, the FHWA allows these drivers to continue operations,
subject to certain operating conditions. This action also includes a
technical amendment to relocate an existing provision so that all
limited exemptions from driver qualification standards can be found in
the same subpart.
EFFECTIVE DATE: This final rule and technical amendment are effective
March 31, 1996.
FOR FURTHER INFORMATION CONTACT: The FHWA has established a telephone
number to receive inquiries regarding this action. Contact Ann Dulaney
at (703) 448-3094. Office hours are from 7:45 a.m. to 4:15 p.m., e.t.,
Monday through Friday, except Federal holidays.
SUPPLEMENTARY INFORMATION: Section 206(f) of the Motor Carrier Safety
Act of 1984 (MCSA), Pub. L. No. 98-554, 98 Stat. 2835 (codified at 49
U.S.C. 31136(e)) allows the Secretary of Transportation to issue
waivers from the Federal Motor Carrier Safety Regulations only after a
determination that such waivers are consistent with the public interest
and the safe operation of CMVs. The safety performance data collected
under the vision and diabetes waiver programs were used as the basis
for this determination. Historically, the FHWA has issued limited
waivers and does not intend to enter into any large scale program of
exemptions. A separate research effort would form the basis for any
future adjustments, if warranted, to the current vision and diabetes
standards.
Vision Waiver Program Background
The FHWA announced its vision waiver study in a notice of final
disposition on July 16, 1992 (57 FR 31458). The intent of the program
was to obtain valuable information on the relationship between visual
capacity 1 and the ability to operate a CMV safely. This vision
waiver study program was initiated as part of an overall regulatory
review of the medical qualification standards applicable to interstate
CMV drivers. For a complete description of the waiver program, see the
FHWA's October 6, 1994, notice of determination; request for comments,
at 59 FR 50887.
\1\ The current Federal vision standard for CMV drivers
requires: distant visual acuity of at least 20/40 (Snellen) in each
eye without corrective lenses or visual acuity separately corrected
to 20/40 (Snellen) or better with corrective lenses, distant
binocular acuity of at least 20/40 (Snellen) in both eyes with or
without corrective lenses, field of vision of at least 70 degrees in
the horizontal meridian in each eye, and the ability to recognize
the colors of traffic signals and devices showing standard red,
green, and amber. 49 CFR 391.41(b)(10).
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A. Court Decision
On August 2, 1994, the U.S. Court of Appeals for the D.C. Circuit
found that the agency's determination that the waiver program will not
adversely affect the safe operation of CMVs lacked empirical support in
the record and accordingly, the court found that the FHWA failed to
meet the exacting requirements of section 2505(f) (now 49 U.S.C.
31136(e)). Advocates for Highway and Auto Safety v. FHWA, 28 F.3d 1288,
1294. Consequently, the Court concluded that the FHWA's adoption of the
waiver program was contrary to law, and vacated and remanded the rule
to the agency.
B. Proceedings After the Court Decision
On November 17, 1994, the FHWA published a notice of final
determination in the Federal Register (59 FR 59386) extending the
validity of the vision waivers through March 31, 1996. The FHWA's
decision was based, in part, on data collected on the group of waived
drivers indicating that they had performed and continued to perform
more safely than drivers in the general population of commercial
drivers. The notice announced plans to develop and impose more
stringent performance conditions to further reduce safety risks to the
waived drivers and highway users. For more complete information on the
FHWA's actions after the court decision, see 59 FR 50887 (October 6,
1994) and 61 FR 606 (January 8,1996).
Diabetes Waiver Program Background
On July 29, 1993, the FHWA published in the Federal Register a
notice of final disposition allowing certain insulin-using diabetic
drivers to operate CMVs in interstate commerce for a 3-year period. The
purpose of the waiver study program was to collect data on the driving
experience of a group of insulin-using drivers and use that information
to support amending, if warranted, the current diabetes
requirement.2 Approximately 140 drivers were accepted into the
diabetes waiver program. For a complete description of the diabetes
waiver program, see 57 FR 48011 (October 11, 1992) and 58 FR 40690
(July 29, 1993).
\2\ The Federal diabetes standard for CMV drivers requires no
established medical history or clinical diagnosis of diabetes
mellitus currently requiring insulin for control. 49 CFR
391.41(b)(3).
---------------------------------------------------------------------------
The August 2, 1994, court decision in Advocates called into
question the FHWA's ability to issue waivers to insulin-treated
diabetic drivers because of the similar approach used to pre-qualify
drivers for participation in the diabetes waiver program.
Accordingly, the FHWA notified the diabetes waiver drivers, in
separate mailings on March 28, 1995, of the court's decision and
changes to the Vision and Diabetes Waiver Programs that allowed both
programs to continue until March 31, 1996. The FHWA established
stricter performance conditions for all participants, and enhanced the
FHWA's monitoring of the performance of the waived drivers in order to
ensure compliance with the statutory test as construed by the court.
Comments
The FHWA has received over 960 separate comments to the docket in
response to the January 8, 1996, notice of proposed rulemaking (NPRM).
The majority of comments were from drivers in the waiver programs,
their families, and employers, all of whom favored the FHWA's proposal
to allow waived drivers in the vision and diabetes waiver programs to
continue driving in interstate commerce after March 31,
[[Page 13339]]
1996. Their comments addressed their safe driving records and the
significant economic and emotional hardships that would likely befall
them without the relief proposed in the NPRM. Other commenters in favor
of the proposal include the National Private Truck Council (NPTC), the
Owner- Operator Independent Drivers Association (OOIDA), the American
Association of Motor Vehicle Administrators (AAMVA), the State of Utah
Department of Public Safety, the U.S. Equal Employment Opportunity
Commission (EEOC), the Disabilities Law Project, the American
Optometric Association (AOA), Eglis K. Bogdanovics, M.D., the
International Brotherhood of Teamsters, Teamsters, Chauffeurs,
Warehousemen and Helpers (Local Union No. 110), Teamsters ``General''
(Local Union No. 200), the International Union of Operating Engineers
(IUOE) and the Institute for Public Representation of the Georgetown
University Law Center.
While the majority of the commenters supported the NPRM as
proposed, some supported it with slight modifications. Some of the
waived drivers believed that the required medical monitoring,
especially the requirement for an annual physical examination pursuant
to Sec. 391.43, instead of every 2 years as is required of other
drivers, was burdensome, expensive and unnecessary. One supporter
believed that the proposed level of medical monitoring was insufficient
and made recommendations for additional monitoring. Other supporters of
the NPRM contended that the FHWA's proposal did not go far enough and
urged the FHWA to extend its proposed grandfathering rights to other
similarly qualified drivers who were not currently participating in the
waiver programs and/or to amend its physical qualification standards to
allow individual determination of the ability to drive, rather than
blanket exclusions.
Phillips Petroleum Company supported the proposal for drivers
currently holding vision waivers, but opposed it for those drivers
holding diabetes waivers, stating that the insulin-using diabetic
drivers pose a higher medical risk with potentially disastrous
consequences. The American Trucking Associations (ATA) supported a
``case-by case review that considered the merits of individual waived
drivers,'' but opposed the broad issuance of waivers stating that the
``analysis doesn't justify grandfathering all waived drivers.''
Four commenters, the Advocates for Highway and Auto Safety (AHAS),
the Insurance Institute for Highway Safety (IIHS), Philip A. Shelton,
M.D., and Mr. Bernard Gustavsen, one of the waived drivers, opposed the
NPRM. The comments of the AHAS and IIHS addressed the reliability and
accuracy of the FHWA's risk assessment, use of the General Estimate
System 3 (GES) as a comparison group, existing scientific evidence
of the increased crash risk of drivers with diabetes and vision-
impairments and other factors which, they contend, support their
position that the FHWA should not grant grandfather rights to the
drivers holding a valid Federal vision or diabetes waiver on March 31,
1996. Dr. Shelton, chairman of the Medical Advisory Board of the
Department of Motor Vehicles of the State of Connecticut, believed that
the FHWA's NPRM, as proposed, was without merit and created a
privileged class of drivers. Mr. Gustavsen stated that he opposed the
waiver program and believed that all rules and regulations prior to the
waiver should remain enforced and be carried out to the fullest degree;
however, it is not clear whether Mr. Gustavsen understands that,
without his waiver of the current vision standard or grandfather rights
after March 31, 1996, he would not qualify to operate a CMV in
interstate commerce.
\3\ The GES is a national survey conducted by the National
Highway Traffic Safety Administration and was selected for use as
the best measure of the prevailing national norm relative to large
truck accidents.
---------------------------------------------------------------------------
These comments are more fully discussed below.
Discussion of the Comments
A. In Favor
The Disabilities Law Project, a non-profit law firm representing
individuals with disabilities including several waived drivers,
believed that unsafe drivers have been effectively screened out of the
waiver program and that the good driving performance of these remaining
drivers as well as the proposed medical monitoring requirements will
ensure the continued safe driving of this group of drivers.
Furthermore, this firm believes that the FHWA's proposed actions are
``consistent with national policy as expressed in the Rehabilitation
Act of 1973 and the Americans with Disabilities Act to facilitate the
employment of qualified individuals with disabilities.''
The NPTC, a national association representing more than 1100
companies that utilize proprietary trucks in their business activities,
believed the FHWA's proposal will be an important step in the FHWA's
overall efforts to establish performance-based standards. It cited the
drivers safe driving performance and emphasized the need to continue
the medical monitoring. The NPTC believed ``the conditions FHWA has put
into place will effectively screen out any unsafe drivers and safeguard
the operation of CMVs.''
Egils K. Bogdanovics, M.D., a practicing endocrinologist and board
member of the American Diabetes Association (Connecticut Affiliate)
commented as a member of the Medical Advisory Board of the Department
of Motor Vehicles of the State of Connecticut in support of the NPRM.
Dr. Bogdanovics stated that he was not surprised by the safe
performance of the diabetes drivers, and cited the waiver program data
to support his belief that motivated insulin-treated diabetics can
``scrupulously avoid hypoglycemia'' and operate CMVs safely.
The AOA strongly supported the FHWA's proposal to allow the drivers
in the vision waiver program to continue operating CMVs in interstate
commerce after March 31,1996; however, they were silent on whether
waived drivers in the diabetes program should be allowed to continue
driving. The AOA believed that an examination by an ophthalmologist or
optometrist as part of the medical requirements for operating under the
proposed grandfather provision was appropriate.
The AAMVA commented in support of the NPRM, but expressed some
reservations concerning the drivers in the diabetes waiver program.
Specifically, AAMVA was concerned about the potential effects of
hypoglycemia on CMV drivers. The American Diabetes Association, in
earlier comments to FHWA docket MC-87-17, noted that mild hypoglycemia
resulting in minor cognitive effects is not an immediately threatening
emergency, although it should be addressed immediately by ingesting
glucose. The FHWA believes that such ingestion can occur quickly and
without stopping the vehicle. Therefore, it is requiring that the
diabetic drivers carry a source of rapidly absorbable glucose while
driving. Individuals with severe hypoglycemic reactions or hypoglycemic
unawareness were excluded from participating in the program. The FHWA
believes that today's medical technology for screening individuals for
severe hypoglycemia and the proposed medical monitoring requirements,
including an annual examination by a endocrinologist, ensure that such
individuals will be detected and removed from the pool of diabetic
drivers operating under Sec. 391.64.
The OOIDA, a national trade association representing the interests
of
[[Page 13340]]
a large number of independent owner-operators and professional drivers
at both the Federal and State level, urged the FHWA to allow the waived
drivers to continue to operate in interstate commerce, stating that the
drivers ``have earned the privilege .... as evidenced by their safety
record.'' The OOIDA also believed that the medical monitoring
requirements were sound and that the affected drivers would not object
to these requirements in order to continue driving after March 31,1996.
The IBT, IUOE, and the EEOC, like OOIDA, supported the FHWA's
proposal to allow the waived drivers to operate in interstate commerce
after March 31, 1996, but they also urged the FHWA to move beyond this
proposed action and change the physical qualification requirements to
allow individual assessments of a driver's ability to safely operate a
CMV in interstate commerce. They cited the good driving performance of
the waived drivers and, therefore, concluded that the drivers were not
a high risk group.
Comments in the form of a legal brief were filed on behalf of two
self-employed interstate truck drivers by the Institute for Public
Representation of the Georgetown University Law Center. Both of the
drivers are petitioners in the United States Court of Appeals for the
8th Circuit, appealing the FHWA's decision to deny them waivers from
the vision standard. The comments were strongly supportive of the
proposed action, but strongly critical of the FHWA's failure to extend
the exemption to all other drivers ``identically situated.'' The brief
contends that the FHWA has de facto amended the standard, and that the
two drivers are now qualified under the amended standard.
The FHWA disagrees that these drivers are ``identically situated.''
Since neither has participated in the waiver program, neither has been
subject to the same performance standards, reporting requirements and
monitoring. The FHWA also disagrees that the standard has been changed,
but the agency is continuing its efforts to conduct the research
necessary to enable it to make the changes that are indicated when that
work is completed. The remaining arguments made in the comments are
best left for resolution by the court in the pending litigation.
The FHWA agrees that this group of drivers is not a high risk group
and will use their performance data to support allowing them to
continue driving after March 31, 1996. However, it does not plan to use
this data for any future adjustments to the vision and diabetes
standards; nor does the FHWA plan to reopen the waiver programs in
light of the Court decision in Advocates for Highway and Auto Safety v.
Federal Highway Administration, (28 F. 3d 1288, D.C. Circuit 1994). The
FHWA recognizes that there were weaknesses in the waiver study design
and believes that the waiver study has not produced, by itself,
sufficient evidence upon which to develop new vision and diabetes
standards. The waived group of drivers has perform as well as or better
than a similar group drawn from the general population of CMV drivers
because of the waiver program preselection criteria and conditions. The
FHWA's goal is to adopt driver physical qualification standards that
are more performance-oriented; that is, more reflective of the actual
physical requirements that foster safe operation of commercial
vehicles. Therefore, the FHWA has undertaken comprehensive research to
develop parameters for a more performance-based vision standard for all
commercial drivers and has initiated plans to conduct a retrospective
study to examine the risk associated with permitting insulin-using
diabetic individuals to operate commercial motor vehicles (CMVs).
Many waived drivers who supported the proposal stated that the
requirement for an annual physical qualification examination and
certification, instead of every two years as required for other
drivers, will be burdensome to drivers both financially and in terms of
time off from work to get the examination. Other waived drivers
believed that any further monitoring of their physical condition beyond
the current requirements for drivers operating in interstate commerce
is unwarranted for the above stated reasons and because their good
driving performance proves that they are not a high risk group.
The FHWA has determined that the requirements for an annual
physical qualification examination pursuant to Sec. 391.43 and annual
medical examinations by ophthalmologist or optometrist and
endocrinologists are not overly burdensome in light of the facts that
this group of drivers has physical conditions that would otherwise
disqualify them from interstate operations pursuant to
Sec. 391.41(b)(10) and Sec. 391.41(b)(3) of the FMCSRs and that an
individual's medical or physical condition may deteriorate over time.
In fact, some drivers' waivers were canceled because the disqualifying
condition for which they were waived had worsened or they had developed
other medical problems or conditions that caused them to be otherwise
unqualified pursuant to Sec. 391.41. Therefore, the FHWA will require
the annual physical qualification examination and certification in
addition to an annual eye examination for the vision impaired drivers
and an annual examination by an endocrinologist for diabetic drivers as
an extra precaution to ensure the continued safe operation of these
drivers.
The ATA, a national trade association representing the trucking
industry, commented in opposition to the broad issuance of waivers, but
stated it would support a case-by-case evaluation that considered the
merits of individual waived drivers. Notwithstanding the safe
performance of the drivers in the waiver program, the FHWA's decision
to allow this group of vision and diabetes waived drivers to operate
CMVs in interstate commerce has been and continues to be based on the
individual assessment of each driver's compliance with the waiver
program conditions, including driving performance and medical
requirements. Initially, to determine eligibility for participation in
the waiver programs, individual determinations were made on the basis
of complete data submitted. Each driver's application was individually
examined, any missing information was required to be furnished, and
each driver was measured against the waiver standards to assure that
all the conditions were met. Recognizing that this group of waived
drivers could potentially include some subpar drivers who individually
would present an unacceptable risk, the FHWA took steps to identify and
remove such drivers. The FHWA's monitoring systems, which have been in
effect since the inception of the programs, were later enhanced to more
promptly identify subpar performers among the waived group to ensure
that safety was maintained. The FHWA's periodic verification of the
waived drivers' reported accidents and citations through each driver's
State motor vehicle record (MVR) was increased to monthly monitoring.
Additionally, medical reports from the waived drivers have been
reviewed and verified. Therefore, the FHWA has determined that the 2326
drivers in the vision and diabetes waiver programs have individually
merited partial exemption from Secs. 391.41(b)(10) or 391.41(b)(3).
The ATA commented that the NPRM provided ``too little control''
over the drivers in the waiver programs. It suggested that the FHWA
should augment its proposed monitoring program by requiring (1) Copies
of the annual physical qualification examination and certification
pursuant
[[Page 13341]]
to Sec. 391.43 and the medical examinations by the appropriate medical
specialists be sent directly to the FHWA to be included in a database
of waived drivers, (2) that information concerning the driver's
activities at the time of an insulin reaction (hypoglycemia) be
reported, (3) FHWA notification to each driver 45 days in advance of
the expiration of the current physical qualification certificate, and
(4) the medical examiner to provide copies of the required
certifications to the employer and driver. Although the ATA considered
the monitoring conditions for operating under the proposed grandfather
provisions to be the foundation for an appropriate monitoring program,
the FHWA believes its proposed monitoring program, regarding medical
requirements and performance, is an extra precaution that enlarges the
current system of safeguards in place for all CMV drivers in the
general population. All of the drivers who will be operating under this
grandfather provision will be subject to State or Federal enforcement
or licensing sanctions and, in most cases, to the penalty provisions of
the commercial drivers' license regulations (49 CFR Part 383).
Furthermore, the FMCSRs currently require the medical examiner to
provide a copy of the medical certificate to the motor carrier. In
addition, the FMCSRs do not preclude employing motor carriers, the
first level enforcers under the regulatory scheme for the FMCSRs, from
imposing additional requirements to ensure that their drivers meet the
requirements under Sec. 391.41. Many motor carriers obtain copies of
the completed medical examination form to keep on file while others
will require certification by a medical examiner of their choice even
though the driver has a current medical examiner's certificate. Some
employers require both. The provisions in Sec. 391.64 will not preclude
motor carriers or other employers from obtaining additional information
on employees who will be operating under this grandfather provision.
Furthermore, the FHWA believes that the entire medical
determination process can best be delivered through a State-
administered program linked to the issuance and renewal of CDLs. After
the recent completion of six pilot demonstration programs to verify
these States' ability to integrate the medical determination process
with the CDL process, the FHWA recommended that this medical transfer
to the States be handled through a negotiated rulemaking process to
begin sometime in the summer 1996. The FHWA believes that merging the
medical determination process with the CDL process will provide further
scrutiny of the performance of all commercial drivers. Therefore, the
FHWA has determined that the monitoring conditions, as outlined in the
NPRM, are more than adequate to ensure the continued safe operation of
these drivers when viewed in the framework of the safeguards in place
for monitoring all commercial drivers. The proposed monitoring
conditions will provide safeguards for employers while not imposing an
undue burden on the grandfathered drivers.
The ATA expressed concern over potential changes to the medical
certificate as a result of this action and in light of additional
changes that may be forthcoming as a result of the FHWA's plans for
revising the medical examination form. Although the FHWA finds it
necessary to change the medical certificate to verify that a driver is
qualified to operate a CMV by operation under Sec. 391.64, the FHWA is
sensitive to ATA's concerns regarding an adequate lead time for
informational changes to forms and to the ATA's economic concerns as a
result of having to discard large inventories of current forms.
Therefore, the FHWA will allow the current medical certificate form to
be used until existing stocks are exhausted or until one year from the
effective date of the change, whichever comes first, provided that
medical examiners using existing forms make appropriate handwritten
notations of the required information on such forms.
The ATA's comments included a recommendation for a final report on
the FHWA's waiver programs. The FHWA will prepare a final report of its
efforts in this area and will give consideration to the ATA's
suggestions for information to be addressed in the report. The report
will be placed in the docket.
The ATA raised several issues concerning the risk assessment used
by the FHWA to justify granting grandfather rights to the waived
drivers after March 31, 1996. We believe that the ATA comments contain
a misunderstanding of the data presented in the Risk Assessment Report.
It stated that ``in assessing the accident rate of drivers in the
vision waiver program, it is reported that their rate was below that of
the general commercial vehicle driver population except for the period
January to June 1994.'' The ATA is erroneously combining statements
from two different tables. The NPRM did state that the accident rates
of these drivers were below that of the general commercial vehicle
driver population rate. That statement applied to Tables 1 and 2 in the
Risk Assessment Report which reported the rates for cumulative periods
of time from the beginning of the program. The accident rate given for
January to June 1994 (Table 4) was presented in the context of data to
be used for a trend analysis of independent time periods and no
comparison was made for that data relative to the general driver
population. The statement of the higher rate for that period was made
in the context that it represented a departure from the accident trend
across time. Even with this departure, the overall accident trend was
not increasing and, in fact, showed a decreasing trend.
The ATA also stated that there was a failure to analyze the
accident experience of the drivers in the two groups, vision and
diabetes, in the same manner. It is true that the accident rates of the
two groups were viewed in a different manner relative to the national
rate, but this was done because the numbers of drivers in the two
groups were so disparate (over 2,000 in the vision group versus
slightly more than 100 in the diabetes group) that the same method of
analysis could not appropriately be used for both. In the vision group,
confidence intervals were used to relate that group's accident rate to
the national rate. This was done because the number of drivers was of
sufficient size that the error of estimate for the accident rate would
not be so large as to allow the rate to get too much above the national
rate before safety concerns were alerted. Conversely, the small numbers
in the diabetes group provide an error of estimate for their accident
rate which is larger and, as a result, it was determined that the
actual rate without confidence intervals would be compared to the
national rate. When the diabetes group's rate became larger than the
national rate, a more detailed scrutiny of the drivers was made. If the
lower level of the confidence interval for the vision group's rate had
become larger than the national rate, a similar type of scrutiny would
have been done for that group. An overall approach of this type is
accepted practice to protect patients in clinical trials that
investigate the therapeutic use of pharmaceutical products.
The ATA and the AAMVA commented on the proposed requirement that
the endocrinologist certify that the driver is free of insulin
reactions (less than one documented, symptomatic hypoglycemic reaction
per month). The AAMVA misinterpreted this requirement concerning
hypoglycemia to mean that one hypoglycemic reaction per month
[[Page 13342]]
would be allowed, including severe hypoglycemic reactions. This was not
the FHWA's intent. The FHWA continues to believe that individuals with
severe hypoglycemia and hypoglycemia unawareness should be excluded
from operating CMVs. At the same time, the FHWA believes that mild
hypoglycemia is not an immediately threatening emergency, although it
must be addressed within a few minutes by ingesting glucose. The
reference, ``less than one documented, symptomatic hypoglycemic
reaction per month,'' was intended to provide guidelines to the
endocrinologist and medical examiner for evaluating the status of the
driver's diabetic condition for the preceding 12 months. This reference
was included because the FHWA was anticipating the question, `` What is
meant by free of insulin reactions?'' To clarify this issue, the FHWA
believes that an individual is free of insulin reactions if he or she
does not have severe hypoglycemia (i.e., episodes of altered
consciousness requiring the assistance of another person to regain
control) or hypoglycemia unawareness (i.e., the inability to recognize
the early symptoms of hypoglycemia), and has less than one documented,
symptomatic hypoglycemic reaction per month. Any one episode or a
series of documented, symptomatic hypoglycemia reactions should be
evaluated in terms of the individual's overall diabetic condition, and
whether the individual, as a result of such reactions, is likely to
experience any diminution in driving ability. The FHWA believes that
the more frequent medical evaluation and self-monitoring requirements
for operating under Sec. 391.64 will ensure that the drivers operating
under this grandfather provision who develop severe hypoglycemia or
hypoglycemia unawareness will be identified and promptly removed from
the pool of drivers.
B. In Opposition
The AHAS voiced strong opposition to the FHWA proposal to grant
grandfather rights to the drivers in the vision and diabetes waiver
program after March 21, 1996. In addition to rearguing the position it
took in the court proceedings, the AHAS criticized the proposal to
grandfather these drivers asserting that the FHWA relied on a
monitoring program that it characterized as lacking precision and
containing inaccuracies and inconsistencies. The AHAS stated that the
comparison of Table 1 and Table 2 in the FHWA Risk Assessment (October
12, 1995) shows a number of incongruities and that it is difficult to
perform cross-table comparisons.
These two tables in the Assessment were not intended to be
compared. As is stated in the text of the assessment (page 2), Table 1
is a compilation of data presented in the various monitoring reports
developed throughout the course of the program. The rates presented in
that table represent all drivers who were in the program at the time of
the particular monitoring report. Table 2, on the other hand, is a re-
examination of the accident data for only those drivers who are still
in the program as of October 1995 (as was stated in the text). Given
that this is a re-examination of those drivers in October 1995, it is
possible to retrospectively restructure the dates of accident rate
presentation with information available at that later date. Since the
tables were not intended for comparison, given that they are based on
different sets of drivers at different time periods with different
retrospective perspectives, the appearance of apparent incongruities is
not surprising. This misapplication is, unfortunately, exacerbated by
some typographical errors. In Table 1, the National Accident Rate for
the June 1994 comparison should be 2.400 instead of 2.422. In addition,
in Table 2, the year of the national accident rate for the June 1994
comparison should be 1992 rather than 1993.
Other apparent inconsistencies identified by AHAS are explained on
the basis of how data are reported to GES and to the waiver program.
For example, the AHAS stated that the national accident rate used for
June 1993 (the 1991 rate of 2.13) is different from that used just two
months later for August 1993 (the 1992 rate of 2.40). The use of
different rates is related to the availability of data from GES. The
results of the GES data acquisition process for any year usually become
available in late summer or early fall for the subsequent year. The
1992 GES data were not available in June 1993 but became available by
August 1993.
The AHAS also pointed out that, for June 1994, the smaller number
of drivers in Table 2 had a larger number of accidents (293) than the
number of drivers in Table 1 for that date (292). This is explained by
the nature of delays in reporting. The accidents reported in June 1994
in Table 1 are for the complete reporting period prior to that date.
The data reported in Table 2 is taken from complete data reported as of
October 1995.
The AHAS has also observed that the drivers remaining in the
program (Table 2) have persistently higher accident rates than those
shown when the program had fuller participation. The fuller program
data presented in the past contains drivers whose waivers were
subsequently revoked for a variety of reasons, only one of which was
prompted by the driver having an accident with a citation. Having an
accident with a citation is a relatively rare event, and the
preponderance of revocations occurs for reporting problems, such as
failure to report medical evaluations, mileage, violations, and other
required data. When these individuals are removed from the program,
their vehicle miles traveled (VMT) are also removed from reports but,
unless they also had accidents, there is no reduction in the overall
number of accidents reported. Therefore, the accident rates per million
VMT will naturally increase. Even with this increase, however, the
accident rates of those remaining in the vision waiver group are still
considerably lower than the national rate.
The AHAS has made several statements alluding to the inadequacy of
the study design in the diabetes waiver program. The AHAS claimed that
the inadequacies of the design undermine the ability of the FHWA to
draw inferences from the results. The AHAS' understanding of the
activities surrounding the diabetes waiver is inaccurate. The FHWA is
not presently conducting a study to generalize the feasibility of
issuing waivers to diabetic drivers. No inferences about a waiver
program will be drawn from these results. No research study has been in
place since the U.S. Court of Appeals' decision, cited above, regarding
the waiver programs. Since that time, the program has focused on the
monitoring of the drivers. This means that the procedures of
inferential research do not apply in this circumstance. In its place,
monitoring is conducted on multiple levels: in group monitoring to
compare the waived drivers' accident rates to the national accident
rate as a warning device, and thereafter, on a case-by-case basis if
the group monitoring indicates this is necessary.
Since the FHWA changed the focus of the waiver program, the AHAS's
comments concerning the study design have been resolved. For example,
given that no inference is drawn, the size of the sample is irrelevant.
Also, when the FHWA detects that the group accident rate in a
monitoring report exceeds the national rate, it is not contrary to
study methodology to use a case-by-case review, because the monitoring
effort is not a study. Moving to a case review is a prudent step in the
monitoring process. It is the same process as that
[[Page 13343]]
used in clinical trials to protect patient safety.
The AHAS stated that the conduct of case reviews is not a valid
means of conducting statistical analysis. In the context explained
above, this claim is clearly not relevant since the focus of the data
presentation in the diabetes monitoring report was comparative and not
a statistical analysis with such facets as confidence intervals.
The AHAS also stated that case-by-case evaluations are entirely
subjective since they are not based on such methods as accident
reconstruction. The contrast offered here is hardly valid because
accident reconstruction also has subjective components and is therefore
not entirely objective. In like manner, the case level analysis
conducted by the FHWA is not entirely subjective. The analysis at that
level seeks to determine if the reporting police officer has issued a
citation indicating that the driver may be at fault. The analysis also
examines the accident report to detect if there is any evidence of
driving behavior that could potentially indicate a hypoglycemic event,
such as crossing the median, swerving, or driving off the road. In the
cases where medical attention is given to the waivered driver, reports
on glucose levels are obtained. Therefore, both methods involved some
analytical decision making based on evidence.
The AHAS stated that the FHWA does not review GES data to eliminate
accidents in which the truck driver was at fault. It is true that the
FHWA did not do this, however, the FHWA did not compare the at-fault
accident rate of the diabetic group to the GES data. A comparison was
made for accidents when one vehicle was towed from the scene. This rate
for the diabetes group was 0.783. It was pointed out by the Insurance
Institute for Highway Safety that the rate should be compared with the
national rate for tow away accidents, which was estimated by the
University of Michigan's Transportation Research Institute (UMTRI) to
be 0.911. In this case, the diabetes group's rate is lower than the
national rate (0.783 vs 0.911).
The AHAS stated that there is a problem in the reporting process
which involves a lag-time in revealing accidents in the diabetes waiver
program. The FHWA recognizes that there is a lag in reporting accidents
in the monitoring report, but notes that there is no lag in examining
accidents as they are reported to the FHWA. The lag in reporting in the
monitoring report is due to the delay in the reporting of vehicle miles
traveled. Since the initial focus of the monitoring report is to
compare the group accident rate to the national rate, it is necessary
to have complete mileage data to construct the group accident rate. The
accidents that are combined with relevant mileage must be from the same
period of time, and mileage data reports lag behind the accident
reports. Accidents must be reported within 15 days of their occurrence.
Since accidents occur at random times, it is not possible to have
mileage reported concurrently with accidents. However, since the
accidents are usually reported first, they are examined to determine if
action should be taken relative to a particular accident.
The AHAS commented on its previous objection to the diabetes waiver
program that pointed out the safety dangers inherent in a plan that
relies on close monitoring. The FHWA is aware that an individual under
close or tight control has a greater propensity for episodes of
hypoglycemia than an individual under less rigid control. However, as
the FHWA stated in an earlier notice (58 FR 40690), it is not mandating
tight control for the drivers who will be operating under Sec. 391.64.
As already mentioned, individuals with severe hypoglycemia or
hypoglycemia unawareness were excluded from participating in the
diabetes waiver study program. Such individuals will continue to be
promptly identified, found unqualified, and removed from this pool of
drivers by virtue of the more frequent medical evaluation and self-
monitoring conditions for operating under Sec. 391.64.
The IIHS, in its comments opposing the FHWA's NPRM, stated that
``evidence continues to mount concerning the increased crash risk of
drivers with diabetes.'' To support this, it submitted three studies
(Dionne et al., 1995; Koepsell et al. 1994; Cox et al. 1993) which are
addressed below. While these studies are well-performed and their
results are clearly defensible, a closer scrutiny suggests that they
may not be as conclusive relative to the waiver group as IIHS implies.
For example, the Dionne (1995) study seems to show that diabetic
drivers of straight trucks have a 2.4 relative risk of accidents when
compared to healthy drivers. Taken in isolation, this result is
compelling. But viewed in the broader context of the study, it is less
conclusive relative to FHWA's waiver program. In particular, this study
also examined diabetic drivers of articulated trucks, and there was no
significant relative risk for that group. The authors of the study
state that it is difficult to explain why diabetic drivers of straight
trucks show elevated risk while this result does not hold for
articulated trucks. They speculate that the different results may be
due to company owners being more rigorous in their selection of drivers
for articulated trucks or that the results are due to different levels
of disease severity in the two groups of diabetic drivers.
This study does not distinguish between diabetic drivers who are
treated with insulin and those who are not. The authors also do not
report the number of diabetic drivers in relation to truck type. In
addition to not examining the interactive effects of disease severity,
the potential moderating effects of other factors (e.g., age and
driving behavior) are not analyzed. Thus, while the results are
significant in the context of straight trucks, the overall lack of
specificity strongly suggests that this outcome is preliminary and not
directly applicable to the waiver group.
Koepsell et al. (1994) reported that they found more than a two-
fold risk of crashes among diabetic drivers who were 65 years of age or
older. This would be consistent with the degenerative nature of the
disease relative to aging. However, the average age of the drivers in
the diabetes waiver group is slightly over 43 with less than one
percent (0.85%) 65 or older. That study, therefore, is not directly
relevant for the present group of drivers.
Cox et al. (1993) reported that in a group of 25 Type I diabetics
on a driving simulator, driving performance was significantly disrupted
under conditions of moderate hypoglycemia. However, it seems reasonable
that these study conditions, i.e. testing conducted under fasting
conditions and IV insertions in the arms of individuals being tested,
would, in and of themselves, affect overall performance. The limited
relevance of these study findings to the drivers in the FHWA waiver
programs is best represented by the Cox Study conclusion itself:
``Because we used a simulator, it is not clear to what extent these
data can be extrapolated to an individual's actual driving
performance.''
Regarding the crash risk of drivers with vision impairments, the
IIHS cited the Rogers and Janke study of California heavy vehicle
operators with vision impairments. This was a 1987 study conducted at
the request of the FHWA. While the study findings for this visually
impaired group showed that both their accident and conviction rates,
adjusted for age, were significantly and substantially higher than
those for visually nonimpaired drivers, the authors concluded that the
``evidence presented could not be considered compelling in
substantiating the federal standard, given the lack of good data on
[[Page 13344]]
possible exposure differences.'' Although not cited by the IIHS,
McKnight et al. (1985) concluded in their study of monocular and
binocular truck drivers that an individual's style of driving was a
more predictive measure of accident involvement than was visual status.
They found that monocular drivers showed deficiencies on a number of
clinical visual measures, but no differences were found between
monocular and binocular drivers in tasks of actual driving performance
(i.e., information interpretation, hazard detection, visual search,
lane keeping, clearance judgment, and gap judgment).
The IIHS claimed that there are a number of fallacies in the
reasoning that lead to the FHWA proposal. As a first fallacy, it
claimed that the FHWA's reasoning is based on a relatively clean
individual driving record predicting future low crash risk. The IIHS
indicated that this reasoning is faulty because a study of crashes in
California showed that two-thirds of the crashes in one year involved
drivers who had no accidents in the preceding three years.
Although this is a cogent result for individual drivers, it is not
reflective of the analysis conducted by the FHWA in making the
determination to grandfather this group of drivers. The FHWA has
determined that the current group, and only this group of drivers, as a
group, does not present an increased risk on the road. That is,
individuals may have unpredictable variability in accident behavior
across time but groups are not necessarily that labile. Groups can have
stable behavior over time when (1) preselected and (2) closely
monitored. The FHWA believes that by examining individuals in this
group, over the past three years, relative to a number of responsible
behaviors, the surviving group has stable behavior relative to a total
accident rate, a rate that is consistently lower than the national
rate. Moreover, when the accident rates of the drivers to be
grandfathered were examined in six-month periods, a significant
decreasing trend (page 5, Risk Assessment) was observed. Hence, while
the prediction of individual crash behavior is problematic, the fact
that this group has a lower accident rate than the national rates with
a significantly decreasing trend strongly support the FHWA's
determination that they will not present increased risk by driving on
the nation's roads, while being monitored.
Furthermore, the insurance industry continues to follow a practice
of setting insurance rates based on accident and conviction information
that becomes available to them, indicating by industry practice that
they believe a pattern of convictions and/or accidents does indicate a
higher risk of a future accident. Of course, the converse is more
appropriate, i.e., the absence of convictions and/or accidents
indicates a lower risk of a future accident--the so called ``safe
driver'' in insurance premium-setting parlance. This is consistent with
the findings of the many studies cited in the Notice of Final
Determination of November 17, 1994 (59 FR 59386) which support the
principle that past behavior, in terms of accidents and convictions, is
still the best predictor of future performance. Thus the FHWA believes
that in determining the relative risk of this group of waived drivers,
the same information being used by the insurance industry is a valid
measure that should be applied in making this decision regarding
relative performance of the drivers in this study versus the pool of
all drivers.
The IHS also claimed that GES is an inappropriate comparison group.
It stated that this has been noted by FHWA's consultant, Dr. Thomas
Songer, who pointed out that such factors as age and driving patterns
cannot be controlled in this manner of comparison. It is true that
ancillary factors cannot be controlled through a comparison with GES,
but the FHWA believes that this type of control is not of primary
interest in this situation where the decision involves safety on the
roads in general. For example, a study in which a control group is
selected, even randomly, and matched to the study group has as its
intent the achievement of internal validity in the comparison. But, as
is being increasingly pointed out in medical research where randomized
trials are the basis of good science, these controlled studies which do
not specifically address external validity have this as the chief
potential weakness with their results (U.S. General Accounting Office,
``Cross Design Synthesis; A New Strategy for Medical Effectiveness
Research,'' March 1992, GAO/PEMD-92-18). It is believed that external
validity is of primary concern in the decision to allow this group of
drivers to continue in their professions and, as a result, GES is the
best focus for this validity.
Another fallacy alleged by the IIHS involves the FHWA's statement
that most waivered drivers are not at fault in their crash involvement.
It stated that the problem concerns the subjective nature of fault
determination. The IIHS is correct in this finding and in its claim
that a waivered driver, while not at fault, could have an impaired
ability to react quickly. However, the IIHS' claim is not germane here,
given the behavior of the vision waiver group. Their accident rate,
even with the foregoing possibility, is still lower than the national
rate.
The IIHS is correct in its assertion that the FHWA has improperly
characterized the GES data. The FHWA was incorrect to state that
accidents are not included in GES unless one vehicle was towed from the
accident scene. The diabetes waiver group accident rate of .783 under
towed vehicle condition should not have been compared to the national
rate of 2.39. The IIHS was correct in stating that the 0.783 rate
should have been compared to the more appropriate rate (towaway
crashes) calculated by UMTRI which was 0.911. However, 0.783 is still
smaller than 0.911 and the rate ratio involving these two .783/
.911=.859) is less than one. For this particular group of drivers, this
piece of evidence suggests they are certainly not less safe than the
average CMV driver.
The IIHS stated that a limitation of the program was the methods
used to ascertain crash involvement and traffic violation citations.
The IIHS stated that self-reporting of crashes and violations is
problematic and the primary source of verification, motor vehicle
records, is less than complete. It is true that self- reporting can be
problematic and requires some form of verification. At present, the
FHWA verifies the waivered drivers' accident and violation reports in
three ways. In some cases, driver MVRs and driving histories are
obtained directly from States. Verification is also conducted by
obtaining driver records through a commercial provider that does
screening for automobile and truck rental companies and insurers. In
addition, the FHWA is able to obtain driver histories by querying the
Commercial Driver License Information System (CDLIS). The CDLIS is a
component of the national CDL program which has as one of its
procedures the requirement that States communicate the relevant
accident and violation information for out-of-State drivers to the
State of their licensing.
The IIHS' comments that jurisdictions ``are not forwarding all the
convictions to the primary licensing'' jurisdiction is an acknowledged
traffic record problem. However, for CDL drivers this is now an issue
subject to State compliance requirements. It is being addressed as part
of the overall effectiveness of the CDL program. There are a number of
efforts underway addressing the issue of convicting jurisdiction
reporting to the licensing jurisdiction, including efforts to increase
the awareness of various police organizations and courts regarding the
requirements of the CDL
[[Page 13345]]
program. The FHWA will continue to vigorously pursue this issue for all
licensees.
Determination
After a thorough review of the comments submitted in response to
the January 8, 1996, NPRM, the FHWA believes that grandfathering this
group of waived drivers to continue operating CMVs in interstate
commerce, subject to the operating conditions under Sec. 391.64, is
consistent with the public interest and the safe operation of CMVs, in
accordance with the Motor Carrier Safety Act of 1984 (49 U.S.C.
31136(e) (1994)).
The FHWA has documented the safe driving performance over a six-
year period for the vision waived drivers and over a five-year period
for diabetes waived drivers and determined that this group of waived
drivers will be allowed to continue driving in interstate commerce
after March 31, 1996, based on continuous and sustained safe
performance as a group. The underlying basis for this action is the
performance data gathered to date and risk analysis performed on this
data that show that the continued operation of both waived groups of
drivers, who total 2326 as of March 1, 1996, will be consistent with
the public interest and safe operation of CMVs. Prior to being admitted
into the study, the waiver applicants had to demonstrate a three-year
period of safe driving performance (i.e., no chargeable accidents and
no more than one serious traffic violation). Since the program began,
the data have shown that the driving performance of this group of
waived drivers is better than the driving performance of all CMV
drivers collectively, based on data obtained from the General Estimates
Service (GES). Moreover, each driver in the vision and diabetes waiver
programs has been closely monitored, in many cases for three years or
more, and the poorest performers have been eliminated. Coupled with
their 3-year good driving record preceding the waivers, their continued
good driving during the waiver program has earned these drivers
individually partial exemption from Secs. 391.41(b)(10) and
391.41(b)(3), respectively.
In addition, the FHWA believes that the continued employment of
individuals with demonstrated safe driving records is in the public's
interest by allowing these individuals to gain employment in
occupations of their choice, by promoting economic viability and
furthering national policy and legislative goals articulated in both
the Rehabilitation Act of 1973 and the Americans with Disabilities Act
of 1992.
Therefore, the FHWA hereby amends 49 CFR part 391 to grant
grandfather rights to all drivers holding a valid Federal vision or
diabetes waiver on March 31, 1996. Under the grandfather provision, the
FHWA will allow only those drivers who have been granted temporary
waivers to participate in the Federal vision and diabetes waiver
programs, numbering 2326 as of March 1, 1996, to continue to operate in
interstate commerce beyond March 31, 1996, subject to certain operating
conditions. This action will provide relief to these drivers who,
notwithstanding the demonstrated abilities of the group, would
otherwise not be permitted to operate a CMV in interstate commerce.
These grandfather provisions are conditional, in order to ensure the
continued safe operation of these drivers. In addition to the
conditions regarding medical requirements discussed below, the FHWA
will monitor the performance of these drivers through periodic checks.
Medical Requirements for Operating Under This Grandfather Provision
The FHWA recognizes that any person's medical or physical condition
may deteriorate over time. Consequently, the FHWA will require a
physical examination every year under Sec. 391.43, instead of every 2
years as is required of other drivers, as an extra precaution to ensure
the continued safe operation of these drivers. Under this provision,
the waived drivers, like all other interstate drivers, must be
otherwise physically qualified pursuant to Sec. 391.41 of the FMCSRs.
In addition, in this final rule, the FHWA requires the
grandfathered vision impaired drivers to obtain an annual vision
examination by an ophthalmologist or optometrist indicating that they
have been examined within the past two months and that the vision in
the better eye is at least 20/40 acuity, corrected or uncorrected. This
information must be submitted to the medical examiner at the time of
the individual's annual physical qualification examination under part
391 of the FMCSRs.
Similarly, diabetic drivers grandfathered as a result of this
action are required to obtain an annual examination by a board
certified/eligible endocrinologist who must certify that the driver (1)
has been examined within the past two months; (2) is free of insulin
reactions; (3) has the ability and has demonstrated willingness to
properly monitor and manage his/her diabetes; and (4) does not have a
diabetic condition that would adversely affect his or her ability to
operate a CMV. An individual is free of insulin reactions if he or she
does not have severe hypoglycemia (i.e., episodes of altered
consciousness requiring the assistance of another person to regain
control) or hypoglycemia unawareness (i.e., the inability to recognize
the early symptoms of hypoglycemia), and has less than one documented,
symptomatic hypoglycemic reaction per month. These drivers will be
required to carry a source of rapidly absorbable glucose and continue
to monitor their blood glucose using a portable glucose monitoring
device equipped with a computerized memory one hour prior to driving
and approximately every four hours while driving. Upon request, the
driver must submit his or her blood glucose logs to the endocrinologist
and/or the medical examiner or when otherwise directed by an authorized
agent of the FHWA. A copy of the endocrinologist's report must be
submitted to the medical examiner at the time of the annual physical
qualification examination under part 391 of the FMCSRs.
This final rule requires this group of drivers to carry a medical
certificate stating: ``Medically qualified by operation of 49 CFR
391.64.'' Drivers who do not provide a copy of the required information
from the ophthalmologist/optometrist or the endocrinologist to the
medical examiner at the time of their annual physical qualification
examinations cannot be recertified to continue driving a CMV in
interstate commerce under this grandfather provision.
Technical Amendment
In this final rule, the FHWA also relocates the provision in part
391 granting limited exemptions for intra-city zone drivers. The
current provision, required under the Motor Carrier Act of 1988 (49
U.S.C. 31136(f)), is codified as paragraph (d) of 49 CFR 391.2, General
Exemptions. This action redesignates the provision, without any
substantive change, as Sec. 391.62, where it is more properly included
in subpart G, Limited Exemptions. Paragraph (d)(5)(i) of 49 CFR 391.2
is also being deleted as superfluous.
Executive Order 12866 (Regulatory Planning and Review) and DOT
Regulatory Policies and Procedures
The FHWA has determined that this final rule is not a significant
regulatory action under Executive Order 12866 or under the regulatory
policies and procedures of the DOT. It is anticipated that the economic
impact of this rule will be minimal because of its limited application
and the small number of
[[Page 13346]]
affected drivers. Moreover, this action will not have any permanent
effect on any existing safety standard. It will merely continue the
status quo by grandfathering some 2,300 drivers who have been operating
safely for substantial periods of time. Therefore, a full regulatory
evaluation is not required.
The FHWA finds that this final rule is exempt from the 30-day
delayed effective date requirement of U.S.C. 553(d) because it ``grants
or recognizes an exemption or relieves a restriction.'' Without this
action, CMV drivers in the agency's diabetes and vision waiver studies
would no longer be qualified to operate in interstate commerce after
March 31, 1996, the date on which these programs would otherwise end.
This final rule enables these drivers to continue operations, subject
to certain operating and monitoring conditions, granting an exemption
to the vision and diabetes standards of 49 C.F.R. 391.41 that would
otherwise soon apply to these drivers.
Regulatory Flexibility Act
In compliance with the Regulatory Flexibility Act, 5 U.S.C. 601-
612, the FHWA has evaluated the effects of this final rule on small
entities. The FHWA believes that this action will not have a
significant economic impact on a substantial number of small entities
because this action is directed solely at a limited number and narrowly
defined population of CMV drivers operating in interstate commerce.
This action will not cause a major increase in costs or prices and,
therefore, will not have a significant effect on the Nation's economy.
Executive Order 12612 (Federalism Assessment)
This rulemaking will amend 49 CFR part 391 pertaining to the
qualification of CMV drivers. This action will allow CMV drivers who
currently hold waivers from the Federal vision and diabetes
requirements to continue operating in interstate commerce after March
31, 1996. This rulemaking has been analyzed in accordance with the
principles and criteria contained in Executive Order 12612. Nothing in
this rulemaking will directly preempt any State law or regulation. This
rulemaking will not limit the policymaking discretion of the States.
Therefore, the FHWA has determined that this rulemaking does not have
sufficient federalism implications to warrant the preparation of a
separate Federalism Assessment.
Executive Order 12372 (Intergovernmental Review)
Catalog of Federal Domestic Assistance Program Number 20.217, Motor
Carrier Safety. The regulations implementing Executive Order 12372
regarding intergovernmental consultation on Federal programs and
activities apply to this program.
Paperwork Reduction Act
This program does not contain a collection of information
requirement for purposes of the Paperwork Reduction Act of 1995, Pub.
L. 104-13.
Regulation Identification Number
A regulation identification number (RIN) is assigned to each
regulatory action listed in the Unified Agenda of Federal Regulations.
The Regulatory Information Service Center publishes the Unified Agenda
in April and October of each year. The RIN contained in the heading of
this document can be used to cross reference this action with the
Unified Agenda.
List of Subjects in 49 CFR Part 391
Driver qualifications, Highway safety, Motor carriers, Reporting
and recordkeeping requirements, Safety, Transportation.
Issued on: March 20, 1996.
Rodney E. Slater,
Federal Highway Administration.
In consideration of the foregoing, the FHWA amends title 49, CFR,
subtitle B, chapter III, part 391 as set forth below:
PART 391--QUALIFICATIONS OF DRIVERS
1. The authority citation for part 391 continues to read as
follows:
Authority: 49 U.S.C. 504, 31133, 31136, and 31502; and 49 CFR
1.48.
Sec. 391.2 [Redesignated as Sec. 391.62]
2. Part 391 is amended by redesignating Sec. 391.2 as Sec. 391.62
and revising it to read as follows:
Sec. 391.62 Limited exemptions for intra-city zone drivers.
The provisions of Secs. 391.11(b)(1) and 391.41(b)(1) through
(b)(11) do not apply to a person who:
(a) Was otherwise qualified to operate and operated a commercial
motor vehicle in a municipality or exempt intracity zone thereof
throughout the one-year period ending November 18, 1988;
(b) Meets all the other requirements of this section;
(c) Operates wholly within the exempt intracity zone (as defined in
49 CFR 390.5);
(d) Does not operate a vehicle used in the transportation of
hazardous materials in a quantity requiring placarding under
regulations issued by the Secretary under 49 U.S.C. chapter 51.; and
(e) Has a medical or physical condition which:
(1) Would have prevented such person from operating a commercial
motor vehicle under the Federal Motor Carrier Safety Regulations
contained in this subchapter;
(2) Existed on July 1, 1988, or at the time of the first required
physical examination after that date; and
(3) The examining physician has determined this condition has not
substantially worsened since July 1, 1988, or at the time of the first
required physical examination after that date.
3. Section 391.64 is added to read as follows:
Sec. 391.64 Grandfathering for certain drivers participating in vision
and diabetes waiver study programs.
(a) The provisions of Sec. 391.41(b)(3) do not apply to a driver
who was a participant in good standing on March 31, 1996, in a waiver
study program concerning the operation of commercial motor vehicles by
insulin-controlled diabetic drivers; provided:
(1) The driver is physically examined every year, including an
examination by a board-certified/eligible endocrinologist attesting to
the fact that the driver is:
(i) Otherwise qualified under Sec. 391.41;
(ii) Free of insulin reactions (an individual is free of insulin
reactions if that individual does not have severe hypoglycemia or
hypoglycemia unawareness, and has less than one documented, symptomatic
hypoglycemic reaction per month);
(iii) Able to and has demonstrated willingness to properly monitor
and manage his/her diabetes; and
(iv) Not likely to suffer any diminution in driving ability due to
his/her diabetic condition.
(2) The driver agrees to and complies with the following
conditions:
(i) A source of rapidly absorbable glucose shalll be carried at all
times while driving;
(ii) Blood glucose levels shall be self-monitored one hour prior to
driving and at least once every four hours while driving or on duty
prior to driving using a portable glucose monitoring device equipped
with a computerized memory;
(iii) Submit blood glucose logs to the endocrinologist or medical
examiner at the annual examination or when otherwise directed by an
authorized agent of the FHWA;
[[Page 13347]]
(iv) Provide a copy of the endocrinologist's report to the medical
examiner at the time of the annual medical examination; and
(v) Provide a copy of the annual medical certification to the
employer for retention in the driver's qualification file and retain a
copy of the certification on his/her person while driving for
presentation to a duly authorized Federal, State or local enforcement
official.
(b) The provisions of Sec. 391.41(b)(10) do not apply to a driver
who was a participant in good standing on March 31, 1996, in a waiver
study program concerning the operation of commercial motor vehicles by
drivers with visual impairment in one eye; provided:
(1) The driver is physically examined every year, including an
examination by an ophthalmologist or optometrist attesting to the fact
that the driver:
(i) Is otherwise qualified under Sec. 391.41; and
(ii) Continues to measure at least 20/40 (Snellen) in the better
eye.
(2) The driver provides a copy of the ophthalmologist or
optometrist report to the medical examiner at the time of the annual
medical examination.
(3) The driver provides a copy of the annual medical certification
to the employer for retention in the driver's qualification file and
retains a copy of the certification on his/her person while driving for
presentation to a duly authorized federal, state or local enforcement
official.
3. Section 391.43 is amended by redesignating paragraphs (e), (f)
and (g) as paragraphs (f), (g) and (h), respectively; by adding a new
paragraph (e); by revising the text preceding the Instructions in newly
designated paragraph (f) and the text preceding the Certificate in
newly designated paragraph (h); and by amending the medical examiner's
certificate form at the end of newly designated paragraph (h) by adding
a new listing after the words ``______ Qualified only when wearing a
hearing aid'' to read as follows:
Sec. 391.43 Medical examination; certificate of physical examination.
* * * * *
(e) Any driver operating under a limited exemption authorized by
Sec. 391.64 shall furnish the medical examiner with a copy of the
annual medical findings of the endocrinologist, ophthalmologist or
optometrist, as required under that section. If the medical examiner
finds the driver qualified under the limited exemption in Sec. 391.64,
such fact shall be noted on the Medical Examiner's Certificate.
(f) The medical examination shall be performed, and its results
shall be recorded, substantially in accordance with the following
instructions and examination form. Existing forms may be used until
current printed supplies are depleted or until March 31, 1997.
* * * * *
(h) The medical examiner's certificate shall be in accordance with
the following form. Existing forms may be used until current printed
supplies are depleted or until March 31, 1997, provided that the
medical examiner writes down in pen and ink any applicable information
contained in the following form: MEDICAL EXAMINER'S CERTIFICATE
* * * * *
__Qualified by operation of 49 CFR 391.64
* * * * *
4. In Sec. 391.45, paragraph (b)(2) is revised to read as follows:
Sec. 391.45 Persons who must be medically examined and certified.
* * * * *
(b) * * *
(2) Any driver authorized to operate a commercial motor vehicle
only with an exempt intracity zone pursuant to Sec. 391.62, or only by
operation of the exemption in Sec. 391.64, if such driver has not been
medically examined and certified as qualified to drive in such zone
during the preceding 12 months; and
* * * * *
[FR Doc. 96-7226 Filed 3-21-96; 12:03 am]
BILLING CODE 4910-22-P
Complete official Federal Register PDF
FR Doc. 96-7219 Petition to Classify Alien as Immediate Relative of a United States Citizen or as a Preference Immigrant; Self-Petitioning for Certain Battered or Abused Spouses and Children
[Federal Register Volume 61, Number 59 (Tuesday, March 26, 1996)]
[Rules and Regulations]
[Pages 13061-13079]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-7219]
=======================================================================
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DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
8 CFR Parts 103, 204, 205 and 216
[INS No. 1705-95]
RIN 1115-AE04
Petition to Classify Alien as Immediate Relative of a United
States Citizen or as a Preference Immigrant; Self-Petitioning for
Certain Battered or Abused Spouses and Children
AGENCY: Immigration and Naturalization Service, Justice.
ACTION: Interim rule with request for comments.
-----------------------------------------------------------------------
SUMMARY: This interim rule amends the Immigration and Naturalization
Service (``the Service'') regulations to allow a spouse or child to
seek immigrant classification if he or she has been battered by, or
subjected to extreme cruelty committed by, the citizen or lawful
permanent resident spouse or parent. It also permits a spouse to seek
classification if his or her child has been battered by, or subjected
to extreme cruelty committed by, the citizen or lawful permanent
resident spouse. A qualified spouse or child who is living in the
United States but is not a permanent resident may use the procedures
established by this rule to self-petition for immigrant classification.
The self-petition may be filed without the abuser's knowledge or
consent, and may include the children of a self-petitioning spouse. A
person who is granted immigrant classification under this provision may
become eligible for lawful permanent resident status. A lawful
permanent resident of the United States has legal permission to live
and work in this country, and may later qualify for U.S. citizenship
through naturalization.
DATES: This interim rule is effective March 26, 1996. Written comments
must be received on or before May 28, 1996.
ADDRESSES: Please submit written comments, in triplicate, to the
Director, Policy Directives and Instructions Branch, Immigration and
Naturalization Service, 425 I Street NW., Room 5307, Washington, DC
20536, Attn: Public Comment Clerk. To ensure proper handling, please
reference the INS number 1705-95 on your correspondence. Comments are
available for public inspection at this location by calling (202) 514-
3048 to arrange an appointment.
[[Page 13062]]
FOR FURTHER INFORMATION CONTACT:
Rita A. Arthur, Senior Adjudications Officer, Adjudications Division,
Immigration and Naturalization Service, 425 I Street NW., Room 3214,
Washington, DC 20536, telephone (202) 514-5014.
SUPPLEMENTARY INFORMATION:
Background
The Immigration and Nationality Act (``the Act'') allows certain
relatives of a citizen or lawful permanent resident of the United
States to be classified for immigration. These relatives are not
automatically entitled to immigrate; the Service must approve a visa
petition filed by the citizen or lawful permanent resident for the
family member, and the relative must qualify for immigrant visa
issuance abroad or adjustment of status in the United States.
Citizens and lawful permanent residents may choose whether and when
to petition for a relative. Most citizens and lawful permanent
residents seek permission to bring their family members to the United
States as soon as possible. They file for all their qualified
relatives, except family members who do not want to live in the United
States and those with whom they do not care to be reunited.
Some abusive citizens or lawful permanent residents, however,
misuse their control over the petitioning process. Instead of helping
close family members to legally immigrate, they use this discretionary
power to perpetuate domestic abuse of their spouses and minor children
who have been living with them in the United States. Abusers generally
refuse to file relative petitions for their closest family members
because they find it easier to control relatives who do not have lawful
immigration status. These family members are less likely to report the
abuse or leave the abusive environment because they fear deportation or
believe that only citizens and authorized immigrants can obtain legal
and social services. An abuser may also coerce family members'
compliance in other areas by threatening deportation or by promising to
file a relative petition in the future.
Crime Bill
The plight of these domestic abuse victims, who are unable to leave
the United States for financial, social, cultural, or other reasons,
was addressed by the Violent Crime Control and Law Enforcement Act of
1994 (``the Crime Bill''), Public Law 103-322, dated September 13,
1994. Title IV of the Crime Bill, The Violence Against Women Act of
1994 (``the VAWA''), contains several provisions that limit the ability
of an abusive citizen or lawful permanent resident to use the
immigration laws to further violence against a spouse or child in the
United States. Although the title of this portion of the Crime Bill
reflects the fact that many abuse victims are women, abused spouses and
children of either sex may benefit from these provisions. Section 40701
of the Crime Bill allows a qualified spouse or child to self-petition
for immigrant classification based on the relationship to the abusive
citizen or lawful permanent resident of the United States, without the
abuser's participation or consent. This section also permits an
eligible abused spouse to include his or her children in the petition,
if the children have not petitioned separately. Section 40702 of the
Crime Bill, which will be the subject of a separate rulemaking,
provides guidelines for the acceptance and evaluation of credible
evidence of abuse submitted with certain requests for removal of
conditions on residency under section 216 of the Act. Section 40703 of
the Crime Bill, which will also be addressed separately, allows certain
abused spouses and children who have been continuously physically
present in the United States for the past 3 years to apply for
suspension of deportation.
Basic Self-Petitioning Eligibility Requirements
A spouse who is self-petitioning under section 40701 of the Crime
Bill must show that he or she: (1) is the spouse of a citizen or lawful
permanent resident of the United States; (2) is eligible for immigrant
classification under section 201(b)(2)(A)(i) or 203(a)(2)(A) of the Act
based on that relationship; (3) is residing in the United States; (4)
has resided in the United States with the citizen or lawful permanent
resident spouse; (5) has been battered by, or has been the subject of
extreme cruelty perpetrated by, the citizen or lawful permanent
resident during the marriage; or is the parent of a child who has been
battered by, or has been the subject of extreme cruelty perpetrated by,
the citizen or lawful permanent resident during the marriage; (6) is a
person of good moral character; (7) is a person whose deportation would
result in extreme hardship to himself, herself, or his or her child;
and (8) entered into the marriage to the citizen or lawful permanent
resident in good faith.
A child who is self-petitioning under section 40701 of the Crime
Bill must show that he or she: (1) is the child of a citizen or lawful
permanent resident of the United States; (2) is eligible for immigrant
classification under section 201(b)(2)(A)(i) or 203(a)(2)(A) of the Act
based on that relationship; (3) is residing in the United States; (4)
has resided in the United States with the citizen or lawful permanent
resident parent; (5) has been battered by, or has been the subject of
extreme cruelty perpetrated by, the citizen or lawful permanent
resident parent while residing with that parent; (6) is a person of
good moral character; and (7) is a person whose deportation would
result in extreme hardship to himself or herself.
Spouse of a Citizen or Lawful Permanent Resident
The Crime Bill's changes to section 204(a)(1) of the Act, which
allow a self-petition to be filed, describe the spousal relationship
between the self-petitioner and the abuser in the present tense. They
characterize a self-petitioning spouse as a person who is the spouse of
a citizen or lawful permanent resident of the United States, and
include no provisions for filing a self-petition based on a former
spousal relationship. This rule, therefore, requires the self-
petitioning spouse to be legally married to the abuser when the
petition is filed. It specifies that a spousal self-petition must be
denied if the petitioner's marriage to the abuser legally ended by
annulment, death, or divorce before that time. The rule also stipulates
that the abuser be a citizen or lawful permanent resident of the United
States when the self-petition is filed.
Although it does not allow a self-petition to be filed based on a
former spousal relationship, section 40701 of the Crime Bill directs
the Service not to revoke the approval of a self-petition solely
because the marriage has legally ended. This statutory provision
protects the self-petitioner against an abuser's attempt to regain
control over the petitioning process through legal termination of the
marriage. It also allows a qualified self-petitioner to make decisions
concerning the abusive relationship without regard to immigration
considerations. This rule reflects the legislative provision
safeguarding the self-petitioner's control over the immigration
classification process.
While section 40701 of the Crime Bill requires the marriage to be
legally valid at the time of filing and specifies that its termination
after approval will not be the sole basis for revocation, it does not
address the effect of a legal termination occurring between the filing
and the approval of the self-petition. In the absence of explicit
legislative guidelines, the Service has determined that protections for
spouses whose self-
[[Page 13063]]
petitions have been approved should be extended to cover the entire
period after the self-petition is filed. This rule, therefore, allows
an otherwise approvable self-petition to be granted despite the legal
termination of the marriage through annulment, divorce, or death while
the self-petition was pending before the Service. It provides that the
legal termination of the marriage after the self-petition has been
properly filed with the Service will have not effect on the Service's
decision concerning the self-petition.
The rule further provides, however, that a pending spousal self-
petition will be denied or an approved spousal self-petition will be
revoked if the self-petitioner chooses to remarry before becoming a
lawful permanent resident. By remarrying, the self-petitioner has
established a new spousal relationship and has shown that he or she no
longer needs the protections of section 40701 of the Crime Bill to
equalize the balance of power in the relationship with the abuser. If
the new husband or wife is a citizen or lawful permanent resident of
the United States, he or she may file for the former self-petitioner's
classification as an immigrant. The self-petitioner also would not be
precluded from filing a self-petition based on the new family
relationship if the new spouse is an abusive citizen or lawful
permanent resident of the United States. A self-petition filed on the
basis of a new marriage will be assigned a priority date based on the
date it was properly filed with the Service or based on the date a visa
petition filed by the current abusive spouse was properly filed with
the Service. This rule does not allow a priority date to be transferred
from a self-petition or visa petition based on a prior marriage.
It also provides that changes in the abuser's citizenship or lawful
permanent resident status will not affect the validity of an approved
self-petition. This provision eliminates the possibility that an abuser
could recapture control over the immigration classification process by
changing his or her own immigration status. An approved self-petition
will not be revoked solely because the abuser subsequently abandons
lawful permanent resident status, renounces United States Citizenship,
is deported, or otherwise changes immigration status. Similarly, a
self-petition approved on the basis of a relationship to a lawful
permanent resident will not be automatically upgraded to a petition for
immediate relative classification if the abuser becomes a naturalized
citizen of the United States. A spouse would not be precluded from
filing a new self-petition for classification as an immediate relative
after the abuser naturalizes, provided he or she continues to meet the
self-petitioning requirements.
This rule requires a self-petitioning spouse to provide documentary
evidence of his or her legal relationship to the abuser and evidence of
the abuser's immigration or citizenship status. Self-petitioners are
encouraged to submit primary evidence whenever possible, although the
Service will consider any relevant credible evidence. The Service's
regulations at 8 CFR 204.1 and 204.2 provide detailed information
concerning primary and secondary supporting documentation of a spousal
relationship to a citizen or lawful permanent resident.
Primary evidence of a marital relationship is a marriage
certificate issued by civil authorities and proof of the termination of
all prior marriages, if any, of both the self-petitioner and the
abuser. Primary evidence of the abuser's U.S. citizenship or lawful
permanent residence is: (1) a birth certificate issued by a civil
authority establishing the abuser's birth in the United States; (2) the
abuser's unexpired full-validity United States passports; (3) a
statement issued by a U.S. consular officer certifying the abuser to be
a U.S. citizen and the bearer of a currently valid U.S. passport; (4)
the abuser's Certificate of Naturalization or Certificate of
Citizenship; (5) a Department of State Form FS-240, Report of Birth
Abroad of a Citizen of the United States, relating to the abuser; or
(6) the abuser's Form I-151 or Form I-551 Alien Registration Receipt
Card, or other proof given by the Service as evidence of lawful
permanent residence.
If primary or secondary evidence of an abuser's immigration or
citizenship status is not available, this rule provides that the
Service will attempt to electronically verify the abuser's status from
information contained in Service computerized records. Other Service
records may also be reviewed at the discretion of the adjudicating
officer. If the Service is unable to identify a record as relating to
the abuser or the record does not establish the abuser's immigration or
citizenship status, the self-petition will be adjudicated based on the
information submitted by the self-petitioner.
Child of a Citizen or Lawful Permanent Resident
Section 40701 of the Crime Bill describes a self-petitioning child
as a person who is the child of a citizen or lawful permanent resident
of the United States. By again characterizing the relationship between
the self-petitioner and the abuser in the present tense, these
amendments to the Act clearly show that the required relationship must
exist when the petition is filed.
The term ``child'' is defined in section 101(b)(1) of the Act as
including certain children born in or out of wedlock, and certain
legitimated, adopted, and stepchildren. This definition also requires a
child to be unmarried and less than 21 years of age. The rule,
therefore, requires a self-petitioning child to be unmarried, less than
21 years of age, and to otherwise qualify as the abuser's ``child''
when the self-petition is filed and when it is approved. It also
requires the self-petitioning child's abusive parent to be a U.S.
citizen or lawful permanent resident when the self-petition is filed
and when it is approved.
This rule specifies that an approved self-petition for a child of a
United States citizen, however, will be automatically converted to an
approved petition for classification as the unmarried or married adult
son or daughter of a United States citizen when the self-petitioner
reaches 21 years of age or marries. Similarly, an approved self-
petition for a child of a lawful permanent resident of the United
States will be automatically converted to an approved petition for
classification as the unmarried adult son or daughter of a lawful
permanent resident when the unmarried self-petitioner reaches 21 years
of age. The approval of a self-petition for the child of an abusive
lawful permanent resident must be automatically revoked, however, when
the son or daughter marries. There is no immigration category for a
married son or daughter of a lawful permanent resident. An
automatically converted self-petition will retain the self-petition's
original priority date.
Under the provisions of this rule, a self-petitioning child must be
the child of the abusive citizen or lawful permanent resident but need
not be the child of a self-petitioning spouse. A self-petition may be
approved although the child's other parent is unable or unwilling to
self-petition. The rule also does not require the self-petitioning
child to be in the abuser's legal custody. Termination of the abuser's
parental rights or a change in legal custody does not alter the self-
petitioning relationship, provided the self-petitioner meets the
definition of ``child'' contained in section 101(b)(1) of the Act when
the self-petition is approved, or met that definition at the time of
approval.
As discussed previously under ``Spouse of a citizen or lawful
permanent resident,'' changes in the
[[Page 13064]]
abuser's citizenship or lawful permanent resident status will not
affect the validity of an approved self-petition. This regulatory
provision eliminates the possibility that an abuser could recapture
control over the abused child's immigration classification by changing
his or her own immigration status. An approved self-petition for a
child will not be revoked solely because the abuser subsequently
abandons lawful permanent resident status, renounces United States
citizenship, is deported, or otherwise changes immigration status.
Similarly, a self-petition approved on the basis of a parent-child
relationship to a lawful permanent resident will not be automatically
upgraded to a petition for immediate relative classification if the
abuser becomes a naturalized citizen of the United States. The abused
child would not be precluded from filing a new self-petition for
classification as an immediate relative after the abuser naturalizes,
provided the child continues to meet the self-petitioning requirements.
This rule requires a self-petitioning child to provide documentary
evidence of his or her relationship to the abuser and evidence of the
abuser's immigration or citizenship status. Self-petitioners are
encouraged to submit primary evidence whenever possible, although the
Service will consider any relevant credible evidence. The Service's
regulations at 8 CFR 204.1 and 204.2 provide detailed information
concerning primary or secondary supporting documentation of a parent-
child relationship to a citizen or lawful permanent resident.
Primary evidence of the relationship between: (1) a child and an
abusive biological mother is the child's birth certificate issued by
civil authorities; (2) a child born in wedlock and an abusive
biological father is the child's birth certificate issued by civil
authorities, the marriage certificate of the child's parents, and
evidence of legal termination of all prior marriages, if any; (3) a
legitimated child and an abusive biological father is the child's birth
certificate issued by civil authorities, and evidence of the child's
legitimation; (4) a child born out of wedlock and an abusive biological
father is the child's birth certificate issued by civil authorities
showing the father's name, and evidence that a bona fide parent-child
relationship has been established between the child and the parent; (5)
a stepchild and a stepparent is the child's birth certificate issued by
civil authorities, the marriage certificate of the child's parent and
the stepparent showing marriage before the stepchild reached 18 years
of age, and evidence of legal termination of all prior marriages of
either parent, if any; (6) an adopted child and an abusive adoptive
parent is an adoption decree showing that the adoption took place
before the child reached 16 years of age, and evidence that the child
has been residing with and in the legal custody of the abusive adoptive
parent for at least 2 years.
Primary evidence of the abuser's U.S. citizenship or lawful
permanent residence is: (1) a birth certificate issued by a civil
authority establishing the abuser's birth in the United States; (2) the
abuser's unexpired full-validity United States passport; (3) a
statement issued by a U.S. consular officer certifying the abuser to be
a U.S. citizen and the bearer of a currently valid U.S. passport; (4)
the abuser's Certificate of Naturalization or Certificate of
Citizenship; (5) a Department of State Form FS-240, Report of Birth
Abroad of a Citizen of the United States, relating to the abuser; and
(6) the abuser's Form I-151 or Form I-551 Alien Registration Receipt
Card, or other proof given by the Service as evidence of lawful
permanent residence.
If primary or secondary evidence of an abuser's immigration or
citizenship status is not available, this rule provides that the
Service will attempt to electronically verify the abuser's status from
information contained in Service computerized records. Other Service
records may also be reviewed at the discretion of the adjudicating
officer. If the Service is unable to identify a record as relating to
the abuser or the record does not establish the abuser's immigration or
citizenship status, the self-petition will be adjudicated based on the
information submitted by the self-petitioner.
Eligible for Immigrant Classification
Section 40701 of the Crime Bill requires a self-petitioning spouse
or child to be eligible for classification as an immediate relative
under section 201(b)(2)(A)(i) of the Act or for preference
classification under section 203(a)(2)(A) of the Act. Eligibility as an
immediate relative or for preference classification requires more than
a mere showing of a legal relationship to a citizen or lawful permanent
resident of the United States; other conditions must also be met.
Section 40701 of the Crime Bill amended the Act to ensure that self-
petitioners would be subject to certain provisions of the Immigration
Marriage Fraud Amendments of 1986 (IMFA), Public Law 99-639, November
10, 1986, which were enacted by Congress to detect and deter
immigration-related marriage fraud. This rule reflects these statutory
requirements.
A petition must be denied under the provisions of section 204(c) of
the Act if there is substantial and probative evidence that the self-
petitioner has ever attempted or conspired to enter into a marriage for
the purpose of evading the immigration laws. The self-petitioner does
not need to have received a benefit through the attempt or conspiracy.
He or she also need not have been convicted of, or even prosecuted for,
the attempt or conspiracy. Evidence of the attempt or conspiracy,
however, must be contained in the self-petitioner's immigration file.
Section 204(g) of the Act may also apply to a self-petition. It
prohibits the approval of a self-petition if the marriage creating the
relationship to the citizen or permanent resident took place while the
self-petitioner was in deportation, exclusion, or related proceedings,
unless the self-petitioner provides clear and convincing evidence that
the marriage was not entered into for the purpose of obtaining
immigration benefits. This limitation will not apply if the self-
petitioner has lived outside the United States for at least 2 years
after the marriage. The ``clear and convincing'' standard places a
heavier burden on the petitioner than the ``preponderance of evidence''
criteria generally applicable to visa petitions and self-petitions.
Although there may be no proof that the marriage was fraudulent, a
self-petition subject to this restriction must be denied if the
petitioner does not provide ``clear and convincing'' evidence that the
marriage was entered into in good faith.
The provisions of section 204(a)(2) of the Act, which were amended
by section 40701(b) of the Crime Bill to encompass certain self-
petitions, may also preclude the approval of a self-petition. A self-
petition must be denied if the lawful permanent resident abuser
acquired permanent residence within the past 5 years based on a
marriage to a citizen or lawful permanent resident, unless the petition
is supported by clear and convincing evidence that the prior marriage
was not entered into for the purpose of evading any provision of the
immigration laws. This restriction will not apply if the earlier
marriage ended because of the death of the spouse. As explained in the
previous paragraph, the ``clear and convincing'' standard imposes a
heavier burden of proof on the self-petitioner. Although there may be
no proof that the marriage was fraudulent, a self-petition subject to
this restriction must be denied if the petitioner does not provide
``clear and
[[Page 13065]]
convincing'' evidence that the earlier marriage was bona fide.
Before determining that a self-petition must be denied under
section 204(c), 204(g), or 204(a)(2) of the Act, the Service will allow
a self-petitioner the opportunity to provide additional evidence or
arguments concerning the case. A denial under section 204(g) or
204(a)(2) of the Act is without prejudice to the filing of a new self-
petition when the spouse or child is able to comply with these
requirements.
The Service has previously determined that a variety of evidence
may be used to establish a good-faith marriage, and a self-petitioner
should submit the best evidence available. Evidence of good faith at
the time of marriage may include, but is not limited to, proof that one
spouse has been listed as the other's spouse on insurance policies,
property leases, income tax forms, or bank accounts; and testimony or
other evidence regarding courtship, wedding ceremony, shared residence
and experiences. Matter of Laureano, 19 I&N Dec. 1 (BIA 1983). Other
types of readily available evidence might include the birth
certificates of children born to the relationship; police, medical, or
court documents providing information about the relationship; and
affidavits of persons with personal knowledge of the relationship.
Self-petitioners who submit affidavits are encouraged to submit
affidavits from more than one person. Other types of evidence may also
be submitted; the Service will consider any relevant credible evidence.
Residence in the United States and Residence With the Abuser
Section 40701 of the Crime Bill requires the self-petitioner to be
residing in the United States and to have resided in the United States
with the abuser. A self-petition will not be approved if the self-
petitioner is not living in the United States or has never lived with
the abuser in the United States. Under the provisions of this rule,
however, the self-petitioner is not required to be residing with the
abuser when the petition is filed. The rule also does not limit the
time that may have elapsed since the self-petitioner last resided with
the abuser.
``Residence'' is defined in section 101(a)(33) of the Act as a
person's general place of abode. It is also described as a person's
principal, actual dwelling place in fact, without regard to intent. A
self-petitioner cannot meet the residency requirements by merely
visiting the United States or visiting the abuser's home in the United
States while continuing to maintain a general place of abode or
principal dwelling place elsewhere. This rule, however, does not
require the self-petitioner to have lived in the United States or with
the abuser in the United States for any specific length of time. It
also does not mandate continuous physical presence in the United
States. A qualified self-petitioner may have moved to the United States
only recently, made any number of trips abroad, or resided with the
abuser in the United States for only a short time.
Evidence of residency with the abuser in the United States may take
many forms. Employment records, utility receipts, school records,
hospital or medical records, birth certificates of children born to the
spouses in the United States, deeds, mortgages, rental records,
insurance policies, or similar documents have been accepted as evidence
of residency. This rule allows the submission of one or more documents
showing the self-petitioner and the abuser residing together. It also
allows the submission of two or more documents that, when considered
together, establish that the self-petitioner and the abuser were
residing at the same location concurrently. A self-petitioner may also
submit affidavits to establish residency with the abuser. Self-
petitioners who file affidavits are encouraged to provide the
affidavits of more than one person. Other types of evidence may also be
submitted; the Service will consider any relevant credible evidence.
Battery or Extreme Cruelty
Section 40701 of the Crime Bill requires a self-petitioning spouse
to have been battered by, or been the subject of extreme cruelty
perpetrated by, the citizen or lawful permanent resident spouse; or to
be the parent of a child who was battered by, or who was the subject of
extreme cruelty perpetrated by, the citizen or lawful permanent
resident during the marriage. It requires a self-petitioning child to
have been battered by, or to have been the subject of extreme cruelty
perpetrated by, the citizen or lawful permanent resident parent while
the child was residing with that parent. This rule reflects the
statutory requirements by specifying that only certain types of abuse
will qualify a spouse or child to self-petition. ``Qualifying abuse''
under this rule is abuse that meets the criteria of section 40701 of
the Crime Bill concerning when, by whom, to whom, and to what degree
the domestic abuse occurred.
The qualifying abuse must have taken place during the statutorily
specified time. A spousal self-petitioner must show that the abuse took
place during the marriage to the abuser. A self-petitioning child must
show that he or she was abused while residing with the abuser. Battery
or extreme cruelty that happened at other times is not qualifying
abuse. There is no limit on the time that may have elapsed since the
last incident of qualifying abuse occurred.
The qualifying abuse also must have been committed by the abusive
citizen or lawful permanent resident spouse or parent. Battery or
extreme cruelty by any other person is not qualifying abuse, unless it
can be shown that the citizen or lawful permanent resident willfully
condoned or participated in the abusive act(s).
Only abuse perpetrated against the self-petitioning spouse, the
self-petitioning child, or the self-petitioning spouse's child will be
considered qualifying. Acts ostensibly aimed at some other person or
thing may be considered qualifying only if it can be established that
these acts were deliberately used to perpetrate extreme cruelty against
the self-petitioner or the self-petitioning spouse's child. Battery or
extreme cruelty committed solely against a third party and in no way
directed at or used against the spouse or child is not qualifying
abuse.
The qualifying abuse also must have been sufficiently aggravated to
have reached the level of battery or extreme cruelty. Service
regulations at 8 CFR 216.5(e)(3)(i) currently define the phrase ``was
battered by or was the subject of extreme cruelty.'' This definition
was initially developed to facilitate the filing and adjudication of
requests to waive certain requirements for removal of conditions on
residency. These waivers are based on the applicant's claim of battery
or extreme cruelty perpetrated by the citizen or lawful permanent
resident spouse or parent. Since the regulatory definition has proven
to be flexible and sufficiently broad to encompass all types of
domestic battery and extreme cruelty, this rule adopts an identical
definition for evaluating claims of battering or extreme cruelty under
section 40701 of the Crime Bill. The definition reads as follows:
For the purpose of this chapter, the phrase ``was battered by or
was the subject of extreme cruelty'' includes, but is not limited
to, being the victim of any act or threatened act of violence,
including any forceful detention, which results or threatens to
result in physical or mental injury. Psychological or sexual abuse
or exploitation, including rape, molestation, incest (if the victim
is a minor), or forced prostitution shall be considered acts of
violence.
[[Page 13066]]
The acts mentioned in this definition--rape, molestation, incest if
the victim is a minor, and forced prostitution--will be regarded by the
Service as acts of violence whenever they occur. Many other abusive
actions, however, may also be qualifying acts of violence under this
rule. Acts that, in and of themselves, may not initially appear violent
may be part of an overall pattern of violence. It is not possible to
cite all perpetrations that could be acts of violence under certain
circumstances. The Service does not wish to mislead a potentially
qualified self-petitioner by establishing a partial list that may be
subject to misinterpretation. This rule, therefore, does not itemize
abusive acts other than those few particularly egregious examples
mentioned in the definition of the phrase ``was battered by or was the
subject of extreme cruelty.''
This rule requires a self-petitioner to provide evidence of
qualifying abuse. If the self-petition is based on a claim that the
self-petitioning spouse's child was battered or subjected to extreme
cruelty committed by the citizen or lawful permanent resident spouse,
this rule requires the self-petition to be accompanied by evidence of
the abuse and evidence of the relationship between the self-petitioner
and the abused child. Available relevant evidence will vary, and self-
petitioners are encouraged to provide the best available evidence of
qualifying abuse. A self-petitioner is not precluded from submitting
documentary proof of non-qualifying abuse with the self-petition;
however, that evidence can only be used to establish a pattern of abuse
and violence and to bolster claims that qualifying abuse also occurred.
The rule provides that evidence of abuse may include, but is not
limited to, reports and affidavits from police, judges and other court
officials, medical personnel, school officials, clergy, social workers,
and other social service agency personnel. Persons who have obtained an
order of protection against the abuser or taken other legal steps to
end the abuse are strongly encouraged to submit copies of the relating
legal documents. Evidence that the abuse victim sought safe-haven in a
battered women's shelter or similar refuge may be relevant, as may a
combination of documents such as a photograph of the visibly injured
self-petitioner supported by affidavits. This rule also provides that
other forms of credible evidence will be accepted, although the Service
will determine whether documents appear credible and the weight to be
given to them.
Self-petitioners who can provide only affidavits are encouraged to
submit the affidavits of more than one person. The Service is not
precluded from deciding, however, that the self-petitioner's
unsupported affidavit is credible and that it provides relevant
evidence of sufficient weight to meet the self-petitioner's burden of
proof.
Good Moral Character
Section 40701 of the Crime Bill requires all self-petitioners to be
persons of good moral character, but does not specify the period for
which good moral character must be established. This rule requires
self-petitioning spouses and self-petitioning children who are 14 years
of age or older to provide evidence showing that they have been persons
of good moral character for the 3 years immediately preceding the date
the self-petition is filed. It does not preclude the Service from
choosing to examine the self-petitioner's conduct and acts prior to
that period, however, if there is reason to believe that the self-
petitioner may not have been a person of good moral character in the
past. The rule provides that self-petitioning children who are less
than 14 years of age are not required to submit evidence of good moral
character when filing the self-petition. A self-petitioner who is less
than 14 years of age will be presumed to be a person of good moral
character. This presumption does not preclude the Service from
requesting evidence of good moral character, however, if there is
reason to believe that the self-petitioning child may lack good moral
character. The rule provides that a self-petition filed by a person of
any age may be denied or revoked if evidence establishing that the
person lacks good moral character is contained in the Service file.
It also provides that the Service will evaluate claims of good
moral character on a case-by-case basis, taking into account the
provisions of section 101(f) of the Act and the standards of the
average citizen in the community. Section 101(f) of the Act lists the
classes of persons who cannot be found to be persons of good moral
character, and specifies that persons not within any of those classes
may also be found to be lacking good moral character. The Service
cannot find a person to be of good moral character under section 101(f)
if he or she: (1) is or was a habitual drunkard; (2) is or was engaged
in prostitution during the past 10 years as described in section
212(a)(2)(D) of the Act; (3) is or was involved in the smuggling of a
person or persons into the United States as described in section
212(a)(6)(E) of the Act; (4) is or was a practicing polygamist; (5) has
been convicted or admits committing acts that constitute a crime
involving moral turpitude other than a purely political offense, except
for certain petty offenses or offenses committed while the person was
less than 18 years of age as described in section 212(a)(2)(A)(ii) of
the Act; (6) has committed two or more offenses for which the applicant
was convicted and the aggregate sentence actually imposed was 5 years
or more, provided that, if an offense was committed outside the United
States, it was not a purely political offense; (7) has violated laws
relating to a controlled substance, except for simple possession of 30
grams or less of marijuana; (8) earns his or her income principally
from illegal gambling activities or has been convicted of two or more
gambling offenses; (9) has given false testimony for the purpose of
obtaining immigration benefits; (10) has been confined as a result of
conviction to a penal institution for an aggregate period of 180 days
or more; or (11) has been convicted of an aggravated felony.
The Service must conclude that a person who has been convicted of
an offense falling within section 101(f) of the Act lacks good moral
character. The Service may only look to the judicial records to
determine whether the person has been convicted of the crime, and may
not look behind the conviction to reach an independent determination
concerning guilt or innocence. Pablo v. INS, 72 F.3d 110, 113 (9th Cir.
1995); Gouveia v. INS, 980 F.2d 814, 817 (1st Cir. 1992); and Matter of
Roberts, Int. Dec. 3148 (BIA 1991).
Extenuating circumstances may be taken into account, however, if
the person has not been convicted of the offense in a court of law but
admits to the commission of an act or acts that could show a lack of
good moral character. The Board of Immigration Appeals (BIA) has ruled
that a person who admitted to having engaged in prostitution under
duress but had no prostitution convictions was not excludable as a
prostitute under section 212(a)(12) of the Act (currently section
212(a)(2)(D) of the Act) because she was involuntarily reduced to such
a state of mind that she was actually prevented from exercising free
will through the use of wrongful, oppressive threats, or unlawful
means. Matter of M-, 7 I&N Dec. 251 (BIA 1956). A person who was
subjected to abuse in the form of forced prostitution or who can
establish that he or she was forced to engage in other behavior that
could render the person excludable, therefore, would not be precluded
from being found to be a person of good moral character if the person
has not been convicted for the
[[Page 13067]]
commission of the offense or offenses in a court of law.
This rule also provides that a person will be found to lack good
moral character, unless he or she establishes extenuating
circumstances, if he or she: (1) willfully failed or refused to support
dependents; or (2) committed unlawful acts that adversely reflect upon
his or her moral character, or was convicted or imprisoned for such
acts, although the acts do not require an automatic finding of lack of
good moral character.
Under this rule, primary evidence of good moral character is the
self-petitioner's affidavit. The affidavit should be accompanied by a
local police clearance or a state-issued criminal background check from
each locality or state in the United States in which the self-
petitioner resided for six or more months during the 3-year period
immediately preceding the filing of the self-petition. Self-petitioners
who lived outside the United States during this time should submit a
police clearance, criminal background check, or similar report issued
by the appropriate authority in each foreign country in which he or she
resided for six or more months during the 3-year period immediately
preceding the filing of the self-petition. If police clearances,
criminal background checks, or similar reports are not available for
some or all locations, the self-petitioner may include an explanation
and submit other evidence with his or her affidavit. The Service will
consider other credible evidence of good moral character, such as
affidavits from responsible persons who can knowledgeably attest to the
self-petitioner's good moral character.
The Service of the Department of State will conduct additional
record checks before issuing an immigrant visa or granting a self-
petitioner's application for adjustment of status. If the results of
these record checks disclose that the self-petitioner is no longer a
person of good moral character or that he or she has not been a period
of good moral character in the past, a pending self-petition will be
denied or the approval of a self-petition will be revoked.
Extreme Hardship
Section 40701 of the Crime Bill also requires a self-petitioning
spouse to show that his or her deportation would cause extreme hardship
to himself, herself, or his or her child. It similarly requires a self-
petitioning child to show that his or her deportation would cause
extreme hardship to himself or herself. The self-petitioner has the
burden of proof; a self-petition must be denied if the petitioner does
not show that his or here deportation would cause extreme hardship.
Hardship to persons other than the self-petitioner or the child of a
self-petitioning spouse, such as extended family members, cannot be the
basis for a self-petition under this rule.
The phrase ``extreme hardship'' is not defined in the Act, and
sections 40701 and 40703 of the Crime Bill provide no additional
guidelines for the interpretation of this requirement. The phrase
``extreme hardship'' has acquired a settled judicial and administrative
meaning, however, largely in the context of suspension of deportation
cases under section 244 of the Act.
It has been found that the personal deprivation contemplated in a
situation characterized by ``extreme hardship'' within the meaning of
section 244 of the Act is not a definable term of fixed and inflexible
content or meaning; it necessarily depends upon the facts and
circumstances peculiar to each case. Matter of Hwang, 10 I&N Dec. 448
(BIA 1964). The hardship requirement encompasses more than the mere
economic deprivation that might result from an alien's deportation for
the United States. Davidson v. INS, 558 F.2d 1361 (9th Cir. 1977); and
Matter of Sipus, 14 I&N Dec. 229 (BIA 1972). It has also been found
that the loss of a job and the concomitant financial loss incurred is
not synonymous with extreme hardship. Lee v. INS, 550 F.2d 554 (9th
Cir. 1977). Similarly, readjustment to life in the native country after
having spent a number of years in the United States is not the type of
hardship that has been characterized as extreme, since most aliens who
have spent time abroad suffer this kind of hardship. Matter of Uy, 11
I&N Dec. 159 (BIA 1965).
``Extreme hardship'' must be evaluated on a case-by-case basis
after a review of all the circumstances in the case. This rule,
therefore, does not include a list of ``factors'' that would
automatically establish an applicant's claim to extreme hardship. Each
self-petitioner is encouraged to cite and document all the reasons that
he or she believes that deportation would cause extreme hardship.
Some precedent suspension of deportation cases have discussed the
reasons why a particular applicant was found to have established that
his or her deportation would cause extreme hardship. These reasons
include the: (1) age of the person; (2) age and number of the person's
children and their ability to speak the native language and adjust to
life in another country; (3) serious illness of the person or his or
her child which necessitates medical attention not adequately available
in the foreign country; (4) person's inability to obtain adequate
employment in the foreign country; (5) person's and the person's
child's length of residence in the United States; (6) existence of
other family members who will be legally residing in the United States;
(7) irreparable harm that may arise as a result of disruption of
education opportunities; and (8) adverse psychological impact of
deportation.
In some self-petitioning cases, the circumstances surrounding
domestic abuse and the consequences of the abuse may cause the extreme
hardship. These self-petitioners may wish to cite and provide evidence
relating to some or all of the following areas, in addition to any
other basis for believing that deportation would cause extreme
hardship: (1) the nature and extent of the physical and psychological
consequences of the battering or extreme cruelty; (2) the impact of the
loss of access to the U.S. courts and criminal justice system
(including, not limited to, the ability to obtain and enforce: orders
of protection; criminal investigations and prosecutions; and family law
proceedings or court orders regarding child support, maintenance, child
custody and visitation); (3) the self-petitioner's and/or the self-
petitioner's child's need for social, medical, mental health, or other
supportive services which would not be available or reasonably
accessible in the foreign country; (4) the existence of laws, social
practices, or customs in the foreign country that would penalize or
ostracize the self-petitioner or the self-petitioner's child for having
been the victim of abuse, for leaving the abusive situation, or for
actions taken to stop the abuse; (5) the abuser's ability to travel to
the foreign country and the ability and willingness of foreign
authorities to protect the self-petitioner and/or the self-petitioner's
child from future abuse; and (6) the likelihood that the abuser's
family, friends, or others acting on behalf of the abuser in the
foreign country would physically or psychologically harm the self-
petitioner and/or the self-petitioner's child.
The Service will develop and provide further interpretive guidance
concerning the extreme hardship determination in self-petitioning cases
to the Service officers who will adjudicate these self-petitions. This
guidance is expected to be in the form of implementing directives,
training courses, the field handbook currently under development by the
Service, and other policy and procedural directives.
[[Page 13068]]
Good Faith Marriage
Section 40701 of the Crime Bill requires a self-petitioning spouse
to show that he or she entered into the marriage to the abusive citizen
or lawful permanent resident in good faith. This rule provides,
therefore, that a self-petition cannot be approved if the self-
petitioner married the abuser solely to obtain immigration benefits. A
self-petitioning spouse who is not subject to the limitations imposed
by IMFA need only provide a ``preponderance'' of evidence showing that
he or she married in good faith. Persons who are subject to the IMFA
restrictions may be required to meet a heavier burden of proof to
establish that a marriage was entered into in good faith, as discussed
previously in the section entitled ``Eligibility for Immigrant
Classification.''
The Act does not define a ``good-faith'' marriage or provide
guidelines for evaluating the bona fides of a marriage; however,
persons applying for immigration benefits based on a marriage are
generally required to establish that they entered into the marriage in
good faith, and a significant body of case law has developed concerning
the interpretation of this requirement. It has long been held that a
marriage that is entered into for the primary purpose of circumventing
the immigration laws, referred to as a fraudulent or sham marriage,
cannot be recognized as enabling a spouse to obtain immigration
benefits. Lutwak v. United States, 344 U.S. 604 (1953) and Matter of
Phillis, 15 I&N Dec. 385 (BIA 1975). A spousal petition will not be
denied, however, solely because the spouses are not living together and
the marriage is no longer viable. Matter of McKee, 17 I&N Dec. 332 (BIA
1980). The key factor in determining whether a person entered into a
marriage in good faith is whether he or she intended to establish a
life together with the spouse at the time of the marriage. The person's
conduct after marriage is relevant only to the extent that it bears
upon his or her subjective state of mind at the time of the marriage.
Separation from the other spouse, even shortly after the marriage took
place, does not prove, by itself, that a marriage was not entered into
in good faith. Bark v. INS, 511 F.2d 1200 (9th Cir. 1975).
This rule allows the submission of a variety of evidence to show a
good-faith marriage. The self-petitioner should submit the best
evidence available. Evidence of good faith at the time of marriage may
include, but is not limited to, proof that one spouse has been listed
as the other's spouse on insurance policies, property leases, income
tax forms, or bank accounts; and testimony or other evidence regarding
courtship, wedding ceremony, shared residence and experiences. Matter
of Laureano, supra. Other types of readily available evidence might
include the birth certificates of children born to the abuser and the
spouse; police, medical, or court documents providing information about
the relationship; and affidavits of persons with personal knowledge of
the relationship.
Derivative Child Included in the Self-Petition
Section 40701 of the Crime Bill allows any child of a self-
petitioning spouse to be derivatively included in the self-petition, if
the child has not been classified as an immigrant based on his or her
own self-petition. This rule allows a derivative child who has been
included in a parent's petition to later file a self-petition, provided
the child meets the self-petitioning requirements. It also allows a
child who has been classified as an immigrant based on a petition filed
by the abuser or another relative to be derivatively included in a
parent's self-petition; including the child in the self-petition will
not affect the validity of the petition submitted by the abuser or
another relative.
No separate petition is necessary for derivative classification,
and the child is not required to have been the victim of abuse. The
derivative child also does not need to have lived in the United States
or to otherwise satisfy the criteria for filing a self-petition. He or
she, however, must meet the requirements for immigrant visa issuance
abroad or adjustment of status in the United States. An eligible child,
including a child born after the self-petition was approved, may be
added to a self-petitioning spouse's petition when the self-petitioner
applies for an immigrant visa abroad or adjustment of status in the
United States. A new petition will not be required.
This rule further specifies that a derivative child need not be the
child of the abuser, but must qualify as the self-petitioning spouse's
child under the definition of ``child'' contained in section 101(b)(1)
of the Act. The statutory definition includes certain children born in
or out of wedlock, and certain legitimated, adopted, and stepchildren.
It also requires a child to be unmarried and less than 21 years old.
This rule requires a derivative child to continue to be a ``child''
until he or she becomes a lawful permanent resident based on the
derivative classification. A derivative son or daughter who is married
or more than 21 years old will not be issued an immigrant visa or
granted adjustment of status as a derivative child.
Since derivative status is based solely on the relationship to the
principal self-petitioner, the rule also provides that the derivative
child can be granted lawful permanent residence only if the child is
accompanying or following-to-join the self-petitioner. No derivative
benefit can be granted if the principal self-petitioner does not become
a lawful permanent resident.
This rule does not require the submission of documentary evidence
of the derivative relationship with the self-petition. Such documents
must be submitted, however, when the child applies for an immigrant
visa abroad or adjustment of status to that of a lawful permanent
resident of the United States based on the derivative relationship.
Primary evidence of a parent-child relationship has been previously
discussed under ``Child of a Citizen or Lawful Permanent Resident.''
The Service's regulations at 8 CFR 204.1 and 204.2 provide additional
information concerning primary or secondary supporting documentation of
a parent-child relationship. Other types of evidence not specifically
discussed in this rule or the Service regulations may also be
submitted; the Service will consider any relevant credible evidence.
Evidence in General
In accordance with the provisions of section 40701 of the Crime
Bill, this rule provides that the Service will consider all credible
evidence submitted with the application before reaching a decision. It
also states that the Service will determine what evidence is credible
and what weight to give to this evidence.
Generally, more weight will be given to primary evidence and
evidence provided in court documents, medical reports, police reports,
and other official documents. Self-petitioners, therefore, are strongly
encouraged to submit this type of evidence whenever possible. Self-
petitioners who submit affidavits are urged, but not required, to
provide affidavits from more than one person. Other forms of
documentary evidence may also be submitted, including evidence that has
not been discussed in this rule or identified in the Service
regulations.
The Service's regulations at 8 CFR 103.2 and 204.1(f) provide
detailed information about the requirements applicable to supporting
documentation. An ordinary legible photocopy of any supporting document
may be submitted with a petition, although the Service reserves the
right to require presentation of the original
[[Page 13069]]
document. An original document requested by the Service will be
returned to the petitioner when it is no longer needed. Original
documents submitted by the petitioner but not requested by the Service
will remain a part of the record. Each foreign language document must
be accompanied by an English translation that has been certified by a
competent translator.
Proper Filing and Priority Dates
This rule requires self-petitioners to complete Form I-360,
Petition for Amerasian, Widow(er) or Special Immigrant. As directed in
8 CFR 103.2(a)(2), the person filing the self-petition must sign the
Form I-360. A parent or guardian, however, may sign the petition for a
child who is less than 14 years of age. Any self-petitioner may be
represented by an attorney or accredited representative as described in
8 CFR 103.2(a)(3), if he or she so chooses.
Each self-petition must be accompanied by the fee required by 8 CFR
103.7(b)(1). A self-petitioner who is unable to pay the prescribed fee
may request a fee waiver under the provisions of 8 CFR 103.7(c). The
self-petition should also be accompanied by the documentary evidence
specified in this rule.
Under the provisions of this rule, a self-petition filed
concurrently with a Form I-485, Application to Register Permanent
Residence or Adjust Status, may be filed at the office having
jurisdiction over the adjustment of status application. Other self-
petitions should be filed at the INS Service Center having jurisdiction
over the self-petitioner's place of residence as described in the
instructions to Form I-360. Since section 40701 of the Crime Bill
requires all self-petitioners to be residing in the United States when
the self-petition is filed, a self-petition cannot be filed at a United
States consulate or embassy abroad. A self-petition also cannot be
filed at a Service office overseas. Consular officials and Service
officers overseas have not been delegated the authority to approve a
self-petition.
In accordance with standard procedures, a self-petition received in
a Service office will be stamped to show the time and date of actual
receipt. It will be regarded as properly filed on that date, provided
it is properly signed and executed, the required fee is attached or a
fee waiver is granted, and it otherwise complies with the provisions of
8 CFR 103.2. This rule provides that the priority date will be the date
the self-petition is properly filed. A self-petitioner who has been the
beneficiary of a visa petition filed by the abuser to accord the self-
petitioner immigrant classification as his or her spouse or child,
however, will be allowed to transfer the visa petition priority date to
the self-petition. The earlier priority date may be assigned without
regard to the current validity of the visa petition. The burden of
proof to establish the filing of the visa petition lies with the self-
petitioner, although the Service will attempt to verify a claimed
filing through a search of the Service's computerized records or other
records deemed appropriate by the adjudicating officer.
Decision
If the preliminary decision on a properly filed self-petition is
adverse to the self-petitioner, the self-petitioner will be provided
with written notice of this fact and offered an opportunity to present
additional information or arguments before a final decision is
rendered. If the preliminary decision is based on derogatory
information of which the self-petitioner is unaware, the self-
petitioner will also be offered an opportunity to rebut the derogatory
information in accordance with the provisions of 8 CFR 103.2(b)(16).
Each self-petitioner will be sent a written notice of the final
decision on his or her self-petition. If the petition is denied, he or
she will be informed in writing of the basis for the denial and of the
right to appeal. This rule allows an adverse decision on a self-
petition to be appealed to the Associate Commissioner for Examinations
in accordance with the provisions of 8 CFR 103.3.
Eligibility for Immigrant Visa Issuance or Adjustment of Status
Approval of a self-petition does not guarantee immediate
eligibility for immigrant visa issuance or adjustment of status to that
of a lawful permanent resident of the United States. The beneficiary of
an approved self-petition must meet several additional requirements
before he or she will be found eligible for lawful permanent residence
in the United States.
Neither the Act nor this rule limits the overall number of self-
petitions that may be accepted and approved by the Service. Some
persons who are the beneficiaries of approved self-petitions, however,
will be forced to delay filing their applications for immigrant visa
issuance or adjustment of status because sections 201 and 202 of the
Act place certain limits on the number of qualified persons who may be
granted lawful permanent residence during any single year. Self-
petitioners who are subject to these limitations are encouraged to file
the self-petition and establish the earliest possible priority date,
since the available immigrant visa numbers are allocated to qualified
immigrant visa applicants and qualified adjustment of status applicants
strictly in priority date order.
Under the provisions of the Crime Bill, any self-petitioner who
qualifies for immigrant classification as the spouse or child of an
abusive citizen of the Untied States is regarded as an immediate
relative of a U.S. citizen under section 201(b) of the Act and is not
subject to direct numerical limitations. A qualified derivative child
of a self-petitioning spouse of an abusive citizen of the United States
is also considered to be an immediate relative under section 201(b) of
the Act and is also exempted from these limitations. These self-
petitioners may apply for immigrant visa issuance abroad or adjustment
of status to that of a lawful permanent resident of the United States
without regard to numerical limitations.
A self-petitioner who is the spouse or child of an abusive
permanent resident of the United States, however, is subject to
immigrant visa number limitations, as are the qualified derivative
children of spouses of abusive permanent residents. These self-
petitioners and their derivative children are not eligible to apply for
immigrant visa issuance or adjustment of status until their immigrant
visa numbers have become immediately available. Visa numbers for these
self-petitioners and their derivative children are considered
immediately available only when the Department of State Bureau of
Consular Affairs Visa Office Bulletin shows the priority date for the
applicant's country of birth under the family-sponsored 2A second
preference classification as ``current'' or lists a date that is
earlier than the self-petitioner's priority date.
In addition to meeting requirements concerning visa number
availability, a self-petitioner who is applying for an immigrant visa
at a U.S. consulate or embassy abroad must prove that he or she is not
included in any of the classes of persons who, by law, cannot be
admitted to the United States, or that any basis for inadmissibility
has been waived. A person seeking immigrant visa issuance abroad may
also be subject to the provisions of section 212(o) of the Act. This
provision requires a person who was not in lawful nonimmigrant status
on the day he or she last left the United States to remain outside the
country for at least 90 days before obtaining an immigrant visa. An
immigrant may lawfully travel to the
[[Page 13070]]
United States immediately after the visa is issued. A qualified
immigrant visa holder becomes a lawful permanent resident upon
admission to the United States.
A self-petitioner who is seeking immigrant visa issuance abroad
will be contacted by the Department of State's National Visa Center
(NVC) when that office has received the approved self-petition from the
Service and an immigrant visa number is available. Immigrant visa
applicants should follow the instructions provided by NVC and the U.S.
consulate or embassy processing their requests. Persons wishing further
information about immigrant visa issuance abroad should contact the
Department of State or a United States embassy or consulate abroad.
The Act also allows certain persons who are physically present in
the United States to adjust status to that of a lawful permanent
resident of the United States. Like immigrant visa applicants,
adjustment of status applicants must prove that they are eligible for
immigrant classification. Each applicant must also be exempt from
immigrant visa number limitations or show that an immigrant visa number
is immediately available for him or her. An applicant must further
prove that he or she is not included in any of the classes of persons
who, by law, cannot be admitted to the United States, or that any basis
for inadmissibility has been waived. Persons seeking adjustment of
status must also meet the applicable requirements of section 245 of the
Act. A qualified adjustment applicant becomes a lawful permanent
resident upon approval of the adjustment of status application.
Section 40701 of the Crime Bill does not provide adjustment of
status benefits. Self-petitioners, however, may benefit from certain
other provisions of the Act. One such provision is a recently enacted
law that temporarily allows many previously ineligible persons to seek
adjustment of status in the United States. This law, section 506(b) of
the Department of Commerce, Justice, State, the Judiciary and Related
Agencies Appropriations Act, 1995, Public Law 103-317, was enacted
August 26, 1994. It lifts certain restrictions on adjustment of status
under section 245 of the Act on applications granted before October 1,
1997. Persons seeking the adjustment of status benefits of Public Law
103-317 may be subject to a financial penalty, since the law requires
most persons seeking adjustment of status under this provision to pay
an additional sum in excess of the standard adjustment of status filing
fee. Additional information concerning adjustment of status under
Public Law 103-317 may be obtained by requesting Supplement A to Form
I-485 from a local Service office.
Certain restrictions on adjustment of status have not been waived
by section 40701 of the Crime Bill and cannot be waived under Public
Law 103-317. These restrictions include those imposed by section 245(d)
of the Act, which prohibit the adjustment of status of a person who is
a conditional resident under section 216 or 216A of the Act. The
adjustment of status of a person last admitted to the United States as
a K-1 finance(e) is also barred, unless the person is seeking
adjustment as a result of the marriage to the United States citizen who
filed the finance(e) petition. Section 245(d) of the Act similarly
prohibits the adjustment of status of a person who was last admitted as
the K-2 child of a finance(e) parent, unless the person is seeking
adjustment as a result of his or her parent's marriage to the citizen
who filed the finance(e) petition. A self-petitioner who last entered
in K-1 or K-2 nonimmigrant status would be subject to these
restrictions, as would his or her derivative children who last entered
in K-2 nonimmigrant status, unless the abuser is also the citizen who
had filed the finance(e) petition. The statutory language of section
245(d) of the Act does not preclude a conditional resident, a person
who last entered the United States with a finance(e) visa, or a person
who last entered the country as a dependent child of a finance(e) from
filing a self-petition and seeking immigrant visa issuance abroad.
An application for adjustment of status may be filed concurrently
with the self-petition, if the self-petitioner is exempt from immigrant
visa number limitations or if an immigrant visa number would be
immediately available if the self-petition was approved. Other self-
petitioners who wish to adjust status in the United States may file the
self-petition separately and submit the adjustment of status
application when their immigrant visa numbers become available. Self-
petitioners who would like more information about the requirements for
adjustment of status in the United States may request Form I-485 from
the service office serving their local area.
Conditions on Residency Under Section 216 of the Act
Section 216 of the Act was enacted as part of IMFA to detect and
deter immigration-related marriage fraud. It imposes conditions on the
lawful permanent resident status of certain persons who obtain
residency through marriage. A spouse or child may be subject to these
restrictions if he or she becomes a lawful permanent resident based on
a relationship created by a marriage entered into less than 2 years
before residency is granted. The conditions on residency under section
216 of the Act may be removed only upon fulfillment of certain
requirements. A conditional resident who does not file a joint petition
with the citizen or permanent resident spouse during the 90 days prior
to the second anniversary of the date residency was granted may have
residency status terminated. Section 216 of the Act also provides three
waivers of the joint petitioning requirement. One waiver exempts a
conditional resident from filing a joint petition if he or she has been
battered by, or subjected to extreme cruelty committed by, the citizen
or lawful permanent resident; or if his or her child has been battered
by, or subjected to extreme cruelty committed by, the citizen or lawful
permanent resident. The Service has determined that no useful purpose
would be served by imposing the conditional residency requirements of
section 216 of the Act on any self-petitioner; all self-petitioners
would necessarily be eligible for waivers of the joint petitioning
requirement. This rule provides, therefore, that the conditional
residence requirements of section 216 of the Act will not apply to a
person who obtains lawful permanent resident status based on an
approved self-petition, regardless of the date of the marriage.
Employment Authorization
Section 40701 of the Crime Bill does not direct the Service to
provide employment authorization based solely on the filing or approval
of a self-petition. A self-petitioner, however, may be eligible to
apply for employment authorization under the existing provisions of 8
CFR 274a.12. Qualified applicants who wish to request employment
authorization should complete and file Form I-765, Application for
Employment Authorization, according to the instructions provided with
the form. A self-petitioner who substantiates that he or she is unable
to pay the Form I-765 application fee may be granted a fee waiver in
accordance with the provisions of 8 CFR 103.7(c).
Many self-petitioners will qualify for employment authorization
under 8 CFR 274a.12(c)(9). This provision allows a person who has
properly filed an adjustment of status application under section 245 of
the Act to request
[[Page 13071]]
employment authorization while the adjustment application is pending
before the Service.
Most other self-petitioners will be eligible to request voluntary
departure prior to or after a deportation hearing for the reasons set
forth in 8 CFR 242.5(a)(2) (v), (vi), or (viii), and may qualify for
employment authorization based on the grant of voluntary departure.
Voluntary departure may be granted under 8 CFR 242.5(a)(2)(v) to a
person who lost his or her nonimmigrant student or exchange visitor
status (F-1, F-2, J-1, or J-2 nonimmigrant classification) solely
because a private bill had been introduced in his or her behalf. It may
be granted under 8 CFR 242.5(a)(2)(vi) to a person who is admissible to
the United States as an immigrant, and: (1) who is an immediate
relative of a U.S. citizen; or (2) is otherwise exempt from the
numerical limitation on immigrant visa issuance; or (3) has a priority
date for an immigrant visa not more than 60 days later than the date
shown in the latest Visa Office Bulletin and has applied for an
immigrant visa at a United States Consulate which has accepted
jurisdiction over the case; or (4) who is the beneficiary of an
employment-based petition with a priority date earlier than August 9,
1978, and who meets certain other requirements outlined in 8 CFR
242.5(a)(2)(vi) (D) or (E). Also, voluntary departure may be granted
under 8 CFR 242.5(a)(2)(viii) to a person in whose case the district
director has determined there are compelling factors warranting a grant
of voluntary departure. A person who has been granted voluntary
departure for the reasons set forth in 8 CFR 242.5(a)(2) (v), (vi), or
(viii) may be granted permission under 8 CFR 274a.12(c)(12) to be
employed for the period of time prior to the date set for voluntary
departure, if the person shows an economic need to work. Extensions of
voluntary departure and employment authorization may also be requested.
Requests for voluntary departure under 8 CFR 242.5(a)(2)(v), (vi), or
(viii) may be made to the local Service office having jurisdiction over
the applicant's place of residence. There is no application form or fee
for requesting voluntary departure for these reasons, although a person
requesting employment authorization on the basis of the voluntary
departure grant will be required to file Form I-765 and to pay the Form
I-765 application fee or to establish eligibility for a fee waiver.
A person who has been placed in deferred action status, an act of
administrative convenience to the Government that assigns a lower
priority to the alien's removal from the United States, may also
request employment authorization under 8 CFR 274a.12
FR Doc. 96-7219 Petition to Classify Alien as Immediate Relative of a United States Citizen or as a Preference Immigrant; Self-Petitioning for Certain Battered or Abused Spouses and Children
(c)(14) if the
person shows an economic need to work. There is no application process
or fee for placement in deferred action status, although a person
requesting employment authorization on the basis of deferred action
placement will be required to file Form I-765 and to pay the Form I-765
application fee or to establish eligibility for a fee waiver.
Furthermore, a self-petitioner would not be precluded from
requesting the employment authorization benefits of any other provision
of 8 CFR 274a.12 under which he or she may qualify.
Other Regulatory Changes
In addition to making regulatory changes necessary to implement the
provisions of section 40701 of the Crime Bill, this rule makes
necessary grammatical and format changes to ensure consistency and
clarity. It also makes technical changes by: (1) amending 8 CFR
103.1(f)(3)(iii) to update regulatory and statutory references; (2)
amending 8 CFR 103.1(f)(3)(iii) to eliminate provisions concerning the
appeal of a denial of a petition for a Replenishment Agricultural
Worker (RAW) under part 210a of the Act, since that program expired at
the end of fiscal year 1993 without allowing any such petitions to be
filed; (3) revising the headings of 8 CFR 204.1 and 8 CFR 204.2 to more
accurately reflect the contents of the sections; (4) correcting a
typographical error by replacing ``Form I-30'' with ``Form I-130'' in 8
CFR 204.1(a); (5) removing 8 CFR 204.2(d), which discussed a program
created by section 112 of the Immigration Act of 1990 to provide
additional visa numbers to spouses and children of legalized aliens
that ended September 30, 1994; and (6) amending 8 CFR 205.1 to reflect
the requirements of 8 CFR 103.2(a)(7)(ii), which provides an automatic
revocation of an approved petition when the remitter fails to pay the
filing fee and associated service charge after the check or other
financial instrument used to pay the filing fee is returned as not
payable.
Family Well-Being
This regulation will enhance family well-being by allowing
qualified family members of citizens and lawful permanent residents to
self-petition for immigrant classification if they are living in this
country. These family members were formerly precluded from obtaining
this benefit because the abuser refused to file the necessary relative
visa petition.
The Service's implementation of this rule as an interim rule, with
provision for post-promulgation public comment, is based on the ``good
cause'' exceptions found at 5 U.S.C. 553 (b)(3)(B) and (d)(3).
Methodist Hospital of Sacramento, et al., v. Shalala, 38 F.3d 1225
(D.C. Cir. 1994). The reasons and necessity for immediate
implementation of this interim rule are as follows: The changes to the
Act made by section 40701 of the Crime Bill became effective on January
1, 1995. Immediate implementation of this rule will allow a qualified
spouse or child of an abusive citizen or lawful permanent resident to
immediately self-petition for immigrant classification. Prompt
implementation will also allow a spouse or child who is filing based on
the relationship to an abusive lawful permanent resident of the United
States to establish a more favorable place on the immigrant visa number
waiting list. Qualified self-petitioners are all residing in this
country and are persons of good moral character. They have been
prevented from obtaining immigrant classification in the past solely
because their abusive spouse or parent withdrew or refused to file the
necessary immigrant visa petition for them.
Regulatory Flexibility Act
The Commissioner of the Immigration and Naturalization Service, in
accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has
reviewed this regulation and, by approving it, certifies that the rule
will not have a significant economic impact on a substantial number of
small entities because of the following factors. By permitting certain
spouses and children to self-petition for immigrant classification, the
rule will allow some individuals residing in the United States to be
classified as immigrants based on the relationship to an abusive
citizen or lawful permanent resident spouse or child. It will not
affect small entities.
Executive Order 12866
This rule is not considered by the Department of Justice,
Immigration and Naturalization Service to be a ``significant regulatory
action'' under Executive Order 12866, section 3(f), Regulatory Planning
and Review, and the Office of Management and Budget has waived its
review process under section 6(a)(3)(A).
Executive Order 12612
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
[[Page 13072]]
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this rule
does not have sufficient Federalism implications to warrant the
preparation of a Federalism Assessment.
Paperwork Reduction Act
The information collection requirements contained in this rule have
been cleared by the Office of Management and Budget under the
provisions of the Paperwork Reduction Act.
List of Subjects
8 CFR Part 103
Administrative practice and procedure, Authority delegations
(Government agencies), Fees, Forms, Freedom of information, Privacy,
Reporting and recordkeeping requirements, Surety bonds.
8 CFR Part 204
Administrative practice and procedures, Aliens, Employment,
Immigration, Petitions.
8 CFR Part 205
Administrative practice and procedures, Aliens, Immigration,
Petitions.
8 CFR Part 216
Administrative practice and procedures, Aliens, Nonimmigrants,
Passports and visas.
Accordingly, chapter I of title 8 of the Code of Federal
Regulations is amended as follows:
PART 103--POWERS AND DUTIES OF SERVICE OFFICERS; AVAILABILITY OF
SERVICE RECORDS
1. The authority citation for part 103 continues to read as
follows:
Authority: 5 U.S.C. 552, 552a; 8 U.S.C. 1101, 1103, 1201, 1252
note, 1252b, 1304, 1356; 31 U.S.C. 9701; E.O. 12356, 47 FR 1487,
15557, 3 CFR, 1982 Comp., p. 166; 8 CFR part 2.
Sec. 103.1 [Amended]
2. Section 103.1 is amended by:
a. Revising the reference in paragraph (f)(3)(iii)(C) to
``Sec. 245.2 (a)(4) and (e) of this chapter'' to read ``section 103 of
the Act of October 28, 1977'';
b. Revising the reference in paragraph (f)(3)(iii)(K) to
``Sec. 223.1 of this chapter'' to read ``8 CFR part 223'';
c. Revising the reference in paragraph (f)(3)(iii)(L) to
``Sec. 223a.4 of this chapter'' to read ``8 CFR part 223'';
d. Revising the reference in paragraph (f)(3)(iii)(X) to
``Sec. 204.1(b) of this chapter'' to read ``8 CFR 204.3'';
e. Revising the reference in paragraph (f)(3)(iii)(Y) to
``Sec. 204.1(b)(3) of this chapter'' to read ``8 CFR 204.3'';
f. Revising the reference in paragraph (f)(3)(iii)(FF) to ``as
permanent resident under Sec. 245.6 of this chapter'' to read ``of
certain Cuban and Haitian nationals under section 202 of the
Immigration Reform and Control Act of 1986''; and
g. Removing paragraph (f)(3)(iii)(GG).
3. Section 103.1 is amended by adding a new paragraph
(f)(3)(iii)(GG), to read as follows:
Sec. 103.1 Delegations of authority.
* * * * *
(f) * * *
(3) * * *
(iii) * * *
(GG) A self-petition filed by a spouse or child based on the
relationship to an abusive citizen or lawful permanent resident of the
United States for classification under section 201(b)(2)(A)(i) of the
Act or section 203(a)(2)(A) of the Act;
* * * * *
4. Section 103.2 is amended by adding a new paragraph (b)(2)(iii),
to read as follows:
Sec. 103.2 Applications, petitions, and other documents.
* * * * *
(b) * * *
(2) * * *
(iii) Evidence provided with a self-petition filed by a spouse or
child of abusive citizen or resident. The Service will consider any
credible evidence relevant to a self-petition filed by a qualified
spouse or child of an abusive citizen or lawful permanent resident
under section 204(a)(1)(A)(iii), 204(a)(1)(A)(iv), 204(a)(1)(B)(ii), or
204(a)(1)(B)(iii) of the Act. The self-petitioner may, but is not
required to, demonstrate that preferred primary or secondary evidence
is unavailable. The determination of what evidence is credible and the
weight to be given that evidence shall be within the sole discretion of
the Service.
* * * * *
5. Section 103.2 is amended by revising the heading of paragraph
(b)(17) and by adding three new sentences at the end of paragraph
(b)(17), to read as follows:
Sec. 103.2 Applications, petitions, and other documents.
* * * * *
(b) * * *
(17) Verifying claimed citizenship or permanent resident status. *
* * If a self-petitioner filing under section 204(a)(1)(A)(iii),
204(a)(1)(A)(iv), 204(a)(1)(B)(ii), or 204(a)(1)(B)(iii) of the Act is
unable to present primary or secondary evidence of the abuser's status,
the Service will attempt to electronically verify the abuser's
citizenship or immigration status from information contained in Service
computerized records. Other Service records may also be reviewed at the
discretion of the adjudicating officer. If the Service is unable to
identify a record as relating to the abuser, or the record does not
establish the abuser's immigration or citizenship status, the self-
petition will be adjudicated based on the information submitted by the
self-petitioner.
* * * * *
PART 204--IMMIGRANT PETITIONS
6. The authority citation for part 204 continues to read as
follows:
Authority: 8 U.S.C. 1101, 1103, 1151, 1153, 1154, 1182, 1186a,
1255; 8 CFR part 2.
7. Section 204.1 is amended by revising the section heading, and by
revising paragraph (a), to read as follows:
Sec. 204.1 General information about immediate relative and family-
sponsored petitions.
(a) Types of petitions. Petitions may be filed for an alien's
classification as an immediate relative under section 201(b) of the Act
or as a preference immigrant under section 203(a) of the Act based on a
qualifying relationship to a citizen or lawful permanent resident of
the United States, as follows:
(1) A citizen or lawful permanent resident of the United States
petitioning under section 204(a)(1)(A)(i) or 204(a)(1)(B)(i) of the Act
for a qualifying relative's classification as an immediate relative
under section 201(b) of the Act or as a preference immigrant under
section 203(a) of the Act must file a Form I-130, Petition for Alien
Relative. These petitions are described in Sec. 204.2;
(2) A widow or widower of a United States citizen self-petitioning
under section 204(a)(1)(A)(ii) of the Act as an immediate relative
under section 201(b) of the Act must file a Form I-360, Petition for
Amerasian, Widow, or Special Immigrant. These petitions are described
in Sec. 204.2;
(3) A spouse or child of an abusive citizen or lawful permanent
resident of the United States self-petitioning under section
204(a)(1)(A)(iii), 204(a)(1)(A)(iv), 204(a)(1)(B)(ii), or
204(a)(1)(B)(iii) of the Act for classification as an immediate
relative under section 201(b) of the Act or as a preference immigrant
under section 203(a) of the Act must file a Form I-360, Petition for
Amerasian,
[[Page 13073]]
Widow, or Special Immigrant. These petitions are described in
Sec. 204.2;
(4) A citizen of the United States seeking advanced processing of
an orphan petition must file Form I-600A, Application for Advanced
Processing of Orphan Petition. A citizen of the United States
petitioning under section 204(a)(1)(A)(i) of the Act for classification
of an orphan described in section 101(b)(1)(F) of the Act as an
immediate relative under section 201(b) of the Act must file Form I-
600, Petition to Classify Orphan as an Immediate Relative. These
applications and petitions are described in Sec. 204.3; and
(5) Any person filing a petition under section 204(f) of the Act
as, or on behalf of, an Amerasian for classification as an immediate
relative under section 201(b) of the Act or as a preference immigrant
under section 203(a)(1) or 203(a)(3) of the Act must file a Form I-360,
Petition for Amerasian, Widow, or Special Immigrant. These petitions
are described in Sec. 204.4.
* * * * *
9. Section 204.1 is amended by revising paragraph (e)(1), to read
as follows:
Sec. 204.1 General information about immediate relative and family-
sponsored petitions.
* * * * *
(e) * * *
(1) Petitioner or self-petitioner residing in the United States.
The petition or self-petition must be filed with the Service office
having jurisdiction over the place where the petitioner or self-
petitioner is residing. When the petition or self-petition is
accompanied by an application for adjustment of status, the petition or
self-petition may be filed with the Service office having jurisdiction
over the beneficiary's or self-petitioner's place of residence.
* * * * *
9. Section 204.1 is amended by adding two new sentences at the end
of paragraph (e)(2), to read as follows:
Sec. 204.1 General information about immediate relative and family-
sponsored petitions.
* * * * *
(e) * * *
(2) * * * An overseas Service officer may not accept or approve a
self-petition filed by the spouse or child of an abusive citizen or
lawful permanent resident of the United States under section
204(a)(1)(A)(iii), 204(a)(1)(A)(iv), 204(a)(1)(B)(ii), or
204(a)(1)(B)(iii) of the Act. These self-petitions must be filed with
the Service office in the United States having jurisdiction over the
self-petitioner's place of residence in the United States.
* * * * *
10. Section 204.1 is amended by adding two new sentences at the end
of paragraph (e)(3), to read as follows:
Sec. 204.1 General information about immediate relative and family-
sponsored petitions.
* * * * *
(e) * * *
(3) * * * A consular official may not accept or approve a self-
petition filed by the spouse or child of an abusive citizen or lawful
permanent resident of the United States under section
204(a)(1)(A)(iii), 204(a)(1)(A)(iv), 204(a)(1)(B)(ii), or
204(a)(1)(B)(iii) of the Act. These self-petitions must be filed with
the Service office in the United States having jurisdiction over the
self-petitioner's place of residence in the United States.
* * * * *
11. Section 204.1 is amended by adding three new sentences at the
end of paragraph (f)(1), to read as follows:
Sec. 204.1 General information about immediate relative and family-
sponsored petitions.
* * * * *
(f) * * *
(1) * * * The Service will consider any credible evidence relevant
to a self-petition filed by a qualified spouse or child of an abusive
citizen or lawful permanent resident under section 204(a)(1)(A)(iii),
204(a)(1)(A)(iv), 204(a)(1)(B)(ii), or 204(a)(1)(B)(iii) of the Act.
The self-petitioner may, but is not required to, demonstrate that
preferred primary or secondary evidence is unavailable. The
determination of what evidence is credible and the weight to be given
that evidence shall be within the sole discretion of the Service.
* * * * *
12. Section 204.1 is amended by adding a new paragraph (g)(3), to
read as follows:
Sec. 204.1 General information about immediate relative and family-
sponsored petitions.
* * * * *
(g) * * *
(3) Evidence submitted with a self-petition. If a self-petitioner
filing under section 204(a)(1)(A)(iii), 204(a)(1)(A)(iv),
204(a)(1)(B)(ii), or 204(a)(1)(B)(iii) of the Act is unable to present
primary or secondary evidence of the abuser's status, the Service will
attempt to electronically verify the abuser's citizenship or
immigration status from information contained in Service computerized
records. Other Service records may also be reviewed at the discretion
of the adjudicating officer. If the Service is unable to identify a
record as relating to the abuser or the record does not establish the
abuser's immigration or citizenship status, the self-petition will be
adjudicated based on the information submitted by the self-petitioner.
* * * * *
13. Section 204.2 is amended by:
a. Revising the section heading;
b. Removing paragraph (d);
c. Redesignating paragraph (c) as paragraph (d); and by
d. Adding a new paragraph (c), to read as follows:
Sec. 204.2 Petitions for relatives, widows and widowers, and abused
spouses and children.
* * * * *
(c) Self-petition by spouse of abusive citizen or lawful permanent
resident. (1) Eligibility. (i) Basic eligibility requirements. A spouse
may file a self-petition under section 204(a)(1)(A)(iii) or
204(a)(1)(B)(ii) of the Act for his or her classification as an
immediate relative or as a preference immigrant if he or she:
(A) Is the spouse of a citizen or lawful permanent resident of the
United States;
(B) Is eligible for immigrant classification under section
201(b)(2)(A)(i) or 203(a)(2)(A) of the Act based on that relationship;
(C) Is residing in the United States;
(D) Has resided in the United States with the citizen or lawful
permanent resident spouse;
(E) Has been battered by, or has been the subject of extreme
cruelty perpetrated by, the citizen or lawful permanent resident during
the marriage; or is that parent of a child who has been battered by, or
has been the subject of extreme cruelty perpetrated by, the citizen or
lawful permanent resident during the marriage;
(F) Is a person of good moral character;
(G) Is a person whose deportation would result in extreme hardship
to himself, herself, or his or her child; and
(H) Entered into the marriage to the citizen or lawful permanent
resident in good faith.
(ii) Legal status of the marriage. The self-petitioning spouse must
be legally married to the abuser when the petition is properly filed
with the Service. A spousal self-petition must be denied if the
marriage to the abuser legally ended through annulment, death, or
divorce before that time. After the self-petition has been properly
filed, the legal termination of the marriage will have no effect on the
decision made on the self-
[[Page 13074]]
petition. The self-petitioner's remarriage, however, will be a basis
for the denial of a pending self-petition.
(iii) Citizenship or immigration status of the abuser. The abusive
spouse must be a citizen of the United States or a lawful permanent
resident of the United States when the petition is filed and when it is
approved. Changes in the abuser's citizenship or lawful permanent
resident status after the approval will have no effect on the self-
petition. A self-petition approved on the basis of a relationship to an
abusive lawful permanent resident spouse will not be automatically
upgraded to immediate relative status. The self-petitioner would not be
precluded, however, from filing a new self-petition for immediate
relative classification after the abuser's naturalization, provided the
self-petitioner continues to meet the self-petitioning requirements.
(iv) Eligibility for immigrant classification. A self-petitioner is
required to comply with the provisions of section 204(c) of the Act,
section 204(g) of the Act, and section 204(a)(2) of the Act.
(v) Residence. A self-petition will not be approved if the self-
petitioner is not residing in the United States when the self-petition
is filed. The self-petitioner is not required to be living with the
abuser when the petition is filed, but he or she must have resided with
the abuser in the United States in the past.
(vi) Battery or extreme cruelty. For the purpose of this chapter,
the phrase ``was battered by or was the subject of extreme cruelty''
includes, but is not limited to, being the victim of any act or
threatened act of violence, including any forceful detention, which
results or threatens to result in physical or mental injury.
Psychological or sexual abuse or exploitation, including rape,
molestation, incest (if the victim is a minor), or forced prostitution
shall be considered acts of violence. Other abusive actions may also be
acts of violence under certain circumstances, including acts that, in
and of themselves, may not initially appear violent but that are a part
of an overall pattern of violence. The qualifying abuse must have been
committed by the citizen or lawful permanent resident spouse, must have
been perpetrated against the self-petitioner or the self-petitioner's
child, and must have taken place during the self-petitioner's marriage
to the abuser.
(vii) Good moral character. A self-petitioner will be found to lack
good moral character if he or she is a person described in section
101(f) of the Act. Extenuating circumstances may be taken into account
if the person has not been convicted of an offense or offenses but
admits to the commission of an act or acts that could show a lack of
good moral character under section 101(f) of the Act. A person who was
subjected to abuse in the form of forced prostitution or who can
establish that he or she was forced to engage in other behavior that
could render the person excludable under section 212(a) of the Act
would not be precluded from being found to be a person of good moral
character, provided the person has not been convicted for the
commission of the offense or offenses in a court of law. A self-
petitioner will also be found to lack good moral character, unless he
or she establishes extenuating circumstances, if he or she willfully
failed or refused to support dependents; or committed unlawful acts
that adversely reflect upon his or her moral character, or was
convicted or imprisoned for such acts, although the acts do not require
an automatic finding of lack of good moral character. A self-
petitioner's claim of good moral character will be evaluated on a case-
by-case basis, taking into account the provisions of section 101(f) of
the Act and the standards of the average citizen in the community. If
the results of record checks conducted prior to the issuance of an
immigrant visa or approval of an application for adjustment of status
disclose that the self-petitioner is no longer a person of good moral
character or that he or she has not been a person of good moral
character in the past, a pending self-petition will be denied or the
approval of a self-petition will be revoked.
(viii) Extreme hardship. The Service will consider all credible
evidence of extreme hardship submitted with a self-petition, including
evidence of hardship arising from circumstances surrounding the abuse.
The extreme hardship claim will be evaluated on a case-by-case basis
after a review of the evidence in the case. Self-petitioners are
encouraged to cite and document all applicable factors, since there is
no guarantee that a particular reason or reasons will result in a
finding that deportation would cause extreme hardship. Hardship to
persons other than the self-petitioner or the self-petitioner's child
cannot be considered in determining whether a self-petitioning spouse's
deportation would cause extreme hardship.
(ix) Good faith marriage. A spousal self-petition cannot be
approved if the self-petitioner entered into the marriage to the abuser
for the primary purpose of circumventing the immigration laws. A self-
petition will not be denied, however, solely because the spouses are
not living together and the marriage is no longer viable.
(2) Evidence for a spousal self-petition. (i) General. Self-
petitioners are encouraged to submit primary evidence whenever
possible. The Service will consider, however, any credible evidence
relevant to the petition. The determination of what evidence is
credible and the weight to be given that evidence shall be within the
sole discretion of the Service.
(ii) Relationship. A self-petition filed by a spouse must be
accompanied by evidence of citizenship of the United States citizen or
proof of the immigration status of the lawful permanent resident
abuser. It must also be accompanied by evidence of the relationship.
Primary evidence of a marital relationship is a marriage certificate
issued by civil authorities, and proof of the termination of all prior
marriages, if any, of both the self-petitioner and the abuser. If the
self-petition is based on a claim that the self-petitioner's child was
battered or subjected to extreme cruelty committed by the citizen or
lawful permanent resident spouse, the self-petition should also be
accompanied by the child's birth certificate or other evidence showing
the relationship between the self-petitioner and the abused child.
(iii) Residence. One or more documents may be submitted showing
that the self-petitioner and the abuser have resided together in the
United States. One or more documents may also be submitted showing that
the self-petitioner is residing in the United States when the self-
petition is filed. Employment records, utility receipts, school
records, hospital or medical records, birth certificates of children
born in the United States, deeds, mortgages, rental records, insurance
policies, affidavits or any other type of relevant credible evidence of
residency may be submitted.
(iv) Abuse. Evidence of abuse may include, but is not limited to,
reports and affidavits from police, judges and other court officials,
medical personnel, school officials, clergy, social workers, and other
social service agency personnel. Persons who have obtained an order of
protection against the abuser or have taken other legal steps to end
the abuse are strongly encouraged to submit copies of the relating
legal documents. Evidence that the abuse victim sought safe-haven in a
battered women's shelter or similar refuge may be relevant, as may a
combination of documents such as a photograph of the visibly injured
self-petitioner supported by affidavits. Other forms of credible
relevant evidence will also be considered. Documentary proof of non-
qualifying abuses may only be used to
[[Page 13075]]
establish a pattern of abuse and violence and to support a claim that
qualifying abuse also occurred.
(v) Good moral character. Primary evidence of the self-petitioner's
good moral character is the self-petitioner's affidavit. The affidavit
should be accompanied by a local police clearance or a state-issued
criminal background check from each locality or state in the United
States in which the self-petitioner has resided for six or more months
during the 3-year period immediately preceding the filing of the self-
petition. Self-petitioners who lived outside the United States during
this time should submit a police clearance, criminal background check,
or similar report issued by the appropriate authority in each foreign
country in which he or she resided for six or more months during the 3-
year period immediately preceding the filing of the self-petition. If
police clearances, criminal background checks, or similar reports are
not available for some or all locations, the self-petitioner may
include an explanation and submit other evidence with his or her
affidavit. The Service will consider other credible evidence of good
moral character, such as affidavits from responsible persons who can
knowledgeably attest to the self-petitioner's good moral character.
(vi) Extreme hardship. Evidence of extreme hardship may include
affidavits, birth certificates of children, medical reports, protection
orders and other court documents, police reports, and other relevant
credible evidence.
(vii) Good faith marriage. Evidence of good faith at the time of
marriage may include, but is not limited to, proof that one spouse has
been listed as the other's spouse on insurance policies, property
leases, income tax forms, or bank accounts; and testimony or other
evidence regarding courtship, wedding ceremony, shared residence and
experiences. Other types of readily available evidence might include
the birth certificates of children born to the abuser and the spouse;
police, medical, or court documents providing information about the
relationship; and affidavits of persons with personal knowledge of the
relationship. All credible relevant evidence will be considered.
(3) Decision on and disposition of the petition. (i) Petition
approved. If the self-petitioning spouse will apply for adjustment of
status under section 245 of the Act, the approved petition will be
retained by the Service. If the self-petitioner will apply for an
immigrant visa abroad, the approved self-petition will be forwarded to
the Department of State's National Visa Center.
(ii) Notice of intent to deny. If the preliminary decision on a
properly filed self-petition is adverse to the self-petitioner, the
self-petitioner will be provided with written notice of this fact and
offered an opportunity to present additional information or arguments
before a final decision is rendered. If the adverse preliminary
decision is based on derogatory information of which the self-
petitioner is unaware, the self-petitioner will also be offered an
opportunity to rebut the derogatory information in accordance with the
provisions of 8 CFR 103.2(b)(16).
(iii) Petition denied. If the self-petition is denied, the self-
petitioner will be notified in writing of the reasons for the denial
and of the right to appeal the decision.
(4) Derivative beneficiaries. A child accompanying or following-to-
join the self-petitioning spouse may be accorded the same preference
and priority date as the self-petitioner without the necessity of a
separate petition, if the child has not been classified as an immigrant
based on his or her own self-petition. A derivative child who had been
included in a parent's self-petition may later file a self-petition,
provided the child meets the self-petitioning requirements. A child who
has been classified as an immigrant based on a petition filed by the
abuser or another relative may also be derivatively included in a
parent's self-petition. The derivative child must be unmarried, less
than 21 years old, and otherwise qualify as the self-petitioner's child
under section 101(b)(1)(F) of the Act until he or she becomes a lawful
permanent resident based on the derivative classification.
(5) Name change. If the self-petitioner's current name is different
than the name shown on the documents, evidence of the name change (such
as the petitioner's marriage certificate, legal document showing name
change, or other similar evidence) must accompany the self-petition.
* * * * *
14. Section 204.2 is amended by redesignating paragraphs (e), (f),
(g), and (h), as paragraphs (f), (g), (h), and (i), respectively; and
by adding a new paragraph (e), to read as follows:
Sec. 204.2 Petitions for relatives, widows and widowers, and abused
spouses and children.
* * * * *
(e) Self-petition by child of abusive citizen or lawful permanent
resident. (1) Eligibility. (i) A child may file a self-petition under
section 204(a)(1)(A)(iv) or 204(a)(1)(B)(iii) of the Act if he or she:
(A) Is the child of a citizen or lawful permanent resident of the
United States;
(B) Is eligible for immigrant classification under section
201(b)(2)(A)(i) or 203(a)(2)(A) of the Act based on that relationship;
(C) Is residing in the United States;
(D) Has resided in the United States with the citizen or lawful
permanent resident parent;
(E) Has been battered by, or has been the subject of extreme
cruelty perpetrated by, the citizen or lawful permanent resident parent
while residing with that parent;
(F) Is a person of good moral character; and
(G) Is a person whose deportation would result in extreme hardship
to himself or herself.
(ii) Parent-child relationship to the abuser. The self-petitioning
child must be unmarried, less than 21 years of age, and otherwise
qualify as the abuser's child under the definition of child contained
in section 101(b)(1) of the Act when the petition is filed and when it
is approved. Termination of the abuser's parental rights or a change in
legal custody does not alter the self-petitioning relationship provided
the child meets the requirements of section 101(b)(1) of the Act.
(iii) Citizenship or immigration status of the abuser. The abusive
parent must be a citizen of the United States or a lawful permanent
resident of the United States when the petition is filed and when it is
approved. Changes in the abuser's citizenship or lawful permanent
resident status after the approval will have no effect on the self-
petition. A self-petition approved on the basis of a relationship to an
abusive lawful permanent resident will not be automatically upgraded to
immediate relative status. The self-petitioning child would not be
precluded, however, from filing a new self-petition for immediate
relative classification after the abuser's naturalization, provided the
self-petitioning child continues to meet the self-petitioning
requirements.
(iv) Eligibility for immigrant classification. A self-petitioner is
required to comply with the provisions of section 204(c) of the Act,
section 204(g) of the Act, and section 204(a)(2) of the Act.
(v) Residence. A self-petition will not be approved if the self-
petitioner is not residing in the United States when the self-petition
is filed. The self-petitioner is not required to be living with the
abuser when the petition is filed, but he or she must have resided with
the abuser in the United States in the past.
(vi) Battery or extreme cruelty. For the purpose of this chapter,
the phrase ``was
[[Page 13076]]
battered by or was the subject of extreme cruelty'' includes, but is
not limited to, being the victim of any act or threatened act of
violence, including any forceful detention, which results or threatens
to result in physical or mental injury. Psychological or sexual abuse
or exploitation, including rape, molestation, incest (if the victim is
a minor), or forced prostitution shall be considered acts of violence.
Other abusive actions may also be acts of violence under certain
circumstances, including acts that, in and of themselves, may not
initially appear violent but are a part of an overall pattern of
violence. The qualifying abuse must have been committed by the citizen
or lawful permanent resident parent, must have been perpetrated against
the self-petitioner, and must have taken place while the self-
petitioner was residing with the abuser.
(vii) Good moral character. A self-petitioner will be found to lack
good moral character if he or she is a person described in section
101(f) of the Act. Extenuating circumstances may be taken into account
if the person has not been convicted of an offense or offenses but
admits to the commission of an act or acts that could show a lack of
good moral character under section 101(f) of the Act. A person who was
subjected to abuse in the form of forced prostitution or who can
establish that he or she was forced to engage in other behavior that
could render the person excludable under section 212(a) of the Act
would not be precluded from being found to be a person of good moral
character, provided the person has not been convicted for the
commission of the offense or offenses in a court of law. A self-
petitioner will also be found to lack good moral character, unless he
or she establishes extenuating circumstances, if he or she willfully
failed or refused to support dependents; or committed unlawful acts
that adversely reflect upon his or her moral character, or was
convicted or imprisoned for such acts, although the acts do not require
an automatic finding of lack of good moral character. A self-
petitioner's claim of good moral character will be evaluated on a case-
by-case basis, taking into account the provisions of section 101(f) of
the Act and the standards of the average citizen in the community. If
the results of record checks conducted prior to the issuance of an
immigrant visa or approval of an application for adjustment of status
disclose that the self-petitioner is no longer a person of good moral
character or that he or she has not been a person of good moral
character in the past, a pending self-petition will be denied or the
approval of a self-petition will be revoked.
(viii) Extreme hardship. The Service will consider all credible
evidence of extreme hardship submitted with a self-petition, including
evidence of hardship arising from circumstances surrounding the abuse.
The extreme hardship claim will be evaluated on a case-by-case basis
after a review of the evidence in the case. Self-petitioners are
encouraged to cite and document all applicable factors, since there is
no guarantee that a particular reason or reasons will result in a
finding that deportation would cause extreme hardship. Hardship to
persons other than the self-petitioner cannot be considered in
determining whether a self-petitioning child's deportation would cause
extreme hardship.
(2) Evidence for a child's self-petition. (i) General. Self-
petitioners are encouraged to submit primary evidence whenever
possible. The Service will consider, however, any credible evidence
relevant to the petition. The determination of what evidence is
credible and the weight to be given that evidence shall be within the
sole discretion of the Service.
(ii) Relationship. A self-petition filed by a child must be
accompanied by evidence of citizenship of the United States citizen or
proof of the immigration status of the lawful permanent resident
abuser. It must also be accompanied by evidence of the relationship.
Primary evidence of the relationship between:
(A) The self-petitioning child and an abusive biological mother is
the self-petitioner's birth certificate issued by civil authorities;
(B) A self-petitioning child who was born in wedlock and an abusive
biological father is the child's birth certificate issued by civil
authorities, the marriage certificate of the child's parents, and
evidence of legal termination of all prior marriages, if any;
(C) A legitimated self-petitioning child and an abusive biological
father is the child's birth certificate issued by civil authorities,
and evidence of the child's legitimation;
(D) A self-petitioning child who was born out of wedlock and an
abusive biological father is the child's birth certificate issued by
civil authorities showing the father's name, and evidence that a bona
fide parent-child relationship has been established between the child
and the parent;
(E) A self-petitioning stepchild and an abusive stepparent is the
child's birth certificate issued by civil authorities, the marriage
certificate of the child's parent and the stepparent showing marriage
before the stepchild reached 18 years of age, and evidence of legal
termination of all prior marriages of either parent, if any; and
(F) An adopted self-petitioning child and an abusive adoptive
parent is an adoption decree showing that the adoption took place
before the child reached 16 years of age, and evidence that the child
has been residing with and in the legal custody of the abusive adoptive
parent for at least 2 years.
(iii) Residence. One or more documents may be submitted showing
that the self-petitioner and the abuser have resided together in the
United States. One or more documents may also be submitted showing that
the self-petitioner is residing in the United States when the self-
petition is filed. Employment records, school records, hospital or
medical records, rental records, insurance policies, affidavits or any
other type of relevant credible evidence of residency may be submitted.
(iv) Abuse. Evidence of abuse may include, but is not limited to,
reports and affidavits from police, judges and other court officials,
medical personnel, school officials, clergy, social workers, and other
social service agency personnel. Persons who have obtained an order of
protection against the abuser or taken other legal steps to end the
abuse are strongly encouraged to submit copies of the relating legal
documents. Evidence that the abuse victim sought safe-haven in a
battered women's shelter or similar refuge may be relevant, as may a
combination of documents such as a photograph of the visibly injured
self-petitioner supported by affidavits. Other types of credible
relevant evidence will also be considered. Documentary proof of non-
qualifying abuse may only be used to establish a pattern of abuse and
violence and to support a claim that qualifying abuse also occurred.
(v) Good moral character. Primary evidence of the self-petitioner's
good moral character is the self-petitioner's affidavit. The affidavit
should be accompanied by a local police clearance or a state-issued
criminal background check from each locality or state in the United
States in which the self-petitioner has resided for six or more months
during the 3-year period immediately preceding the filing of the self-
petition. Self-petitioners who lived outside the United States during
this time should submit a police clearance, criminal background check,
or similar report issued by the appropriate authority in the foreign
country in which he or she resided for six or more
[[Page 13077]]
months during the 3-year period immediately preceding the filing of the
self-petition. If police clearances, criminal background checks, or
similar reports are not available for some or all locations, the self-
petitioner may include an explanation and submit other evidence with
his or her affidavit. The Service will consider other credible evidence
of good moral character, such as affidavits from responsible persons
who can knowledgeably attest to the self-petitioner's good moral
character. A child who is less than 14 years of age is presumed to be a
person of good moral character and is not required to submit affidavits
of good moral character, police clearances, criminal background checks,
or other evidence of good moral character.
(vi) Extreme hardship. Evidence of extreme hardship may include
affidavits, medical reports, protection orders and other court
documents, police reports, and other relevant credible evidence.
(3) Decision on and disposition of the petition. (i) Petition
approved. If the self-petitioning child will apply for adjustment of
status under section 245 of the Act, the approved petition will be
retained by the Service. If the self-petitioner will apply for an
immigrant visa abroad, the approved self-petition will be forwarded to
the Department of State's National Visa Center.
(ii) Notice of intent to deny. If the preliminary decision on a
properly filed self-petition is adverse to the self-petitioner, the
self-petitioner will be provided with written notice of this fact and
offered an opportunity to present additional information or arguments
before a final decision is rendered. If the adverse preliminary
decision is based on derogatory information of which the self-
petitioner is unaware, the self-petitioner will also be offered an
opportunity to rebut the derogatory information in accordance with the
provisions of 8 CFR 103.2(b)(16).
(iii) Petition denied. If the self-petition is denied, the self-
petitioner will be notified in writing of the reasons for the denial
and of the right to appeal the decision.
(4) Derivative beneficiaries. A child of a self-petitioning child
is not eligible for derivative classification and must have a petition
filed on his or her behalf if seeking immigrant classification.
(5) Name change. If the self-petitioner's current name is different
than the name shown on the documents, evidence of the name change (such
as the petitioner's marriage certificate, legal document showing the
name change, or other similar evidence) must accompany the self-
petition.
* * * * *
Sec. 204.2 [Amended]
15. Section 204.2 is amended in newly designated paragraph
(g)(2)(iv) by revising the reference to ``paragraphs (f)(2)(ii) and
(f)(2)(iii) of this section'' to read ``paragraphs (g)(2)(ii) and
(g)(2)(iii) of this section''.
16. Section 204.2 is amended by adding five new sentences at the
end of the newly redesignated paragraph (h)(2), to read as follows:
Sec. 204.2 Petitions for relatives, widows and widowers, and abused
spouses and children.
* * * * *
(h) * * *
(2) * * * A self-petition filed under section 204(a)(1)(A)(iii),
204(a)(1)(A)(iv), 204(a)(1)(B)(ii), 204(a)(1)(B)(iii) of the Act based
on the relationship to an abusive citizen or lawful permanent resident
of the United States will not be regarded as a reaffirmation or
reinstatement of a petition previously filed by the abuser. A self-
petitioner who has been the beneficiary of a visa petition filed by the
abuser to accord the self-petitioner immigrant classification as his or
her spouse or child, however, will be allowed to transfer the visa
petition's priority date to the self-petition. The visa petition's
priority date may be assigned to the self-petition without regard to
the current validity of the visa petition. The burden of proof to
establish the existence of and the filing date of the visa petition
lies with the self-petitioner, although the Service will attempt to
verify a claimed filing through a search of the Service's computerized
records or other records deemed appropriate by the adjudicating
officer. A new self-petition filed under section 204(a)(1)(A)(iii),
204(a)(1)(A)(iv), 204(a)(1)(B)(ii), or 204(a)(1)(B)(iii) of the Act
will not be regarded as a reaffirmation or reinstatement of the
original self-petition unless the prior and the subsequent self-
petitions are based on the relationship to the same abusive citizen or
lawful permanent resident of the United States.
* * * * *
17. Section 204.2 is amended by adding a new sentence at the end of
the newly redesignated paragraph (i)(3), to read as follows:
Sec. 204.2 Petitions for relatives, widows and widowers, and abused
spouses and children.
* * * * *
(i) * * *
(3) * * * A self-petition filed under section 204(a)(1)(B)(ii) or
204(a)(1)(B)(iii) of the Act based on the relationship to an abusive
lawful permanent resident of the United States for classification under
section 203(a)(2) of the Act will not be affected by the abuser's
naturalization and will not be automatically converted to a petition
for immediate relative classification.
PART 205--REVOCATION OF APPROVAL OF PETITIONS
18. The authority citation for part 205 continues to read as
follows:
Authority: 8 U.S.C. 1101, 1103, 1151, 1153, 1154, 1155, 1182,
and 1186a.
19. Section 205.1 is revised to read as follows:
Sec. 205.1 Automatic revocation.
(a) Reasons for automatic revocation. The approval of a petition or
self-petition made under section 204 of the Act and in accordance with
part 204 of this chapter is revoked as of the date of approval:
(1) If the Secretary of State shall terminate the registration of
the beneficiary pursuant to the provisions of section 203(e) of the Act
before October 1, 1991, or section 203(g) of the Act on or after
October 1, 1994;
(2) If the filing fee and associated service charge are not paid
within 14 days of the notification to the remitter that his or her
check or other financial instrument used to pay the filing fee has been
returned as not payable; or
(3) If any of the following circumstances occur before the
beneficiary's or self-petitioner's journey to the United States
commences or, if the beneficiary or self-petitioner is an applicant for
adjustment of status to that of a permanent resident, before the
decision on his or her adjustment application becomes final:
(i) Immediate relative and family-sponsored petitions, other than
Amerasian petitions. (A) Upon written notice of withdrawal filed by the
petitioner or self-petitioner with any officer of the Service who is
authorized to grant or deny petitions.
(B) Upon the death of the beneficiary or the self-petitioner.
(C) Upon the death of the petitioner, unless the Attorney General
in his or her discretion determines that for humanitarian reasons
revocation would be inappropriate.
(D) Upon the legal termination of the marriage when a citizen or
lawful permanent resident of the United States has petitioned to accord
his or her spouse immediate relative or family-sponsored preference
immigrant classification under section 201(b) or section 203(a)(2) of
the Act. The
[[Page 13078]]
approval of a spousal self-petition based on the relationship to an
abusive citizen or lawful permanent resident of the United States filed
under section 204(a)(1)(A)(iii) or 204(a)(1)(B)(ii) of the Act,
however, will not be revoked solely because of the termination of the
marriage to the abuser.
(E) Upon the remarriage of the spouse of an abusive citizen or
lawful permanent resident of the United States when the spouse has
self-petitioned under section 204(a)(1)(A)(iii) or 204(a)(1)(B)(ii) of
the Act for immediate relative classification under section 201(b) of
the Act or for preference classification under section 203(a)(2) of the
Act.
(F) Upon a child reaching the age of 21, when he or she has been
accorded immediate relative status under section 201(b) of the Act. A
petition filed on behalf of a child under section 204(a)(1)(A)(i) of
the Act or a self-petition filed by a child of an abusive United States
citizen under section 204(a)(1)(A)(iv) of the Act, however, will remain
valid for the duration of the relationship to accord preference status
under section 203(a)(1) of the Act if the beneficiary remains
unmarried, or to accord preference status under section 203(a)(3) of
the Act if he or she marries.
(G) Upon the marriage of a child, when he or she has been accorded
immediate relative status under section 201(b) of the Act. A petition
filed on behalf of the child under section 204(a)(1)(A)(i) of the Act
or a self-petition filed by a child of an abusive United States citizen
under section 204(a)(1)(A)(iv) of the Act, however, will remain valid
for the duration of the relationship to accord preference status under
section 203(a)(3) of the Act if he or she marries.
(H) Upon the marriage of a person accorded preference status as a
son or daughter of a United States citizen under section 203(a)(1) of
the Act. A petition filed on behalf of the son or daughter, however,
will remain valid for the duration of the relationship to accord
preference status under section 203(a)(3) of the Act.
(I) Upon the marriage of a person accorded status as a son or
daughter of a lawful permanent resident alien under section 203(a)(2)
of the Act.
(J) Upon legal termination of the petitioner's status as an alien
admitted for lawful permanent residence in the United States unless the
petitioner became a United States citizen. The provisions of 8 CFR
204.2(i)(3) shall apply if the petitioner became a United States
citizen.
(ii) Petition for Pub. L. 97-359 Amerasian. (A) Upon formal notice
of withdrawal filed by the petitioner with the officer who approved the
petition.
(B) Upon the death of the beneficiary.
(C) Upon the death or bankruptcy of the sponsor who executed Form
I-361, Affidavit of Financial Support and Intent to Petition for Legal
Custody for Pub. L. 97-359 Amerasian. In that event, a new petition may
be filed in the beneficiary's behalf with the documentary evidence
relating to sponsorship and, in the case of a beneficiary under 18
years of age, placement. If the new petition is approved, it will be
given the priority date of the previously approved petition.
(D) Upon the death or substitution of the petitioner if other than
the beneficiary or sponsor. However, if the petitioner dies or no
longer desires or is able to proceed with the petition, and another
person 18 years of age or older, an emancipated minor, or a corporation
incorporated in the United States desires to be substituted for the
deceased or original petitioner, a written request may be submitted to
the Service or American consular office where the petition is located
to reinstate the petition and restore the original priority date.
(E) Upon the beneficiary's reaching the age of 21 when the
beneficiary has been accorded classification under section 201(b) of
the Act. Provided that all requirements of section 204(f) of the Act
continue to be met, however, the petition is to be considered valid for
purposes of according the beneficiary preference classification under
section 203(a)(1) of the Act if the beneficiary remains unmarried or
under section 203(a)(3) if the beneficiary marries.
(F) Upon the beneficiary's marriage when the beneficiary has been
accorded classification under section 201(b) or section 203(a)(1) of
the Act. Provided that all requirements of section 204(f) of the Act
continue to be met, however, the petition is to be considered valid for
purposes of according the beneficiary preference classification under
section 203(a)(3) of the Act.
(iii) Petitions under section 203(b), other than special immigrant
juvenile petitions. (A) Upon invalidation pursuant to 20 CFR Part 656
of the labor certification in support of the petition.
(B) Upon the death of the petitioner or beneficiary.
(C) Upon written notice of withdrawal filed by the petitioner, in
employment-based preference cases, with any officer of the Service who
is authorized to grant or deny petitions.
(D) Upon termination of the employer's business in an employment-
based preference case under section 203(b)(1)(B), 203(b)(1)(C),
203(b)(2), or 203(b)(3) of the Act.
(iv) Special immigrant juvenile petitions. Unless the beneficiary
met all of the eligibility requirements as of November 29, 1990, and
the petition requirements as of November 29, 1990, and the petition for
classification as a special immigrant juvenile was filed before June 1,
1994, or unless the change in circumstances resulted from the
beneficiary's adoption or placement in a guardianship situation:
(A) Upon the beneficiary reaching the age of 21;
(B) Upon the marriage of the beneficiary;
(C) Upon the termination of the beneficiary's dependency upon the
juvenile court;
(D) Upon the termination of the beneficiary's eligibility for long-
term foster care; or
(E) Upon the determination in administrative or judicial
proceedings that it is in the beneficiary's best interest to be
returned to the country of nationality or last habitual residence of
the beneficiary or of his or her parent or parents.
(b) Notice. When it shall appear to the director that the approval
of a petition has been automatically revoked, he or she shall cause a
notice of such revocation to be sent promptly to the consular office
having jurisdiction over the visa application and a copy of such notice
to be mailed to the petitioner's last known address.
20. Section 205.2 is amended by revising paragraph (b) and adding
new paragraphs (c) and (d), to read as follows:
Sec. 205.2 Revocation on notice.
* * * * *
(b) Notice of intent. Revocation of the approval of a petition of
self-petition under paragraph (a) of this section will be made only on
notice to the petitioner or self-petitioner. The petitioner or self-
petitioner must be given the opportunity to offer evidence in support
of the petition or self-petition and in opposition to the grounds
alleged for revocation of the approval.
(c) Notification of revocation. If, upon reconsideration, the
approval previously granted is revoked, the director shall provide the
petitioner or the self-petitioner with a written notification of the
decision that explains the specific reasons for the revocation. The
director shall notify the consular officer having jurisdiction over the
visa application, if applicable, of the revocation of an approval.
(d) Appeals. The petitioner or self-petitioner may appeal the
decision to
[[Page 13079]]
revoke the approval within 15 days after the service of notice of the
revocation. The appeal must be filed as provided in part 3 of this
chapter, unless the Associate Commissioner for Examinations exercises
appellate jurisdiction over the revocation under part 103 of this
chapter. Appeals filed with the Associate Commissioner for Examinations
must meet the requirements of part 103 of this chapter.
PART 216--CONDITIONAL BASIS OF LAWFUL PERMANENT RESIDENCE STATUS
21. The authority citation for part 216 continues to read as
follows:
Authority: 8 U.S.C. 1101, 1103, 1154, 1184, 1186a, 1186b, and 8
CFR part 2.
22. Section 216.1 is amended by adding a new sentence at the end of
the section, to read as follows:
Sec. 216.1 Definition of conditional permanent resident.
* * * The conditions of section 216 of the Act shall not apply to
lawful permanent resident status based on a self-petitioning
relationship under section 204(a)(1)(A)(iii), 204(a)(1)(A)(iv),
204(a)(1)(b)(ii), or 204(a)(1)(B)(iii) of the Act or based on
eligibility as the derivative child of a self-petitioning spouse under
section 204(a)(1)(A)(iii) or 204(a)(1)(B)(ii) of the Act, regardless of
the date on which the marriage to the abusive citizen or lawful
permanent resident occurred.
Dated: March 1, 1996.
Doris Meissner,
Commissioner, Immigration and Naturalization Service.
[FR Doc. 96-7219 Filed 3-25-96; 8:45 am]
BILLING CODE 4410-10-M
Complete official Federal Register PDF
FR Doc. 96-7218 Defense Federal Acquisition Regulation Supplement; Naval Vessel Components
[Federal Register Volume 61, Number 59 (Tuesday, March 26, 1996)]
[Rules and Regulations]
[Pages 13106-13108]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-7218]
=======================================================================
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DEPARTMENT OF DEFENSE
48 CFR Parts 225 and 252
Defense Federal Acquisition Regulation Supplement; Naval Vessel
Components
AGENCY: Department of Defense (DoD).
ACTION: Interim rule with request for comment.
-----------------------------------------------------------------------
SUMMARY: The Director of Defense Procurement has issued an interim rule
amending the Defense Federal Acquisition Regulation Supplement (DFARS)
to implement additional statutory restrictions on the acquisition of
anchor and mooring chain and totally enclosed lifeboats, when used as
naval vessel components.
DATES: Effective date: April 1, 1996.
Comment date: Comments on the interim rule should be submitted in
writing to the address shown below on or before May 28, 1996, to be
considered in the formulation of the final rule.
ADDRESSES: Interested parties should submit written comments to:
Defense Acquisition Regulations Council, Attn: Ms. Amy Williams, PDUSD
(A&T) DP (DAR), IMD 3D139, 3062 Defense Pentagon, Washington, DC 20301-
3062. Telefax number (703) 602-0350. Please cite DFARS Case 96-D300 in
all correspondence related to this issue.
FOR FURTHER INFORMATION CONTACT:
Ms. Amy Williams, (703) 602-0131
[[Page 13107]]
SUPPLEMENTARY INFORMATION:
A. Background
This interim DFARS rule implements Section 806, paragraph (a), of
the Fiscal Year 1996 Defense Authorization Act (Pub. L. 104-106),
amending the restriction on anchor and mooring chain at 225.7012 and
the restriction on totally enclosed lifeboat survival systems at
225.7022. The interim rule also removes outdated restrictions relating
to anchor and mooring chain for fiscal years 1988 through 1990, at
DFARS 225.7012-2, 225.7012-3, 225.7012-4(b) and (c), 252.225-7020, and
252.225-7021.
B. Regulatory Flexibility Act
This interim rule is not expected to have a significant economic
impact on a substantial number of small entities within the meaning of
the Regulatory Flexibility Act, 5 U.S.C. 602, et seq., because the
foreign source restrictions contained in the rule are not significantly
different from existing foreign source restrictions. An Initial
Regulatory Flexibility Analysis has therefore not been prepared.
Comments from small entities concerning the affected DFARS subparts
will be considered in accordance with Section 610 of the Act. Such
comments must be submitted separately and cite DFARS Case 96-d300 in
correspondence.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply. This interim rule does
not impose any new information collection requirements which require
the approval of OMB under 44 U.S.C. 3501, et seq.
D. Determination To Issue an Interim Rule
A determination has been made under the authority of the Secretary
of Defense that compelling reasons exist to publish this interim rule
prior to affording the public an opportunity to comment. This action is
necessary to promptly implement Section 806, paragraph (a), of the
Fiscal Year 1996 Defense Authorization Act (Pub. L. 104-106). Comments
received in response to the publication of this interim rule will be
considered in formulating the final rule.
List of Subjects in 48 CFR Parts 225 and 252
Government procurement.
Michele P. Peterson,
Executive Editor, Defense Acquisition Regulations Council.
Therefore, 48 CFR Parts 225 and 252 are amended as follows:
1. The authority citation for 48 CFR Parts 225 and 252 continues to
read as follows:
Authority: 41 U.S.C. 421 and 48 CFR Chapter 1.
PART 225--FOREIGN ACQUISITION
2. Sections 225.7012, 225.7012-1, 225.7012-2, and 225.7012-3 are
revised to read as follows:
225.7012 Restrictions on anchor and mooring chain.
225.7012-1 Restrictions.
(a) Under Public Law 101-511, Section 8041, and similar sections in
subsequent Defense appropriations acts, DoD appropriations for fiscal
years 1991 and after may not be used to acquire welded shipboard anchor
and mooring chain, four inches in diameter and under, unless--
(1) It is manufactured in the United States, including cutting,
heat treating, quality control, testing, and welding (both forging and
shot blasting process); and
(2) The cost of the components manufactured in the United States
exceeds 50 percent of the total cost of components.
(b) Acquisition of welded shipboard anchor and mooring chain, four
inches in diameter and under, when used as a component of a naval
vessel, is also restricted under 10 U.S.C. 2534(a)(3)(ii). However, the
more stringent restriction under 225.7012-1(a) takes precedence.
225.7012-2 Waiver.
The restriction in 225.7012-1(a) may be waived by the Secretary of
the Department responsible for acquisition, on a case-by-case basis,
where sufficient domestic suppliers are not available to meet DoD
requirements on a timely basis and the acquisition is necessary to
acquire capability for national security purposes.
(a) Document the waive in a written D&F containing--
(1) The factors supporting the waiver; and
(2) A certification that the acquisition must be made in order to
acquire capability for national security purposes.
(b) Provide a copy of the D&F to the House and Senate Committees on
Appropriations.
225.7012-3 Contract clauses.
Use the clause at 252.225-7019, Restriction on Acquisition of
Foreign Anchor and Mooring Chain, in all solicitations and contracts--
(1) Using fiscal year 1991 or later funds; and
(2) Requiring welded shipboard anchor or mooring chain of four
inches in diameter or less.
225.7012-4 [Removed]
3. Section 225.7012-4 is removed.
4. Sections 225.7022, 225.7002-1, and 225.7022-2 are revised to
read as follows:
225.7002 Restrictions on totally enclosed lifeboat survival systems.
225.7022-1 Restrictions.
(a) In accordance with Section 8124 of the Fiscal Year 1994 Defense
Appropriations Act (Public Law 103-139) and Section 8093 of the Fiscal
Year 1995 Defense Appropriations Act (Public Law 103-335), do not
purchase a totally enclosed lifeboat survival system, which consists of
the lifeboat and associated davits and winches, unless 50 percent or
more of the components are manufactured in the United States, and 50
percent or more of the labor in the final manufacture and assembly of
the entire system is performed in the United States.
(b) In accordance with 10 U.S.C. 2534(a)(3)(B), do not purchase a
totally enclosed lifeboat which is a component of a naval vessel,
unless it is manufactured in the United States or Canada. In accordance
with 10 U.S.C. 2534(h), this restriction may not be implemented through
the use of a contract clause or certification. Implementation shall be
effected through management and oversight techniques that achieve the
objective of the restriction without imposing a significant management
burden on the Government or the contractor involved.
225.7022-2 Exceptions.
The restriction in 225.7022-1(b) does not apply if--
(a) The acquisition is at or below the simplified acquisition
threshold; or
(b) Spare or repair parts are needed to support totally enclosed
lifeboats manufactured outside the United States or Canada.
5. Sections 225.7022-3 and 225.7022-4 are added to read as follows:
225.7022-3 Waiver.
The waiver criteria at 225.7004-4 apply only to the restriction of
225.7022-1(b).
225.7022-4 Contract clause.
Use the clause at 252.225-7039, Restriction on Acquisition of
Totally Enclosed Lifeboat Survival Systems, in all solicitations and
contracts which require delivery of totally enclosed lifeboat survival
systems.
[[Page 13108]]
PART 252--SOLICITATION PROVISIONS AND CONTRACTS CLAUSES
252.225-7019 [Amended]
6. Section 252.225-7019 is amended in the introductory text by
revising the citation ``225.7012-4(a)'' to read ``225.7012-3''.
225.225-7020 and 252.7021 [Removed and reserved]
7. Sections 252.225-7020 and 252.225-7021 are removed and reserved.
8. Section 252.225-7039 is amended by revising the introductory
text, the clause date, and the introductory text of the clause to read
as follows:
252.225-7039 Restriction on acquisition of Totally Enclosed Lifeboat
Survival Systems.
As prescribed in 225.7022-4, use the following clause:
RESTRICTION ON ACQUISITION OF TOTALLY ENCLOSED LIFEBOAT SURVIVAL
SYSTEMS (APR 1996)
For totally enclosed lifeboat survival systems furnished under
this contract, which consist of lifeboat and associated davits and
winches, the Contractor agrees that--
* * * * *
[FR Doc. 96-7218 Filed 3-25-96; 8:45 am]
BILLING CODE 5000-04-M
Complete official Federal Register PDF
FR Doc. 96-7192 Exemptions From Import Regulations for Specified Fruit, Vegetable and Specialty Crop Commodities
[Federal Register Volume 61, Number 59 (Tuesday, March 26, 1996)]
[Rules and Regulations]
[Pages 13051-13061]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-7192]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Parts 944, 980 and 999
[Docket Nos. FV93-944-3FIR, FV93-980-1FIR and FV93-999-1FIR]
Exemptions From Import Regulations for Specified Fruit, Vegetable
and Specialty Crop Commodities
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This rule finalizes, with modifications, two interim final
rules which exempt imported fresh fruit, vegetable and specialty crop
commodities from grade, size, quality, and maturity requirements if
those commodities are to be used in certain specified outlets. The
exemptions correspond to exemptions in effect for the same commodities
regulated under Federal marketing orders. This rule also finalizes,
with modifications, safeguard procedures which were added to import
regulations to assure that imported fresh commodities are utilized only
in such specified exempt outlets. This rule also deletes import
requirements for Tokay grapes. This rule is implemented in accordance
with section 8e of the Agricultural Marketing Agreement Act of 1937 to
make the import regulations more consistent with applicable domestic
marketing order exemptions and with the North American Free Trade
Agreement (NAFTA). Exempt uses include, but are not limited to,
processing, livestock feed, and donation to charity.
EFFECTIVE DATE: May 28, 1996.
FOR FURTHER INFORMATION CONTACT: Barbara Schulke or Bill Addington,
telephone (202) 720-4607 and (202) 720-2412 respectively, Marketing
Order Administration Branch, Fruit and Vegetable Division, AMS, USDA,
P.O. Box 96456, room 2523-S, Washington, DC 20090-6456, Fax (202) 720-
5698.
SUPPLEMENTARY INFORMATION: This rule is issued under section 8e of the
Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-
674) (Act), which provides that whenever certain specified commodities,
including avocados, grapefruit, kiwifruit, limes, olives, oranges,
table grapes, potatoes, onions, tomatoes, dates
[[Page 13052]]
and walnuts, are regulated under a Federal marketing order, imports of
those commodities must meet the same or comparable grade, size,
quality, and maturity requirements as those in effect for the
domestically produced commodities.
The Act further provides that when two or more marketing orders for
the same commodity produced in different areas are in effect, the
imported commodity must meet the same grade, size, quality, and
maturity requirements as the commodity produced in the area with which
the imported commodity is in most direct competition.
Some marketing orders provide exemptions for commodities sold at
roadside stands, shipped directly to consumers, or exported. However,
such exemptions are not issued for commodities offered for importation
because such outlets are not applicable to import regulations.
The Department of Agriculture (Department) is issuing this rule in
conformance with Executive Order 12866.
Pursuant to the requirements set forth in the Regulatory
Flexibility Act (RFA), the Administrator of the Agricultural Marketing
Service (AMS) has considered the economic impact of this action on
small entities.
The purpose of the RFA is to fit regulatory actions to the scale of
business subject to such actions in order that small businesses will
not be unduly or disproportionately burdened. Marketing orders issued
pursuant to the Act, and rules issued thereunder, are unique in that
they are brought about through group action of essentially small
entities acting on their own behalf. Thus, both statutes have small
entity orientation and compatibility. Import regulations issued under
the Act are based on those established under Federal marketing orders.
The following are updated estimates of the number of importers who
may be affected by this final rule: avocados--147, grapefruit--96,
kiwifruit--110, limes--147, olives--15, oranges--96, table grapes--80,
potatoes--74, onions--148, tomatoes--142, dates--164, and walnuts--6.
Small agricultural service firms, which include importers and
processors of these commodities, have been defined by the Small
Business Administration (13 CFR 121.601) as those having annual
receipts of less than $5 million. The majority of these importers may
be classified as small entities.
This final rule has been reviewed under Executive Order 12778,
Civil Justice Reform. This rule is not intended to have retroactive
effect. This rule would not preempt any State or local laws,
regulations, or policies, unless they present an irreconcilable
conflict with this rule. There are no administrative procedures which
must be exhausted prior to any judicial challenge to the provisions of
this rule.
In accordance with section 8e, imported commodities destined for
processing must be given the same or comparable treatment as that
afforded domestic commodities destined for processing. The Federal
marketing orders covering avocados, grapefruit, kiwifruit, limes,
olives, oranges, table grapes, potatoes, onions and tomatoes provide
exemptions from established quality and size requirements if the
commodity is to be used in certain processing outlets. This final rule
provides similar exemptions for imported products destined for
processing.
Marketing Order No. 926 regulating Tokay Grapes Grown in San
Joaquin County, California, has been terminated by the Department at
the request of the order's Industry Committee. Thus, the import
requirements for Tokay grapes established under section 8e of the Act
are also terminated. This final rule removes all references to Tokay
grapes that appeared in the interim final rule (58 FR 69182).
This rule finalizes exemptions for imported commodities to be
utilized in other exempt outlets. These exemptions are consistent with
section 8e of the Act which requires imported commodities to meet the
same or comparable requirements established under the domestic
marketing orders for the commodities. This rule finalizes, with
modifications, amendments to the following 7 CFR sections:
944.28 Avocado import grade regulation,
944.31 Avocado import maturity regulation,
944.106 Grapefruit import regulation,
944.209 Lime import regulation,
944.312 Orange import regulation,
944.401 Olive regulation,
944.503 Table grape import regulation,
944.550 Kiwifruit import regulation,
980.1 Import regulations; Irish potatoes,
980.117 Import regulations; onions,
980.212 Import regulations; tomatoes,
999.1 Regulation governing the importation of dates, and
999.100 Regulation governing imports of walnuts.
Safeguard provisions, added by the interim final rules as
Secs. 944.350, 980.501, and 999.500, are modified in this final rule to
provide that imported commodities not meeting grade, size, quality, and
maturity requirements can be utilized in specified exempt outlets.
The two interim final rules were issued on December 23, 1993, and
published in the Federal Register (58 FR 69182 and 69186, December 30,
1993) with an effective date of January 1, 1994. The two rules amended
7 CFR parts 944, 980 and 999 and provided a two-month comment period
which ended February 28, 1994. A minor correction to part 944 was
issued on January 31, 1994 (59 FR 4245). At the request of industry
members, the Department reopened the comment period for one additional
month (59 FR 11529, March 11, 1994) for both interim final rules. The
reopened comment period closed April 11, 1994.
Thirty five comments were received. Thirty four comments opposed
various aspects of the two interim final rules and one comment favored
the interim final rules. The primary concern of most commenters was the
use of exemptions by processors. Thirty comments were from members of,
or on behalf of, the potato, onion and tomato industries in the United
States. The one favorable comment was received from the Canadian
Produce Marketing Association.
Several commenters questioned the Department's commitment to the
safeguard program. They claimed that there is no plan to monitor exempt
shipments and that the AMS lacks personnel to enforce compliance of the
program.
The AMS is responsible for administering Federal fruit, vegetable,
and specialty crop marketing order programs and the corresponding
import regulations. A number of different resources are being utilized
to implement and monitor the safeguard program, including the Fruit and
Vegetable Division's (Division) Marketing Order Administration Branch
(MOAB) (which monitors exempt entries), the inspection services of
Fresh Products Branch and Processed Products Branch and the AMS
Compliance Staff. The Department's Animal and Plant Health Inspection
Service (APHIS), and the U.S. Customs Service (Customs Service) also
must review and clear all agricultural shipments prior to entry into
the United States. This rule does not supersede the Federal Plant
Quarantine Act of 1912, the Federal Food, Drug, and Cosmetic Act, or
any other applicable laws or food and sanitary regulations of city,
county, state or Federal agencies.
Every attempt is made to keep importers, known processors, and
other exempt receivers aware of these rules and the safeguard
procedures. The interim final rules, exemption forms and updated import
summary sheets for the affected commodities have been sent to all known
importers and processors.
[[Page 13053]]
Additional exemption forms are sent immediately upon request.
A compliance plan has been developed utilizing follow-up telephone
calls and spot compliance checks of exempt outlets. Division personnel
currently make telephone calls to importers and customs brokers who
initiate the FV-6 ``Importer's Exempt Commodity Form'' (FV-6 or FV-6
forms) and calls to exempt receivers who must certify receipt and
disposition of the exempt shipments. The FV-6 was established under the
interim final rule as an integral part of the safeguard reporting
procedures. This final rule modifies the FV-6 (below).
Experience over the last year indicates that the notification
process outlined in the interim final rules (58 FR pages 69182 and
69186, December 30, 1993) should be modified to ensure that the
Department is aware of all shipments entered as exempt under 8e
provisions. Under a Memorandum of Understanding between the AMS and the
Customs Service, AMS will be provided import data on all entries of 8e
commodities. The MOAB has worked with the fresh and processed products
inspection offices and the Customs Service to coordinate efforts for an
effective 8e compliance program. In addition, MOAB maintains an
extensive and comprehensive list of importers, customs brokers and
receivers for mailing and field audits. Division representatives attend
regional and national importers and customs brokers meetings to educate
importers and Customs Service officials on the requirements of the Act.
MOAB enters and reconciles data from the FV-6 forms, Customs Service
data, and the inspection service offices, and the PIERS report (Port,
Import/Export Reporting Service) to identify lots which enter ports
under the exemption rule.
Some commenters asked what penalties would be applied to those who
violate the safeguard procedures. The compliance plan provides for on-
the-spot inspections and checks of processors and other exempt outlet
receivers to gather evidence of violations. Pursuant to section 8e of
the Act, the Department can bring legal action against those who
violate import regulations. Penalties may be assessed under section
608a(5). Upon conviction, penalties as prescribed in 608c(14)(A) also
may be imposed. Section (14)(A) provides for fines from $50 to $5,000
per violation, per day, for those convicted of violating regulations,
including import regulations. In addition, section 608c(14)(B) provides
for administrative adjudication to issue civil penalties of up to
$1,000 per day, per violation, against importers and exempt receivers
who violate the import regulations, including safeguard procedures.
Further, using Customs Service regulatory authorities (19 CFR part
113), the AMS can also request the Customs Service to demand redelivery
of a lot imported as exempt under section 8e if certification of exempt
use has not been received by the AMS. Failure to redeliver the lot is
punishable by a penalty of three times the value of the shipment. The
AMS is developing a computerized data base to identify exempt shipments
for which the reporting process has not been completed within specified
time frames. This rule does not supersede or replace Customs Service
entry procedures.
A few commenters, evidently referring to the $1,000 fine cited on
the exemption form, stated that $1,000 is not a sufficient deterrent to
prevent some from violating the safeguard procedures. However, the
$1,000 fine is for making false statements on the form. False
representation to any Federal agency on any matter within its
jurisdiction, knowing it to be false, is a criminal offense and a
violation of 18 U.S.C. 1001 which provides for a fine or imprisonment
or both.
The Department is fully committed to enforcing the import
regulations.
Most of the commenters questioned whether the safeguard procedures
would prevent substandard product from entering fresh marketing
channels. With modifications implemented in this final rule, the
Department believes that the enhanced safeguard procedures represent
practicable, aggressive, and effective procedures for monitoring exempt
shipments. In addition, the management staffs of many marketing orders
follow similar procedures in monitoring and enforcing special purpose
shipment provisions relating to their respective commodities.
A few commenters suggested that the marketing order committees
should be allowed to assist the Department with enforcement activities.
The Department is responsible for enforcing import regulations and
cannot delegate that compliance activity to committee managers.
However, the Department encourages managers to notify the AMS of
suspected violations of safeguard procedures or improper dispositions.
A few commenters contended that the reporting deadlines (15 days at
the port of entry and 15 days after receipt by the exempt receiver) are
too long for the Department to effectively monitor the disposition of
lots. They stated that during the 15-day reporting period an exempt lot
could easily be disposed of in fresh market channels and there would be
no proof of such illegal activity. The Department agrees that a more
timely notification of the release of exempt lots into the United
States will enhance the Department's ability to enforce the safeguard
procedures and ensure compliance with the import regulations. The time
period should be short enough to enable the Department, when conducting
on-site inspection of receivers' facilities, to determine ultimate
disposition of exempt lots. The Department believes that a two-day
reporting period will be sufficient for mailing reports of entry and
exempt disposition. Thus, this final rule establishes that original
copies of FV-6 forms must be submitted by importers, customs brokers,
and exempt receivers, and such copies must be postmarked no later than
two days after importation or receipt of the commodity shipment being
reported. FV-6 forms must be mailed to the Marketing Order
Administration Branch, USDA, AMS, P.O. Box 96456, room 2523-S,
Washington, D.C. 20090-6456 (telephone (202) 720-4607. FV-6 forms
submitted by fax must be followed by a mailed, original copy of the FV-
6. Fax transmissions may be sent to the MOAB at (202) 720-5698.
One commenter suggested that the Act should be changed to allow for
regulation of processors. Amendment of the Act would require
Congressional action. In any event, the Food and Drug Administration of
the Department of Health and Human Services is responsible for
regulating the wholesomeness of processed peanut products.
One commenter claimed that the Department has reversed its long-
standing position that section 8e requirements cannot be applied to
pack and container requirements. However, section 8e of the Act states
that imported commodities must meet the grade, size, quality and
maturity requirements established under respective marketing orders.
Because section 8e does not authorize pack and container requirements,
those requirements cannot be applied to imported commodities. The
Department has not changed its position on this issue.
Some commenters claimed that the exemptions for processing make it
easier for imported culls to be used in local processing markets than
domestic culls and that this would have a negative impact on
economically depressed production areas that utilize domestically
produced culls in processing. However, the objective of this rule is
that section 8e import
[[Page 13054]]
regulations and the exemption provisions of domestic marketing orders
be the same or comparable. An importer who properly files FV-6 forms
when using imported culls in processing outlets does not violate the
import regulation.
A few commenters stated that import barriers still exist in some
countries and that the import exemption rule gives unfair advantage to
foreign producers. However, the efficacy of this rule in the United
States is not dependent on the absence of trade barriers in other
countries. The exemption form may be used for exempt commodities
imported from any country. The interim final rules were issued to be
consistent with section 8e of the Act, and thus, may be applied to the
specified commodities imported from any country.
One commenter, referring to Section A of Annex 703.2 of the NAFTA,
stated that the Department ``went beyond the specific requirements of
the NAFTA by applying the rule to Canada.'' The Department did not
intend to imply that Section A of Annex 703.2 applies to Mexico, Canada
and other countries. Implementation of the NAFTA caused the Department
to review all 8e provisions applicable to fruits and vegetables. After
such review it became apparent that the regulations concerning the 8e
commodities covered in this regulation needed to be amended to be
consistent with marketing order regulations and requirements, as well
as the NAFTA. Therefore, pursuant to Section 8e of the Act and the
provisions of the NAFTA, the Department amended its regulations
relating to these commodities.
One commenter suggested that new food technologies now tend to blur
the distinction between fresh and ``fresh processed'' activities. To
assist the importer or customs broker, specific processes that qualify
for exemption are added to the regulatory text (e.g. canning, freezing,
dehydrating, etc.) as appropriate for individual commodities. The
listing of qualified processes for each commodity should assist
importers and customs brokers in determining whether the process
designated on the exemption form is considered to be an exempt process.
The entries may be updated by future rulemaking, as necessary.
Several commenters suggested that the Department establish a ``pre-
approved processor'' list for each commodity covered in parts 944, 980
and 999. According to the comments, a pre-approved processor list would
contain the names of processor companies that have certified to the
respective marketing order committee and to the Department that the
processor agrees to dispose of exempt shipments only in approved
processing operations. Commenters suggested that such lists be used to
approve or reject exempt shipments at the port of entry, depending on
whether the processor is on the approved list. Commenters suggested
that the approval be granted either by the Customs Service, the
respective marketing order committee manager, or the Department.
However, the Customs Service cannot be expected to maintain a list of
approved processors and to refer to it every time an exempt shipment is
presented for importation. Oversight of import regulations cannot be
delegated to marketing order managers. In response to comments,
however, MOAB has obtained approved-processor lists for some commodity
committees and is referring to the lists as part of MOAB's compliance
procedures when reviewing FV-6 forms.
Some commenters cited phytosanitary concerns in opposing the import
exemptions. The commenters believe that exempt shipments would enter
the United States and not be subject to APHIS regulations or
inspection. However, exempt shipments, including culls removed from
reconditioned fresh shipments, continue to be subject to APHIS
inspection and certification.
Several commenters complained that the rulemaking procedure used by
the Department to issue the two interim final rules was abbreviated and
did not provide for adequate industry input. The interim final rules
were issued under informal rulemaking procedures used by the Department
to implement regulations, and there was good cause not to postpone the
effective date of the rule. More than three months were provided for
comment on the two interim final rules. The lengthy comment period
allowed interested persons time to comment on the interim final rules
and also provided the Department with more opportunity to monitor and
evaluate the safeguard procedures in operation.
Finally, customs brokers complained that they have no control over
the ultimate disposition of exempt lots and, thus, should not be
expected to certify as to the ultimate disposition of the lot. However,
certification by either the importer or customs broker is needed to
provide some validity to the safeguard procedure. Importers and customs
brokers are responsible for seeking out and representing clients who
will act in accordance with law. If a customs broker cannot, in good
faith, certify as to the eventual exempt usage, then that person should
not act as the agent of the importer.
On the basis of comments received, review of ongoing safeguard
procedures, and review of the exemption form, the Department clarifies
and modifies some requirements and procedures specified on the FV-6
form. These clarifications and modifications are intended to eliminate
confusion when completing the exemption form, improve the functioning
of the safeguard process, and improve the compliance capability of the
Department.
This final rule establishes that the FV-6, Importer's Exempt
Commodity Form will be sequentially numbered. Sequentially numbered
forms will enable the Department to better monitor use of the form by
importers and brokers and enhance compliance efforts by the Department.
The new forms will be mailed to all known importers, customs brokers
and inspection service offices serving major ports of entry. Use of the
new forms must begin no later than 60 days after publication of this
final rule in the Federal Register. During unforeseen or emergency
situations, a special, sequentially numbered FV-6 form can be faxed to
an importer or customs broker for one-time use. Additional copies of
the new FV-6 form and single use copies are available on request by
calling (202) 720-6585 or sending a fax to (202) 720-5698.
Under initial instructions, the white copy (#1) was to be retained
by the Customs Service office at the port of entry upon entry. Under
this final rule, the importer or customs broker must present the FV-6
to the Customs Service at the port of entry with Section I completed.
The importer or customs broker then retains the white Copy 1 of the FV-
6 as a record of the exempt entry. Further distribution of the form
remains unchanged--the yellow Copy 2 is forwarded to the AMS and the
pink Copy 3 is forwarded to the exempt outlet receiver with the exempt
shipment.
The FV-6 is used when an entire lot (in bags or bulk) is imported
exempt from quality requirements and shipped directly to an exempt
outlet. An importer or customs broker usually arranges or facilitates
the business transaction between a foreign producer (seller) and the
domestic processor or other exempt entity. In these instances, the
importer or customs broker is responsible for initiating the FV-6 form
and the exempt user is the buyer.
An 8e commodity imported for fresh market use must be inspected and
certified as meeting fresh market quality requirements. Prior to
issuance of the two interim final rules in this
[[Page 13055]]
rulemaking procedure, if an imported 8e commodity shipment failed to
meet applicable quality requirements, the importer had three options:
(1) Export; (2) destroy the lot under inspection supervision; or (3)
recondition the lot and return or destroy the culls. This rule provides
another option for the importer. The FV-6 may be used to ship a failing
lot, or the culls from a reconditioned lot, to an exempt outlet.
The ``Date and Place of Inspection'' entry (Item 2 on the FV-6
form) is to be completed only when a lot imported for fresh market use
is inspected and all or a portion of the lot is subsequently sent to an
exempt outlet. Item 2 would include the fresh inspection certificate
number of the inspection performed on the lot. Some importers and
customs brokers have not completed item 2 with this information or
provided a copy of the inspection certificate when using the FV-6 form
to import a lot failing fresh market quality requirements. In addition
to filing an FV-6 form, the importer should also file a copy of the
inspection certificate applicable to the exempt lot.
One FV-6 may be used for multiple deliveries to the same exempt
outlet, if the deliveries are made at the same time. In such instances,
item 4, ``Vehicle Identification,'' on the FV-6 must contain the
license tag numbers or other identification for each vehicle delivering
the exempt shipments. Also, item 7, ``Total Quantity Imported,'' must
show the total weight of all loads delivered from the imported lot to
the exempt outlet. The receiver who signs Section II of the exemption
form for the exempt outlet certifies as to the receipt of all loads
listed on the FV-6, the total volume received, and that the disposition
is consistent with exempt usage.
If a shipment is entered as exempt and shipped to two or more
exempt outlets, an FV-6 must be completed for each exempt shipment and
outlet. Each receiver who signs section II of the exemption form for an
exempt outlet is certifying receipt of the shipment at that exempt
outlet. In such cases, the combined volume of exempt shipments to each
outlet must equal the total volume reported on the exemption form.
The quality of product shipped exempt is a business decision
between the exporter, importer and processor or other exempt receiver.
If an importer or processor receives exempt product below needed
quality specifications, the importer or processor could discontinue use
of the exemption form and require that further shipments be inspected
against applicable import grade, size, quality, or maturity
requirements.
An exempt receiver may reject a shipment, send it to an alternate
exempt outlet, destroy it, return it to the importer, or export it. It
is the responsibility of the importer to notify the MOAB of any such
action and final disposition of the shipment. In such cases, a second
exemption form must be completed in full and filed with the MOAB. The
second FV-6 should be initiated by the exempt receiver and certified by
a representative of the alternate exempt outlet or disposition outlet.
If the shipment is exported, a copy of the Customs Service export
document should be included with the second FV-6.
Under ``Total Quantity Imported'' (currently item 7), the importer
or customs broker must enter, in pounds, the quantity of product being
imported as exempt. Other terms of measurement common in some countries
or commodity industries, such as kilograms, basket, container, or bulk,
must be converted to pounds. This will provide the receiving exempt
outlet with a common, measurable term on which to determine that all of
the product has been delivered. The conversion to pounds will also
assist the Department in its compliance efforts. The weight entered
should be only the quantity imported as exempt. In instances where the
exempt commodity is the culled sublot of a larger fresh market lot, the
weight entered should be only the weight of the exempt sublot.
Under ``Intended Use'' (currently item 9) the importer or customs
broker should enter the type of processing use or other exempt use for
which the exempt product is intended. The type of processing should be
entered on the line after the word ``Type'' in item 9. This change is
made at the request of commenters and is a modification from the
interim final rules which did not require designation of the type of
processing or other exempt use. This modification of the form will help
the Department monitor exempt shipments.
The Customs Service Entry Number (currently item 10a) and the
Harmonized Tariff Code Number (currently item 10b) must be entered on
each exemption form. These data enable the Department to obtain a
baseline of exempt shipments released by the Customs Service and, thus,
are essential to the Department's monitoring and compliance
responsibilities.
After consideration of comments received and evaluation of
safeguard procedures, the Department finalizes the two interim final
rules and makes minor modifications and additions to individual
commodity import regulations for consistency and clarity. Discussions
regarding fruit crop import regulations under 7 CFR part 944 follow.
Avocados
The avocado import grade regulation (7 CFR 944.28) is based on
those in effect for avocados grown in Florida under Marketing Order No.
915 throughout the year. Under Marketing Order No. 915 any person may
handle avocados without regard to established grade, size, quality, or
maturity requirements provided that such avocados are handled for (1)
consumption by charitable institutions; (2) distribution by relief
agencies; (3) commercial processing into products; (4) seed; or (5)
individual shipments of up to 55 pounds. Prior to issuance of the
interim final rule, the only exemption allowed under the avocado import
regulation was for individual shipments of up to 55 pounds. This rule
finalizes the addition of charitable institutions, distribution by
relief agencies, seed, and commercial processing into products to the
list of exemptions allowed under the avocado import regulation.
Commercial processing includes canning, freezing, dehydrating, drying,
the addition of chemical substances, or fermentation.
The Department suspended Sec. 944.31 Avocado import maturity
regulation on May 15, 1991 (56 FR 23009). The suspension was in place
at the time of issuance of the import exemption interim final rule (58
FR 69182, December 23, 1993). Subsequently, the Department issued a
proposed rule on April 4, 1994 (59 FR 15661) to lift the suspension.
Because the avocado import maturity regulation was not in effect when
the exemption interim final rule was issued, exemptions under
Sec. 944.31 were not included in the exemption interim final rule.
However, a final rule removing the temporary suspension of avocado
import maturity regulation was issued on June 16, 1994 (59 FR 30866).
Because the exemptions for imported avocados under Sec. 944.31 maturity
regulations also apply to Sec. 944.28 grade regulations, this rule
finalizes the addition of charitable institutions, distribution by
relief agencies, seed, and commercial processing into products to the
list of exemptions allowed under the avocado import maturity
regulation.
Grapefruit
The grapefruit import regulation (7 CFR 944.106) is based on those
in effect for grapefruit grown in Florida under Marketing Order No. 905
throughout the year. Under Marketing Order No. 905, any person may
handle grapefruit without regard to established grade, size, quality,
or maturity requirements
[[Page 13056]]
provided that such grapefruit are handled for (1) consumption by
charitable institutions; (2) distribution by relief agencies; (3)
commercial processing into canned or frozen products or into a beverage
base; (4) animal feed; or (5) individual shipments of up to 15 standard
packed cartons (12 bushels). Prior to issuance of the interim final
rule, the only exemption allowed under the grapefruit import regulation
was that for individual shipments of up to 15 standard packed cartons
(12 bushels). This rule finalizes the addition of charitable
institutions, distribution by relief agencies, commercial processing
into canned or frozen products or into a beverage base, and animal feed
to the list of exemptions allowed under the grapefruit import
regulation.
Limes
The lime import regulation (7 CFR 944.209) is based on those in
effect for limes grown in Florida under Marketing Order No. 911
throughout the year. Under Marketing Order No. 911 any person may
handle limes without regard to established grade, size, quality, or
maturity requirements provided that such limes are handled for (1)
consumption by charitable institutions; (2) distribution by relief
agencies; (3) commercial processing into products; or (4) individual
shipments of up to 55 pounds. Prior to issuance of the interim final
rule, the only exemption allowed under the lime import regulation was
that for individual shipments of up to 250 pounds. This rule finalizes
the addition of charitable institutions, distribution by relief
agencies, and commercial processing into products to the list of
exemptions allowed under the lime import regulation. Commercial
processing includes canning, freezing, dehydrating, drying, the
addition of chemical substances, or fermentation. Limes imported for
conversion into juice without further processing or preservative
treatment are deemed fresh limes and may not be imported exempt from
inspection requirements.
Oranges
The orange import regulation (7 CFR 944.312) is based on those in
effect for oranges grown in Texas under Marketing Order No. 906
throughout the year. Under Marketing Order No. 906 any person may
handle oranges without regard to established grade, size, quality, or
maturity requirements provided that such oranges are handled for (1)
consumption by charitable institutions; (2) distribution by relief
agencies; (3) commercial processing into products; or (4) individual
shipments of up to 400 pounds. Prior to issuance of the interim final
rule, the only exemption allowed under the orange import regulation was
that for individual shipments of up to ten \7/10\ bushels (400 pounds).
In addition, Marketing Order No. 906 requires handlers to certify to
the order's committee that receiving processors have no facilities,
equipment, or outlet to repack or sell fruit in fresh form
(Sec. 906.123(b)(7)). This final rule adds a corresponding proviso to
the orange import regulation that oranges, imported as exempt under
this regulation, cannot be shipped to processors who have facilities,
equipment, or outlets to repack or sell fruit in fresh form. This rule
finalizes the addition of charitable institutions, distribution by
relief agencies, and commercial processing into products to the list of
exemptions allowed under the orange import regulation.
The minimum grade requirement for oranges under the orange import
regulation (7 CFR 944.312) was suspended effective October 24, 1991 (56
FR 55983) but was not addressed in the interim final rule because the
minimum grade requirement was not directly affected by the exemptions.
That minimum grade requirement was reinstated on May 12, 1994 (59 FR
25791), at the same U.S. No. 2 grade that was effective for imported
oranges prior to suspension in 1991. The reinstatement rule also
amended the definition of the term ``oranges'' and changed the minimum
quantity exemption from ``ten 7/10 bushels,'' which is the equivalent
of 420 pounds, to 400 pounds. This final rule reflects the changes
established in the reinstatement action.
Olives
The olive import regulation (7 CFR 944.401) is based on those in
effect for olives grown in California under Marketing Order No. 932
throughout the year. Under Marketing Order No. 932 any person may
handle olives without regard to established grade, size, quality, or
maturity requirements provided that such olives are handled for
processing into oil or donated to charitable institutions. Although
there is no minimum quantity exemption for olives regulated under
Marketing Order No. 932, an exemption is allowed under the olive import
regulation for individual shipments up to 100 pounds. This rule
finalizes the addition of processing into oil and donations to
charitable institutions to the list of exemptions allowed under the
olive import regulation.
This rule also replaces the original text in paragraph (c) of
Sec. 944.401 concerning procedures for importing olives and the
Department offices contacted prior to importation. The interim final
rule published December 30, 1993 (58 FR 69186) inadvertently omitted
the procedures and offices specified in the latter portion of paragraph
(c). This rule replaces, without change, the procedures to be followed
and updates the office addresses and numbers to be contacted prior to
importation.
Table Grapes
The table grape import regulation (7 CFR 944.506) is based on those
in effect for table grapes grown in southeastern California under
Marketing Order No. 925 from April 20 through August 15. Under
Marketing Order No. 925 any person may handle table grapes without
regard to established grade, size, quality, or maturity requirements
provided that such table grapes are handled for processing into
products. Currently, no imported shipments of table grapes are exempt
from the import regulations. This rule finalizes the addition of
processing into products as an exemption allowed under the table grape
import regulation.
Kiwifruit
The kiwifruit import regulation (7 CFR 944.550) is based on those
in effect for kiwifruit grown in California under Marketing Order No.
920 throughout the year. Under Marketing Order No. 920 any person may
handle kiwifruit without regard to established grade, size, quality, or
maturity requirements provided that such kiwifruit is handled for (1)
Consumption by charitable institutions; (2) distribution by relief
agencies; (3) commercial processing into products; or (4) individual
shipments of up to 200 pounds. Prior to issuance of the interim final
rule, the only exemption allowed under the kiwifruit import regulation
was that for individual shipments of up to 200 pounds. This rule
finalizes the addition of charitable institutions, distribution by
relief agencies, and commercial processing into products to the list of
exemptions allowed under the kiwifruit import regulation. For the
purposes of this section, commercial processing into products means
that the kiwifruit is physically altered in form or chemical
composition through freezing, canning, dehydrating, pulping, juicing,
or heating of the product. The act of slicing, dicing, or peeling shall
not be considered commercial processing into products.
This rule also makes minor modifications to the section titles of
some fruit crop import regulations. In the past, the Department issued
separate, annual import regulations that
[[Page 13057]]
were sequentially numbered. However, the import regulations are now
issued on a continuing basis and are amended only as necessary. The
section number for each import regulation remains the same and, thus,
the numerical designations at the end of the titles are no longer
needed. Also, to be consistent with Federal Register guidelines, the
titles are changed by removing the capitalization of some words. These
changes have no material effect on the import regulations.
The following vegetable crop import regulations are covered under 7
CFR part 980.
Potatoes
The import grade regulation for potatoes (7 CFR 980.1) is based on
marketing orders in effect for potatoes grown in five different potato
production areas in Idaho and Oregon (MO 945), Washington (MO 946),
Oregon-California (MO 947), Colorado (MO 948), and the Southeastern
United States (MO 953). Under one or more of these orders, any person
may handle potatoes exempt from established grade, size, quality, and
maturity requirements, provided that such potatoes are used for (1)
Processing, (2) livestock feed, (3) charity or relief, (4) certified
seed, (5) export, or (6) limited quantity shipments ranging from 500 to
1,000 pounds, depending on the individual order. Processing includes
canning, freezing, dehydration, chips, shoestrings, starch and flour.
Processing does not include potatoes that are only peeled, or cooled,
sliced, diced, or treated to prevent oxidation. The Department has
determined that fresh use food service product, such as fresh use
potato salad, is not processing. Potatoes made into canned product,
such as canned potato salad, would be considered processing and thus,
can be imported as exempt. Prior to issuance of the interim final rule,
the potato import regulation provided exemptions only for certified
seed and minimum quantity shipments of 500 pounds. This rule finalizes
the addition of year-round exemptions, subject to certain safeguard
provisions, for potatoes used for: (1) canning, freezing, or other
processing, (2) livestock feed, and (3) charity or relief. The
safeguard provisions are specified in Sec. 980.501.
Onions
The import grade regulation for onions (7 CFR 980.117) is based on
marketing orders in effect for onions grown in two different onion
production areas in Idaho and Oregon (MO 958), and Texas (MO 959).
Under one or both of these orders, any person may handle onions exempt
from established grade, size, quality, and maturity requirements,
provided that such onions are used for (1) processing, (2) livestock
feed, (3) charity and relief, (4) plantings, or (5) limited quantity
shipments ranging from 110 to 2,000 pounds, depending on the individual
marketing order. Pearl onions not exceeding a maximum size may be
imported exempt from all but size requirements. Inspection is required
to determine that such onions do not exceed maximum size requirements.
Processing includes canning, freezing, dehydration, extraction (juice)
and pickling in brine. Processing does not include fresh chop, fresh
cut, convenience food or other pre-packaged salad operations. Prior to
issuance of the interim final rule, the onion import regulation
provided exemptions for processed onions (dehydrated, canned, frozen
and pickled in brine), green onions, onion sets (plantings), braided
red onions, and for minimum quantity shipments of 110 pounds. This rule
finalizes the addition of year-round exemptions, subject to certain
safeguard provisions, for onions used for livestock feed, charity or
relief, processing, and pearl onions. Marketing Order 958 exempts pearl
onions which are smaller sized onions produced using specific cultural
practices and are not larger than 1\3/4\ inches in diameter. Because of
the maximum size limitation, pearl onions imported exempt pursuant to
these regulations must be inspected against the 1\3/4\ inch diameter
maximum size requirement prior to being released by the Customs
Service. For clarity and consistency, this finalization also adds the
size limit of pearl onions to the definition in paragraph (h), and
other types of exempt onions to the definition for processing in
paragraph (i). The safeguard provisions are specified in Sec. 980.501.
Tomatoes
The import grade regulation for tomatoes (7 CFR 980.212) is based
on the marketing order in effect for tomatoes grown in Florida (MO
966). Under that order, any person may handle tomatoes exempt from
established grade, size, and maturity requirements, provided that such
tomatoes are used for (1) processing, (2) charity, (3) relief, (4)
export, (5) experimental purposes, (6) pear shaped (elongated), cherry,
green house or hydroponic tomatoes, or (7) limited quantity shipments
of 50 pounds per day. Prior to issuance of the interim final rule, the
tomato import regulation provided exemptions for experimental purposes,
shipments of 60 pounds, and pear shaped, cherry, hydroponic, and
greenhouse tomatoes. This rule finalizes the addition of exemptions,
subject to certain safeguard provisions, for tomatoes used for
processing (canning and pickling), charity and relief. The safeguard
provisions are specified in Sec. 980.501.
The following specialty crop import regulations are covered under 7
CFR part 999.
Dates
The import regulation for dates (7 CFR 999.1) is based on the
marketing order in effect for dates produced or packed in Riverside
County, California (MO 987). Under that order, any person may handle
dates exempt from established grade requirements, if such dates are
donated to ``needy persons, prisoners, or Native Americans on
reservations.'' Prior to issuance of the interim final rule, the date
import regulation provided exemptions for: (1) processing (preparing
and preserving dates into confection, coating to alter color, chopping,
slicing or other processing which alters the form), (2) denatured dates
unfit for human consumption, and (3) minimum quantity shipments which
in the aggregate do not exceed 70 pounds. This rule finalizes the
addition of exemptions, subject to certain safeguard provisions, for
dates donated to charity, prisoners, and Native Americans on
reservations. The safeguard provisions are specified in Sec. 999.500.
Walnuts
The import grade regulation for walnuts (7 CFR 999.100) is based on
the marketing order in effect for walnuts grown in California (MO 984).
Under that order, any person may handle walnuts exempt from established
grade and size requirements, if such walnuts are: (1) Green (immature),
(2) used by charitable institutions, relief agencies or government
agencies for school lunch programs, or diverted for animal feed, or oil
manufacture, or other noncompetitive outlets. Prior to issuance of the
interim final rule, the walnut import regulation provided exemptions
from grade and size requirements for minimum quantity shipments of 60
pounds shelled or 115 pounds inshell. This rule finalizes the addition
of exemptions, subject to certain safeguard provisions, for green
walnuts, and walnuts for charity, relief, school lunch programs, animal
feed or oil. The safeguard provisions are specified in Sec. 999.500.
Raisins
Exemptions for raisin imports specified under current import
[[Page 13058]]
regulations for raisins (7 CFR part 999.300) are consistent with
exemptions under the raisin marketing order and are not affected by
this final rule.
Filberts
Exemptions for filbert imports specified under current import
regulations for filberts (7 CFR part 999.400) are consistent with
exemptions under the filbert/hazelnut marketing order and are not
affected by this final rule.
Dried Prunes
Exemptions for dried prune imports specified under current import
regulations for prunes (7 CFR part 999.200) are consistent with
exemptions under the dried prune marketing order and are not affected
by this final rule.
The respective marketing order committees have developed methods to
monitor the marketing of the domestically produced exempt commodities
from handlers to points of final disposition. Safeguard procedures in
the form of reporting requirements and committee management oversight
ensure that domestically produced commodities are used in the intended
exempt outlets.
Safeguards in domestic marketing orders include two different
procedures. A ``certificate of privilege'' is issued by a committee
upon application by a handler. The handler notifies the appropriate
marketing order committee of the handler's intent to ship that
commodity to a processor, livestock feeder, charity, or other exempted
outlet. A ``special purpose shipment report'' is forwarded by a handler
to the receiver. The receiver sends the form to the responsible
committee, providing information about the shipment necessary to
determine compliance.
Because of the ease with which imported commodities can enter fresh
market channels of trade, this rule modifies and finalizes a process to
monitor exempt, imported commodities from the port of entry to the
point of final disposition.
To provide consistency and ease the reporting burden on importers
that deal in several commodities, this rule finalizes a single set of
safeguard procedures and a standardized form that can be used for
imported avocados, grapefruit, limes, oranges, olives, table grapes,
kiwifruit, potatoes, onions, tomatoes, dates and walnuts. The procedure
is added in Secs. 944.350, 980.501 and 999.500, and is referenced in
individual commodity import regulations.
Exemption forms may be obtained from the Marketing Order
Administration Branch, USDA, AMS, P.O. Box 96456, room 2523-S,
Washington, D.C. 20090-6456 (telephone (202)-720-4607, fax (202)-720-
5698).
The exempt form must be mailed within two days of importation and
two days of receipt at an exempt outlet. Original copies of the FV-6
must be submitted. Information required on the Importer's Exempt
Commodity Form includes: (1) the commodity and the variety (if known)
being imported, (2) the date and place of inspection if used to enter
failing product or culls as exempt, (include a copy of the inspection
certificate), (3) identifying marks or numbers on the containers, (4)
identifying numbers on the railroad car, truck or other transportation
vehicle transporting product to the receiver, (5) the name and address
of the importer, (6) the place and date of entry, (7) the quantity
imported (in pounds), (8) the name and address of the intended receiver
(processor, feeder, charity, or other exempt receiver), (9) intended
use of the exempt commodity, (10) the U.S. Customs Service entry number
and harmonized tariff code number, and (11) such other information as
may be necessary to ensure compliance with this regulation.
The reporting burden on both importers and receiving entities is
minimal and consistent with safeguard procedures imposed on the
handling of domestically-produced exempt commodities. In accordance
with the Paperwork Reduction Act of 1980 (44 U.S.C. Chapter 35), the
information and collection requirements that are contained in this rule
have been previously approved by the Office of Management and Budget
(OMB) and have been assigned OMB No. 0581-0167.
This rule finalizes increases in the reporting burden on
approximately 448 importers of avocados, grapefruit, limes, oranges,
olives, table grapes, and kiwifruit and 534 importers of potatoes,
onions, tomatoes, dates and walnuts who complete the exemption form.
The estimated time for importers to complete the form is 10 minutes.
The estimated time for receivers to sign the certification is 5
minutes.
In accordance with section 8e of the Act, the United States Trade
Representative has concurred with the issuance of this final rule.
Based on the above, the Administrator of the AMS has determined
that this final rule will not have a significant economic impact on a
substantial number of small entities.
This final rule reflects the Department's appraisal of the need to
relax the import requirements, with modification as hereinafter set
forth, to comply with the terms of NAFTA and to effectuate the declared
policy of the Act.
List of Subjects
7 CFR Part 944
Avocados, Food grades and standards, Grapefruit, Grapes, Imports,
Kiwifruit, Limes, Olives, Oranges
7 CFR Part 980
Food grades and standards, Imports, Marketing agreements, Onions,
Potatoes, Tomatoes
7 CFR Part 999
Dates, Filberts, Food grades and standards, Imports, Nuts, Prunes,
Raisins, Reporting and recordkeeping requirements, Walnuts.
Accordingly, the two interim final rules amending 7 CFR parts 944,
980 and 999 which were published at 58 FR 69182 and 69186 on December
30, 1993, are adopted as a final rule with the following changes:
PART 944--FRUITS; IMPORT REGULATIONS
1. The authority citation for 7 CFR part 944 continues to read as
follows:
Authority: 7 U.S.C. 601-674.
2. In Sec. 944.31, paragraphs (f) and (g) are revised to read as
follows:
Sec. 944.31 Avocado import maturity regulation.
* * * * *
(f) Any lot or portion thereof which fails to meet the import
requirements, and is not being imported for purposes of consumption by
charitable institutions, distribution by relief agencies, seed, or
commercial processing into products; prior to or after reconditioning
may be exported or disposed of under the supervision of the Federal or
Federal-State Inspection Service with the costs of certifying the
disposal of such lot borne by the importer.
(g) The maturity requirements of this section shall not be
applicable to avocados imported for consumption by charitable
institutions, distribution by relief agencies, seed, or commercial
processing into products, but such avocados shall be subject to the
safeguard provisions contained in Sec. 944.350.
Sec. 944.209 [Amended]
3. In Sec. 944.209, the last sentence in paragraph (c), the word
``handled'' is removed and the word ``imported'' is added in its place.
[[Page 13059]]
4. In Sec. 944.312, paragraphs (c) and (h) are revised to read as
follows:
Sec. 944.312 Orange import regulation.
* * * * *
(c) The term importation means release from custody of the United
States Customs Service. The term processing means the manufacture of
any orange product which has been converted into sectioned fruit or
into fresh juice, or preserved by any commercial process, including
canning, freezing, dehydrating, drying, and the addition of chemical
substances, or by fermentation.
* * * * *
(h) The grade, size, quality, and maturity requirements of this
section shall not be applicable to oranges imported for consumption by
charitable institutions, distribution by relief agencies, or processing
into products, but shall be subject to the safeguard provisions
contained in Sec. 944.350, Provided that: oranges, imported as exempt
under this regulation, cannot be shipped to processors who have
facilities, equipment, or outlets to repack or sell fruit in fresh
form.
* * * * *
5. Section 944.350 is revised to read as follows:
Sec. 944.350 Safeguard procedures for avocados, grapefruit, kiwifruit,
limes, olives, oranges, and table grapes exempt from grade, size,
quality, and maturity requirements.
(a) Each person who imports:
(1) Avocados, grapefruit, kiwifruit, limes, olives, and oranges for
consumption by charitable institutions or distribution by relief
agencies;
(2) Avocados, grapefruit, kiwifruit, limes, oranges, and table
grapes for processing;
(3) Olives for processing into oil;
(4) Grapefruit for animal feed; or
(5) Avocados for seed shall obtain an ``Importer's Exempt Commodity
Form'' (FV-6 form) from the Marketing Order Administration Branch,
Fruit and Vegetable Division, AMS, USDA, and shall show the completed
``Importer's Exempt Commodity Form'' to the U.S. Customs Service
Regional Director or District Director, as applicable, at the port at
which the customs entry is filed. One copy shall be mailed to the
Marketing Order Administration Branch, Fruit and Vegetable Division,
AMS, USDA with a postmark no later than two days after the date of
importation and a third copy shall accompany the lot to the exempt
outlet specified on the form. Any lot offered for inspection and, all
or a portion thereof, subsequently imported as exempt under this
provision shall be reported on an ``Importer's Exempt Commodity Form''
and such form, accompanied by a copy of the applicable inspection
certificate, shall be mailed to the Marketing Order Administration
Branch.
(b) Each person who receives an exempt commodity for the purposes
specified in paragraph (a) of this section shall also receive a copy of
the same numbered Importer's Exempt Commodity Form filed by the
importer or customs broker and shall certify, by completing and signing
Section II of the form and mailing the form to the Marketing Order
Administration Branch within two days of receipt of the exempt lot,
that such lot has been received and will be utilized in the exempt
outlet.
(c) It is the responsibility of the importer to notify the
Marketing Order Administration Branch of any lot of exempt commodity
rejected by a receiver, shipped to an alternative exempt receiver,
exported, or otherwise destroyed. In such cases, a second ``Importer's
Exempt Commodity Form'' must be filed by the importer providing
sufficient information to determine ultimate disposition of the exempt
lot and such disposition shall be so certified by the final receiver.
(d) All FV-6 forms and other correspondence regarding entry of 8e
commodities must be mailed to the Marketing Order Administration
Branch, USDA, AMS, P.O. Box 96456, room 2523-S, Washington, D.C. 20090-
6456, telephone (202)-720-4607. FV-6 forms submitted by fax must be
followed by a mailed, original copy of the FV-6 form. Fax transmissions
may be sent to the MOAB at (202) 720-5698.
6. In Sec. 944.401, paragraph (c) is revised to read as follows:
Sec. 944.401 Olive import regulation.
* * * * *
(c) The Processed Products Branch, Fruit and Vegetable Division,
Agricultural Marketing Service, U.S. Department of Agriculture, is
hereby designated as the governmental inspection service for the
purpose of certifying the grade and size of processed olives from
imported bulk lots for use in canned ripe olives and the grade and size
of imported canned ripe olives. Inspection by said inspection service
with appropriate evidence thereof in the form of an official inspection
certificate, issued by the service and applicable to the particular lot
of olives, is required. With respect to imported bulk olives,
inspection and certification shall be completed prior to use as
packaged ripe olives. With respect to canned ripe olives, inspection
and certification shall be completed prior to importation. Any lot of
olives which fails to meet the import requirements and is not being
imported for purposes of contribution to a charitable organization or
processing into oil may be exported or disposed of under the
supervision of the Processed Products Branch, Fruit and Vegetable
Division, AMS, USDA, with the cost of certifying the disposal borne by
the importer. Such inspection and certification services will be
available, upon application, in accordance with the applicable
regulations governing the inspection and certification of Processed
Fruits and Vegetables, Processed Products Thereof, and Certain Other
Processed Food Products (part 52 of this title). Application for
inspection of canned ripe olives shall be made not less than 10 days
prior to the time when the olives will be imported. Since inspectors
are not located in the immediate vicinity of some of the small ports of
entry, importers of canned ripe olives shall make arrangements for
inspection through the following office at least 10 days prior to the
time when the olives will be imported: Processed Products Branch, USDA,
AMS, F&V Division, P.O. Box 96456, Room 0726-S, Washington, DC 20090-
6456, telephone (202) 720-5021, fax (202) 690-1527. Application for
inspection of processed bulk olives shall be made not less than 3 days
prior to use in the production of canned ripe olives. Such application
shall be made through one of the following offices: Regional Director,
Eastern Regional Office, 800 Roosevelt Road, Building A, suite 380 Glen
Ellyn, IL 60137, telephone (708) 790-6937/8/9, fax (708) 469-5162; or
Regional Director, Western Regional Office, 2202 Monterey Street, suite
102-C, Fresno, CA 93721, telephone (209) 487-5891, fax (209) 487-5900.
* * * * *
7. In Sec. 944.550, paragraph (d) is revised to read as follows:
Sec. 944.550 Kiwifruit import regulation.
* * * * *
(d) Any lot or portion thereof which fails to meet the import
requirements and is not being imported for purposes of consumption by
charitable institutions, distribution by relief agencies, or commercial
processing into products may be reconditioned or exported. Any failed
lot which is not reconditioned or exported shall be disposed of under
supervision of the Federal or Federal-State Inspection Service with the
costs of certifying the
[[Page 13060]]
disposal of said lot borne by the importer.
* * * * *
PART 980--VEGETABLES; IMPORT REGULATIONS
1. The authority citation for 7 CFR part 980 continues to read as
follows:
Authority: 7 U.S.C. 601-674.
2. In Sec. 980.1, paragraph (i) is revised to read as follows:
Sec. 980.1 Import regulations; Irish potatoes.
* * * * *
(i) Exemptions. The grade, size, quality and maturity requirements
of this section shall not be applicable to potatoes imported for
canning, freezing, other processing, livestock feed, charity, or
relief, but such potatoes shall be subject to the safeguard provisions
contained in Sec. 980.501. Processing includes canning, freezing,
dehydration, chips, shoestrings, starch and flour. Processing does not
include potatoes that are only peeled, or cooled, sliced, diced, or
treated to prevent oxidation, or made into fresh potato salad.
3. In Sec. 980.117, paragraph (i) is revised to read as follows:
Sec. 980.117 Import regulations; onions.
* * * * *
(i) Exemptions. The grade, size, quality and maturity requirements
of this section shall not be applicable to onions imported for
processing, livestock feed, charity, or relief, and pearl onions not
larger than 1\3/4\ inches in diameter, onion sets (plantings), braided
red onions, and minimum quantity shipments of 110 pounds, but such
onions shall be subject to the safeguard provisions in Sec. 980.501.
Processing includes canning, freezing, dehydration, extraction (juice)
and pickling in brine. Processing does not include fresh chop, fresh
cut, convenience food or other pre-packaged salad operations. Pearl
onions must be inspected for size prior to entry into the United
States.
4. In Sec. 980.212, paragraph (i) is revised to read as follows:
Sec. 980.212 Import regulations; tomatoes.
* * * * *
(i) Exemptions. The grade, size, quality and maturity requirements
of this section shall not apply to tomatoes for charity, relief,
canning or pickling, but such tomatoes shall be subject to the
safeguard provisions contained in Sec. 980.501. Processing includes
canning and pickling.
5. Section 980.501 is revised to read as follows:
Sec. 980.501 Safeguard procedures for potatoes, onions, and tomatoes
exempt from grade, size, quality, and maturity requirements.
(a) Each person who imports:
(1) Potatoes, onions or tomatoes for consumption by charitable
institutions or distribution by relief agencies;
(2) Potatoes, onions, or tomatoes for processing;
(3) Potatoes or onions for livestock feed; or
(4) Pearl onions, shall obtain an ``Importer's Exempt Commodity
Form'' (FV-6) from the Marketing Order Administration Branch, Fruit and
Vegetable Division, AMS, USDA, and shall show the completed
``Importer's Exempt Commodity Form'' to the U.S. Customs Service
Regional Director or District Director, as applicable, at the port at
which the customs entry is filed. One copy shall be mailed to the
Marketing Order Administration Branch, Fruit and Vegetable Division,
AMS, USDA with a postmark no later than two days after the date of
importation and a third copy shall accompany the lot to the exempt
outlet specified on the form. Any lot offered for inspection and, all
or a portion thereof, subsequently imported as exempt under this
provision shall be reported on an ``Importer's Exempt Commodity Form''
and such form, accompanied by a copy of the applicable inspection
certificate, shall be mailed to the Marketing Order Administration
Branch.
(b) Each person who receives an exempt commodity for the purposes
specified in paragraph (a) of this section shall also receive a copy of
the same numbered Importer's Exempt Commodity Form filed by the
importer or customs broker and shall certify, by completing and signing
Section II of the form and mailing the form to the Marketing Order
Administration Branch within two days of receipt of the exempt lot,
that such lot has been received and will be utilized in the exempt
outlet.
(c) It is the responsibility of the importer to notify the
Marketing Order Administration Branch of any lot of exempt commodity
rejected by a receiver, shipped to an alternative exempt receiver,
returned to the country of origin, or otherwise disposed of. In such
cases, a second ``Importer's Exempt Commodity Form'' must be filed by
the importer providing sufficient information to determine ultimate
disposition of the exempt lot and such disposition shall be so
certified by the final receiver.
(d) All FV-6 forms and other correspondence regarding entry of 8e
commodities must be mailed to the Marketing Order Administration
Branch, USDA, AMS, P.O. Box 96456, room 2523-S, Washington, D.C. 20090-
6456, telephone (202) 720-4607. FV-6 forms submitted by fax must be
followed by a mailed, original copy of the FV-6. Fax transmissions may
be sent to the MOAB at (202) 720-5698.
PART 999--SPECIALTY CROPS; IMPORT REGULATIONS
1. The authority citation for 7 CFR part 999 continues to read as
follows:
Authority: 7 U.S.C. 601-674.
2. Section 999.500 is revised to read as follows:
Sec. 999.500 Safeguard procedures for walnuts and certain dates exempt
from grade, size, quality, and maturity requirements.
(a) Each person who imports:
(1) Dates which are donated to needy persons, prisoners or Native
Americans on reservations; or
(2) Walnuts which are: green walnuts (so immature that they cannot
be used for drying and sale as dried walnuts); walnuts used in non-
competitive outlets such as use by charitable institutions, relief
agencies, governmental agencies for school lunch programs, and
diversion to animal feed or oil manufacture shall obtain an
``Importer's Exempt Commodity Form'' (FV-6) from the Marketing Order
Administration Branch, Fruit and Vegetable Division, AMS, USDA, and
shall show the completed ``Importer's Exempt Commodity Form'' to the
U.S. Customs Service Regional Director or District Director, as
applicable, at the port at which the customs entry is filed. One copy
shall be mailed to the Marketing Order Administration Branch, Fruit and
Vegetable Division, AMS, USDA, with a postmark not later than two days
after the date of importation and a third copy shall accompany the lot
to the exempt outlet specified on the form. Any lot offered for
inspection and, all or a portion thereof, imported as exempt under this
provision shall be reported on an ``Importer's Exempt Commodity Form''
and such form, accompanied by a copy of the applicable inspection
certificate, shall be mailed to the Marketing Order Administration
Branch.
(b) Each person who receives an exempt commodity for the purposes
specified in paragraph (a) of this section shall also receive a copy of
the same numbered Importer's Exempt Commodity Form filed by the
importer or customs broker and shall certify, by completing and signing
Section II of the form and mailing the form to the
[[Page 13061]]
Marketing Order Administration Branch within two days of receipt of the
exempt lot, that such lot has been received and will be utilized in the
exempt outlet.
(c) It is the responsibility of the importer to notify the
Marketing Order Administration Branch of any lot of exempt commodity
rejected by a receiver, shipped to an alternative exempt receiver,
exported, or otherwise disposed of. In such cases, a second
``Importer's Exempt Commodity Form'' must be filed by the importer
providing sufficient information to determine ultimate disposition of
the exempt lot and such disposition shall be so certified by the final
receiver.
(d) All FV-6 forms and other correspondence regarding entry of 8e
commodities must be mailed to the Marketing Order Administration
Branch, USDA, AMS, P.O. Box 96456, room 2523-S, Washington, D.C. 20090-
6456, telephone (202) 720-4607. FV-6 forms submitted by fax must be
followed by a mailed, original copy of the FV-6. Fax transmissions may
be sent to the MOAB at (202) 720-5698.
Dated: February 23, 1996.
Sharon Bomer Lauritsen,
Deputy Director, Fruit and Vegetable Division.
[FR Doc. 96-7192 Filed 3-25-96; 8:45 am]
BILLING CODE 3410-02-P
Complete official Federal Register PDF
FR Doc. 96-7191 Sheep Promotion, Research, and Information Program
[Federal Register Volume 61, Number 59 (Tuesday, March 26, 1996)]
[Rules and Regulations]
[Page 13061]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-7191]
-----------------------------------------------------------------------
DEPARTMENT OF AGRICULTURE
7 CFR Part 1280
[No. LS-96-002]
Sheep Promotion, Research, and Information Program
AGENCY: Agricultural Marketing Service; USDA.
ACTION: Notice of Referendum Results
-----------------------------------------------------------------------
SUMMARY: The Agricultural Marketing Service (AMS) is announcing that
sheep producers, sheep feeders, and importers of sheep and sheep
products voting in a national referendum on February 6, 1996, have
approved the Sheep and Wool Promotion, Research, Education, and
Information Order (Order).
FOR FURTHER INFORMATION CONTACT: Ralph L. Tapp, Chief, Marketing
Programs Branch, Livestock and Seed Division, AMS, USDA, Room 2606-S;
P.O. Box 96456; Washington, D.C. 20090-6456.
SUPPLEMENTARY INFORMATION: Pursuant to the Sheep Promotion, Research,
and Information Act of 1994, 7 U.S.C. 7101 et seq. (Act), the
Department of Agriculture conducted a referendum on February 6, 1996,
among eligible sheep producers, sheep feeders, and importers of sheep
and sheep products to determine if an Order would become effective.
Of the 19,801 valid ballots cast, 10,707 (54.1 percent) favored and
9,094 (45.9 percent) opposed the implementation of the Order.
Additionally, of those persons who cast valid ballots in the
referendum, those who favored the Order account for 40 percent of the
total production voted, and those opposed account for 60 percent of the
total production voted. The Order could have been approved by either a
majority of the producers, feeders, and importers voting in the
referendum or by those voting in the referendum who accounted for at
least two-thirds of the production represented.
Therefore, based on the referendum results, the Secretary of
Agriculture has determined that the required majority of eligible
producers, feeders, and importers who voted absentee or in person in
the February 6, 1996, national referendum voted to implement the Order.
As a result, a promotion, research, education, and information program
will be funded by a mandatory assessment on domestic sheep producers,
lamb feeders, and exporters of live sheep and greasy wool of 1 cent per
pound on live sheep sold and 2 cents per pound on greasy wool sold.
Importers will be assessed (1) 1 cent per pound on live sheep; (2) the
equivalent of 1 cent per pound of live sheep for sheep products; and
(3) 2 cents per pound of degreased wool or the equivalent of degreased
wool for wool and wool products. Imported raw wool will be exempt from
assessments. Each person who processes or causes to be processed sheep
or sheep products of that person's own production and markets the
processed products, will be assessed the equivalent of 1 cent per pound
of live sheep sold or 2 cents per pound of greasy wool sold. All
assessments may be adjusted in accordance with applicable provisions of
the Act. The date when assessments will begin will be announced at a
later date.
Dated: March 20, 1996.
Lon Hatamiya,
Administrator.
[FR Doc. 96-7191 Filed 3-25-96; 8:45 am]
BILLING CODE 3410-02-P
Complete official Federal Register PDF
FR Doc. 96-7182 Groundfish of the Bering Sea and Aleutian Islands Area; Yellowfin Sole by Vessels Using Trawl Gear in Bycatch Limitation Zone 1
[Federal Register Volume 61, Number 59 (Tuesday, March 26, 1996)]
[Rules and Regulations]
[Page 13109]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-7182]
=======================================================================
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 675
[Docket No. 960129019-6019-01; I.D. 032096A]
Groundfish of the Bering Sea and Aleutian Islands Area; Yellowfin
Sole by Vessels Using Trawl Gear in Bycatch Limitation Zone 1
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Closure.
-----------------------------------------------------------------------
SUMMARY: NMFS is closing the directed fishery for yellowfin sole by
vessels using trawl gear in Bycatch Limitation Zone 1 (Zone 1) of the
Bering Sea and Aleutian Islands management area (BSAI). This action is
necessary to prevent exceeding the first seasonal apportionment of the
prohibited species catch (PSC) allowance of C. bairdi Tanner crab
apportioned to the trawl yellowfin sole fishery category in Zone 1.
EFFECTIVE DATE: 12 noon, Alaska local time (A.l.t.), March 20, 1996,
until 12 noon, A.l.t., April 1, 1996.
FOR FURTHER INFORMATION CONTACT: Andrew N. Smoker, 907-586-7228.
SUPPLEMENTARY INFORMATION: The groundfish fishery in the BSAI exclusive
economic zone is managed by NMFS according to the Fishery Management
Plan for the Groundfish Fishery of the Bering Sea and Aleutian Islands
Area (FMP) prepared by the North Pacific Fishery Management Council
under authority of the Magnuson Fishery Conservation and Management
Act. Fishing by U.S. vessels is governed by regulations implementing
the FMP at 50 CFR parts 620 and 675.
The 1996 PSC allowance of C. bairdi Tanner crab in Zone 1 for the
trawl yellowfin sole fishery category, which is defined at
Sec. 675.21(b)(1)(iii)(B)(1), was established by the Final 1996 Harvest
Specifications of Groundfish (61 FR 4311, February 5, 1996) as 250,000
crab. The first seasonal bycatch apportionment of that allowance is
50,000 crab.
The Director, Alaska Region, NMFS, has determined, in accordance
with Sec. 675.21(c)(1)(i), that the first seasonal apportionment of the
PSC allowance of C. bairdi Tanner crab for the trawl yellowfin sole
fishery in Zone 1 has been reached. Therefore, NMFS is prohibiting
directed fishing for yellowfin sole by vessels using trawl gear in Zone
1 of the BSAI.
Maximum retainable bycatch amounts for applicable gear types may be
found in the regulations at Sec. 675.20(h).
Classification
This action is taken under Sec. 675.21 and is exempt from review
under E.O. 12866.
Authority: 16 U.S.C. 1801 et seq.
Dated: March 20, 1996.
Richard W. Surdi,
Acting Director, Office of Fisheries Conservation and Management,
National Marine Fisheries Service.
[FR Doc. 96-7182 Filed 3-20-96; 3:57 pm]
BILLING CODE 3510-22-F
Complete official Federal Register PDF
FR Doc. 96-7174 Rules Regarding Equal Opportunity; Correction
[Federal Register Volume 61, Number 59 (Tuesday, March 26, 1996)]
[Rules and Regulations]
[Page 13079]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-7174]
=======================================================================
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FEDERAL RESERVE SYSTEM
12 CFR Part 268
[Docket No. R-0797]
Rules Regarding Equal Opportunity; Correction
AGENCY: Board of Governors of the Federal Reserve System.
ACTION: Final rule; correcting amendments.
-----------------------------------------------------------------------
SUMMARY: This document contains technical corrections to the final rule
that was published April 6, 1994 (59 FR 16096). The rule sets forth the
requirements, policies and procedures with regard to discrimination in
employment, and in agency programs and activities, at the Board of
Governors of the Federal Reserve System.
EFFECTIVE DATE: March 26, 1996.
FOR FURTHER INFORMATION CONTACT: J. Mills Williams, Senior Attorney
(202/452-3701), Legal Division, Board of Governors of the Federal
Reserve System, 20th and C Streets, NW., Washington, DC, 20551. For
users of Telecommunications Device for the Deaf (TDD) only, please
contact Dorothea Thompson (202/452-3544).
SUPPLEMENTARY INFORMATION:
Background
The final rule that is the subject of these corrections, revised an
interim rule that was subject to public comment.
Need for Correction
As published, the final rule contained three technical, non-
substantive errors that may prove to be misleading and are in need of
clarification.
List of Subjects in 12 CFR Part 268
Administrative practice and procedure, Age, Civil rights, Equal
employment opportunity, Federal buildings and facilities, Federal
Reserve System, Government employees, Individuals with disabilities,
Religious discrimination, Sex discrimination, Wages.
Accordingly, 12 CFR Part 268 is corrected by making the following
correcting amendments:
PART 268--RULES REGARDING EQUAL OPPORTUNITY
1. The authority citation for Part 268 continues to read as
follows:
Authority: 12 U.S.C. 244 and 248 (i), (k) and (l).
Sec. 268.301 [Corrected]
2. In Sec. 268.301, paragraph (c)(3), the cite
``Sec. 268.209(a)(8)'' is revised to read ``Sec. 268.209(b)(8)''.
Sec. 268.305 [Corrected]
3. In Sec. 268.305, paragraph (c)(1), the cite
``Sec. 268.202(e)(3)'' is revised to read ``Sec. 268.202(f)(3)''.
Sec. 268.506 [Corrected]
4. In Sec. 268.506, remove the cite ``(29 U.S.C. 225)'' at the end
of the first sentence.
By order of the Board of Governors of the Federal Reserve System
under delegated authority, March 20, 1996.
William W. Wiles,
Secretary of the Board.
[FR Doc. 96-7174 Filed 3-25-96; 8:45 am]
BILLING CODE 6210-01-P
Complete official Federal Register PDF
FR Doc. 96-7171 Drawbridge Operation Regulations: Atlantic Intracoastal Waterway, FL
[Federal Register Volume 61, Number 59 (Tuesday, March 26, 1996)]
[Rules and Regulations]
[Pages 13097-13098]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-7171]
=======================================================================
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[[Page 13098]]
DEPARTMENT OF TRANSPORTATION
Coast Guard
33 CFR Part 117
[CGD07-96-010]
Drawbridge Operation Regulations: Atlantic Intracoastal Waterway,
FL
AGENCY: Coast Guard, DOT.
ACTION: Notice of deviation from regulations and request for comments.
-----------------------------------------------------------------------
SUMMARY: Notice is hereby given that the Coast Guard issuing a
temporary deviation to the regulations governing the J.D. Butler
(Hillsboro Boulevard, State Road 810) drawbridge, mile 1050.0, at
Deerfield Beach, from March 1, 1996 through May 30, 1996. This
deviation authorizes the bridge owner to open the draw on signal,
except that, from 7 a.m. to 6 p.m., Monday through Thursday, the draw
need open only on the hour, 20 minutes after the hour, and forty
minutes after the hour; and from 7 a.m. to 6 p.m., Friday through
Sunday and federal holidays, the draw need open only on the hour and
half-hour. The purpose of this temporary change in opening schedule
from Friday through Sunday and federal holidays is to test the
feasibility of establishing a permanent change to the seasonal opening
restrictions to reduce severe vehicular traffic congestion without
unreasonably impacting navigation.
DATES: This deviation is effective from March 1, 1996 through May 30,
1996, unless sooner terminated. Comments on the alternate schedule must
be received on or before May 30, 1996.
ADDRESSES: Comments may be mailed to Commander (oan), Seventh Coast
Guard District, Brickell Plaza Federal Building, Room 406, 909 SE. 1st
Avenue, Miami, Florida 33131-3050. The comments and other materials
referenced in this notice will be available for inspection and copying
at the above address. Normal office hours are between 7:30 a.m. and 4
p.m., Monday through Friday, except federal holidays. Comments may also
be hand-delivered to the above address.
FOR FURTHER INFORMATION CONTACT:
Mr. Brodie Rich, Bridge Management Specialist, Seventh Coast Guard
District, at 305-536-5117.
SUPPLEMENTARY INFORMATION:
Request for Comments
The Coast Guard encourages interested persons to participate in
this evaluation of possible changes to the regulations governing the
J.D. Butler Drawbridge over the Atlantic Intracoastal Waterway by
submitting written data, or arguments for or against this deviation.
Persons submitting comments should include their name, address,
identify this rulemaking (CGD07-96-010) and give the reason for each
comment. Persons wanting acknowledgment of receipt of comments should
enclose a stamped self-addressed postcard or envelope.
The Coast Guard will consider all comments received during the
comment period and determine whether to initiate a rulemaking to
propose a permanent change to the drawbridge operation schedule.
Persons may submit comments by writing to the Commander (oan), Seventh
Coast Guard District listed under ADDRESSES.
Background and Purpose
The City of Deerfield Beach has requested a change from the current
seasonal operating schedule in Title 33 CFR 117.261(bb) to a year-round
hour and half-hour opening schedule. A Coast Guard analysis of highway
traffic and bridge opening data provided by the Florida Department of
Transportation which was completed on May 8, 1995, indicated the heavy
traffic congestion is limited to weekends during the winter tourist
season. This deviation will allow a test of the proposed hour and half-
hour opening schedule during the heaviest highway and waterway traffic
periods. If the test reduces highway traffic congestion without
unreasonably impacting navigation, the Coast Guard plans to publish a
Notice of Proposed Rulemaking which will request comments on a
permanent change to the regulations.
Public vessels of the United States, tugs with tows, and vessels in
a situation where a delay would endanger life or property shall, upon
proper signal, be passed through the draw at any time.
This deviation from normal operating regulations (33 CFR 117.5) is
authorized in accordance with the provisions of title 33 of the Code of
Federal Regulations, Sec. 117.43.
Dated: March 7, 1996.
P.J. Cardaci,
Captain U.S. Coast Guard, Commander, Seventh Coast Guard District,
Acting.
[FR Doc. 96-7171 Filed 3-25-96; 8:45 am]
BILLING CODE 4910-14-M
Complete official Federal Register PDF
FR Doc. 96-7169 Qualifications for Tankermen, and for Persons in Charge of Transfers of Dangerous Liquids and Liquefied Gases
[Federal Register Volume 61, Number 59 (Tuesday, March 26, 1996)]
[Rules and Regulations]
[Pages 13098-13100]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-7169]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
33 CFR Parts 154 and 155
46 CFR Parts 12, 13, 15, 30, 31, 35, 78, 90, 97, 98, 105, 151, 153,
and 154
[Docket No. CGD-79-116]
RIN 2115-AA03
Qualifications for Tankermen, and for Persons in Charge of
Transfers of Dangerous Liquids and Liquefied Gases
AGENCY: Coast Guard, DOT.
ACTION: Reopening of Comment Period on interim rule.
-----------------------------------------------------------------------
SUMMARY: The Coast Guard is reopening the period for public comment on
its Interim Rule on the Qualifications for Tankermen, and for Persons
in Charge of Transfers of Dangerous Liquids and Liquefied Gases. It
would like public help in treating certain issues.
DATES: The effective date remains March 31, 1996. Written comments must
be received not later than May 28, 1996.
ADDRESSES: Written comments may be mailed to the Executive Secretary,
Marine Safety Council (G-LRA, 3406), U.S. Coast Guard, 2100 Second
Street SW., Washington, DC 20593-0001, or may be delivered to room 3406
at the same address between 8 a.m. and 3 p.m., Monday through Friday,
except Federal holidays. Comments will become part of this docket and
will be available for inspection or copying at room 3406, Coast Guard
Headquarters, between 8 a.m. and 3 p.m., Monday through Friday, except
Federal holidays.
FOR FURTHER INFORMATION CONTACT:
Mr. Mark C. Gould, Project Manager, Marine Safety and Environmental
Protection Directorate, Office of Maritime Personnel Qualifications (G-
MOS-1), (202) 267-6890. This telephone is equipped to record messages
on a 24-hour basis.
SUPPLEMENTARY INFORMATION: On Tuesday, April 4, 1995 [60 FR 17134], the
Coast Guard issued an Interim Rule on the Qualifications for Tankermen,
and for Persons in Charge of Transfers of Dangerous Liquids and
Liquefied Gases. The deadline for written comments was June 30, 1995.
Comments submitted during the comment period by the public and
further evaluation of the Interim Rule by the Coast Guard revealed
certain issues that require further evaluation, clarification, or
correction. The Coast Guard has, therefore, decided to reopen the
comment period. There is no need to refile comments already submitted.
The effective date of the Interim Rule remains March 31, 1996.
[[Page 13099]]
Although the Coast Guard invites comments on any feature of the
Interim Rule, it specifically invites comments on the following:
TITLE 33--NAVIGATION AND NAVIGABLE WATERS
Section 155.710 Qualifications of person in charge.
Paragraphs (a)(2)(ii), (b)(2), and (g) allow the PIC of cargo-tank
cleaning on a vessel at a tank-cleaning facility or shipyard to hold a
marine chemist's certificate issued by the National Fire Protection
Association instead of the appropriate Tankerman-PIC endorsement.
Numerous comments on the Interim Rule objected to this alternative.
They stated that no marine chemist is qualified to act as a Tankerman-
PIC. The Coast Guard will compare the qualifications for marine
chemists with those for Tankerman-PICs. It invites comments.
TITLE 46--SHIPPING
Section 13.107 Tankerman endorsement: General.
Section 15.860 Tankerman.
There appears to be some confusion and disagreement regarding the
term direct supervision as used in these sections. The Coast Guard
defines being under direct supervision to mean being within the
unobstructed view of the supervisor. If the PIC assigns a person to
turn a particular value, and if this person bends down so that either
the hands or the valve is not visible to the PIC, this person is not
under direct supervision of the PIC. A fair equivalent might be being
in ``direct line of sight of the supervisor, or in close proximity to
the transfer and maintaining direct, continuous communications by a
convenient, reliable means, such as a hand-held radio.'' The Coast
Guard invites comments.
Section 13.111 Restricted endorsement.
This section lets an applicant apply for a tankerman endorsement
restricted to specific cargoes or groups of cargoes, specific vessels,
specific facilities, specific employers, or the like. The Coast Guard
intended for this endorsement to benefit oil and chemical companies
that handle only one or two cargoes or that employ a small number of
tankerman, who conduct transfers at a small number of sites. This
endorsement would relieve its holders of having to take the DL or LG
course because those holders would have frequent opportunity to observe
and participate in local transfers and would have no need to observe or
participate in others. The Coast Guard did not intend that a large oil
or chemical company could employ a large number of tankermen with
restricted endorsements. It invites comments.
Section 13.113 Tankerman certified under prior regulations.
Paragraph (a) allows certain persons who have acted as Tankermen-
PICs before March 31, 1996, to continue in that capacity. However,
paragraph (d)(1)(iii)(A)(1) does not require any particular period of
sea service, and paragraphs (d)(1)(iii)(A)(2) and (d)(1)(iii)(B)
require only 30 days of sea service. None of these sections comply with
the International Convention on Standards of Training, Certification
and Watchkeeping for Seafarers, 1978 (STCW), as amended in 1994, which
requires 90 days of sea service on tankers. Since the United States is
signatory to STCW, the Coast Guard considers itself bound to amend
paragraphs (d)(1)(iii)(A)(1), (d)(1)(iii)(A)(2), and (d)(1)(iii)(B) to
require 90 days of sea service on tankers. It invites comments.
Section 13.115 Licensed engineer: Endorsement as Tankerman-Engineer
based on service on tankships before March 31, 1996.
This section requires that a licensed person with service as chief,
first assistant, or cargo engineer before March 31, 1996, obtain a
Tankerman-Engineer endorsement to his or her MMD no later than the
first renewal of the MMD after March 31, 1997, if he or she intends to
continue in any of those capacities. The Coast Guard intends that the
final rule will allow service by one carrying temporary proof of the
tankerman's qualifications as Sec. 13.113 did for Tankerman-PIC or
Tankerman-PIC (Barge). But, as we have just seen, Sec. 13.113 itself
comes up short--60 days short--measured against STCW, as amended in
1994. Therefore, to provide for an orderly transition to a regime
governed by STCW, as amended in 1994, as well as to square Sec. 13.115
with Sec. 13.113 in its STCW-compatible form, the Coast Guard considers
itself bound to amend paragraphs (a) and (b) to require 90 days of sea
service on tankers. It invites comments.
In addition, STCW, as amended in 1994, requires that an applicant
for this endorsement satisfactorily complete the appropriate DL or LG
course. The Coast Guard is inclined to amend this section to require
satisfactory completion of a DL or LG course. However, the Coast Guard
is willing to consider deferring the course requirement for a limited
period of time, to give mariners a reasonable period of time to
satisfactorily complete the course. It invites comments.
Section 13.117 Any person: Endorsement as Tankerman-Assistant based on
unlicensed deck service before March 31, 1996.
This section requires that a person with unlicensed deck service
before March 31, 1996, obtain a Tankerman-Assistant endorsement to his
or her MMD no later than the first renewal of the MMD after March 31,
1997, if he or she intends to continue in that capacity. The Coast
Guard intends that the final rule will allow service by one carrying
temporary proof of the tankerman's qualifications as Sec. 13.113 did
for Tankerman-PIC or Tankerman-PIC (Barge). But, again as we have just
seen, Sec. 13.113 itself comes up short--60 days short--measured
against STCW, as amended in 1994. Therefore, to provide for an orderly
transition to a regime governed by STCW, as amended in 1994, as well as
to square Sec. 13.117 with Sec. 13.113 in its STCW-compatible form, the
Coast Guard considers itself bound to amend paragraphs (a) and (b) to
require 90 days of sea service on tankers. It invites comments.
Further, STCW, as amended in 1994, allows an applicant for this
endorsement to satisfactorily complete a tanker-familiarization course
rather than satisfy paragraph (a) or (b). Therefore, the Coast Guard is
inclined to amend this section to allow satisfactory completion of this
course, too. It invites comments.
Further yet, STCW, as amended in 1994, requires that an application
for this endorsement satisfactorily complete a firefighting course. The
Coast Guard is included to amend this section to require satisfactory
completion of this course, too. It invites comments.
For the Tankerman-Assistant endorsement, the Coast Guard will
accept pumpman service as well as the deck service described in
Secs. 13.117 and 13.403. It invites comments.
Section 13.409 Eligibility requirements: Cargo course.
This section allows an applicant for an endorsement as Tankerman-
Assistant to substitute sea service for satisfactory completion of a
course in DL or LG. But STCW, as amended in 1994, requires the same
applicants to either (1) satisfactorily complete a tanker-
familiarization course or (2) prove 90 days of sea service on tankers.
Therefore, the Coast Guard considers itself bound to amend this section
to require either (1) satisfactory completion of a tanker-
familiarization
[[Page 13100]]
course, rather than of a course in DL or LG, or (2) 90 days of sea
service on tankers, rather than an unspecified amount of sea service of
an unspecified kind. It invites comments.
Section 13.503 Eligibility requirements: Experience.
This section allows an applicant for an endorsement as Tankerman-
Engineer to combine sea service and satisfactory completion of a DL or
LG course for the requisite experience. But STCW, as amended in 1994,
requires that the same applicant both satisfactorily complete the
appropriate DL or LG course and prove 90 days of sea service on
tankers. Therefore, the Coast Guard is inclined to amend this section
to require both, rather than some blend of them. It invites comments.
Section 13.509 Eligibility requirements: Cargo course.
This section allows an applicant for an endorsement as Tankerman-
Engineer to substitute sea service for satisfactory completion of a
course in DL or LG. But STCW, as amended in 1994, requires that the
same applicant both satisfactorily complete the appropriate DL or LG
course and prove 90 days of sea service on tankers. Therefore, the
Coast Guard is inclined to amend this section to require both, rather
than some blend of them. It invites comments.
Dated: March 15, 1996.
J.C. Card,
Rear Admiral, U.S. Coast Guard Chief, Office of Marine Safety, Security
and Environmental Protection.
[FR Doc. 96-7169 Filed 3-25-96; 8:45 am]
BILLING CODE 4910-14-M
Complete official Federal Register PDF
FR Doc. 96-7166 Clean Air Act Final Full Approval of Operating Permits Program; Hamilton County, Tennessee
[Federal Register Volume 61, Number 59 (Tuesday, March 26, 1996)]
[Rules and Regulations]
[Pages 13101-13103]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-7166]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70
[TN-CHAT-95-01; FRL-5445-8]
Clean Air Act Final Full Approval of Operating Permits Program;
Hamilton County, Tennessee
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final full approval.
-----------------------------------------------------------------------
SUMMARY: EPA is promulgating full approval of the title V operating
permits program submitted by the State of Tennessee on behalf of the
Chattanooga-Hamilton County Air Pollution Control Bureau (CHCAPCB). The
CHCAPCB program was submitted for the purpose of complying with Federal
requirements which mandate that states or local authorities develop,
and submit to EPA, programs for issuing operating permits to all major
stationary sources and to certain other sources.
EFFECTIVE DATE: April 25, 1996.
ADDRESSES: Copies of the CHCAPCB submittal and other supporting
information used in developing the final full approval are available
for inspection during normal business hours at the following location:
U.S. Environmental Protection Agency, Region 4, 345 Courtland Street
NE, Atlanta, Georgia 30365. Interested persons wanting to examine these
documents, contained in EPA docket number TN-CHAT-95-01, should make an
appointment at least 24 hours before the visiting day.
FOR FURTHER INFORMATION CONTACT: Kelly Fortin, Title V Program
Development Team, Air Programs Branch, Air, Pesticides & Toxics
Management Division, U.S. Environmental Protection Agency, Region 4,
345 Courtland Street NE, Atlanta, Georgia 30365, (404) 347-3555, Ext.
4150.
SUPPLEMENTARY INFORMATION:
I. Background and Purpose
A. Introduction
Title V of the 1990 Clean Air Act Amendments (sections 501-507 of
the Clean Air Act (the Act)) and the implementing regulations at 40
Code of Federal Regulations (CFR) part 70 require that states or
authorized local agencies develop and submit operating permits programs
to EPA by November 15, 1993, and that EPA act to approve or disapprove
each program within one year after receiving the submittal. If the
permitting authority's submission is materially changed during the one-
year period, 40 CFR 70.4(e)(2) allows EPA to extend the review period
for no more than one year following the receipt of the additional
materials.
EPA's operating permit program review occurs pursuant to section
502 of the Act and the part 70 regulations, which together outline
criteria for approval or disapproval. Where a program substantially,
but not fully, meets the requirements of part 70, EPA may grant the
program interim approval for a period of up to two years. If EPA has
not fully approved a program by November 15, 1995, or by the end of an
interim program, it must establish and implement a Federal operating
permit program for that state or local agency.
On November 8, 1995, EPA proposed full approval, or in the
alternative, interim approval of the operating permits program for
CHCAPCB in the Federal Register. See 60 FR 56285. The Federal Register
notice stated that, as a condition of full approval, certain revisions
or clarifications were required in the insignificant activities list
contained in CHCAPCB's program. The above-referenced Federal Register
notice and the technical support document describe in detail the
changes required for full program approval. The November 8, 1995,
notice also proposed approval of CHCAPCB's interim mechanism for
implementing section 112(g) and for delegation of section 112 standards
as promulgated. EPA did not receive any comments on the proposal
notice.
On March 14, 1996, the State of Tennessee submitted, on behalf of
CHCAPCB, revisions to the operating
[[Page 13102]]
permits program that addressed the deficiencies discussed in the
proposed full/interim approval Federal Register notice. These changes
became locally effective on the following dates: February 7, 1996, in
the unincorporated areas of Hamilton County and in the East Ridge
municipality; March 6, 1996, in the City of Chattanooga; March 7, 1996,
in the Soddy-Daisy municipality; March 11, 1996, in the Signal Mountain
municipality; March 12, 1996, in the Lookout Mountain and Walden
municipalities; March 18, 1996, in the Collegedale municipality; March
19, 1996, in the Red Bank municipality; and March 21, 1996, in the
Lakesite municipality. The changes will become locally effective in the
Ridgeside municipality on April 16, 1996. In this action, EPA is
promulgating full approval of the CHCAPCB operating permits program,
and approving the section 112(g) and section 112(l) mechanisms noted
above.
II. Final Action and Implications
A. Title V Operating Permits Program
EPA is promulgating full approval of the operating permits program
submitted by the State of Tennessee, on behalf of CHCAPCB, on November
22, 1993, and as supplemented on January 23, 1995, February 24, 1995,
October 13, 1995, and March 14, 1995. The November 8, 1995, Federal
Register notice established that CHCAPCB would receive full approval of
its program if certain changes were made to the insignificant
activities provisions of the program and submitted to EPA prior to
EPA's final action. CHCAPCB has demonstrated that the program will be
adequate to meet the minimum elements of a local operating permits
program as specified in 40 CFR part 70.
The scope of the CHCAPCB program that EPA is approving in this
action applies to all part 70 sources (as defined in the approved
program) within Hamilton County, except any sources of air pollution
over which an Indian Tribe has jurisdiction. See, e.g., 59 FR 55813,
55815-18 (November 9, 1994). The term ``Indian Tribe'' is defined under
the Act as ``any Indian tribe, band, nation, or other organized group
or community, including any Alaska Native village, which is Federally
recognized as eligible for the special programs and services provided
by the United States to Indians because of their status as Indians.''
See section 302(r) of the CAA; see also 59 FR 43956, 43962 (August 25,
1994); 58 FR 54364 (October 21, 1993).
The Chattanooga-Hamilton County Air Pollution Control Board,
operating under a certificate of exemption pursuant to Tennessee Code
Annotated, Section 68-201-115, has authority to administer the
operating permits program in all areas of Hamilton County, Tennessee,
with the exception of Indian reservations and tribal lands. The CHCAPCB
program is implemented and enforced through: (1) the Chattanooga Air
Pollution Control Code (within the incorporated municipality of the
City of Chattanooga, Tennessee); (2) the Hamilton County Air Pollution
Control Regulation (in the unincorporated areas of Hamilton County,
Tennessee); and (3) the air pollution control ordinances prepared for
and enacted in the incorporated municipalities of East Ridge, Red Bank,
Soddy-Daisy, Signal Mountain, Lakesite, Walden, Collegedale, Lookout
Mountain, and Ridgeside.
B. Preconstruction Permit Program Implementing Section 112(g)
EPA is approving the use of CHCAPCB's preconstruction review
program found in section 4-8 of the Chattanooga Code and the
corresponding sections of the Hamilton County and local municipalities'
regulations as the mechanism for implementing section 112(g) during the
transition period between promulgation of EPA's section 112(g) rule and
CHCAPCB's adoption of rules specifically designed to implement section
112(g). This approval is limited to the implementation of the 112(g)
rule and is effective only during any transition time between the
effective date of the 112(g) rule and the adoption of specific rules by
CHCAPCB to implement section 112(g). The duration of this approval is
limited to 18 months following promulgation by EPA of section 112(g)
regulations, to provide Hamilton County, the City of Chattanooga, and
the affected municipalities with adequate time to adopt regulations
consistent with Federal requirements.
C. Program for Delegation of Section 112 Standards as Promulgated
Requirements for approval, specified in 40 CFR 70.4(b), encompass
section 112(l)(5) requirements for approval of a program for delegation
of section 112 standards as promulgated by EPA as they apply to part 70
sources. Section 112(l)(5) requires that CHCAPCB's program contain
adequate authorities, adequate resources for implementation, and an
expeditious compliance schedule, which are also requirements under part
70. Therefore, EPA is also promulgating approval under section
112(l)(5) and 40 CFR 63.91 of CHCAPCB's program for receiving
delegation of section 112 standards and programs that are unchanged
from Federal rules as promulgated. In addition, EPA is approving the
delegation of all existing standards and programs under 40 CFR parts 61
and 63. This program for delegation applies to both part 70 sources and
non-part 70 sources.
III. Administrative Requirements
A. Docket
Copies of the CHCAPCB submittal and other information relied upon
for this final full approval action are contained in docket number TN-
CHAT-95-01 maintained at the EPA Region 4 office. The docket is an
organized and complete file of all the information submitted to or
otherwise considered by EPA in the development of this action. The
docket is available for public inspection at the location listed
previously in the ADDRESSES section of this document.
B. Executive Order 12866
The Office of Management and Budget has exempted this action from
Executive Order 12866 review.
C. Regulatory Flexibility Act
EPA's actions under section 502 of the Act do not create any new
requirements, but simply address operating permits programs submitted
to satisfy the requirements of 40 CFR part 70. Because this action does
not impose any new requirements, it does not have a significant impact
on a substantial number of small entities.
D. Unfunded Mandates Reform Act of 1995
Under section 202 of the Unfunded Mandates Reform Act of 1995,
signed into law on March 22, 1995, EPA must prepare a budgetary impact
statement to accompany any proposed or final rule that includes a
Federal mandate that may result in estimated costs to State, local, or
tribal governments in the aggregate, or to the private sector, of $100
million or more. Under section 205, EPA must select the most cost-
effective and least burdensome alternative that achieves the objectives
of the rule and is consistent with statutory requirements. Section 203
requires EPA to establish a plan for informing and advising any small
governments that may be significantly or uniquely impacted by the rule.
EPA has determined that the final full approval promulgated in this
document does not include a Federal mandate that may result in
estimated costs of $100 million or more to State, local, or tribal
governments in the aggregate, or to the
[[Page 13103]]
private sector. This Federal action approves pre-existing requirements
under State or local law, and imposes no new Federal requirements.
Accordingly, no additional costs to State, local, or tribal
governments, or to the private sector, result from this action.
List of Subjects in 40 CFR Part 70
Environmental protection, Administrative practice and procedure,
Air pollution control, Intergovernmental relations, Operating permits,
Reporting and recordkeeping requirements.
Dated: March 15, 1996.
Phyllis P. Harris,
Acting Regional Administrator.
Part 70, title 40 of the Code of Federal Regulations is amended as
follows:
PART 70--[AMENDED]
1. The authority citation for part 70 continues to read as follows:
Authority: 42 U.S.C. 7401, et seq.
2. In appendix A to part 70 the entry for Tennessee is amended by
redesignating paragraph (b) as (d), by adding and reserving paragraph
(c), and by adding a new paragraph (b) to read as follows:
Appendix A to Part 70--Approval Status of State and Local Operating
Permits Programs
* * * * *
Tennessee
(a) [Reserved]
(b) Chattanooga-Hamilton County Air Pollution Control Bureau,
Hamilton County, State of Tennessee: submitted on November 22, 1993,
and supplemented on January 23, 1995, February 24, 1995, October 13,
1995, and March 14, 1996; full approval effective on April 25, 1996.
* * * * *
[FR Doc. 96-7166 Filed 3-25-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-7157 Plastic Surgery
[Federal Register Volume 61, Number 59 (Tuesday, March 26, 1996)]
[Rules and Regulations]
[Page 13322]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-7157]
[[Page 13321]]
_______________________________________________________________________
Part VIII
Department of Justice
_______________________________________________________________________
Bureau of Prisons
_______________________________________________________________________
28 CFR Part 549
Plastic Surgery; Final Rule
Federal Register / Vol. 61, No. 59 / Tuesday, March 26, 1996 / Rules
and Regulations
[[Page 13322]]
DEPARTMENT OF JUSTICE
Bureau of Prisons
28 CFR Part 549
[BOP-1020-F]
RIN 1120-AA26
Plastic Surgery
AGENCY: Bureau of Prisons, Justice.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: In this document, the Bureau of Prisons is revising its
regulations concerning the circumstances and procedures under which the
Bureau approves plastic surgery for inmates. Criteria under which
plastic surgery may be approved are as follows: as a component of
standard medical/surgical treatment, when necessary for the good order
and security of the institution, and in other special situations as
determined by the Medical Director. Additionally, these regulations
have been reorganized to emphasize ``informed consent'' and to remove
unnecessary provisions. This revision is intended to provide for the
continued efficient and orderly operation of the Bureau and its
institutions.
EFFECTIVE DATE: April 25, 1996.
ADDRESSES: Office of General Counsel, Bureau of Prisons, HOLC Room 754,
320 First Street, NW., Washington, DC 20534.
FOR FURTHER INFORMATION CONTACT: Roy Nanovic, Office of General
Counsel, Bureau of Prisons, phone (202) 514-6655.
SUPPLEMENTARY INFORMATION: The Bureau of Prisons is revising its
regulations on plastic surgery (28 CFR part 549, subpart D). A proposed
rule on this subject was published in the Federal Register on October
20, 1995 (60 FR 54288).
The proposed regulations stipulated in the statement of purpose (28
CFR 549.50) that the Bureau ordinarily does not perform plastic surgery
on inmates to correct preexisting disfigurements (including tattoos) on
any part of the body. Plastic surgery may be performed when it is a
component of the presently medically necessary standard of treatment.
Plastic surgery may also be approved under special circumstances:
namely, for the good order and security of the institution. Approval
procedures for requests, whether for medical reasons or special
circumstances, are contained in Sec. 549.51. ``Informed consent''
requirements were redesignated as a separate section (Sec. 549.52) for
the sake of emphasis. Procedures relating to staff processing of inmate
identification records were removed because these administrative
details are better addressed in internal instructions to staff.
The Bureau received one comment on the proposed rule. This comment
supported the adoption of the proposed rule. The Bureau is therefore
adopting the proposed rule as a final rule without change.
Members of the public may submit comments concerning this rule by
writing to the address cited above. These comments will be considered
but will receive no response in the Federal Register.
The Bureau of Prisons has determined that this rule is not a
significant regulatory action for the purpose of E.O. 12866, and
accordingly was not reviewed by the Office of Management and Budget.
After review of the law and regulations, the Director, Bureau of
Prisons has certified that this rule, for the purpose of the Regulatory
Flexibility Act (Pub. L. 96-354), does not have a significant impact on
a substantial number of small entities.
List of Subjects in 28 CFR Part 549
Prisoners.
Kathleen M. Hawk,
Director, Bureau of Prisons.
Accordingly, pursuant to the rulemaking authority vested in the
Attorney General in 5 U.S.C. 552(a) and delegated to the Director,
Bureau of Prisons in 28 CFR 0.96(p), part 549 in subchapter C of 28
CFR, chapter V is amended as set forth below.
Subchapter C--Institutional Management
PART 549--MEDICAL SERVICES
1. The authority citation for 28 CFR part 549 continues to read as
follows:
Authority: 5 U.S.C. 301; 18 U.S.C. 3621, 3622, 3624, 4001, 4005,
4042, 4045, 4081, 4082, (Repealed in part as to offenses committed
on or after November 1, 1987), 4241-4247, 5006-5024 (Repealed
October 12, 1984, as to offenses committed after that date), 5039:
28 U.S.C. 509, 510; 28 CFR 0.95-0.99.
2. Subpart D, consisting of Secs. 549.50 and 549.51, is revised to
consist of Secs. 549.50 through 549.52 as follows:
Subpart D--Plastic Surgery
Sec.
549.50 Purpose and scope.
549.51 Approval procedures.
549.52 Informed consent.
Subpart D--Plastic Surgery
Sec. 549.50 Purpose and scope.
The Bureau of Prisons does not ordinarily perform plastic surgery
on inmates to correct preexisting disfigurements (including tattoos) on
any part of the body. In circumstances where plastic surgery is a
component of a presently medically necessary standard of treatment (for
example, part of the treatment for facial lacerations or for
mastectomies due to cancer) or it is necessary for the good order and
security of the institution, the necessary surgery may be performed.
Sec. 549.51 Approval procedures.
The Clinical Director shall consider individually any request from
an inmate or a BOP medical consultant.
(a) In circumstances where plastic surgery is a component of the
presently medically necessary standard of treatment, the Clinical
Director shall forward the surgery request to the Office of Medical
Designations and Transportation for approval.
(b) If the Clinical Director recommends plastic surgery for the
good order and security of the institution, the request for plastic
surgery authorization will be forwarded to the Warden for initial
approval. The Warden will forward the request through the Regional
Director to the Medical Director. The Medical Director shall have the
final authority to approve or deny this type of plastic surgery
request.
(c) If the Clinical Director is unable to determine whether the
plastic surgery qualifies as a component of presently medically
necessary standard of treatment, the Clinical Director may forward the
request to the Medical Director for a final determination in accordance
with the provisions of paragraph (b) of this section.
Sec. 549.52 Informed consent.
Approved plastic surgery procedures may not be performed without
the informed consent of the inmate involved.
[FR Doc. 96-7157 Filed 3-25-96; 8:45 am]
BILLING CODE 4410-05-P
Complete official Federal Register PDF
FR Doc. 96-7141 Airworthiness Directives; AlliedSignal, Inc. LTS101 Series Turboshaft Engines Installed on Eurocopter France Model AS-350D and SA- 366G1 Helicopters
[Federal Register Volume 61, Number 59 (Tuesday, March 26, 1996)]
[Rules and Regulations]
[Pages 13079-13081]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-7141]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 39
[Docket No. 95-ANE-21; Amendment 39-9547; AD 96-06-10]
Airworthiness Directives; AlliedSignal, Inc. LTS101 Series
Turboshaft Engines Installed on Eurocopter France Model AS-350D and SA-
366G1 Helicopters
AGENCY: Federal Aviation Administration, DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This amendment adopts a new airworthiness directive (AD),
applicable to AlliedSignal, Inc. (formerly Textron Lycoming) LTS101
series turboshaft engines installed on Eurocopter France (formerly
Aerospatiale) Model AS-350D and SA-366G1 helicopters, that requires
incorporation of design modifications to the power turbine (PT) rotor.
This amendment is prompted by reports of PT disk failures after No. 3
bearing failures. The actions specified by this AD are intended to
prevent an uncontained engine failure due to a PT disk failure.
DATES: Effective May 28, 1996.
The incorporation by reference of certain publications listed in
the regulations is approved by the Director of the Federal Register as
of May 28, 1996.
ADDRESSES: The service information referenced in this AD may be
obtained from AlliedSignal Engines, 550 Main Street, Stratford, CT
06497. 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: Eugene Triozzi, Aerospace Engineer,
Engine Certification Office, FAA, Engine and Propeller Directorate, 12
New England Executive Park, Burlington, MA 01803-5299; telephone (617)
238-7148, 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 AlliedSignal, Inc. (formerly
Textron Lycoming) LTS101 series turboshaft engines installed on
Eurocopter France (formerly Aerospatiale) Model AS-350D and SA-366G1
helicopters was published in the
[[Page 13080]]
Federal Register on June 30, 1995 (60 FR 21053). That action proposed
to require incorporation of a modified power turbine (PT) rotor
retention system at the next shop visit after the effective date of
this AD, but not later than April 30, 1996, in accordance with Textron
Lycoming Service Bulletin (SB) No. LTS101A-72-50-0134, Revision 1,
dated June 17, 1991, and SB No. LTS101B-72-50-0128, Revision 1, dated
June 17, 1991.
Interested persons have been afforded an opportunity to participate
in the making of this amendment. Due consideration has been given to
the one comment received.
The commenter states that the instructions for installation of the
PT retention system should be revised to require installation of two
parts, inadvertently omitted but necessary to enable the pneumatic
portion of the PT retention system. These parts consist of a tee-
fitting to replace an existing elbow fitting in the main fuel control,
and a pressurization line. The FAA concurs, and has revised the
accomplishment instructions of the final rule to refer to later
revisions of the applicable SB's, which reflect installation of these
additional parts. Consequently, the FAA has extended the compliance
timetable for the final rule in order to provide sufficient opportunity
for installation of the parts, and to ensure parts availability. The
FAA has determined that installation of the additional parts will not
have a substantial additional impact on accomplishment of the
requirements of this AD.
Since publication of the NPRM, the manufacturer has issued the
following revisions to the SB's, which are referenced in this final
rule: AlliedSignal Engines SB No. LTS101A-72-50-0134, Revision 2, dated
August 15, 1995; AlliedSignal Engines SB No. LTS101B-72-50-0128,
Revision 2, dated August 15, 1995; and AlliedSignal Engines SB No.
LTS101A-73-20-0166, Revision 2, dated August 1, 1995.
After careful review of the available data, including the comment
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 estimates that 20 engines installed on aircraft of U.S.
registry will be affected by the requirement to install the improved
power turbine rotor assembly and the power turbine retention system
required by this AD, that it will take approximately 10 work hours per
engine to accomplish the required actions, and that the average labor
rate is $60 per work hour. Required parts will cost approximately
$44,400 per engine. Based on these figures, the cost impact to install
the improved power turbine rotor assembly and the power turbine
retention system required by this AD on U.S. operators is estimated to
be $900,000. The FAA estimates that 60 engines installed on aircraft of
U.S. registry have previously installed the improved power turbine
rotor assembly and the power turbine retention system, in addition to
the 20 engines in the paragraph above. Therefore, a total of 80 engines
will be affected by the requirement to enable the pneumatic portion of
the PT retention system by installing the tee-fitting and
pressurization line. The FAA estimates that it will take approximately
2.5 work hours per engine to accomplish the required action. Required
parts will cost approximately $385 per engine. Based on these figures,
the total cost impact of installing the tee-fitting and pressurization
line required by the AD on U.S. operators is estimated to be $42,800.
Therefore, the revised total cost impact of this AD on all U.S.
operators is estimated to be $942,800.
The regulations adopted herein will not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this final
rule does not have sufficient federalism implications to warrant the
preparation of a Federalism Assessment.
For the reasons discussed above, I certify that this action (1) is
not a ``significant regulatory action'' under Executive Order 12866;
(2) is not a ``significant rule'' under DOT Regulatory Policies and
Procedures (44 FR 11034, February 26, 1979); and (3) will not have a
significant economic impact, positive or negative, on a substantial
number of small entities under the criteria of the Regulatory
Flexibility Act. A final evaluation has been prepared for this action
and it is contained in the Rules Docket. A copy of it may be obtained
from the Rules Docket at the location provided under the caption
ADDRESSES.
List of Subjects in 14 CFR Part 39
Air Transportation, Aircraft, Aviation safety, Incorporation by
reference, Safety.
Adoption of the Amendment
Accordingly, pursuant to the authority delegated to me by the
Administrator, the Federal Aviation Administration amends part 39 of
the Federal Aviation Regulations (14 CFR part 39) as follows:
PART 39--AIRWORTHINESS DIRECTIVES
1. The authority citation for part 39 continues to read as follows:
Authority: 49 U.S.C. 106(g), 40113, 44701.
Sec. 39.13 [Amended]
2. Section 39.13 is amended by adding the following new
airworthiness directive:
96-06-10 AlliedSignal, Inc.: Amendment 39-9547. Docket 95-ANE-21.
Applicability: AlliedSignal, Inc. (formerly Textron Lycoming)
Models LTS101-600A-2 and -600A-3 turboshaft engines installed on
Eurocopter France (formerly Aerospatiale) Model AS-350D helicopters;
and LTS101-750B-2 turboshaft engines installed on Eurocopter France
Model SA-366G1 helicopters.
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 use the
authority provided in paragraph (c) to request approval from the
Federal Aviation Administration (FAA). This approval may address
either no action, if the current configuration eliminates the unsafe
condition, or different actions necessary to address the unsafe
condition described in this AD. Such a request should include an
assessment of the effect of the changed configuration on the unsafe
condition addressed by this AD. In no case does the presence of any
modification, alteration, or repair remove any engine from the
applicability of this AD.
Compliance: Required as indicated, unless accomplished
previously.
To prevent an uncontained engine failure due to power turbine
(PT) disk failure, accomplish the following at the next shop visit
after the effective date of this airworthiness directive (AD) when
the PT rotor is removed, but not later than July 1, 1996:
(a) For LTS101-600A-2 and -600A-3 turboshaft engines installed
on Eurocopter France (formerly Aerospatiale) Model AS-350D
helicopters, incorporate improved PT rotor retention system
modifications in accordance with Section II., Accomplishment
Instructions, Paragraphs A. through AT. of AlliedSignal Engines
Service Bulletin (SB) No. LTS101A-72-50-0134, Revision 2, dated
August 15, 1995, and concurrently replace elbow fitting in fuel
control governor orifice cover Py port with tee-fitting assembly, P/
N 2543854, in accordance with Section II., Accomplishment
Instructions, Paragraphs C. (5) through C. (7) of AlliedSignal
Engines SB No. LTS101A-73-20-166, Revision 2, dated August 1, 1995.
(b) For LTS101-750B-2 turboshaft engines installed on Eurocopter
France Model SA-
[[Page 13081]]
366G1 helicopters, incorporate improved PT rotor retention system
modifications in accordance with Section II., Accomplishment
Instructions, of AlliedSignal Engines SB No. LTS101B-72-50-0128,
Revision 2, dated August 15, 1995.
(c) 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.
(e) Special flight permits may be issued in accordance with
sections 21.197 and 21.199 of the Federal Aviation Regulations (14
CFR 21.197 and 21.199) to operate the aircraft to a location where
the requirements of this AD can be accomplished.
(f) The modification of the PT rotor retention system shall be
done in accordance with the following AlliedSignal Engines SB's:
----------------------------------------------------------------------------------------------------------------
Document No. Pages Revision Date
----------------------------------------------------------------------------------------------------------------
LTS101A72-50-0134............................ 1-11 2 Aug. 15, 1995.
Total pages: 11.
LTS101B72-50-0128............................ 1-11 2 Aug. 15, 1995.
Total pages: 11.
LTS101A73-20-0166............................ 1-6 2 Aug. 1, 1995.
Total pages: 11.
----------------------------------------------------------------------------------------------------------------
This incorporation by reference was 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 AlliedSignal Engines, 550 Main
Street, Stratford, CT 06497. 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.
(e) This amendment becomes effective on May 28, 1996.
Issued in Burlington, Massachusetts, on March 11, 1996.
James C. Jones,
Acting Manager, Engine and Propeller Directorate, Aircraft
Certification Service.
[FR Doc. 96-7141 Filed 3-25-96; 8:45 am]
BILLING CODE 4910-13-U
Complete official Federal Register PDF
FR Doc. 96-7135 Airworthiness Directives; AlliedSignal Inc. TPE331 Series Turboprop Engines
[Federal Register Volume 61, Number 59 (Tuesday, March 26, 1996)]
[Rules and Regulations]
[Pages 13081-13083]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-7135]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
14 CFR Part 39
[Docket No. 95-ANE-09; Amendment 39-9548; AD 96-06-11]
Airworthiness Directives; AlliedSignal Inc. TPE331 Series
Turboprop Engines
AGENCY: Federal Aviation Administration, DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This amendment adopts a new airworthiness directive (AD),
applicable to certain AlliedSignal Inc. (formerly Garrett Engine
Division) TPE331 series turboprop engines, that establishes cyclic
retirement lives for certain compressor components. This amendment is
prompted by manufacturer's engine testing and analysis that indicate
that if these compressor components continue in service without an
established retirement life, accumulative cyclic effects may result in
a fatigue failure. The actions specified by this AD are intended to
prevent fatigue failure of engine compressor components and an inflight
engine shutdown.
DATES: Effective May 28, 1996.
The incorporation by reference of certain publications listed in
the regulations is approved by the Director of the Federal Register as
of May 28, 1996.
ADDRESSES: The service information referenced in this AD may be
obtained from AlliedSignal Aerospace, Data Distribution, M/S 64-03/
2101-201, P.O. Box 29003, Phoenix, AZ 85038-9003; telephone (602) 365-
2493, fax (602) 365-5577. 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: Joseph Costa, Aerospace Engineer, Los
Angeles Aircraft Certification Office, FAA, Transport Airplane
Directorate, 3960 Paramount Blvd., Lakewood, CA 90712-4137; telephone
(310) 627-5246; fax (310) 627-5210.
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 AlliedSignal Inc. (formerly
Garrett Engine Division) Models TPE331-14A, -14B, -14F, and -15AW
turboprop engines was published in the Federal Register on June 19,
1995 (60 FR 31932). That action proposed to establish cyclic retirement
lives for main shouldered shafts (tieshafts) and forward coupling
shafts (stub shafts) in accordance with the following AlliedSignal
Engines service documents: Alert Service Bulletins (ASB's): No. TPE331-
A72-7128, dated June 10, 1994, No. TPE331-A72-7129, dated June 10,
1994, and No. TPE331-A72-7522, dated February 17, 1995, that describe
main shouldered shaft (tieshaft) cyclic life limits; and Service
Bulletins (SB's) No. TPE331-72-7130, dated June 17, 1994, No. TPE331-
72-7131, dated June 17, 1994, and No. TPE331-72-7523, dated February
17, 1995, that describe forward coupling shaft (stub shaft) cyclic life
limits.
Interested persons have been afforded an opportunity to participate
in the making of this amendment. No comments were received on the
proposal or the FAA's determination of the cost to the public. The FAA
has determined that air safety and the public interest require the
adoption of the rule as proposed.
There are approximately 200 engines of the affected design in the
worldwide fleet. The FAA estimates that 150 engines installed on
aircraft of U.S. registry will be affected by this AD, that it will
take approximately 80 work hours per engine to accomplish the required
actions, and that the average labor rate is $60 per work hour. Required
parts will cost approximately $22,000 per engine for engines where
tieshafts and stub shafts are not serviceable. Based on these figures,
the total cost impact of the AD on U.S. operators is estimated to be
$4,020,000.
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
[[Page 13082]]
``significant rule'' under DOT Regulatory Policies and Procedures (44
FR 11034, February 26, 1979); and (3) will not have a significant
economic impact, positive or negative, on a substantial number of small
entities under the criteria of the Regulatory Flexibility Act. A final
evaluation has been prepared for this action and it is contained in the
Rules Docket. A copy of it may be obtained from the Rules Docket at the
location provided under the caption ADDRESSES.
List of Subjects in 14 CFR Part 39
Air transportation, Aircraft, Aviation safety, Incorporation by
reference, Safety.
Adoption of the Amendment
Accordingly, pursuant to the authority delegated to me by the
Administrator, the Federal Aviation Administration amends part 39 of
the Federal Aviation Regulations (14 CFR part 39) as follows:
PART 39--AIRWORTHINESS DIRECTIVES
1. The authority citation for part 39 continues to read as follows:
Authority: 49 USC 106(g), 40113, 44701.
Sec. 39.13 [Amended]
2. Section 39.13 is amended by adding the following new
airworthiness directive:
96-06-11 AlliedSignal Inc.: Amendment 39-9548. Docket 95-ANE-09.
Applicability: AlliedSignal Inc. (formerly Garrett Engine
Division) Models TPE331-14A, -14B, -14F, and -15AW turboprop
engines, installed on but not limited to the following aircraft:
Piper Model PA-42-1000 and Grumman Model TS-2A (modified in
accordance with Supplemental Type Certificate SA4837NM).
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 use the
authority provided in paragraph (c) to request approval from the
Federal Aviation Administration (FAA). This approval may address
either no action, if the current configuration eliminates the unsafe
condition, or different actions necessary to address the unsafe
condition described in this AD. Such a request should include an
assessment of the effect of the changed configuration on the unsafe
condition addressed by this AD. In no case does the presence of any
modification, alteration, or repair remove any engine from the
applicability of this AD.
Compliance: Required as indicated, unless accomplished
previously.
To prevent fatigue failure of engine compressor components and
an inflight engine shutdown, accomplish the following:
(a) For main shouldered shafts (tieshafts), Part Number (P/N)
3105102-1, initiate a life limited part log card and remove from
service in accordance with the following schedule and the following
AlliedSignal Inc. Alert Service Bulletins (ASB's):
(1) Determine cycles in service (CIS) for the main shouldered
shafts (tieshafts) as follows:
(i) For main shouldered shafts (tieshafts) installed in TPE331-
14A and -14B engines, in accordance with ASB No. TPE331-A72-7128,
dated June 10, 1994.
(ii) For main shouldered shafts (tieshafts) installed in TPE331-
14F engines, in accordance with ASB No. TPE331-A72-7129, dated June
10, 1994.
(iii) For main shouldered shafts (tieshafts) installed in
TPE331-15AW engines, in accordance with ASB No. TPE331-A72-7522,
dated February 17, 1995.
(2) For main shouldered shafts (tieshafts) with greater than
5,600 CIS on the effective date of this airworthiness directive
(AD), or if operating hours or cycles are unknown, remove from
service within 400 CIS after the effective date of this AD.
(3) For main shouldered shafts (tieshafts) with 5,600 or less
CIS on the effective date of this AD, remove from service prior to
accumulating 6,000 CIS.
(b) For forward coupling shafts (stub shafts), P/N 3104281-2,
initiate a life limited part log card, identify the P/N, serialize
the forward coupling shaft (stub shaft), at the next major periodic
inspection or complete disassembly of the compressor module after
the effective date of this AD, whichever occurs first, in accordance
with the following AlliedSignal Inc. Service Bulletins (SB's):
(1) For forward coupling shafts (stub shafts) installed in
TPE331-14A and -14B engines, in accordance with SB No. TPE331-72-
7130, dated June 17, 1994.
(2) For forward coupling shafts (stub shafts) installed in
TPE331-14F engines, in accordance with SB No. TPE331-72-7131, dated
June 17, 1994.
(3) For forward coupling shafts (stub shafts) installed in
TPE331-15AW engines, in accordance with SB No. TPE331-72-7523, dated
February 17, 1995.
(4) Remove from service forward coupling shafts (stub shafts)
prior to accumulating 20,000 CIS.
Note: For guidance on the destruction or marking of parts no
longer serviceable for aviation use, see Advisory Circular 21-38,
dated July 5, 1994.
(c) An alternative method of compliance or adjustment of the
compliance time that provides an acceptable level of safety may be
used if approved by the Manager, Los Angeles Aircraft Certification
Office. The request should be forwarded through an appropriate FAA
Principal Maintenance Inspector, who may add comments and then send
it to the Manager, Los Angeles Aircraft Certification Office.
Note: Information concerning the existence of approved
alternative methods of compliance with this airworthiness directive,
if any, may be obtained from the Los Angeles Aircraft Certification
Office.
(d) 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.
(e) The actions required by this AD shall be done in accordance
with the following AlliedSignal Engines service documents:
----------------------------------------------------------------------------------------------------------------
Document No. Pages Revision Date
----------------------------------------------------------------------------------------------------------------
ASB No. TPE331-A72-7128............ 1-4 Original......................... June 10, 1994.
Total Pages: 4.
ASB No. TPE331-A72-7129............ 1-4 Original......................... June 10, 1994.
Total Pages: 4.
ASB No. TPE331-A72-7522............ 1-2 Original......................... Feb. 17, 1995.
Total Pages: 2.
SB No. TPE331-72-7130.............. 1-6 Original......................... June 17, 1994.
Total Pages: 6.
SB No. TPE331-72-7131.............. 1-6 Original......................... June 17, 1994.
Total Pages: 6.
SB No. TPE331-72-7523.............. 1-6 Original......................... Feb. 17, 1995.
Total pages: 6.
----------------------------------------------------------------------------------------------------------------
This incorporation by reference was 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 AlliedSignal Aerospace, Data Distribution,
M/S 6403/2101-201, P.O. Box 29003, Phoenix, AZ 85038-9003; telephone
(602) 365-2493, fax (602) 365-5577. Copies may be
[[Page 13083]]
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.
(f) This amendment becomes effective on May 28, 1996.
Issued in Burlington, Massachusetts, on March 12, 1996.
James C. Jones,
Acting Manager, Engine and Propeller Directorate, Aircraft
Certification Service.
[FR Doc. 96-7135 Filed 3-25-96; 8:45 am]
BILLING CODE 4910-13-P
Complete official Federal Register PDF
FR Doc. 96-7133 Airworthiness Directives; Fokker Model F28 Mark 0100 Series Airplanes
[Federal Register Volume 61, Number 59 (Tuesday, March 26, 1996)]
[Rules and Regulations]
[Pages 13083-13084]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-7133]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
14 CFR Part 39
[Docket No. 95-NM-99-AD; Amendment 39-9551; AD 96-07-02]
Airworthiness Directives; Fokker Model F28 Mark 0100 Series
Airplanes
AGENCY: Federal Aviation Administration, DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This amendment adopts a new airworthiness directive (AD),
applicable to certain Fokker Model F28 Mark 0100 series airplanes, that
requires inspections to verify the correct operation of the main
landing gear (MLG) downlock actuators, and replacement of any
discrepant unit with a serviceable unit. This amendment also will
require eventual replacement of the MLG downlock actuators with
improved units. This amendment is prompted by reports of improper
operation of the MLG downlock actuator due to jamming. The actions
specified by this AD are intended to prevent such jamming of the
downlock actuator, which could result in failure of the MLG downlock
system, and a potential gear-up landing.
DATES: Effective April 25, 1996.
The incorporation by reference of certain publications listed in
the regulations is approved by the Director of the Federal Register as
of April 25, 1996.
ADDRESSES: The service information referenced in this AD may be
obtained from Fokker Aircraft USA, Inc., 1199 North Fairfax Street,
Alexandria, Virginia 22314. This information may be examined at the
Federal Aviation Administration (FAA), Transport Airplane Directorate,
Rules Docket, 1601 Lind Avenue, SW., Renton, Washington; or at the
Office of the Federal Register, 800 North Capitol Street, NW., suite
700, Washington, DC.
FOR FURTHER INFORMATION CONTACT: Tim Dulin, Aerospace Engineer,
Standardization Branch, ANM-113, FAA, Transport Airplane Directorate,
1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone (206)
227-2141; fax (206) 227-1149.
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 Fokker Model F28 Mark 0100
series airplanes was published in the Federal Register on December 11,
1995 (60 FR 63468). That action proposed to require repetitive
inspections to verify the correct operation of the MLG downlock
actuators; and replacement of any discrepant unit with a serviceable
unit. For airplanes on which no discrepant unit is found, the AD also
will require recording the accomplishment of each inspection on the
unit nameplate. In addition, the AD will require eventual replacement
of the MLG downlock actuators with improved units.
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.
The commenter supports the proposed rule.
After careful review of the available data, including the comment
noted above, the FAA has determined that air safety and the public
interest require the adoption of the rule as proposed.
The FAA estimates that 119 airplanes of U.S. registry will be
affected by this AD, that it will take approximately 21 work hours per
airplane to accomplish the required actions, and that the average labor
rate is $60 per work hour. Required parts will be supplied by the
vendor at no cost to operators. Based on these figures, the cost impact
of the AD on U.S. operators is estimated to be $149,940, or $1,260 per
airplane.
The cost impact figure discussed above is 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.
The regulations adopted herein will not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this final
rule does not have sufficient federalism implications to warrant the
preparation of a Federalism Assessment.
For the reasons discussed above, I certify that this action (1) is
not a ``significant regulatory action'' under Executive Order 12866;
(2) is not a ``significant rule'' under DOT Regulatory Policies and
Procedures (44 FR 11034, February 26, 1979); and (3) will not have a
significant economic impact, positive or negative, on a substantial
number of small entities under the criteria of the Regulatory
Flexibility Act. A final evaluation has been prepared for this action
and it is contained in the Rules Docket. A copy of it may be obtained
from the Rules Docket at the location provided under the caption
ADDRESSES.
List of Subjects in 14 CFR Part 39
Air transportation, Aircraft, Aviation safety, Incorporation by
reference, Safety.
Adoption of the Amendment
Accordingly, pursuant to the authority delegated to me by the
Administrator, the Federal Aviation Administration amends part 39 of
the Federal Aviation Regulations (14 CFR part 39) as follows:
PART 39--AIRWORTHINESS DIRECTIVES
1. The authority citation for part 39 continues to read as follows:
Authority: 49 U.S.C. 106(g), 40113, 44701.
Sec. 39.13 [Amended]
2. Section 39.13 is amended by adding the following new
airworthiness directive:
96-07-02 Fokker: Amendment 39-9551. Docket 95-NM-99-AD.
Applicability: Model F28 Mark 0100 series airplanes equipped
with Dowty Aerospace Hydraulics main landing gear (MLG) downlock
actuators having part number (P/N) 201218001, 201218002, 201218003,
or 201218004, all serial numbers; 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 (d) of
this AD. The request should include an assessment of the effect of
the modification, alteration, or repair on the unsafe condition
addressed by this AD; and, if the unsafe condition has not been
eliminated, the request should include specific proposed actions to
address it.
Compliance: Required as indicated, unless accomplished
previously.
To prevent jamming of the MLG downlock actuator and a potential
gear-up landing, accomplish the following:
[[Page 13084]]
(a) Within 2 months after the effective date of this AD, and
thereafter at intervals not to exceed 1,250 landings: Perform an
inspection to verify correct operation of the MLG downlock actuator
having P/N 201218001, 201218002, 201218003, or 201218004, all serial
numbers, in accordance with Fokker Service Bulletin SBF100-32-072,
dated March 30, 1993, and Dowty Aerospace Hydraulics Service
Bulletin F100-32-505, Revision 1, dated April 16, 1993.
(1) If the MLG downlock actuator operates as specified in the
inspection procedure contained in the Accomplishment Instructions of
Dowty Aerospace Hydraulics Service Bulletin F100-32-505, Revision 1,
dated April 16, 1993, prior to further flight, record the
accomplishment of the inspection on the unit nameplate in accordance
with the Dowty Aerospace Hydraulics service bulletin. Following
accomplishment of each subsequent inspection required by this AD,
record the accomplishment of the inspection in accordance with the
requirement of this paragraph.
(2) If any MLG downlock actuator does not operate as specified
in the inspection procedure contained in the Accomplishment
Instructions of Dowty Aerospace Hydraulics Service Bulletin F100-32-
505, Revision 1, dated April 16, 1993, prior to further flight,
replace the downlock actuator with a serviceable unit, in accordance
with Chapter 32-32-05 of the Aircraft Maintenance Manual.
Thereafter, perform repetitive inspections of the replacement unit
in accordance with paragraph (a) of this AD until the replacement
required by paragraph (b) of this AD is accomplished.
(b) Within 9 months after the effective date of this AD, replace
any MLG downlock actuator having P/N 201218001, 201218002,
201218003, or 201218004, any serial number, with an improved unit
having P/N 201218005, 201218006, 201218007, or 201218008,
respectively; in accordance with Fokker Service Bulletin SBF100-32-
074, dated July 21, 1993, and Dowty Aerospace Hydraulics Service
Bulletin F100-32-506, dated June 9, 1993. Accomplishment of this
replacement constitutes terminating action for the repetitive
inspections required by paragraph (a) of this AD.
(c) As of the effective date of this AD, no person shall install
on any airplane a MLG downlock actuator having P/N 201218001,
201218002, 201218003, or 201218004, any serial number.
(d) An alternative method of compliance or adjustment of the
compliance time that provides an acceptable level of safety may be
used if approved by the Manager, Standardization Branch, ANM-113,
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,
Standardization Branch, ANM-113.
Note 2: Information concerning the existence of approved
alternative methods of compliance with this AD, if any, may be
obtained from the Standardization Branch, ANM-113.
(e) Special flight permits may be issued in accordance with
sections 21.197 and 21.199 of the Federal Aviation Regulations (14
CFR 21.197 and 21.199) to operate the airplane to a location where
the requirements of this AD can be accomplished.
(f) The actions shall be done in accordance with Fokker Service
Bulletin SBF100-32-072, dated March 30, 1993; Fokker Service
Bulletin SBF100-32-074, dated July 21, 1993; Dowty Aerospace
Hydraulics Service Bulletin F100-32-505, Revision 1, dated April 16,
1993; or Dowty Aerospace Hydraulics Service Bulletin F100-32-506,
dated June 9, 1993, as applicable. 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
Fokker Aircraft USA, Inc., 1199 North Fairfax Street, Alexandria,
Virginia 22314. 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.
(g) This amendment becomes effective on April 25, 1996.
Issued in Renton, Washington, on March 19, 1996.
James V. Devany,
Acting Manager, Transport Airplane Directorate, Aircraft Certification
Service.
[FR Doc. 96-7133 Filed 3-25-96; 8:45 am]
BILLING CODE 4910-13-P
Complete official Federal Register PDF
FR Doc. 96-7089 Board of Contract Appeals Rule Revisions
[Federal Register Volume 61, Number 59 (Tuesday, March 26, 1996)]
[Rules and Regulations]
[Pages 13280-13281]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-7089]
[[Page 13279]]
_______________________________________________________________________
Part VI
Department of Housing and Urban Development
_______________________________________________________________________
Office of the Secretary
_______________________________________________________________________
24 CFR Part 20
Board of Contract Appeals Rule Revisions; Final Rule
Federal Register / Vol. 61, No. 59 / Tuesday, March 26, 1996 / Rules
and Regulations
[[Page 13280]]
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
Office of the Secretary
24 CFR Part 20
[Docket No. FR-4013-F-01]
RIN 2501-AC16
Board of Contract Appeals Rule Revisions
AGENCY: Office of the Secretary, HUD.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This final rule revises HUD's Board of Contract Appeals
regulations in 24 CFR part 20 to increase certain monetary amounts that
are required by the Federal Acquisition Streamlining Act of 1994.
EFFECTIVE DATE: April 25, 1996.
FOR FURTHER INFORMATION CONTACT: David T. Anderson, Chairman, HUD Board
of Contract Appeals, Room 2131, U.S. Department of Housing and Urban
Development, Washington, DC 20410-0001; telephone (202) 927-5110. (This
number is not a toll-free number.) For hearing- or speech-impaired
persons, this number may be accessed via TTY by contacting the Federal
Information Relay Service at 1-800-877-8339.
SUPPLEMENTARY INFORMATION:
Amendments Made by This Rule
This final rule revises the rules of the Department of Housing and
Urban Development Board of Contract Appeals. The revisions to Rule 1,
2, 12.1 and Rule 12.3, increasing certain monetary amounts, are
required by the Federal Acquisition Streamlining Act of 1994 (Pub. L.
103-355, approved October 13, 1994), which amended the Contract
Disputes Act of 1978, 41 U.S.C. 601-613. Rule 6 has been revised in the
interests of judicial efficiency and fairness, holding the Government
to the same obligation with respect to filings as the Appellant.
Finally, Section 20.3 of the Board Rules has been revised to note
changes in the Board's physical location and facsimile number, and to
note the availability of alternative dispute resolution procedures and
the applicability of the Equal Access to Justice Act.
Justification for Final Rulemaking
In general, the Department publishes a rule for public comment
before issuing a rule for effect, in accordance with its own
regulations on rulemaking at 24 CFR part 10. However, part 10 provides
for exceptions from that general rule where the Department finds good
cause to omit advance notice and public comment is ``impracticable,
unnecessary, or contrary to the public interest'' (24 CFR 10.1). The
Department finds that good cause exists to publish this rule for effect
without first soliciting public comment because the statutory
provisions are self-executing and prior public comment is unnecessary.
The rule only updates the current regulations to comply with the
Federal Acquisition Streamlining Act of 1994.
Other Matters
Environmental Impact
An environmental finding under section 102(2)(C) of the National
Environmental Policy Act (42 U.S.C. 4321-4347) and 24 CFR Part 50 is
categorically excluded under Sec. 50.20(k) because this rule only
revises internal administrative procedures of the Department.
Regulatory Flexibility Act
The Secretary, in accordance with the Regulatory Flexibility Act (5
U.S.C. 605(b)), has reviewed and approved this rule, and in so doing
certifies that this rule will not have a significant economic impact on
a substantial number of small entities. This rule only revises the
Department's Board of Contract Appeals rules.
Family Impact
The General Counsel, as the Designated Official under Executive
Order 12606, The Family, has determined that this final rule will not
have a potential, direct, significant impact on family formation,
maintenance, and general well-being; therefore, it is not subject to
review under this order.
Federalism
The General Counsel, as the Designated Official under section 6(a)
of Executive Order 12612, Federalism, has determined that the policies
contained in this final rule will not have significant federalism
implications and thus are not subject to review under the order. This
final rule will not interfere with or preempt State or local government
functions.
List of Subjects in 24 CFR Part 20
Administrative practice and procedure, Government contracts,
Organization and functions (Government agencies).
Accordingly, 24 CFR part 20 is amended as follows:
PART 20--BOARD OF CONTRACT APPEALS
1. The authority citation for part 20 has been revised to read as
follows:
Authority: 41 U.S.C. 601-613; 42 U.S.C. 3535(d).
2. In Sec. 20.3, paragraph (a) is revised to read as follows:
Sec. 20.3 Organization and location of the Board.
(a) Location. The Board's mailing address is: Board of Contract
Appeals, U.S. Department of Housing and Urban Development, Room 2131,
451 Seventh Street, S.W., Washington, D.C. 20410-0001. For items
requiring non-postal delivery, the Board is located in Room 3229, 1201
Constitution Ave., N.W. 20001. The telephone number of the Board is
(202) 927-5110. (This is not a toll-free number.) For learning- or
speech-impaired persons, this number may be accessed via TTY by
contacting the Federal Information Relay Service at 1-800-877-8339. The
facsimile number is (202) 927-6257.
* * * * *
3. Section 20.10 is amended by:
a. Designating the undesignated paragraph as paragraph (a); and
b. Adding new paragraphs (b), (c) and (d), as follows:
Sec. 20.10 Rules.
(a) * * *
(b) Filing Requirements. A party shall file with the Board one
original of any pleading or motion. That party shall simultaneously
serve upon the other party of record one copy of that pleading or
motion filed with the Board. Filings may be transmitted to the Board
via facsimile. However, the original of any document transmitted to the
Board by facsimile shall simultaneously be mailed to the Board.
(c) Alternative Disputes Resolution. The Administrative Dispute
Resolution Act authorizes and encourages Federal agencies to use
mediation, conciliation, arbitration, and other techniques for the
prompt and informal resolution of disputes. With the mutual consent of
the parties, the Board may assist in the resolution of disputes by
Alternative Dispute Resolution (ADR) procedures. The utilization of ADR
procedures shall not relieve the parties from the filing requirements
or other orders of the Board relating to a contract appeal duly
docketed before the Board.
(d) Equal Access to Justice Act. The Equal Access to Justice Act
provides that agencies which conduct adversary adjudications ``shall
award, to a prevailing party other than the United States, fees and
other expenses incurred
[[Page 13281]]
by that party in connection with that proceeding, unless the
adjudicative officer of the agency finds that the position of the
agency was substantially justified or that special circumstances make
an award unjust.'' 5 U.S.C. Sec. 504. Prevailing parties in proceedings
before the Board may apply for an award under the Act following the
issuance by the Board of its final decision in the appeal.
* * * * *
Rule 1 [Amended]
4. In paragraphs (b) and (c) of Rule 1. ``Appeals, how taken.'' of
Sec. 20.10, ``$50,000'' is revised to read ``$100,000'' wherever it
appears.
Rule 2 [Amended]
5. In the last sentence of Rule 2 ``Notice of appeal, contents
of.'' of Sec. 20.10, ``$50,000'' is revised to read ``$100,000.''
Rule 6 [Amended]
6. In paragraph (b) of Rule 6. ``Pleadings.'' of Sec. 20.10, the
last sentence of paragraph (b) is removed.
Rule 12.1 [Amended]
7. In paragraph (a) of Rule 12.1. ``Elections to utilize small
claims (expedited) and accelerated procedures.'' of Sec. 20.10,
``$10,000'' is revised to read ``$50,000'' wherever it appears and in
paragraph (b) ``$50,000'' is revised to read ``$100,000'' wherever it
appears.
Rule 12.3 [Amended]
8. In paragraph (c) of Rule 12.3. ``The accelerated procedure.'' of
Sec. 20.10, ``$10,000'' is revised to read ``$50,000'' wherever it
appears.
Dated: March 7, 1996.
Henry G. Cisneros,
Secretary.
[FR Doc. 96-7089 Filed 3-25-96; 8:45 am]
BILLING CODE 4210-32-P
Complete official Federal Register PDF
FR Doc. 96-7063 Approval and Promulgation of Air Quality Implementation Plans; Delaware: Amendment of Final Rule Pertaining to Regulation 24Control of Volatile Organic Compound Emissions, Section 47Offset Lithographic Printing
[Federal Register Volume 61, Number 59 (Tuesday, March 26, 1996)]
[Rules and Regulations]
[Pages 13100-13101]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-7063]
=======================================================================
-----------------------------------------------------------------------
[[Page 13101]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[DE26-1-6940; FRL-5444-8]
Approval and Promulgation of Air Quality Implementation Plans;
Delaware: Amendment of Final Rule Pertaining to Regulation 24--Control
of Volatile Organic Compound Emissions, Section 47--Offset Lithographic
Printing
AGENCY: Environmental Protection Agency (EPA).
ACTION: Amendment of direct final rule.
-----------------------------------------------------------------------
SUMMARY: On January 26, 1996, EPA published approval of a State
Implementation Plan (SIP) revision submitted by Delaware (61 FR 2419)
pertaining to Delaware Regulation 24, Control of Volatile Organic
Compound Emissions, sections 10, 11, 12, 44, 45, 47, 48, and 49, and
Appendices I, K, L, and M, effective November 29, 1994. These sections
of Regulation 24 establish additional emission standards that represent
the application of reasonably available control technology (RACT) to
categories of stationary sources of volatile organic compounds (VOCs).
This action was published without prior proposal. Because EPA received
adverse comments on a section of this action, EPA is withdrawing the
reference pertaining to Regulation 24, section 47, Offset Lithographic
Printing.
EFFECTIVE DATE: March 26, 1996.
FOR FURTHER INFORMATION CONTACT: Rose Quinto, (215) 597-3164.
SUPPLEMENTARY INFORMATION: EPA approved this direct final rule without
prior proposal because the agency viewed it as a noncontroversial
amendment and anticipated no adverse comments. The direct final rule
was published, without prior proposal, in the Federal Register (61 FR
2419) with a provision for a 30 day comment period. At the same time,
EPA published a proposed rule which announced that this final rule
would convert to a proposed rule in the event that adverse comments
were submitted to EPA within 30 days of publication of the rule in the
Federal Register (61 FR 2464). By publishing a document announcing
withdrawal of the final rule action, this action would be withdrawn.
EPA received adverse comments within the prescribed comment period on
section 47, Offset Lithographic Printing. Therefore, EPA is withdrawing
the reference pertaining to Regulation 24, section 47 only. All public
comments received will be addressed in a subsequent rulemaking action
based on the proposed rule.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon Monoxide,
Hydrocarbons, Intergovernmental relations, Nitrogen Dioxide, Ozone,
Reporting and recordkeeping requirements.
Dated: March 14, 1996.
Stanley L. Laskowski,
Acting Regional Administrator, Region III.
Accordingly, 40 CFR part 52 is amended as follows:
PART 52--[AMENDED]
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7402-7671q.
Sec. 54.420 [Amended]
2. In Sec. 54.420(c)(54)(i)(B), the number ``47'' is removed.
[FR Doc. 96-7063 Filed 3-25-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-7062 Regulatory Reinvention; Streamlining of HUD's Environmental Criteria and Standards
[Federal Register Volume 61, Number 59 (Tuesday, March 26, 1996)]
[Rules and Regulations]
[Pages 13332-13335]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-7062]
[[Page 13331]]
_______________________________________________________________________
Part X
Department of Housing and Urban Development
_______________________________________________________________________
24 CFR Part 51
Regulatory Reinvention; Streamlining of HUD's Environmental Criteria
and Standards; Final Rule
Federal Register / Vol. 61, No. 59 / Tuesday, March 26, 1996 / Rules
and Regulations
[[Page 13332]]
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
Office of the Secretary
24 CFR Part 51
[Docket No. FR-4034-F-01]
RIN 2501-AC22
Regulatory Reinvention; Streamlining of HUD's Environmental
Criteria and Standards
AGENCY: Office of the Secretary, HUD.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: In an effort to comply with the President's regulatory reform
initiative, this final rule streamlines HUD's regulations governing its
environmental criteria and standards. Specifically, this rule amends
these regulations to eliminate provisions which do not require
regulatory codification. The rule also updates the regulations to more
accurately reflect current HUD organization and practices. The
streamlining amendments made by this final rule will make HUD's
environmental criteria clearer and more concise.
EFFECTIVE DATE: April 25, 1996.
FOR FURTHER INFORMATION CONTACT: Richard Broun, Office of Community
Viability, Department of Housing and Urban Development, Room 7240, 451
Seventh Street, SW., Washington, DC 20410, telephone (202) 708-3297.
Hearing- or speech-impaired individuals may access this number by
calling the Federal Information Relay Service TTY at 1-800-877-8339.
(With the exception of the ``800'' number, these numbers are not toll-
free.)
SUPPLEMENTARY INFORMATION:
I. Background
On March 4, 1995, President Clinton issued a memorandum to all
Federal departments and agencies regarding regulatory reinvention. In
response to this memorandum, HUD conducted a page-by-page review of its
regulations to determine which can be eliminated, consolidated, or
otherwise improved. As part of this review, HUD reexamined its
regulations at 24 CFR part 51, which govern HUD's environmental
criteria and standards. HUD has determined that several streamlining
amendments can be made to part 51.
This final rule removes provisions which do not require regulatory
codification. For example, this rule removes most of the substance of
Sec. 51.3, which sets forth the responsibility for administering the
requirements of 24 CFR part 51. The rule also removes paragraph (a) of
Sec. 51.102, which describes the authority to approve projects under
part 51, subpart B. This information, while helpful to HUD's clients,
will more appropriately be provided through Federal Register notice.
Accordingly, Appendix I to this rule identifies the HUD officials with
responsibility for administering the requirements of part 51 and their
specific duties. HUD will update this appendix as necessary.
This final rule also updates part 51 to more accurately reflect
current HUD organization and practices. For example, paragraph (a)(3)
of Sec. 51.101 sets forth HUD's policy for support of construction of
new noise sensitive uses. This paragraph states that the ``policy does
not apply to * * * any action or emergency assistance under disaster
emergency programs.'' The provision originally applied to FEMA
programs, which are no longer under HUD jurisdiction. This final rule
updates paragraph (a)(3) of Sec. 51.101 to apply this exclusion more
generally to other emergency actions, such as those performed under
HUD's CDBG and HOME programs.
Finally, the rule streamlines 24 CFR part 51 to eliminate
unnecessary wordiness. The streamlining amendments made by this final
rule will make HUD's environmental criteria clearer and more concise.
II. Justification for Final Rulemaking
HUD generally publishes a rule for public comment before issuing a
rule for effect, in accordance with its own regulations on rulemaking
in 24 CFR part 10. However, part 10 provides for exceptions to the
general rule if the agency finds good cause to omit advance notice and
public participation. The good cause requirement is satisfied when
prior public procedure is ``impracticable, unnecessary, or contrary to
the public interest'' (24 CFR 10.1). In this case, HUD finds that prior
public comment is unnecessary.
This rule merely removes provisions which are unnecessarily
codified and which HUD will more appropriately set forth through
Federal Register notice. The rule also eliminates excessive wordiness
and updates the regulations at 24 CFR part 51 to reflect current HUD
organization and practices. This final rule does not affect or
establish policy.
III. Other Matters
A. 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 this rule will not have a significant economic
impact on a substantial number of small entities. This rule merely
streamlines and updates regulations to reflect current organization and
practices. The rule will have no adverse or disproportionate economic
impact on any small entity.
B. 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 implement section 102(2)(C) of the National Environmental Policy
Act of 1969. The Finding of No Significant Impact is available for
public inspection during regular business hours in the Office of
General Counsel, the Rules Docket Clerk, Room 10276, 451 Seventh
Street, SW., Washington, DC 20410.
C. Executive Order 12612, Federalism
The General Counsel, as the Designated Official under section 6(a)
of Executive Order 12612, Federalism, has determined that this 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. No programmatic or policy changes
will result from this rule that would affect the relationship between
the Federal Government and State and local governments.
D. Executive Order 12606, The Family
The General Counsel, as the Designated Official under Executive
Order 12606, The Family, has determined that this rule will not have
the potential for significant impact on family formation, maintenance,
or 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.
List of Subjects in 24 CFR Part 51
Environmental protection, Airports, Hazardous substances, Housing
standards, Noise control.
Accordingly, 24 CFR part 51 is amended as follows:
PART 51--ENVIRONMENTAL CRITERIA AND STANDARDS
1. The authority citation for 24 CFR part 51 is revised to read as
follows:
Authority: 42 U.S.C. 3535(d), unless otherwise noted.
[[Page 13333]]
Subpart A--General Provisions
2-3. Section 51.2 is revised to read as follows:
Sec. 51.2 Authority.
This part implements the Department's responsibilities under: The
National Housing Act (12 U.S.C. 1701 et seq.); sec. 2 of the Housing
Act of 1949 (42 U.S.C. 1441); secs. 2 and 7(d) of the Department of
Housing and Urban Development Act (42 U.S.C. 3531 and 3535(d)); the
National Environmental Policy Act of 1969 (42 U.S.C. 4321); and the
other statutes that are referred to in this part.
4. Section 51.3 is revised to read as follows:
Sec. 51.3 Responsibilities.
The Assistant Secretary for Community Planning and Development is
responsible for administering HUD's environmental criteria and
standards as set forth in this part. The Assistant Secretary for
Community Planning and Development may be assisted by HUD officials in
implementing the responsibilities established by this part. HUD will
identify these HUD officials and their specific responsibilities
through Federal Register notice.
Sec. 51.5 [Removed]
5. Section 51.5 is removed.
Subpart B--Noise Abatement and Control
6. Section 51.100 is amended by revising the introductory text of
paragraph (a) and revising paragraph (b) to read as follows:
Sec. 51.100 Purpose and authority.
(a) It is the purpose of this subpart B to:
* * * * *
(b) Authority. Specific authorities for noise abatement and control
are contained in the Noise Control Act of 1972, as amended (42 U.S.C.
4901 et seq.); and the General Services Administration, Federal
Management Circular 75-2; Compatible Land Uses at Federal Airfields.
7. Section 51.101 is amended by:
a. Removing paragraph (a)(1)(iii); and
b. Revising paragraphs (a)(1) introductory text, (a)(1)(ii),
(a)(2), and (a)(3) to read as follows:
Sec. 51.101 General policy.
(a) * * *
(1) Planning assistance. HUD requires that grantees give adequate
consideration to noise exposures and sources of noise as an integral
part of the urban environment when HUD assistance is provided for
planning purposes, as follows:
* * * * *
(ii) Applicants shall take into consideration HUD environmental
standards impacting the use of land.
(2) Activities subject to 24 CFR part 58. (i) Responsible entities
under 24 CFR part 58 must take into consideration the noise criteria
and standards in the environmental review process and consider
ameliorative actions when noise sensitive land development is proposed
in noise exposed areas. Responsible entities shall address deviations
from the standards in their environmental reviews as required in 24 CFR
part 58.
(ii) Where activities are planned in a noisy area, and HUD
assistance is contemplated later for housing and/or other noise
sensitive activities, the responsible entity risks denial of the HUD
assistance unless the HUD standards are met.
(3) HUD support for new construction. HUD assistance for the
construction of new noise sensitive uses is prohibited generally for
projects with unacceptable noise exposures and is discouraged for
projects with normally unacceptable noise exposure. (Standards of
acceptability are contained in Sec. 51.103(c).) This policy applies to
all HUD programs providing assistance, subsidy or insurance for
housing, manufactured home parks, nursing homes, hospitals, and all
programs providing assistance or insurance for land development,
redevelopment or any other provision of facilities and services which
are directed to making land available for housing or noise sensitive
development. The policy does not apply to research demonstration
projects which do not result in new construction or reconstruction,
flood insurance, interstate land sales egistration, or any action or
emergency assistance under disaster assistance provisions or
appropriations which are provided to save lives, protect property,
protect public health and safety, remove debris and wreckage, or
assistance that has the effect of restoring facilities substantially as
they existed prior to the disaster.
* * * * *
8. Section 51.102 is amended by:
a. Removing paragraphs (a) and (d);
b. Redesignating paragraphs (b), (c), and (e) as paragraphs (a),
(b), and (c), respectively;
c. Revising the introductory text of newly designated paragraph
(b); and
d. Revising newly designated paragraph (c) to read as follows:
Sec. 51.102 Responsibilities.
* * * * *
(b) Notice to applicants. At the earliest possible stage, HUD
program staff shall:
* * * * *
(c) Interdepartmental coordination. HUD shall foster appropriate
coordination between field offices and other departments and agencies,
particularly the Environmental Protection Agency, the Department of
Transportation, Department of Defense representatives, and the
Department of Veterans Affairs. HUD staff shall utilize the
acceptability standards in commenting on the prospective impacts of
transportation facilities and other noise generators in the
Environmental Impact Statement review process.
9. Section 51.104 is amended by:
a. Removing paragraph (a)(1);
b. Redesignating the introductory text to paragraph (a) as
paragraph (a)(1);
c. Revising paragraph (a)(2); and
d. Revising the introductory text of paragraph (b) and paragraphs
(b)(1)(ii) and (b)(2) to read as follows:
Sec. 51.104 Special requirements.
(a) * * *
(2) Normally unacceptable noise zones and unacceptable noise zones.
Approvals in Normally Unacceptable Noise Zones require a minimum of 5
decibels additional sound attenuation for buildings having noise-
sensitive uses if the day-night average sound level is greater than 65
decibels but does not exceed 70 decibels, or a minimum of 10 decibels
of additional sound attenuation if the day-night average sound level is
greater than 70 decibels but does not exceed 75 decibels. Noise
attenuation measures in Unacceptable Noise Zones require the approval
of the Assistant Secretary for Community Planning and Development, or
the Certifying Officer for activities subject to 24 CFR part 58. (See
Sec. 51.104(b)(2).)
(b) Environmental review requirements. Environmental reviews shall
be conducted pursuant to the requirements of 24 CFR parts 50 and 58, as
applicable, or other environmental regulations issued by the
Department. These requirements are hereby modified for all projects
proposed in the Normally Unacceptable and Unacceptable noise exposure
zones as follows:
(1) * * *
(ii) When an EIS is required, the concurrence of the Program
Assistant Secretary is also required before a project can be approved.
For the purposes of this paragraph, an area will be considered as
largely undeveloped unless the area within a 2-mile radius of
[[Page 13334]]
the project boundary is more than 50 percent developed for urban uses
and infrastructure (particularly water and sewers) is available and has
capacity to serve the project.
* * * * *
(2) Unacceptable noise zone. An EIS is required prior to the
approval of projects with unacceptable noise exposure. Projects in or
partially in an Unacceptable Noise Zone shall be submitted to the
Assistant Secretary for Community Planning and Development, or the
Certifying Officer for activities subject to 24 CFR part 58, for
approval. The Assistant Secretary or the Certifying Officer may waive
the EIS requirement in cases where noise is the only environmental
issue and no outdoor noise sensitive activity will take place on the
site. In such cases, an environmental review shall be made pursuant to
the requirements of 24 CFR parts 50 or 58, as appropriate.
10. Section 51.105 is amended by revising paragraph (a)(1) to read
as follows:
Sec. 51.105 Exceptions.
(a) * * *
(1) The project does not require an Environmental Impact Statement
under provisions of Sec. 51.104(b)(1) and noise is the only
environmental issue.
* * * * *
11. Section 51.106 is amended by revising paragraph (a)(4)
introductory text to read as follows:
Sec. 51.106 Implementation.
(a) * * *
(4) Use of areawide acoustical data. HUD encourages the preparation
and use of areawide acoustical information, such as noise contours for
airports. Where such new or revised contours become available for
airports (civil or military) and military installations they shall
first be referred to the HUD State Office (Environmental Officer) for
review, evaluation and decision on appropriateness for use by HUD. The
HUD State Office shall submit revised contours to the Assistant
Secretary for Community Planning and Development for review, evaluation
and decision whenever the area affected is changed by 20 percent or
more, or whenever it is determined that the new contours will have a
significant effect on HUD programs, or whenever the contours are not
provided in a methodology acceptable under Sec. 51.106(a)(1) or in
other cases where the HUD State Office determines that Headquarters
review is warranted. For other areawide acoustical data, review is
required only where existing areawide data are being utilized and where
such data have been changed to reflect changes in the measurement
methodology or underlying noise source assumptions. Requests for
determination on usage of new or revised areawide data shall include
the following:
* * * * *
Subpart C--Siting of HUD-Assisted Projects Near Hazardous
Operations Handling Conventional Fuels or Chemicals of an Explosive
or Flammable Nature
12. Section 51.200 is amended by revising the introductory text to
read as follows:
Sec. 51.200 Purpose.
The purpose of this subpart C is to:
* * * * *
13. Section 51.201 is amended by revising the definition of
``Acceptable separation distance (ASD)'' to read as follows:
Sec. 51.201 Definitions.
Acceptable separation distance (ASD)--means the distance beyond
which the explosion or combustion of a hazard is not likely to cause
structures or individuals to be subjected to blast overpressure or
thermal radiation flux levels in excess of the safety standards in
Sec. 51.203. The ASD is determined by applying the safety standards
established by this subpart C to the guidance set forth in HUD
Guidebook, ``Siting of HUD-Assisted Projects Near Hazardous
Facilities.''
* * * * *
Sec. 51.202 [Amended]
14. Section 51.202 is amended by removing the first sentence of
paragraph (a).
15. Section 51.203 is amended by adding a paragraph (d) to read as
follows:
Sec. 51.203 Safety standards.
* * * * *
(d) Background information on the standards and the logarithmic
thermal radiation and blast overpressure charts that provide assistance
in determining acceptable separation distances are contained in
Appendix II to this subpart C.
16. Section 51.206 is revised to read as follows:
Sec. 51.206 Implementation.
This subpart C shall be implemented for each proposed HUD-assisted
project by the HUD approving official or responsible entity responsible
for review of the project. The implementation procedure will be part of
the environmental review process in accordance with the procedures set
forth in 24 CFR parts 50 and 58.
17. Section 51.207 is revised to read as follows:
Sec. 51.207 Special circumstances.
The Secretary or the Secretary's designee may, on a case-by-case
basis, when circumstances warrant, require the application of this
subpart C with respect to a substance not listed in Appendix I to this
subpart C that would create thermal or overpressure effect in excess of
that listed in Sec. 51.203.
Subpart D--Siting of HUD Assisted Projects in Runway Clear Zones at
Civil Airports and Clear Zones and Accident Potential Zones at
Military Airfields
Sec. 51.300 [Amended]
18. Section 51.300 is amended by removing paragraph (a) and
removing the paragraph designation of paragraph (b).
19. Section 51.302 is amended by revising the first sentence in
paragraph (a) to read as follows:
Sec. 51.302 Coverage.
(a) These policies apply to HUD programs which provide assistance,
subsidy or insurance for construction, land development, community
development or redevelopment or any other provision of facilities and
services which are designed to make land available for construction. *
* *
* * * * *
20. Section 51.303 is amended by revising paragraph (a)(3) to read
as follows:
Sec. 51.303 General policy.
* * * * *
(a) * * *
(3) Special notification requirements for Runway Clear Zones and
Clear Zones. In all cases involving HUD assistance, subsidy, or
insurance for the purchase or sale of an existing property in a Runway
Clear Zone or Clear Zone, HUD (or the responsible entity or recipient
under 24 CFR part 58) shall advise the buyer that the property is in a
Runway Clear Zone or Clear Zone, what the implications of such a
location are, and that there is a possibility that the property may, at
a later date, be acquired by the airport operator. The buyer must sign
a statement acknowledging receipt of this information.
* * * * *
21. Section 51.304 is revised to read as follows:
[[Page 13335]]
Sec. 51.304 Responsibilities.
(a) The following persons have the authority to approve actions in
Accident Potential Zones:
(1) For programs subject to environmental review under 24 CFR part
58: the Certifying Officer of the responsible entity as defined in 24
CFR part 58.
(2) For all other HUD programs: the HUD approving official having
approval authority for the project.
(b) The following persons have the authority to approve actions in
Runway Clear Zones and Clear Zones:
(1) For programs subject to environmental review under 24 CFR part
58: The Certifying Officer of the responsible entity as defined in 24
CFR part 58.
(2) For all other HUD programs: the Program Assistant Secretary.
Dated: March 7, 1996.
Henry G. Cisneros,
Secretary.
[Note: This appendix will not be codified in title 24 of the
CFR.]
Appendix I
Responsibility for Administering HUD's Environmental Criteria and
Standards
Section
1. Purpose.
2. General Responsibilities in the Administration of HUD's
Environmental Criteria and Standards.
3. Responsibilities in the Administration of HUD's Noise
Abatement and Control Standards.
1. Purpose
HUD's environmental criteria and standards are set forth in 24
CFR part 51. The Assistant Secretary for Community Planning and
Development is responsible for administering these regulations.
However, Sec. 51.3 states that the ``Assistant Secretary * * * may
be assisted by HUD officials in implementing the responsibilities
established by'' 24 CFR part 51. The purpose of this appendix is to
identify these HUD officials and their specific duties.
It is unnecessary to codify this information in title 24 of the
Code of Federal Regulations. Providing this information through
Federal Register notice will allow HUD to better assist its clients
and maintain up-to-date environmental standards. HUD will update
this appendix as necessary.
Section 2 of this appendix describes the general
responsibilities in administering HUD's environmental criteria and
standards. These duties are applicable across-the-board to all the
requirements established by 24 CFR part 51. Section 3 of this
appendix is more limited in scope and complements the duties
described in Section 2. Section 3 sets forth the responsibilities in
administering HUD's noise abatement and control standards, which are
described in subpart B to 24 CFR part 51.
2. General Responsibilities in the Administration of HUD's
Environmental Criteria and Standards
HUD approving officials shall assure that adopted environmental
regulations are implemented in relation to program decisions and
recommendations. They shall also monitor projects to assure that
mitigation measures are implemented.
3. Responsibilities in the Administration of HUD's Noise Abatement and
Control Standards
(a) Authority to approve projects. (1) HUD approving officials
shall make decisions on proposed projects with acceptable noise
exposures, including projects where increased noise levels are
considered acceptable because of non-acoustic benefits under 24 CFR
51.105(a). HUD approving officials may also approve projects in
normally unacceptable noise exposed areas where adequate sound
attenuation is provided and where the project does not require an
Environmental Impact Statement under 24 CFR 51.104(b).
(2) Other approvals in normally unacceptable noise exposed areas
require the concurrence of the Program Assistant Secretary.
(3) Requests for approvals of projects or portions of projects
with unacceptable noise exposure shall be referred through the HUD
approving official to the Assistant Secretary for Community Planning
and Development for approval pursuant to 24 CFR 51.104(b).
(4) In cases where the HUD approving official determines that an
important precedent or issue is involved, such cases shall be
referred with recommendations to the Assistant Secretary for
Community Planning and Development.
(b) Technical assistance. Technical assistance in the
measurement, estimation, interpretation, or prediction of noise
exposure is available from the Office of Community Planning and
Development and the Office of Policy Development and Research. Field
office questions shall be forwarded through the HUD approving
official to the Assistant Secretary for Community Planning and
Development or his/her designee.
[FR Doc. 96-7062 Filed 3-25-96; 8:45 am]
BILLING CODE 4210-32-P
Complete official Federal Register PDF
FR Doc. 96-7061 Public Housing Lease and Grievance Procedures
[Federal Register Volume 61, Number 59 (Tuesday, March 26, 1996)]
[Rules and Regulations]
[Pages 13272-13273]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-7061]
[[Page 13271]]
_______________________________________________________________________
Part IV
Department of Housing and Urban Development
_______________________________________________________________________
Office of the Secretary
_______________________________________________________________________
24 CFR Parts 10 and 966
Public Housing Lease and Grievance Procedures; Final Rule
Federal Register / Vol. 61, No. 59 / Tuesday, March 26, 1996 / Rules
and Regulations
[[Page 13272]]
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
Office of the Secretary
24 CFR Parts 10 and 966
[Docket No. FR-3819-F-02]
RIN 2501-AB92
Public Housing Lease and Grievance Procedures
AGENCY: Office of the Secretary, HUD.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: On May 22, 1995 (60 FR 27058), HUD published a rule for public
comment proposing to amend its regulations governing public notice and
comment requirements and public housing lease and grievance procedures.
This rule finalizes the policies set forth in the May 22, 1995 proposed
rule. Specifically, this final rule clarifies that HUD is not required
to use notice and comment rulemaking for issuance of a due process
determination. This rule also authorizes Public Housing Agencies (PHAs)
to bypass judicial eviction procedures, if the law of the jurisdiction
permits eviction through administrative action. Additionally, this
final rule corrects a typographical error currently contained in 24 CFR
part 966.
EFFECTIVE DATE: April 25, 1996.
FOR FURTHER INFORMATION CONTACT: Linda Campbell, Director, Occupancy
Division, Room 4206, Department of Housing and Urban Development, 451
Seventh Street SW., Washington, D.C. 20410; Telephone numbers (202)
708-0744; 1-800-877-8339 (Federal Information Relay Service TTY).
(Other than the ``800'' number, these are not toll-free numbers.)
SUPPLEMENTARY INFORMATION:
I. Background
A. The May 22, 1995 Proposed Rule
On May 22, 1995 (60 FR 27058), HUD published for public comment a
rule proposing to revise HUD's regulations at 24 CFR part 10, governing
public notice and comment requirements, and 24 CFR part 966, governing
public housing lease and grievance procedures.
Under 42 U.S.C. 1437d(k), a housing authority is generally required
to provide a tenant with the opportunity for an administrative hearing
before the commencement of eviction proceedings in the local landlord-
tenant courts. The statute and HUD's implementing regulations at 24 CFR
part 966 state that for certain criminal-related evictions the housing
authority may bypass the administrative hearing. However, HUD must
first make a determination that local law requires a pre-eviction court
hearing that provides the basic elements of due process.
In HUD's view, the issuance of a due process determination is not a
rule, and is therefore not subject to 24 CFR part 10's notice and
comment rulemaking requirements. However, in its decision in Yesler
Terrace Community Council v. Cisneros, the Ninth Circuit held that the
due process determination for the State of Washington was a rule to
which part 10 applied. The Yesler decision has meant that Public
Housing Agencies (PHAs) in the States comprising the Ninth Circuit
cannot rely on the HUD due process determinations issued for those
States. Even for jurisdictions outside the Ninth Circuit, the decision
in the Yesler case will inevitably lead to dispute and litigation
concerning the ability of PHAs to rely on a HUD due process
determination. In order to remedy this serious situation, the May 22,
1995 rule proposed to amend part 10 to clarify that the issuance of a
due process determination does not require prior public procedure.
The May 22, 1995 rule also proposed to amend 24 CFR part 966. The
amendment would permit PHAs to evict without bringing a court action if
the law of the jurisdiction permits eviction by administrative action,
after a due process administrative hearing, but does not require a
court determination of the rights and liabilities of the parties. This
proposed amendment was designed to avoid the necessity for duplicative
administrative and judicial hearings.
The May 22, 1995 proposed rule described in detail the amendments
to 24 CFR parts 10 and 966.
B. Discussion of Public Comments on the May 22, 1995 Proposed Rule
The public comment period on the proposed rule expired on July 21,
1995. By close of business on that date, a total of 8 comments had been
received. Six of the eight commenters expressed support for the May 22,
1995 proposed rule and urged its adoption without change. As a result
of this positive public response, HUD has decided to adopt the May 22,
1995 proposed rule without change. A representative comment read:
[Our organization] strongly supports the proposed amendments to
regulations governing eviction from public and Indian housing * * *.
Granting these administrative hearings to persons engaged in serious
criminal activity slows down the eviction process considerably,
adversely affecting the quality of life in our developments for law-
abiding families * * *. We welcome the initiative taken by the
Department of Housing and Urban Development * * *. This will provide
support to the Housing Authorit[ies] in [their] efforts to
expeditiously evict persons engaged in criminal activities.
The other two commenters were opposed to the proposed amendment to
part 966 which would permit certain PHAs to evict through
administrative action. Both commenters believed that the proposed rule,
by authorizing non-judicial evictions, would eliminate vital
protections of the tenant's rights. For example, the commenters worried
about the lack of a legally trained, impartial, presiding officer at
administrative hearings. The commenters were also concerned about the
lack of subpoena power in administrative eviction actions.
HUD, while recognizing that there are substantive differences
between administrative and judicial proceedings, does not agree with
the commenters. This final rules provides adequate safeguards against
wrongful evictions. Only PHAs located in States which authorize
administrative evictions will be able to bypass judicial eviction
procedures. The administrative hearings will have to comply with
Constitutional due process requirements, as well as the grievance
hearing procedures set forth at 24 CFR part 966. Additionally, the
administrative determinations will be subject to review by the State's
courts.
C. Technical Correction of Sec. 966.4(l)(3)(ii)
Paragraph (l)(3) of Sec. 966.4 establishes the requirements for
lease termination notices to public housing tenants. Paragraph
(l)(3)(ii), which requires that the notice inform the tenant of the
right to examine PHA documents directly relevant to the termination or
eviction, contains a cross-reference to Sec. 944.4(m). The cross-
reference is incorrect, and should instead refer to Sec. 966.4(m). This
final rule makes the necessary correction.
II. Other Matters
A. Impact on the Environment
In accordance with 40 CFR 1508.4 of the regulations of the Council
on Environmental Quality and 24 CFR 50.20(k) of the HUD regulations,
the policies and procedures contained in this rule relate only to HUD
administrative procedures and, therefore, are categorically excluded
from the requirements of the National Environmental Policy Act.
B. Federalism Impact
The General Counsel, as the Designated Official under section 6(a)
of Executive Order 12612, Federalism, has
[[Page 13273]]
determined that the 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.
This final rule clarifies that HUD is not required to use notice
and comment rulemaking procedures for issuance of a due process
determination. Furthermore, this rule permits PHAs to evict without
bringing a court action, if the law of the jurisdiction permits
eviction by administrative action and does not require a court
determination of the rights and liabilities of the parties. This final
rule will effect no changes in the current relationships between the
Federal government, the States and their political subdivisions.
C. Impact on 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 this
order. No significant change in existing HUD policies or programs will
result from promulgation of this final rule, as those policies and
programs relate to family concerns.
D. Regulatory Flexibility Act
The Secretary, in accordance with the Regulatory Flexibility Act (5
U.S.C. 605 (b)) has reviewed and approved this rule, and in so doing
certifies that this rule will not have a significant impact on a
substantial number of small entities. This final rule merely concerns
HUD's public housing lease and grievance procedures, and will not have
any meaningful economic impact on any entity.
List of Subjects
24 CFR Part 10
Administrative practice and procedure.
24 CFR Part 966
Grant programs--housing and community development, Public housing.
Accordingly, 24 CFR parts 10 and 966 are amended as follows:
PART 10--RULEMAKING: POLICY AND PROCEDURES
1. The authority citation for part 10 is revised to read as
follows:
Authority: 42 U.S.C. 3535(d).
2. Section 10.3 is amended by adding a new paragraph (c) to read as
follows:
Sec. 10.3 Applicability.
* * * * *
(c) This part is not applicable to a determination by HUD under 24
CFR Part 966 (public housing) or 24 CFR Part 950 (Indian housing) that
the law of a jurisdiction requires that, prior to eviction, a tenant be
given a hearing in court which provides the basic elements of due
process (``due process determination'').
PART 966--LEASE AND GRIEVANCE PROCEDURES
3. The authority citation for part 966 is revised to read as
follows:
Authority: 42 U.S.C. 1437a, 1437d note, and 3535(d).
4. Section 966.4 is amended by revising the first two sentences in
paragraph (l)(3)(ii) and by revising paragraph (l)(4) to read as
follows:
Sec. 966.4 Lease requirements.
* * * * *
(l) * * *
(3) * * *
(ii) The notice of lease termination to the tenant shall state
specific grounds for termination, and shall inform the tenant of the
tenant's right to make such reply as the tenant may wish. The notice
shall also inform the tenant of the right (pursuant to Sec. 966.4(m))
to examine PHA documents directly relevant to the termination or
eviction. * * *
* * * * *
(4) How tenant is evicted. The PHA may evict the tenant from the
unit either:
(i) By bringing a court action or;
(ii) By bringing an administrative action if law of the
jurisdiction permits eviction by administrative action, after a due
process administrative hearing, and without a court determination of
the rights and liabilities of the parties. In order to evict without
bringing a court action, the PHA must afford the tenant the opportunity
for a pre-eviction hearing in accordance with the PHA grievance
procedure.
* * * * *
5. In Sec. 966.51, paragraph (a)(2) is amended by redesignating
paragraph (a)(2)(ii) as paragraph (a)(2)(iv) and adding new paragraphs
(a)(2)(ii) and (a)(2)(iii) to read as follows:
Sec. 966.51 Applicability.
(a) * * *
(2) * * *
(ii) The issuance of a due process determination by HUD is not
subject to 24 CFR part 10, and HUD is not required to use notice and
comment rulemaking procedures in considering or issuing a due process
determination.
(iii) For guidance of the public, HUD will publish in the Federal
Register a notice listing the judicial eviction procedures for which
HUD has issued a due process determination. HUD will make available for
public inspection and copying a copy of the legal analysis on which the
determinations are based.
* * * * *
Dated: March 12, 1996.
Henry G. Cisneros,
Secretary.
[FR Doc. 96-7061 Filed 3-25-96; 8:45 am]
BILLING CODE 4210-32-P
Complete official Federal Register PDF
FR Doc. 96-6965 Federal Motor Vehicle Safety Standards; Occupant Crash Protection
[Federal Register Volume 61, Number 59 (Tuesday, March 26, 1996)]
[Rules and Regulations]
[Pages 13108-13109]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-6965]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
49 CFR Part 571
[Docket No. 74-14; Notice 98]
RIN 2127-AF30
Federal Motor Vehicle Safety Standards; Occupant Crash Protection
AGENCY: National Highway Traffic Safety Administration (NHTSA), DOT.
ACTION: Final Rule, correcting amendment.
-----------------------------------------------------------------------
SUMMARY: On May 23, 1995, NHTSA published a final rule allowing
manufacturers the option of installing a manual device that motorists
could use to deactivate the front passenger-side air bag in vehicles in
which infant restraints can be used in the front seat only. As part of
this final rule, NHTSA amended the air bag warning label required on
vehicle sun visors. The amendments were effective June 22, 1995. Due to
an error, the regulatory language of the final rule deleted an option
to use the signal word ``Warning'' in place of the word ``Caution'' on
the sun visor label. This notice corrects that error.
DATES: Effective Date: The amendments made in this rule are effective
March 26, 1966.
Petition Date: Any petitions for reconsideration must be received
by NHTSA no later than April 25, 1996.
ADDRESSES: Any petitions for reconsideration should refer to the docket
and notice number of this notice and be submitted to: Administrator,
National Highway Traffic Safety Administration, 400 Seventh Street,
SW., Washington, DC 20590.
FOR FURTHER INFORMATION CONTACT: Ms. Mary Versailles, Office of the
Chief Counsel, NCC-20, National Highway Traffic Safety Administration,
400 Seventh Street, SW., Washington, DC 20590; telephone (202) 366-
2992; facsimile (202) 366-3820; electronic mail
``[email protected]''.
SUPPLEMENTARY INFORMATION: On May 23, 1995, NHTSA published a final
rule amending 49 CFR 571.208 to allow manufacturers the option of
installing a manual device that motorists could use to deactivate the
front passenger-side air bag in vehicles in which infant restraints can
be used in the front seat only. As part of this final rule, NHTSA
amended the air bag warning label required on vehicle sun visors to
specify that the caution against installing a rear-facing infant seat
in a front seating position did not apply if the air bag were off. The
amendments were effective June 22, 1995. Due to an error, the
regulatory language of the final rule deleted language incorporating
the provision in S5.4.1(b)(1) that permits the use of the signal word
``Warning,'' in place of the word ``Caution,'' on the sun visor label.
This notice corrects that error.
NHTSA finds for good cause that this final rule can be made
effective immediately. The stated purpose of the May 23, 1995, final
rule was to affect only the cautionary statement concerning placement
of a rear-facing infant seat in a front seating position, and not any
other part of the label. This notice corrects an error which resulted
in the unintentional amending of the options for the choice of the
signal word to be used at the beginning of the label.
Rulemaking Analyses and Notices
Executive Order 12866 and DOT Regulatory Policies and Procedures
NHTSA has considered the impact of this rulemaking action under
E.O. 12866 and the Department of Transportation's regulatory policies
and procedures. This rulemaking document was not reviewed under E.O.
12866, ``Regulatory Planning and Review.'' This document is part of an
action that was determined to be not ``significant'' under the
Department of Transportation's regulatory policies and procedures. This
notice does not impose any new requirements on manufacturers. It simply
corrects an error.
Regulatory Flexibility Act
NHTSA has also considered the impacts of this final rule under the
Regulatory Flexibility Act. I hereby certify that this rule will not
have a significant economic impact on a substantial number of small
entities. Further, this final rule will not alter the economic impacts
of the May 1995 final rule. As explained above, this rule will not have
an economic impact on any manufacturers.
Paperwork Reduction Act
In accordance with the Paperwork Reduction Act of 1980 (P.L. 96-
511), there are no requirements for information collection associated
with this final rule.
National Environmental Policy Act
NHTSA has also analyzed this final rule under the National
Environmental Policy Act and determined that it will not have a
significant impact on the human environment.
Executive Order 12612 (Federalism)
NHTSA has analyzed this rule in accordance with the principles and
criteria contained in E.O. 12612, and has determined that this rule
will not have significant federalism implications to warrant the
preparation of a Federalism Assessment.
Civil Justice Reform
This final rule does not have any retroactive effect. Under 49
U.S.C. 30103, whenever a Federal motor vehicle safety standard is in
effect, a State may not adopt or maintain a safety standard applicable
to the same aspect of performance which is not identical to the Federal
standard, except to the extent that the State requirement imposes a
higher level of performance and applies only to vehicles procured for
the State's use. 49 U.S.C. 30161 sets forth a procedure for judicial
review of final rules establishing, amending or revoking Federal motor
vehicle safety standards. That section does not require submission of a
petition for reconsideration or other administrative proceedings before
parties may file suit in court.
[[Page 13109]]
List of Subjects in 49 CFR Part 571
Imports, Motor vehicle safety, Motor vehicles.
In consideration of the foregoing, 49 CFR Part 571 is amended as
follows:
PART 571--FEDERAL MOTOR VEHICLE SAFETY STANDARDS
1. The authority citation for Part 571 of Title 49 continues to
read as follows:
Authority: 49 U.S.C. 322, 30111, 30115, 30117, and 30166;
delegation of authority at 49 CFR 1.50.
2. Section 571.208 is amended by revising section S4.5.1(b)(1) to
read as follows:
Sec. 571.208 Standard No. 208, Occupant Crash Protection
* * * * *
S4.5.1 Labeling and owner's manual information.
* * * * *
(b) Label on sun visor above front outboard seating positions
equipped with inflatable restraint.
(1) Each vehicle manufactured on or after September 1, 1994, shall
comply with either S4.5.1(b)(1)(i) or S4.5.1(b)(1)(ii), except that the
word ``WARNING'' may be used instead of ``CAUTION''.
(i) Each front outboard seating position that provides an
inflatable restraint shall have a label permanently affixed to the sun
visor for such seating position on either side of the sun visor, at the
manufacturer's option. Except as provided in S5.4.1(b)(1) and
S4.5.1(b)(3), this label shall read:
CAUTION
TO AVOID SERIOUS INJURY:
For maximum safety protection in all types of crashes, you must
always wear your safety belt.
Do not install rearward-facing child seats in any front
passenger seat position.
Do not sit or lean unnecessarily close to the air bag.
Do not place any objects over the air bag or between the air bag
and yourself.
See the owner's manual for further information and explanations.
(ii) If the vehicle is equipped with a cutoff device permitted by
S4.5.4 of this standard, each front outboard seating position that
provides an inflatable restraint shall have a label permanently affixed
to the sun visor for such seating position on either side of the sun
visor, at the manufacturer's option. Except as provided in
S5.4.1(b)(1), this label shall read:
CAUTION
TO AVOID SERIOUS INJURY:
For maximum safety protection in all types of crashes, you must
always wear your safety belt.
Do not install rearward-facing child seats in any front
passenger seat position, unless the air bag is off.
Do not sit or lean unnecessarily close to the air bag.
Do not place any objects over the air bag or between the air bag
and yourself.
See the owner's manual for further information and explanations.
* * * * *
Issued on: March 18, 1996.
Barry Felrice,
Associate Administrator for Safety Performance Standards.
[FR Doc. 96-6965 Filed 3-25-96; 8:45 am]
BILLING CODE 4910-59-P
Complete official Federal Register PDF
FR Doc. 96-6940 Beverages: Bottled Water
[Federal Register Volume 61, Number 59 (Tuesday, March 26, 1996)]
[Rules and Regulations]
[Pages 13258-13270]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-6940]
[[Page 13257]]
_______________________________________________________________________
Part III
Department of Health and Human Services
_______________________________________________________________________
Food and Drug Administration
_______________________________________________________________________
21 CFR Part 165
Beverages: Bottled Water; Final Rule
Federal Register / Vol. 61, No. 59 / Tuesday, March 26, 1996 / Rules
and Regulations
[[Page 13258]]
DEPARTMENT OF HEALTH AND HUMAN SERVICES
Food and Drug Administration
21 CFR Part 165
[Docket No. 93N-0085]
Beverages: Bottled Water
AGENCY: Food and Drug Administration, HHS.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Food and Drug Administration (FDA) is amending the quality
standard for bottled water by establishing or revising allowable levels
for 5 inorganic chemicals (IOC's) and 17 synthetic organic chemicals
(SOC's), including 3 synthetic volatile organic chemicals (VOC's), 9
pesticide chemicals, and 5 nonpesticide chemicals. However, FDA is
staying the effective date for the allowable levels for the 5 IOC's and
4 of the SOC's. FDA also is not changing the existing allowable level
for sulfate in the bottled water quality standard. In addition, FDA is
deferring final action on the proposed allowable level for the
nonpesticide chemical di(2-ethylhexyl)phthalate (DEHP). This final rule
will ensure that the minimum quality of bottled water, as affected by
at least the 13 chemicals for which allowable levels are adopted and
effective, remains comparable with the quality of public drinking water
that meets the Environmental Protection Agency (EPA) standards.
DATES: The regulation is effective September 23, 1996. The Director of
the Office of the Federal Register approves the incorporation by
reference in accordance with 5 U.S.C. 552(a) and 1 CFR part 51 of
certain publications in 21 CFR 165.110(b)(4)(iii), effective September
23, 1996.
FOR FURTHER INFORMATION CONTACT: Henry S. Kim, Center For Food Safety
and Applied Nutrition (HFS-306), Food and Drug Administration, 200 C
Street SW., Washington, DC 20204, 202-205-4681.
SUPPLEMENTARY INFORMATION:
I. Background
Under section 410 of the Federal Food, Drug, and Cosmetic Act (the
act) (21 U.S.C. 349), whenever EPA prescribes interim or revised
National Primary Drinking Water Regulations (NPDWR's) under section
1412 of the Public Health Service Act (The Safe Drinking Water Act
(SDWA) (42 U.S.C. 300f through 300j-9)), FDA is required to consult
with EPA and either amend its regulations for bottled drinking water in
Sec. 165.110 (21 CFR 165.110) or publish in the Federal Register its
reasons for not making such amendments.
In the Federal Register of July 17, 1992 (57 FR 31776) (hereinafter
referred to as the July 1992 final rule), EPA published a final rule
promulgating NPDWR's consisting of maximum contaminant levels (MCL's)
for 18 SOC's and 5 IOC's. Further, in that final rule, EPA deferred
establishing an MCL for sulfate in public drinking water.
In accordance with section 410 of the act, FDA published in the
Federal Register of August 4, 1993 (58 FR 41612), a proposal to adopt
EPA's MCL's for the 18 SOC's and 5 IOC's as allowable levels in the
quality standard for bottled water (hereinafter referred to as the
August 1993 proposal). In the August 1993 proposal, FDA tentatively
concluded that the MCL's that EPA had established based on available
toxicological information for the 18 SOC's and 5 IOC's in public
drinking water were adequate to protect the public from the adverse
health effects of these chemical contaminants in drinking water.
Further, FDA tentatively concluded that adopting EPA's MCL's for the 18
SOC's and 5 IOC's as allowable levels in the bottled water quality
standard was appropriate to protect the public from the adverse health
effects of these chemical contaminants that may be found in bottled
water.
FDA did not propose any change in the existing allowable level of
250 milligrams per liter (mg/L) for sulfate in bottled water. FDA had
established this level in 1973 (38 FR 32558, November 26, 1973), based
on the Public Health Service standard for sulfate in drinking water
established on March 6, 1962 (27 FR 2152). Although EPA proposed to
establish either 400 or 500 mg/L as the MCL for sulfate in public
drinking water (55 FR 30370, July 25, 1990), it deferred action on this
MCL in its July 1992 final rule and did not revise the existing
secondary maximum contaminant level (SMCL) of 250 mg/L for this
chemical (40 CFR 143.3) in public drinking water.
II. Summary of and Response to Comments
A. Summary of Comments
FDA received 11 comments in response to the August 1993 proposal.
The comments represented the views of three foreign trade associations
and one domestic trade association that represent bottled water
manufacturers, two State health departments, a State environmental
protection department, a European Communities General Agreement for
Tariffs and Trade (EC GATT) Enquiry Point, a bottled water company, a
supplier of packaging materials, and a nonprofit private organization.
The majority of the comments stated that they generally supported the
proposal. Two comments addressed the issue of Federal preemption of
State requirements concerning the quality of bottled water and related
monitoring requirements. The issue of Federal preemption of State
requirements is outside the scope of the proposal and thus will not be
discussed here. A number of comments suggested modifications to, or
were opposed to, various provisions of the proposal. A summary of the
suggested changes, the opposing comments, and the agency's responses
follows.
B. Comments Pertaining to Allowable Levels in the Quality Standard for
Bottled Water
1. One of the comments addressed the proposed allowable level of
0.006 mg/L for the chemical, DEHP. The comment pointed out that this
chemical is prior sanctioned in Sec. 181.27 (21 CFR 181.27) for use as
a plasticizer when migrating from food-packaging material into foods
with high water content and, as such, is approved for use in contact
with food in Sec. 177.1210 (21 CFR 177.1210) Closures with sealing
gaskets for food containers. The comment also pointed out that DEHP is
routinely used as a plasticizer in gaskets used in metal and plastic
closures for the packaging of bottled water in accord with this
approval, and that such use may result in levels of this chemical
migrating into water that exceed the proposed allowable level. Thus,
the comment maintained that finalizing the proposed allowable level for
DEHP would result in a limit on the level of this chemical in bottled
water that conflicts with this chemical's permitted use under the
existing food additive regulation for closures with sealing gaskets,
and that taking such action would effectively ban the use of this
plasticizer. The comment further pointed out that gaskets containing
DEHP are permitted for use in packaging food and bottled water under
relevant European national regulations, and that these uses comply with
the migration limit of 3 mg/kilograms proposed for DEHP established by
the Scientific Committee for Food in their Synoptic Document 7.
FDA was not aware of the potential conflict between the proposed
allowable level for DEHP and the existing prior sanction for this
substance in Sec. 181.27 at the time it published the proposal. The
agency needs additional time to evaluate this matter and to determine
an
[[Page 13259]]
appropriate course of action with respect to the proposed allowable
level for DEHP. Therefore, FDA is deferring final action on the
proposed allowable level for DEHP at this time.
2. Several comments asked FDA to clarify the status of bottled
water products labeled as mineral water with respect to compliance with
the existing allowable level of 250 mg/L for sulfate in bottled water.
The comments stated that, in the Federal Register of January 5, 1993
(58 FR 393), FDA proposed to exempt bottled mineral water from
complying with the allowable levels for certain substances, such as
sulfate, that may be present at high levels in some mineral waters
because the allowable levels in question have been established for
aesthetic reasons and not for public health protection.
FDA did not fully address this issue in the August 1993 proposal.
These comments are correct in noting that in January of 1993, FDA
proposed to subject bottled mineral water to the bottled water quality
standard but to exempt mineral water from complying with certain
allowable levels, including that for sulfate, that were established for
aesthetic reasons and not for public health protection. The January
1993 proposal was still pending when the August 1993 proposal was
published. Bottled mineral water was not yet subject to the bottled
water quality standard. Therefore, in addressing the allowable level
for sulfate in the August 1993 proposal, FDA did not provide in the
codified material that bottled mineral water would be exempt from the
quality standard for sulfate.
In the Federal Register of November 13, 1995 (60 FR 57076)
(hereinafter referred to as the November 1995 final rule), FDA
published a final rule based on the January 1993 proposal that, among
other things, established a standard of identity for bottled water (21
CFR part 165), which includes a definition for mineral water and which
subjects mineral water to the quality standard regulations for bottled
water. Bottled mineral water must also comply with the current good
manufacturing practice (CGMP) regulations for bottled water in part 129
(21 CFR part 129). Thus, under the newly established regulations,
bottled waters that meet the definition for ``mineral water'' in
Sec. 165.110(a)(2)(iii) must comply with the bottled water quality
standard (i.e., the allowable levels for physical, chemical,
microbiological, and radiological contaminants) in Sec. 165.110(b).
However, FDA recognizes that mineral water with a high mineral
content may not meet the allowable levels in the quality standard for
certain physical and chemical attributes (i.e., color, odor, total
dissolved solids (TDS), chloride, iron, manganese, sulfate, and zinc)
that are based on EPA's SMCL's and, as such, are intended only to
ensure the aesthetic quality of the water, i.e., SMCL's are not
established for public health reasons. Consequently, in the November
1995 final rule (60 FR 57076 at 57125), FDA included provisions that
exempt bottled mineral waters that meet the definition for ``mineral
water'' in Sec. 165.110(a)(2)(iii) from complying with the allowable
levels for color, odor, TDS, chloride, iron, manganese, sulfate, and
zinc. Therefore, bottled mineral waters do not have to comply with the
allowable level of 250 mg/L for sulfate. FDA reflected this fact in the
November 1995 final rule (60 FR 57076 at 57125) by including a footnote
to the entry for sulfate in the listing of allowable levels under
Sec. 165.110(b)(4)(I)(A). Therefore, no action in response to this
comment is necessary in this final rule.
3. One comment from an EC GATT Enquiry Point questioned whether
European mineral waters that meet EC Council Directive 80/777/EEC of
July 15, 1980, which established standards relating to the exploitation
and marketing of natural mineral waters for member countries of the EC,
but that contain levels of chemical contaminants that exceed FDA's
proposed allowable levels, particularly those allowable levels that are
based on EPA's SMCL's, can be marketed in the United States. The
comment stated that European mineral waters should be exempt from
complying with allowable levels that are based on aesthetic factors to
prevent any unnecessary trade barriers.
The same comment also stated that, with regard to drinking waters,
the proposed standards for barium, chloride, copper, fluoride, nitrate,
trihalomethanes, TDS, and zinc are stricter than those established in
EC Council Directive 80/778/EEC of July 15, 1980, relating to the
quality of water intended for human consumption (other than natural
mineral waters and medicinal waters). Moreover, the comment stated that
EC Council Directive 80/778/EEC does not contain any limit for
beryllium, thallium, dichloromethane, 1,2,4-trichlorobenzene, 1,1,2-
trichloroethane, dioxin, DEHP, di(2-ethylhexyl)adipate (DEHA), and
hexachlorocyclopentadiene. Consequently, the comment questioned whether
European bottled waters that comply with EC Council Directive 80/778/
EEC will be accepted on the U.S. market, or whether the allowable
levels for chemical contaminants addressed in this final rule might
create technical barriers to trade.
With regard to the U.S. standards for barium, chloride, copper,
fluoride, nitrate, trihalomethanes, TDS, and zinc, FDA notes that the
allowable levels for these chemical contaminants were established in
previous rulemakings and thus are outside the scope of this rulemaking.
Further, FDA disagrees with the comment's assertion that trade
barriers might be created because European bottled water products
meeting EC Council Directives 80/777/EEC and 80/778/EEC may not meet
the allowable levels for certain chemical contaminants in the quality
standard for bottled water for the following two reasons:
First, as stated above, FDA recognizes that the levels of these
physical and chemical contaminants in bottled mineral waters with high
mineral content may exceed the allowable levels.
Thus, in the November 1995 final rule, FDA has provided that
bottled mineral waters are exempt from complying with the allowable
levels for color, odor, TDS, chloride, iron, manganese, sulfate, and
zinc that are all based upon EPA's SMCL's. Therefore, European bottled
mineral waters that meet the definition for ``mineral water'' in
Sec. 165.110(a)(2)(iii) do not have to comply with the allowable levels
for these contaminants in the quality standard for bottled water. There
is, consequently, no basis for the concern expressed by the comment.
Second, with respect to other chemical contaminants (i.e.,
beryllium, thallium, dichloromethane, 1,2,4-trichlorobenzene, 1,1,2-
trichloroethane, hexachlorocyclopentadiene, dioxin, DEHP, and DEHA)
addressed in this final rule and for which no limits are established in
the EC Council Directive 80/778/EEC, the comment did not provide any
evidence of any European bottled waters that would not meet the
allowable levels for these chemical contaminants. In addition, except
for the chemical DEHP, FDA is not aware of any evidence that would
indicate that European bottled waters would not meet the allowable
levels for the chemical contaminants addressed in this final rule.
Moreover, if a bottled water product (domestic or imported) exceeds
an allowable level for a particular contaminant, under the labeling
provisions of Sec. 165.110(c), the bottler can still market that
product, provided that the labeling bears a statement of substandard
quality (e.g., if it exceeds the allowable level for thallium, the
[[Page 13260]]
labeling shall state either ``Contains Excessive Thallium'' or
``Contains Excessive Chemical Substances'' if the bottled water is not
mineral water under Sec. 165.110(c)(3)). Therefore, should a European
or an American bottled water product exceed the allowable levels for
certain contaminants, it still can be marketed in the United States if
its labeling bears the prescribed statement for those contaminants.
Consequently, because FDA does not expect that European bottled
waters will exceed the allowable levels for the chemical contaminants
addressed in this final rule, and because bottled water that exceeds
the allowable level for a contaminant can still be sold in the United
States if it bears the prescribed label statement, FDA rejects the
comment's suggestion that this final rule will create technical trade
barriers.
However, FDA reminds water bottlers (domestic and foreign) that any
bottled water containing a substance at a level considered injurious to
health is adulterated under section 402(a)(1) of the act (21 U.S.C.
342(a)(1)) and is subject to regulatory action, regardless of whether
or not the bottled water bears a label statement of substandard quality
prescribed in Sec. 165.110(c). In this regard, FDA notes that the GATT
Agreement on Sanitary and Phytosanitary (SPS) measures, resulting from
the Uruguay Round of Multilateral Trade Negotiations, permits countries
to give food safety requirements priority over trade when those
requirements are based on valid scientific information.
4. One comment from a trade association representing bottled water
manufacturers opposed FDA's proposal to adopt EPA's MCL for endrin as
the allowable level in bottled water because EPA's level for endrin in
public drinking water is higher than the existing allowable level for
this contaminant in the bottled water quality standard. The comment
argued that bottlers can and have met, without exception, the existing
allowable level for endrin in bottled water, and thus, FDA should keep
the more stringent allowable level for endrin in bottled water. The
comment further argued that while it does not disagree with FDA's
acknowledgment of EPA's risk assessment for contaminants, FDA should
not weaken the bottled water quality standard merely because EPA has
established less stringent level for public water utilities based on
their technical limitations.
FDA rejects the comment's call to retain the existing allowable
level for endrin in the bottled water quality standard that is lower
than the EPA's MCL for endrin in public drinking water. In the past, in
similar circumstances where FDA had proposed to establish allowable
levels for contaminants in bottled water based upon EPA's MCL's that
were less stringent than existing allowable levels, FDA has concluded
(see e.g. 59 FR 61529 at 61531, December 1, 1994) that its general
policy of adopting EPA's MCL's for chemical contaminants as allowable
levels in bottled water (where bottled water may be expected to contain
the contaminants at issue (58 FR 41612 at 41613, August 4, 1993)) is
appropriate because it will protect the public health, maintain
consistent standards for identical contaminants in bottled water and
public drinking water, prevent duplication of efforts between FDA and
EPA in evaluating the effects of contaminants in drinking water, and
not foster public perception that bottled water is required to be of
better quality than tap water. This continues to be the agency's
position. Therefore, for these reasons, FDA is adopting EPA's MCL's for
endrin as the allowable level in the quality standard for bottled
water.
In conclusion, the majority of the comments to the August 1993
proposal supported the proposed allowable levels for the 5 IOC's and 18
SOC's in the quality standard for bottled water. Further, the agency
has addressed the comments that suggested modifications to or were
opposed to various allowable levels in the proposal. With the exception
of the comment pertaining to the proposed allowable level for DEHP (see
comment 1 of this document), none of the comments have persuaded FDA
that it should not adopt the allowable levels as proposed for the
remaining chemical contaminants. The agency, therefore, is adopting the
allowable levels for 22 of the 23 chemical contaminants (excluding
DEHP) in the quality standard for bottled water as proposed (58 FR
41612).
C. Comments Related to Monitoring for Chemical Contaminants Under the
Bottled Water CGMP Regulations
5. One comment from a nonprofit private organization stated that
laboratory equipment (e.g., inductively coupled plasma-mass
spectroscopy (ICP-MS)) for determining a number of trace elements such
as antimony, beryllium, and nickel) addressed in this rulemaking is not
available to a large number of laboratories because of the cost of such
equipment. Further, the comment maintained that a limited number of
laboratories exist that are qualified to perform many of the methods
that FDA is proposing to adopt for measuring these chemical
contaminants in bottled water. Consequently, the comment asserted that
a large number of bottlers could be in violation of monitoring
requirements for these contaminants because laboratories qualified to
perform the analytical methods to determine these chemical contaminants
may not be readily available.
FDA disagrees with this comment. In its July 1992 final rule (57 FR
31776 at 31798), that established NPDWR's for the chemical contaminants
addressed in this final rule, EPA stated that selection of analytical
methods for compliance monitoring of the chemical contaminants was
based on the following factors: (1) Reliability (i.e., precision/
accuracy) of the analytical results; (2) specificity in the presence of
interferences; (3) availability of enough equipment and trained
personnel to implement a national monitoring program (i.e., laboratory
availability); (4) rapidity of analysis to permit routine use; and (5)
cost of analysis to water supply systems.
Further, EPA stated in its July 1992 final rule (57 FR 31776 at
31799) that, although the ICP-MS technique for determining inorganic
chemical contaminants (i.e., elements such as antimony, beryllium, and
nickel) is not used widely, it expects that routine use of this
equipment for determining trace elements in water samples will soon
become the norm comparable to current routine laboratory use of gas
chromatography/mass spectrometry (GC/MS) techniques for water analysis.
In addition, EPA stated that, although the cost of the equipment is
high, the capability of ICP-MS technique (i.e., high sensitivity, short
analysis times, and multiple metal analytical capability) makes it a
cost effective investment because of lower operational costs when
compared to trace element determination with such techniques as
conventional atomic absorption spectrophotometry. EPA concluded that
the ICP-MS technique is technologically and economically feasible for
routine compliance monitoring of water samples and adopted the
technique for determining trace elements in water samples. Finally, EPA
stated that the ICP-MS technique is one of many being approved for
determining trace elements in water samples, and laboratories without
ICP-MS technique capability may use other conventional methods.
Based on the factors discussed above (i.e., reliability,
specificity, availability, rapidity) that EPA considered in adopting
analytical methods for determining the levels in public drinking water
of the 24 chemical contaminants that are the subject of this
rulemaking, FDA concludes that
[[Page 13261]]
laboratories are readily available that are competent in performing the
applicable analytical methods for the 22 chemical contaminants for
which it is establishing allowable levels. FDA therefore rejects the
comment's suggestion that a large number of bottlers could be in
violation of the monitoring requirements for a number of the
contaminants because laboratories qualified to perform the required
analytical methods are not readily available.
6. Comments from a trade association representing bottled water
manufacturers and from a nonprofit private organization maintained
that, for nine of the chemical contaminants addressed in the proposal,
namely the IOC's antimony, beryllium, cyanide, nickel, and thallium and
the SOC's diquat, endothall, glyphosate, and dioxin, finalization of
the proposed allowable levels would, under the CGMP requirements for
bottled water (part 129), require additional analytical testing to be
performed by water bottlers for monitoring purposes. Bottlers would
have to test for these contaminants at least annually using methods
other than those that are being used to analyze bottled water for
compliance with the quality standard. The comment from the bottled
water trade association stated that this additional testing would
impose an additional cost of over one million dollars annually on
bottlers. To ease the economic burden that would result from these
testing requirements, the comments recommended that the agency adopt
monitoring requirements for bottled water that are similar to EPA's
monitoring requirements, which would allow bottlers to obtain waivers
permitting them to monitor finished bottled water products for chemical
contaminants less frequently than once per year if they can establish
that a contaminant is not likely to be present in the source water for
bottling or in the finished bottled water products.
However, comments from two State public health departments
contended that water bottlers should continue to be required to test
their products at least annually for chemical contaminants. One of
these comments argued that the current minimum annual testing is
essential, and that cost should not be a consideration, even for small
bottling companies.
FDA recognizes that the number of chemical contaminants that
bottlers must monitor under the bottled water CGMP regulations has
increased substantially in recent years. FDA also recognizes that the
increased monitoring requirements pose additional costs to water
bottlers. Further, data submitted by one commenter that was obtained
from a nonprofit private organization that offers testing services for
the bottled water industry suggest that bottled water frequently would
not be expected to contain detectable levels of the types of
nonnaturally occurring contaminants regulated under the bottled water
quality standard (i.e., pesticides and SOC's), and that the instances
where such chemicals are detected are relatively few in number.
Moreover, the levels of such contaminants, when found, are well below
the allowable levels. The data also suggest that naturally occurring
contaminants, e.g., IOC's, are frequently not found in bottled water,
and that when they are found in bottled water, they do not exceed the
allowable levels and, in fact, are usually found at levels well below
the allowable levels.
For example, a 1990 analytical test summary showed that among a set
of 97 bottled water products analyzed for 6 pesticide chemicals
(endrin, lindane, methoxychlor, toxaphene, 2,4-D, and 2,4,5-TP), none
tested positive for any of these 6 pesticide chemicals, i.e., no
pesticide chemical was detected in 582 (i.e., 6 x 97) analyses. The
analytical test summary also showed that among another set of 21
bottled water products analyzed for 11 different pesticide chemicals
(simazine, atrazine, alachlor, heptachlor, chlordane, oxamyl,
carbofuran, dalapon, pentachlorophenol, dinoseb, and picloram), none
tested positive for any of these 11 pesticide chemicals, i.e., no
pesticide chemical was detected in the 231 (i.e., 11 x 21) analyses.
Further, in 1993, among 150 bottled water samples analyzed for the
above 17 pesticide chemicals for which EPA has established MCL's, none
showed the presence of any of these 17 pesticide chemicals, i.e., no
pesticide chemical was detected in the 2,550 (i.e., 17 x 150) analyses.
In addition, the commenter submitted another 1990 analytical
summary showing that among 97 bottled water products tested for 32
contaminants (18 IOC's, 11 nonpesticide SOC's, and 3 physical/quality
attributes) for which FDA has established allowable levels in the
bottled water quality standard, none contained any of these
contaminants above the allowable levels. Nonpesticide SOC's were
detected in 70 instances among the 1,067 (i.e., 11 x 97) analyses, but
in no case did the level detected exceed 20 percent of the allowable
level. Further, when testing was done for other types of contaminants
(IOC's) and physical/quality attributes (e.g., odor, turbidity), such
contaminants were not detected in 76 percent (i.e., 1,554 of 2,037) of
the analyses, and in no case did a contaminant exceed the allowable
level. Contaminants exceeding 50 percent of the allowable level were
detected in only 12 instances among 2,037 analyses, and in all but 1 of
these instances, the contaminants or physical/quality attributes that
were detected (e.g., color, odor, TDS, iron, manganese) were those for
which FDA has established allowable levels based on EPA's SMCL's to
address the aesthetic effects, but not the health effects, of the
contaminants. Contaminants exceeding 20 percent of the allowable level
were detected in 100 instances among the 2,037 analyses, and in all but
6 of these instances, the contaminants or physical/quality attributes
detected were those for which FDA has established allowable levels
based on EPA's SMCL's.
In view of these facts, the commenter's suggestion that FDA adopt
monitoring requirements for bottled water that are similar to EPA's
monitoring requirements (i.e., that would allow bottlers to monitor
finished bottled water products for chemical contaminants less
frequently than once per year if they can establish that a contaminant
is not likely to be present in the source water for bottling or in the
finished bottled water products) merits consideration by the agency.
However, any revision of the monitoring requirements for chemical
contaminants in bottled water would require a careful consideration of
all the relevant facts and an opportunity for input from all concerned
parties. It would also require an amendment of the bottled water CGMP
regulations. As such, it is beyond the scope of this rulemaking. This
rulemaking only addresses the allowable levels for certain chemical
contaminants in the quality standard for bottled water.
FDA intends to initiate rulemaking to address the issue of the
circumstances in which reduced frequency of monitoring for chemical
contaminants in bottled water products is appropriate. This rulemaking
will consider the issues raised in the comments from the State health
department summarized above. However, the agency's ability to undertake
this rulemaking expeditiously will depend on the availability of agency
resources and other competing priorities, particularly those of a
significant public health concern.
As discussed above, FDA is adopting the allowable levels for 22 of
23 chemical contaminants (excluding DEHP) in the quality standard for
bottled water as proposed (58 FR 41612). However, given the cost of
testing for the nine chemical
[[Page 13262]]
contaminants in question (antimony, beryllium, cyanide, nickel,
thallium, diquat, endothall, glyphosate, and dioxin), and the fact that
the comments have submitted data showing that it is unlikely that
IOC's, SOC's, and pesticide contaminants will be found in bottled water
at levels that would pose a quality or safety concern, FDA finds that
it is in the public interest and in the interest of justice to stay the
effective date of the allowable levels for these nine comtaminants, in
accordance with 21 CFR 10.35(e). FDA is staying the effect of these
allowable levels until it has completed a rulemaking to address the
issue of reduced frequency monitoring for chemical contaminants in
bottled water. As a result of this action, bottlers are not required to
monitor source waters and finished bottled water products annually for
these nine chemical contaminants at this time.
FDA, however, reminds water bottlers that they are responsible for
ensuring that all bottled water products introduced or delivered for
introduction into interstate commerce are safe, wholesome, and
appropriately labeled. Moreover, any bottled water containing any
substance (including any of the nine chemical contaminants for which
the allowable levels are being stayed) at a level that may be injurious
to health under section 402 of the act is adulterated and will be
subject to regulatory action. Consequently, FDA advises water bottlers
to ensure through appropriate manufacturing techniques and sufficient
quality control procedures that their bottled water products are safe
with respect to levels of these nine chemical contaminants.
III. Conclusion
The agency is adopting the provisions concerning allowable levels
for 22 of the 23 chemical contaminants (excluding DEHP) in the quality
standard for bottled water as proposed (58 FR 41612). However, FDA is
staying the effective date of the allowable levels for nine of these
chemical contaminants (five IOC's and four SOC's) for the reasons
explained in the response to comment 6 of this document. Further, as
explained in response to comment 1 of this document, FDA is deferring
final action on the proposed allowable level for the nonpesticide
chemical DEHP.
The majority of the comments to the August 1993 proposal supported
the provisions concerning allowable levels that FDA is adopting in this
final rule. Further, after carefully considering the comments that the
agency received that suggested modifications to, or that were opposed
to, various provisions of the proposal, the agency has determined that
no changes in the final rule other than those discussed in the response
to comment 6 of this document concerning staying of the effective date
for 9 of the 23 contaminants and in response to comment 1 of this
document concerning deferring final action on DEHP are warranted.
In the November 1995 final rule that established a standard of
identity for bottled water, FDA moved the standard of quality for
bottled water from Sec. 103.35 (21 CFR 103.35) to Sec. 165.110.
Therefore, the provisions that are being added to the quality standard
in this final rule are being codified under Sec. 165.110 and not under
Sec. 103.35 (as was proposed), which has been superseded.
With respect analytical methods for the determination of chemical
contaminants, FDA is making the following changes in
165.110(b)(4)(iii).
In Sec. 165.110(b)(4)(iii)(E)(1)(iv), FDA cites the updated version
of proposed Method D-3697-87 (i.e., Method D-3697-92), and in
Sec. 165.110(b)(4)(iii)(E)(7)(iv), FDA cites the updated version of
proposed Method D-2036-89A (i.e., Method D-2036-91).
These methods are contained in the manual entitled ``Annual Book of
ASTM Standards,'' vols. 11.01 and 11.02, 1995, American Society for
Testing and Materials (ASTM), 100 Barr Harbor Dr., West Conshoocken, PA
19428, which is incorporated by reference in accordance with 5 U.S.C.
552(a) and 1 CFR part 51. The source for the manual containing the two
methods is the American Society for Testing and Materials. FDA is
adopting the updated versions of the two methods because the proposed
older versions (i.e., Method D-3697-87 and Method D-2036-89A) are
contained in the 1991 edition of the manual entitled ``Annual Book of
ASTM Standards,'' vols. 11.01 and 11.02, which the publisher has
discontinued printing, and therefore, is no longer commercially
available.
Further, FDA is deleting proposed Sec. 103.35(d)(3)(v)(H)(5) that
contains the analytical method, 4500-CN-F which is one of five methods
that FDA proposed to adopt for determining cyanide in bottled water.
FDA proposed to adopt Method 4500-CN-F that is contained in ``Standard
Methods for the Examination of Water and Wastewater,'' 17th ed. (1989),
published by the American Public Health Association, Washington, DC.
However, the publisher has discontinued printing the 1989 edition of
the Standard Methods for the Examination of Water and Wastewater.
Consequently, the 1989 version of Method 4500-CN-F is no longer
commercially available. Therefore, because the 1989 version of Method
4500-CN-F is no longer commercially available, and because FDA is
incorporating by reference four other methods (three EPA methods and
one ASTM method) for determining cyanide in bottled water, FDA is not
adopting Method 4500-CN-F.
Finally, FDA is consolidating and relisting in alphabetical order
all of the appropriate analytical methods that the agency either
previously incorporated by reference or is incorporating by reference
in this final rule in recodified Sec. 165.110(b)(4)(iii)(E),
(b)(4)(iii)(F), and (b)(4)(iii)(G).
Therefore, upon the effective date of this rule, September 23,
1996, any bottled water that contains any of the 13 chemical
contaminants for which the allowable levels are effective at a level
that exceeds the applicable allowable levels will be misbranded under
section 403(h)(1) of the act (21 U.S.C. 343(h)(1)) unless it bears a
statement of substandard quality as provided by Sec. 165.110(c)(3).
IV. Environmental Impact
The agency has previously considered the environmental effects of
this rule as announced in the proposed rule (58 FR 41612, August 4,
1993). No new information or comments have been received that would
affect the agency's previous determination that there is no significant
impact on the human environment and that an environmental impact
statement is not required.
V. Analysis of Economic Impacts
FDA has examined the impacts of this final rule which amends the
quality standard for bottled water by establishing or revising
allowable levels for 5 IOC's and 17 SOC's (excluding DEHP) as required
by Executive Order 12866 and the Regulatory Flexibility Act (Pub. L.
96-654). Executive Order 12866 directs agencies to assess all costs and
benefits of available regulatory alternatives and, when regulation is
necessary, to select regulatory approaches that maximize net benefits
(including potential economic, environmental, public health and safety,
and other advantages; distributive impacts; and equity).
The Regulatory Flexibility Act requires analyzing options for
regulatory relief for small businesses. FDA finds that this final rule
is not a significant regulatory action as defined by Executive Order
12866. In compliance with the Regulatory Flexibility Act, the agency
certifies that the final rule will
[[Page 13263]]
not have a significant impact on a substantial number of small
businesses.
A. Costs
In the August 1993 proposal, FDA presented an analysis of the
economic impact of the proposed requirements under the previous
Executive Order 12291. In that analysis, the agency stated that the
benefits of the proposed rule are expected to be zero because none of
the 23 chemicals found in currently marketed bottled water are expected
to be above the levels of the proposed standard. FDA also stated that
the costs of this regulation will only be for testing of these
chemicals according to the CGMP regulations for bottled water. A single
test can be used to simultaneously analyze a number of chemicals and
can cost up to $3,000 per sample. To the extent that the tests
currently being performed can be used to test for any of the 23
chemicals, there would be no additional costs imposed by this rule.
As mentioned above, in response to that analysis the agency
received two comments, one from a trade association representing
bottled water manufacturers and one from a nonprofit private
organization. One of the comments stated that, under the proposal, 14
contaminants may be analyzed using methods that can simultaneously test
for a number of currently regulated chemicals, and that no additional
testing cost would be required. However, the other nine of these
chemicals would require additional testing, which would increase costs
for each bottled water product by $1,290 per sample, and by another
$1,290 for each nonmunicipal source. In the United States there are
1,000 to 1,100 bottled water products that under the proposed
requirements would require additional testing (Ref. 1). The incremental
annual costs to bottlers would then range between $1.29 to $1.419
million for additional testing of the finished bottled water products
(i.e., $1,290 x 1,000 to 1,100 bottled water products). The number of
nonmunicipal sources affected is not known, but assuming that, on
average, 50 percent of the total bottled water products are from
nonmunicipal sources, the cost of the additional testing would be
$1,290 x 500 nonmunicipal sources or $645,000 annually. The total
annual costs of additional testing would be approximately $2 million.
According to a trade association comment, approximately 140 of
their member bottlers are considered small or have sales that are below
$1 million. These 140 small bottlers represent approximately half of
the small bottlers in the country (Ref. 1). On average, each small
bottler produces two products. Thus the incremental annual cost to
small bottlers is estimated as 280 bottlers x 2 products x $1,290,
which would be equal to $722,400. The total future discounted costs (6
percent) to small businesses would be $12 million.
In addition, as mentioned above (see response to comment 6 of this
document, supra), 1990 and 1993 data from a nonprofit private
organization that offers testing services for the bottled water
industry suggest that bottled water frequently may not be expected to
contain detectable levels of the types of nonnaturally occurring
contaminants regulated under the bottled water quality standard (e.g.,
pesticides and SOC's), and that the instances where such chemicals may
be detected are relatively few in number. The data also show that the
levels of such contaminants, when found, are well below the allowable
levels. FDA has also received data that suggest that some types of
contaminants, e.g., IOC's, are frequently not found in bottled water
and, when found in bottled water, do not exceed the allowable levels
and are usually found at levels well below the allowable levels. For
these reasons, the comment suggested that FDA provide waivers similar
to those provided by EPA that would allow less frequent monitoring of
contaminants not likely to be found in bottled water. Although this
suggestion warrants consideration by the agency, any revision of the
monitoring requirements for chemical contaminants in bottled water
would require amending the bottled water CGMP regulations. An amendment
of CGMP regulations is beyond the scope of this rulemaking.
As mentioned earlier, FDA intends to initiate rulemaking to address
the issue of reduced frequency monitoring for chemicals that are
unlikely to be present in bottled water. However, the agency's ability
to undertake such rulemaking expeditiously will depend on the
availability of agency resources and other competing priorities,
particularly for those that pose significant public health concerns.
Therefore, as explained above, FDA decided to finalize the allowable
levels for the nine contaminants that cannot be analyzed with currently
used methods but to stay the effective date for these allowable levels
until it undertakes a rulemaking on reduced frequency monitoring for
chemical contaminants in bottled water. Thus, while stayed, this rule
results in no additional testing costs for these nine contaminants.
To assess the minimum expected cost of this rule if the monitoring
frequency requirements in the CGMP are reduced, FDA assumes that any
revision of the CGMP would require at least initial testing for the
nine contaminants for which the allowable levels are being stayed. The
cost for this initial testing for 1,000 to 1,100 bottled water products
and 500 nonmunicipal sources would be approximately $2 million as
stated above. This is the minimum expected cost since additional
testing (at less frequent intervals) still would be required after the
initial testing. No reformulation costs are expected because none of
the 23 contaminants are found in bottled water above the levels of the
proposed standard.
B. Benefits
In the Economic Impact Analysis of the proposed rule FDA determined
that, because none of the 23 contaminants are expected to be found in
bottled water above the levels of the standards, benefits of the
proposed rule were expected to be zero. However, this rule ensures
that, should current conditions change, such as new sources of water or
new manufacturing practices, the level of these contaminants will
remain low. Although the health benefits of this regulation are
expected to be small, regulation similar to that for municipal water
may improve consumer perceptions of the risk associated with bottled
water, particularly relative to municipal water.
VI. Reference
The following reference has been place on display in the Dockets
Management Branch (HFA-305), Food and Drug Administration, 12420
Parklawn Dr., rm. 1-23, Rockville, MD 20875, and may be seen by
interested persons between 9 a.m. and 4 p.m., Monday through Friday.
1. Memorandum of telephone conversation to Tyrone Wilson of the
International Bottled Water Association (IBWA), from Christinia
Ford, (FDA), September 7, 1995.
List of Subjects in 21 CFR Part 165
Beverages, Bottled water, Food grades and standards, Incorporation
by reference.
Therefore, under the Federal Food, Drug, and Cosmetic Act and under
authority delegated to the Commissioner of Food and Drugs, 21 CFR part
165 is amended as follows:
PART 165--BEVERAGES
1. The authority citation for 21 CFR part 165 continues to read as
follows:
Authority: Secs. 201, 401, 403, 403A, 409, 410, 701, 721 of the
Federal Food, Drug, and Cosmetic Act (21 U.S.C. 321, 341, 343, 343A,
348, 349, 371, 379e).
[[Page 13264]]
2. Section 165.110 is amended in the table in paragraph
(b)(4)(i)(A) by removing the entries for ``Sulfate'' and ``Endrin * *
*'', by alphabetically adding new entries in the tables in paragraphs
(b)(4)(iii)(A), (b)(4)(iii)(B), (b)(4)(iii)(C), and (b)(4)(iii)(D), and
by revising paragraphs (b)(4)(iii)(E), (b)(4)(iii)(F), and
(b)(4)(iii)(G) to read as follows:
Sec. 165.110 Bottled water.
* * * * *
(b) * * *
(4) * * *
(iii) * * *
(A) * * *
------------------------------------------------------------------------
Concentration in
milligrams per
Contaminant liter (or as
specified)
------------------------------------------------------------------------
Antimony \1\.......................................... .006
* * * *
* * *
Beryllium \1\......................................... 0.004
* * * *
* * *
Cyanide \1\........................................... 0.2
* * * *
* * *
Nickel \1\............................................ 0.1
* * * *
* * *
Thallium \1\.......................................... 0.002
* * * *
* * *
------------------------------------------------------------------------
\1\ Stayed until further notice. See Sec. 165.110(b)(4)(iii)
(G)(3)(iv).
(B) * * *
------------------------------------------------------------------------
Concentration in
Contaminant (CAS Reg. No.) milligrams per
liter
------------------------------------------------------------------------
* * * *
Dichloromethane (75-09-2)............................. 0.005
* * * *
* * *
1,2,4-Trichlorobenzene (120-82-1)..................... 0.07
* * * *
* * *
1,1,2-Trichloroethane (79-00-5)....................... 0.005
* * * *
* * *
------------------------------------------------------------------------
(C) * * *
------------------------------------------------------------------------
Concentration
Contaminant (CAS Reg. No.) in milligrams
per liter
------------------------------------------------------------------------
* * * *
Benzo(a)pyrene (50-32-8)................................. 0.0002
* * * *
* * *
Dalapon (75-99-0)........................................ 0.2
* * * *
* * *
* * * *
* * *
Di(2-ethylhexyl)adipate (103-23-1)....................... 0.4
Dinoseb (88-85-7)........................................ 0.007
Diquat (85-00-7)\1\...................................... 0.02
Endothall (145-73-3) \1\................................. 0.1
Endrin (72-20-8)......................................... 0.002
* * * *
* * *
Glyphosate (1071-53-6) \1\............................... 0.7
* * * *
* * *
Hexachlorobenzene (118-74-4)............................. 0.001
Hexachlorocyclopentadiene (77-47-4)...................... 0.05
[[Page 13265]]
* * * *
* * *
Oxamyl (23135-22-0)...................................... 0.2
* * * *
* * *
Picloram (1918-02-1)..................................... 0.5
Simazine (122-34-9)...................................... 0.004
2,3,7,8-TCDD (Dioxin) (1746-01-6) \1\.................... 3 x 10-8
* * * *
* * *
------------------------------------------------------------------------
\1\ Stayed until further notice. See Sec. 165.110(b)(4)(iii)
(G)(3)(iv).
(D) * * *
------------------------------------------------------------------------
Concentration
Contaminant in milligrams
per liter
------------------------------------------------------------------------
* * * *
Sulfate \1\.............................................. 250.0
------------------------------------------------------------------------
\1\ Mineral water is exempt from allowable level. The exemptions are
aesthetically based allowable levels and do not relate to a health
concern.
(E) Analyses to determine compliance with the requirements of
paragraph (b)(4)(iii)(A) of this section shall be conducted in
accordance with an applicable method and applicable revisions to the
methods listed in paragraphs (b)(4)(iii)(E)(1) through
(b)(4)(iii)(E)(13) of this section and described, unless otherwise
noted, in ``Methods for Chemical Analysis of Water and Wastes,'' U.S.
EPA Environmental Monitoring and Support Laboratory (EMSL), Cincinnati,
OH 45258 (EPA-600/4-79-020), March 1983, which is incorporated by
reference in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies
of this publication are available from the National Technical
Information Service (NTIS), U.S. Department of Commerce, 5825 Port
Royal Rd., Springfield, VA 22161, or may be examined at the Center for
Food Safety and Applied Nutrition's Library, Food and Drug
Administration, 200 C Street SW., Washington, DC 20204, or at the
Office of the Federal Register, 800 North Capitol Street NW., suite
700, Washington, DC.
(1) Antimony shall be measured using the following methods:
(i) Method 204.2--``Atomic Absorption; furnace technique,'' which
is incorporated by reference in accordance with 5 U.S.C. 552(a) and 1
CFR part 51. The availability of this incorporation by reference is
given in paragraph (b)(4)(iii)(E) of this section.
(ii) Method 200.8--``Determination of Trace Elements in Water and
Wastes by Inductively Coupled Plasma-Mass Spectrometry,'' Rev. 4.4,
April 1991, U.S. EPA, EMSL. The revision is contained in the manual
entitled ``Methods for the Determination of Metals in Environmental
Samples,'' Office of Research and Development, Washington, DC 20460,
(EPA/600/4-91/010), June 1991, which is incorporated by reference in
accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies of this
publication are available from the National Technical Information
Service, U.S. Department of Commerce, 5825 Port Royal Rd., Springfield,
VA 22161, or may be examined at the Center for Food Safety and Applied
Nutrition's Library, Food and Drug Administration, 200 C Street SW.,
Washington, DC 20204, or at the Office of the Federal Register, 800
North Capitol Street NW., suite 700, Washington, DC.
(iii) Method 200.9--``Determination of Trace Elements by Stabilized
Temperature Graphite Furnace Atomic Absorption Spectrometry,'' Rev.
1.2, April 1991, U.S. EPA, EMSL. The revision is contained in the
manual entitled ``Methods for the Determination of Metals in
Environmental Samples,'' Office of Research and Development,
Washington, DC 20460, (EPA/600/4-91/010), June 1991, which is
incorporated by reference in accordance with 5 U.S.C. 552(a) and 1 CFR
part 51. The availability of this incorporation by reference is given
in paragraph (b)(4)(iii)(E)(1)(ii) of this section.
(iv) Method D-3697-92--``Standard Test Method for Antimony in
Water,'' contained in the Annual Book of ASTM Standards, vols. 11.01
and 11.02, 1995, American Society for Testing and Materials, 100 Barr
Harbor Dr., West Conshohocken, PA 19428, which is incorporated by
reference in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies
of this publication are available from American Society for Testing and
Materials, 100 Barr Harbor Dr., West Conshohocken, PA 19428, or may be
examined at the Center for Food Safety and Applied Nutrition's Library,
Food and Drug Administration, 200 C Street SW., Washington, DC 20204,
or at the Office of the Federal Register, 800 North Capitol Street NW.,
suite 700, Washington, DC.
(2) Barium shall be measured using the following methods:
(i) Method 208.2--``Atomic Absorption; furnace technique,'' which
is incorporated by reference in accordance with 5 U.S.C. 552(a) and 1
CFR part 51, or
(ii) Method 208.1--``Atomic Absorption; direct aspiration,'' which
is incorporated by reference in accordance with 5 U.S.C. 552(a) and 1
CFR part 51. The availability of this incorporation by reference is
given in paragraph (b)(4)(iii)(E) of this section.
(iii) Method 200.7--``Determination of Metals and Trace Elements in
Water and Wastes by Inductively Coupled Plasma-Atomic Emission
Spectrometry,'' Rev. 3.3, April 1991, U.S. EPA, EMSL. The revision is
contained in the manual entitled ``Methods for the Determination of
Metals in Environmental Samples,''
[[Page 13266]]
Office of Research and Development, Washington, DC 20460, (EPA/600/4-
91/010), June 1991, which is incorporated by reference in accordance
with 5 U.S.C. 552(a) and 1 CFR part 51. The availability of this
incorporation by reference is given in paragraph (b)(4)(iii)(E)(1)(ii)
of this section.
(3) Beryllium shall be measured using the following methods:
(i) Method 210.2--``Atomic Absorption; Furnace Technique,'' which
is incorporated by reference in accordance with 5 U.S.C. 552(a) and 1
CFR part 51. The availability of this incorporation by reference is
given in paragraph (b)(4)(iii)(E) of this section.
(ii) Method 200.7--``Determination of Metals and Trace Elements in
Water and Wastes by Inductively Coupled Plasma-Atomic Emission
Spectrometry,'' Rev. 3.3, April 1991, U.S. EPA, EMSL. The revision is
contained in the manual entitled ``Methods for the Determination of
Metals in Environmental Samples,'' Office of Research and Development,
Washington, DC 20460, (EPA/600/4-91/010), June 1991, which is
incorporated by reference in accordance with 5 U.S.C. 552(a) and 1 CFR
part 51. The availability of this incorporation by reference is given
in paragraph (b)(4)(iii)(E)(1)(ii) of this section.
(iii) Method 200.8--``Determination of Trace Elements in Water and
Wastes by Inductively Coupled Plasma-Mass Spectrometry,'' Rev. 4.4,
April 1991, U.S. EPA, EMSL. The revision is contained in the manual
entitled ``Methods for the Determination of Metals in Environmental
Samples,'' Office of Research and Development, Washington, DC 20460,
(EPA/600/4-91/010), June 1991, which is incorporated by reference in
accordance with 5 U.S.C. 552(a) and 1 CFR part 51. The availability of
this incorporation by reference is given in paragraph
(b)(4)(iii)(E)(1)(ii) of this section.
(iv) Method 200.9--``Determination of Trace Elements by Stabilized
Temperature Graphite Furnace Atomic Absorption Spectrometry,'' Rev.
1.2, April 1991, U.S. EPA, EMSL. The revision is contained in the
manual entitled ``Methods for the Determination of Metals in
Environmental Samples,'' Office of Research and Development,
Washington, DC 20460, (EPA/600/4-91/010), June 1991, which is
incorporated by reference in accordance with 5 U.S.C. 552(a) and 1 CFR
part 51. The availability of this incorporation by reference is given
in paragraph (b)(4)(iii)(E)(1)(ii) of this section.
(4) Cadmium shall be measured using the following methods:
(i) Method 213.2--``Atomic Absorption; Furnace Technique,'' which
is incorporated by reference in accordance with 5 U.S.C. 552(a) and 1
CFR part 51. The availability of this incorporation by reference is
given in paragraph (b)(4)(iii)(E) of this section.
(ii) Method 200.7--``Determination of Metals and Trace Elements in
Water and Wastes by Inductively Coupled Plasma-Atomic Emission
Spectrometry,'' Rev. 3.3, April 1991, U.S. EPA, EMSL. The revision is
contained in the manual entitled ``Methods for the Determination of
Metals in Environmental Samples,'' Office of Research and Development,
Washington, DC 20460, (EPA/600/4-91/010), June 1991, which is
incorporated by reference in accordance with 5 U.S.C. 552(a) and 1 CFR
part 51. The availability of this incorporation by reference is given
in paragraph (b)(4)(iii)(E)(1)(ii) of this section.
(5) Chromium shall be measured using the following methods:
(1) Method 218.2--``Atomic Absorption; furnace technique,'' which
is incorporated by reference in accordance with 5 U.S.C. 552(a) and 1
CFR part 51. The availability of this incorporation by reference is
given in paragraph (b)(4)(iii)(E) of this section.
(2) Method 200.7--``Determination of Metals and Trace Elements in
Water and Wastes by Inductively Coupled Plasma-Atomic Emission
Spectrometry,'' Rev. 3.3, April 1991, U.S. EPA, EMSL. The revision is
contained in the manual entitled ``Methods for the Determination of
Metals in Environmental Samples,'' Office of Research and Development,
Washington, DC 20460, (EPA/600/4-91/010), June 1991, which is
incorporated by reference in accordance with 5 U.S.C. 552(a) and 1 CFR
part 51. The availability of this incorporation by reference is given
in paragraph (b)(4)(iii)(E)(1)(ii) of this section.
(6) Copper shall be measured as total recoverable metal without
filtration using the following methods:
(i) Method 220.2--``Atomic Absorption; furnace technique,'' which
is incorporated by reference in accordance with 5 U.S.C. 552(a) and 1
CFR part 51, or
(ii) Method 220.1--``Atomic Absorption; direct aspiration,'' which
is incorporated by reference in accordance with 5 U.S.C. 552(a) and 1
CFR part 51. The availability of these incorporation by reference is
given in paragraph (b)(4)(iii)(E) of this section.
(iii) Method 200.7--``Determination of Metals and Trace Elements in
Water and Wastes by Inductively Coupled Plasma-Atomic Emission
Spectrometry,'' Rev. 3.3, April 1991, U.S. EPA, EMSL. The revision is
contained in the manual entitled ``Methods for the Determination of
Metals in Environmental Samples,'' Office of Research and Development,
Washington, DC 20460, (EPA/600/4-91/010), June 1991, which is
incorporated by reference in accordance with 5 U.S.C. 552(a) and 1 CFR
part 51. The availability of this incorporation by reference is given
in paragraph (b)(4)(iii)(E)(1)(ii) of this section.
(iv) Method 200.8--``Determination of Trace Elements in Water and
Wastes by Inductively Coupled Plasma-Mass Spectrometry,'' Rev. 4.4,
April 1991, U.S. EPA, EMSL. The revision is contained in the manual
entitled ``Methods for the Determination of Metals in Environmental
Samples,'' Office of Research and Development, Washington, DC 20460,
(EPA/600/4-91/010), June 1991, which is incorporated by reference in
accordance with 5 U.S.C. 552(a) and 1 CFR part 51. The availability of
this incorporation by reference is given in paragraph
(b)(4)(iii)(E)(1)(ii) of this section.
(v) Method 200.9--``Determination of Trace Elements by Stabilized
Temperature Graphite Furnace Atomic Absorption Spectrometry,'' Rev.
1.2, April 1991, U.S. EPA, EMSL. The revision is contained in the
manual entitled ``Methods for the Determination of Metals in
Environmental Samples,'' Office of Research and Development,
Washington, DC 20460, (EPA/600/4-91/010), June 1991, which is
incorporated by reference in accordance with 5 U.S.C. 552(a) and 1 CFR
part 51. The availability of this incorporation by reference is given
in paragraph (b)(4)(iii)(E)(1)(ii) of this section.
(7) Cyanide shall be measured using the following methods:
(i) Method 335.1--``Titrimetric; Spectrophotometric'' which is
incorporated by reference in accordance with 5 U.S.C. 552(a) and 1 CFR
part 51, or
(ii) Method 335.2--``Titrimetric; Spectrophotometric'' which is
incorporated by reference in accordance with 5 U.S.C. 552(a) and 1 CFR
part 51, or
(iii) Method 335.3--``Colorimetric, Automated UV,'' which is
incorporated by reference in accordance with 5 U.S.C. 552(a) and 1 CFR
part 51. The availability of these incorporation by reference is given
in paragraph (b)(4)(iii)(E) of this section.
(iv) Method D-2036-91--``Standard Test Methods for Cyanides in
Water,'' contained in the Annual Book of ASTM Standards, vols. 11.01
and 11.02, 1995, American Society for Testing and Materials, 100 Barr
Harbor Dr., West Conshohocken, PA 19428, which is incorporated by
reference in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies
of this publication are available
[[Page 13267]]
from American Society for Testing and Materials, 100 Barr Harbor Dr.,
West Conshohocken, PA 19428, or may be examined at the Center for Food
Safety and Applied Nutrition's Library, 200 C Street SW., Washington,
DC 20204, or at the Office of the Federal Register, 800 North Capitol
Street NW., suite 700, Washington, DC.
(8) Lead shall be measured as total recoverable metal without
filtration using the following methods:
(i) Method 239.2--``Atomic Absorption; furnace technique,'' which
is incorporated by reference in accordance with 5 U.S.C. 552(a) and 1
CFR part 51. The availability of this incorporation by reference is
given in paragraph (b)(4)(iii)(E) of this section.
(ii) Method 200.8--``Determination of Trace Elements in Water and
Wastes by Inductively Coupled Plasma-Mass Spectrometry,'' Rev. 4.4,
April 1991, U.S. EPA, EMSL. The revision is contained in the manual
entitled ``Methods for the Determination of Metals in Environmental
Samples,'' Office of Research and Development, Washington, DC 20460,
(EPA/600/4-91/010), June 1991, which is incorporated by reference in
accordance with 5 U.S.C. 552(a) and 1 CFR part 51. The availability of
this incorporation by reference is given in paragraph
(b)(4)(iii)(E)(1)(ii) of this section.
(iii) Method 200.9--``Determination of Trace Elements by Stabilized
Temperature Graphite Furnace Atomic Absorption Spectrometry,'' Rev.
1.2, April 1991, U.S. EPA, EMSL. The revision is contained in the
manual entitled ``Methods for the Determination of Metals in
Environmental Samples,'' Office of Research and Development,
Washington, DC 20460, (EPA/600/4-91/010), June 1991, which is
incorporated by reference in accordance with 5 U.S.C. 552(a) and 1 CFR
part 51. The availability of this incorporation by reference is given
in paragraph (b)(4)(iii)(E)(1)(ii) of this section.
(9) Mercury shall be measured using the following methods:
(i) Method 245.1--``Manual cold vapor technique,'' which is
incorporated by reference in accordance with 5 U.S.C. 552(a) and 1 CFR
part 51, or
(ii) Method 245.2--``Automated cold vapor technique,'' which is
incorporated by reference in accordance with 5 U.S.C. 552(a) and 1 CFR
part 51. The availability of these incorporation by reference is given
in paragraph (b)(4)(iii)(E) of this section.
(10) Nickel shall be measured using the following methods:
(i) Method 249.1--``Atomic Absorption; direct aspiration,'' which
is incorporated by reference in accordance with 5 U.S.C. 552(a) and 1
CFR part 51, or
(ii) Method 249.2--``Atomic Absorption; furnace technique,'' which
is incorporated by reference in accordance with 5 U.S.C. 552(a) and 1
CFR part 51. The availability of these incorporation by reference is
given in paragraph (b)(4)(iii)(E) of this section.
(iii) Method 200.7--``Determination of Metals and Trace Elements in
Water and Wastes by Inductively Coupled Plasma-Atomic Emission
Spectrometry,'' Rev. 3.3, April 1991, U.S. EPA, EMSL. The revision is
contained in the manual entitled ``Methods for the Determination of
Metals in Environmental Samples,'' Office of Research and Development,
Washington, DC 20460, (EPA/600/4-91/010), June 1991, which is
incorporated by reference in accordance with 5 U.S.C. 552(a) and 1 CFR
part 51. The availability of this incorporation by reference is given
in paragraph (b)(4)(iii)(E)(1)(ii) of this section.
(iv) Method 200.8--``Determination of Trace Elements in Water and
Wastes by Inductively Coupled Plasma-Mass Spectrometry,'' Rev. 4.4,
April 1991, U.S. EPA, EMSL. The revision is contained in the manual
entitled ``Methods for the Determination of Metals in Environmental
Samples,'' Office of Research and Development, Washington, DC 20460,
(EPA/600/4-91/010), June 1991, which is incorporated by reference in
accordance with 5 U.S.C. 552(a) and 1 CFR part 51. The availability of
this incorporation by reference is given in paragraph
(b)(4)(iii)(E)(1)(ii) of this section.
(v) Method 200.9--``Determination of Trace Elements by Stabilized
Temperature Graphite Furnace Atomic Absorption Spectrometry,'' Rev.
1.2, April 1991, U.S. EPA, EMSL. The revision is contained in the
manual entitled ``Methods for the Determination of Metals in
Environmental Samples,'' Office of Research and Development,
Washington, DC 20460, (EPA/600/4-91/010), June 1991, which is
incorporated by reference in accordance with 5 U.S.C. 552(a) and 1 CFR
part 51. The availability of this incorporation by reference is given
in paragraph (b)(4)(iii)(E)(1)(ii) of this section.
(11) Nitrate and/or nitrite shall be measured using the following
methods:
(i) Method 300.0--``The Determination of Inorganic Anions in Water
by Ion Chromatography--Method 300.0,'' EPA, EMSL (EPA-600/4-84-017),
March 1984, which is incorporated by reference in accordance with 5
U.S.C. 552(a) and 1 CFR part 51. Copies of this publication are
available from NTIS, U.S. Department of Commerce, 5825 Port Royal Rd.,
Springfield, VA 22161, or may be examined at the Center for Food Safety
and Applied Nutrition's Library, Food and Drug Administration, 200 C
Street SW., Washington, DC 20204, or at the Office of the Federal
Register, 800 North Capitol Street NW., suite 700, Washington, DC.
(ii) Method 353.1--``Colorimetric, automated, hydrazine
reduction,'' for nitrate only, which is incorporated by reference in
accordance with 5 U.S.C. 552(a) and 1 CFR part 51, or
(iii) Method 353.2--``Colorimetric, automated, cadmium reduction,''
for both nitrate and nitrite, which is incorporated by reference in
accordance with 5 U.S.C. 552(a) and 1 CFR part 51, or
(iv) Method 353.3--``Spectrophotometric, cadmium reduction,'' for
both nitrate and nitrite, which is incorporated by reference in
accordance with 5 U.S.C. 552(a) and 1 CFR part 51, or
(12) Selenium shall be measured using the following methods:
(i) Method 270.2--``Atomic Absorption; furnace technique,'' which
is incorporated by reference in accordance with 5 U.S.C. 552(a) and 1
CFR part 51, or
(ii) Method 270.3--``Atomic Absorption; gaseous hydride,'' which is
incorporated by reference in accordance with 5 U.S.C. 552(a) and 1 CFR
part 51. The availability of this incorporation by reference is given
in paragraph (b)(4)(iii)(E) of this section.
(13) Thallium shall be measured using the following methods:
(i) Method 279.2--``Atomic Absorption; furnace technique,'' which
is incorporated by reference in accordance with 5 U.S.C. 552(a) and 1
CFR part 51. The availability of this incorporation by reference is
given in paragraph (b)(4)(iii)(E) of this section.
(ii) Method 200.8--``Determination of Trace Elements in Water and
Wastes by Inductively Coupled Plasma-Mass Spectrometry,'' Rev. 4.4,
April 1991, U.S. EPA, EMSL. The revision is contained in the manual
entitled ``Methods for the Determination of Metals in Environmental
Samples,'' Office of Research and Development, Washington, DC 20460,
(EPA/600/4-91/010), June 1991, which is incorporated by reference in
accordance with 5 U.S.C. 552(a) and 1 CFR part 51. The availability of
this incorporation by reference is given in paragraph
(b)(4)(iii)(E)(1)(ii) of this section.
(iii) Method 200.9--``Determination of Trace Elements by Stabilized
Temperature Graphite Furnace Atomic Absorption Spectrometry,'' Rev.
1.2, April 1991, U.S. EPA, EMSL. The revision is contained in the
manual
[[Page 13268]]
entitled ``Methods for the Determination of Metals in Environmental
Samples,'' Office of Research and Development, Washington, DC 20460,
(EPA/600/4-91/010), June 1991, which is incorporated by reference in
accordance with 5 U.S.C. 552(a) and 1 CFR part 51. The availability of
this incorporation by reference is given in paragraph
(b)(4)(iii)(E)(1)(ii) of this section.
(F) Analyses to determine compliance with the requirements of
paragraphs (b)(4)(iii)(B) and (b)(4)(iii)(C) of this section shall be
conducted in accordance with an applicable method or applicable
revisions to the methods listed in paragraphs (b)(4)(iii)(F)(1) through
(b)(4)(iii)(F)(20) of this section and described, unless otherwise
noted, in ``Methods for the Determination of Organic Compounds in
Drinking Water,'' Office of Research and Development, EMSL, EPA/600/4-
88/039, December 1988, or in ``Methods for the Determination of Organic
Compounds in Drinking Water, Supplement 1,'' Office of Research and
Development, EMSL, EPA/600/4-90/020, July 1990, which are incorporated
by reference in accordance with 5 U.S.C. 552(a) and 1 CFR part 51.
Copies of these publications are available from NTIS, U.S. Department
of Commerce, 5285 Port Royal Rd., Springfield, VA 22161, or may be
examined at the Center for Food Safety and Applied Nutrition's Library,
Food and Drug Administration, 200 C St. SW., Washington, DC, or at the
Office of the Federal Register, 800 North Capitol St. NW., suite 700,
Washington, DC.
(1) Method 502.1--``Volatile Halogenated Organic Compounds in Water
by Purge and Trap Gas Chromatography,'' Rev. 2.0, 1989, (applicable to
VOC's), which is incorporated by reference in accordance with 5 U.S.C.
552(a) and 1 CFR part 51, or
(2) Method 502.2--``Volatile Organic Compounds in Water by Purge
and Trap Capillary Column Gas Chromatography with Photoionization and
Electrolytic Conductivity Detectors in Series,'' Rev. 2.0, 1989,
(applicable to VOC's), which is incorporated by reference in accordance
with 5 U.S.C. 552(a) and 1 CFR part 51, or
(3) Method 503.1--``Volatile Aromatic and Unsaturated Organic
Compounds in Water by Purge and Trap Gas Chromatography,'' Rev. 2.0,
1989, (applicable to VOC's), which is incorporated by reference in
accordance with 5 U.S.C. 552(a) and 1 CFR part 51, or
(4) Method 524.1--``Measurement of Purgeable Organic Compounds in
Water by Packed Column Gas Chromatography/Mass Spectrometry,'' Rev.
3.0, 1989, (applicable to VOC's), which is incorporated by reference in
accordance with 5 U.S.C. 552(a) and 1 CFR part 51, or
(5) Method 524.2--``Measurement of Purgeable Organic Compounds in
Water by Capillary Column Gas Chromatography/Mass Spectrometry,'' Rev.
3.0, 1989, (applicable to VOC's), which is incorporated by reference in
accordance with 5 U.S.C. 552(a) and 1 CFR part 51, or
(6) Method 504--``1,2-Dibromoethane (EDB) and 1,2-Dibromo-3-
Chloropropane (DBCP) in Water by Microextraction and Gas
Chromatography,'' Rev. 2.0, 1989, (applicable to dibromochloropropane
(DBCP) and ethylene dibromide (EDB)), which is incorporated by
reference in accordance with 5 U.S.C. 552(a) and 1 CFR part 51, or
(7) Method 505--``Analysis of Organohalide Pesticides and
Commercial Polychlorinated Biphenyl (PCB) Products in Water by
Microextraction and Gas Chromatography,'' Rev. 2.0, 1989, (applicable
to alachlor, atrazine, chlordane, heptachlor, heptachlor epoxide,
lindane, methoxychlor, toxaphene, endrin, hexachlorobenzene,
hexachlorocyclopentadiene, simazine, and as a screen for PCB's), which
is incorporated by reference in accordance with 5 U.S.C. 552(a) and 1
CFR part 51, or
(8) Method 506--``Determination of Phthalate and Adipate Esters in
Drinking Water by Liquid-Liquid Extraction or Liquid-Solid Extraction
and Gas Chromatography with Photoionization Detection,'' applicable to
di(2-ethylhexyl) adipate which is incorporated by reference in
accordance with 5 U.S.C. 552(a) and 1 CFR part 51, or
(9) Method 507--``Determination of Nitrogen- and Phosphorus-
Containing Pesticides in Water by Gas Chromatography with a Nitrogen-
Phosphorus Detector,'' Rev. 2.0, 1989, (applicable to alachlor,
atrazine, and simazine), which is incorporated by reference in
accordance with 5 U.S.C. 552(a) and 1 CFR part 51, or
(10) Method 508--``Determination of Chlorinated Pesticides in Water
by Gas Chromatography with an Electron Capture Detector,'' Rev. 3.0,
1989, (applicable to chlordane, heptachlor, heptachlor epoxide,
lindane, methoxychlor, toxaphene, endrin, hexachlorobenzene, and as a
screen for PCB's), which is incorporated by reference in accordance
with 5 U.S.C. 552(a) and 1 CFR part 51, or
(11) Method 508A--``Screening for Polychlorinated Biphenyls by
Perchlorination and Gas Chromatography,'' Rev. 1.0, 1989, (used to
quantitate PCB's as decachlorobiphenyl if detected in methods 505 or
508 in paragraph (b)(4)(iii)(F)(7) or (b)(4)(iii)(F)(9) of this
section, respectively, which is incorporated by reference in accordance
with 5 U.S.C. 552(a) and 1 CFR part 51, or
(12) Method 515.1--``Determination of Chlorinated Acids in Water by
Gas Chromatography with an Electron Capture Detector,'' Rev. 5.0, 1991,
(applicable to 2,4-D, 2,4,5-TP (Silvex), pentachlorophenol, dalapon,
dinoseb, and picloram), which is incorporated by reference in
accordance with 5 U.S.C. 552(a) and 1 CFR part 51, or
(13) Method 525.1--``Determination of Organic Compounds in Drinking
Water by Liquid-Solid Extraction and Capillary Column Gas
Chromatography/Mass Spectrometry,'' Rev. 2.2, May 1991, (applicable to
alachlor, atrazine, chlordane, heptachlor, heptachlor epoxide, lindane,
methoxychlor, pentachlorophenol, benzo(a)pyrene, di(2-ethylhexyl)
adipate, endrin, hexachlorobenzene, hexachlorocyclopentadiene, and
simazine), which is incorporated by reference in accordance with 5
U.S.C. 552(a) and 1 CFR part 51, or
(14) Method 531.1--``Measurement of N-Methylcarbamoyloximes and N-
Methylcarbamates in Water by Direct Aqueous Injection HPLC with Post
Column Derivatization,'' Rev. 3.0, 1989, (applicable to carbofuran and
oxamyl (vydate)), which is incorporated by reference in accordance with
5 U.S.C. 552(a) and 1 CFR part 51, or
(15) Method 547--``Determination of Glyphosate in Drinking Water by
Direct-Aqueous-Injection HPLC, Post-Column Derivatization, and
Fluorescence Detection,'' (applicable to glyphosate), which is
incorporated by reference in accordance with 5 U.S.C. 552(a) and 1 CFR
part 51, or
(16) Method 548--``Determination of Endothall in Drinking Water by
Aqueous Derivatization, Liquid-Solid Extraction, and Gas Chromatography
with Electron-Capture Detection,'' (applicable to endothall), which is
incorporated by reference in accordance with 5 U.S.C. 552(a) and 1 CFR
part 51, or
(17) Method 549--``Determination of Diquat and Paraquat in Drinking
Water by Liquid-Solid Extraction and HPLC with Ultraviolet Detection,''
(applicable to diquat), which is incorporated by reference in
accordance with 5 U.S.C. 552(a) and 1 CFR part 51, or
[[Page 13269]]
(18) Method 550--``Determination of Polycyclic Aromatic
Hydrocarbons in Drinking Water by Liquid-Liquid Extraction and HPLC
with Coupled Ultraviolet and Fluorescence Detection,'' (applicable to
benzo(a)pyrene and other polynuclear aromatic hydrocarbons), which is
incorporated by reference in accordance with 5 U.S.C. 552(a) and 1 CFR
part 51, or
(19) Method 550.1--``Determination of Polycyclic Aromatic
Hydrocarbons in Drinking Water by Liquid-Solid Extraction and HPLC with
Coupled Ultraviolet and Fluorescence Detection,'' (applicable to
benzo(a)pyrene and other polynuclear aromatic hydrocarbons), which is
incorporated by reference in accordance with 5 U.S.C. 552(a) and 1 CFR
part 51. The availability of these incorporation by reference is given
in paragraph (b)(4)(iii)(F) of this section.
(20) Method 1613--``Tetra- through Octa- Chlorinated Dioxins and
Furans by Isotope Dilution HRGC/HRMS,'' Rev. A, 1990, EPA, Office of
Water Regulations and Standards, Industrial Technology Division,
(applicable to 2,3,7,8-TCDD (Dioxin)), which is incorporated by
reference in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies
of this publication are available from USEPA-OST, Sample Control
Center, P.O. Box 1407, Alexandria, VA 22313, or may be examined at the
Center for Food Safety and Applied Nutrition's Library, Food and Drug
Administration, 200 C St. SW., Washington, DC, or at the Office of the
Federal Register, 800 North Capitol St. NW., suite 700, Washington, DC.
(G) Analyses to determine compliance with the requirements of
paragraph (b)(4)(iii)(D) of this section shall be conducted in
accordance with an applicable method and applicable revisions to the
methods listed in paragraphs (b)(4)(iii)(G)(1) through
(b)(4)(iii)(G)(3) of this section and described, unless otherwise
noted, in ``Methods of Chemical Analysis of Water and Wastes,'' which
is incorporated by reference in accordance with 5 U.S.C. 552(a) and 1
CFR part 51. The availability of this incorporation by reference is
given in paragraph (b)(4)(iii)(E) of this section.
(1) Aluminum shall be measured using the following methods:
(i) Method 202.1--``Atomic Absorption; direct aspiration
technique,'' which is incorporated by reference in accordance with 5
U.S.C. 552(a) and 1 CFR part 51, or
(ii) Method 202.2--``Atomic Absorption; furnace technique,'' which
is incorporated by reference in accordance with 5 U.S.C. 552(a) and 1
CFR part 51. The availability of this incorporation by reference is
given in paragraph (b)(4)(iii)(E).
(iii) Method 200.7--``Determination of Trace Elements in Water and
Wastes by Inductively Coupled Plasma-Atomic Emission Spectrometry,''
Rev. 3.3, April 1991, U.S. EPA, EMSL. The revision is contained in the
manual entitled ``Methods for the Determination of Metals in
Environmental Samples,'' Office of Research and Development,
Washington, DC 20460, (EPA/600/4-91/010), June 1991, which is
incorporated by reference in accordance with 5 U.S.C. 552(a) and 1 CFR
part 51. The availability of this incorporation by reference is given
in paragraph (b)(4)(iii)(E)(1)(ii) of this section.
(iv) Method 200.8--``Determination of Trace Elements in Water and
Wastes by Inductively Coupled Plasma-Mass Spectrometry,'' Rev. 4.4,
April 1991, U.S. EPA, EMSL. The revision is contained in the manual
entitled ``Methods for the Determination of Metals in Environmental
Samples,'' Office of Research and Development, Washington, DC 20460,
(EPA/600/4-91/010), June 1991, which is incorporated by reference in
accordance with 5 U.S.C. 552(a) and 1 CFR part 51. The availability of
this incorporation by reference is given in paragraph
(b)(4)(iii)(E)(1)(ii) of this section.
(v) Method 200.9--``Determination of Trace Elements by Stabilized
Temperature Graphite Furnace Atomic Absorption Spectrometry,'' Rev.
1.2, April 1991, U.S. EPA, EMSL. The revision is contained in the
manual entitled ``Methods for the Determination of Metals in
Environmental Samples,'' Office of Research and Development,
Washington, DC 20460, (EPA/600/4-91/010), June 1991, which is
incorporated by reference in accordance with 5 U.S.C. 552(a) and 1 CFR
part 51. The availability of this incorporation by reference is given
in paragraph (b)(4)(iii)(E)(1)(ii) of this section.
(2) Silver shall be measured using the following methods:
(i) Method 272.1--``Atomic Absorption; direct aspiration
technique,'' which is incorporated by reference in accordance with 5
U.S.C. 552(a) and 1 CFR part 51, or
(ii) Method 272.2--``Atomic Absorption; furnace technique,'' which
is incorporated by reference in accordance with 5 U.S.C. 552(a) and 1
CFR part 51. The availability of this incorporation by reference is
given in paragraph (b)(4)(iii)(E) of this section.
(iii) Method 200.7--``Determination of Trace Elements in Water and
Wastes by Inductively Coupled Plasma-Atomic Emission Spectrometry,''
Rev. 3.3, April 1991, U.S. EPA, EMSL. The revision is contained in the
manual entitled ``Methods for the Determination of Metals in
Environmental Samples,'' Office of Research and Development,
Washington, DC 20460, (EPA/600/4-91/010), June 1991, which is
incorporated by reference in accordance with 5 U.S.C. 552(a) and 1 CFR
part 51. The availability of this incorporation by reference is given
in paragraph (b)(4)(iii)(E)(1)(ii) of this section.
(iv) Method 200.8--``Determination of Trace Elements in Water and
Wastes by Inductively Coupled Plasma-Mass Spectrometry,'' Rev. 4.4,
April 1991, U.S. EPA, EMSL. The revision is contained in the manual
entitled ``Methods for the Determination of Metals in Environmental
Samples,'' Office of Research and Development, Washington, DC 20460,
(EPA/600/4-91/010), June 1991, which is incorporated by reference in
accordance with 5 U.S.C. 552(a) and 1 CFR part 51. The availability of
this incorporation by reference is given in paragraph
(b)(4)(iii)(E)(1)(ii) of this section.
(v) Method 200.9--``Determination of Trace Elements by Stabilized
Temperature Graphite Furnace Atomic Absorption Spectrometry,'' Rev.
1.2, April 1991, U.S. EPA, EMSL. The revision is contained in the
manual entitled ``Methods for the Determination of Metals in
Environmental Samples,'' Office of Research and Development,
Washington, DC 20460, (EPA/600/4-91/010), June 1991, which is
incorporated by reference in accordance with 5 U.S.C. 552(a) and 1 CFR
part 51. The availability of these incorporation by reference is given
in paragraph (b)(4)(iii)(E)(1)(ii) of this section.
(3) Sulfate shall be measured using the following methods:
(i) Method 300.0--``The Determination of Inorganic Anions in Water
by Ion Chromatography--Method 300.0,'' EPA, EMSL (EPA-600/4-84-017),
March 1984, which is incorporated by reference in accordance with 5
U.S.C. 552(a) and 1 CFR part 51. The availability of this incorporation
by reference is given in paragraph (b)(4)(iii)(E)(11)(i) of this
section.
(ii) Method 375.1--``Colorimetric, Automated, Chloranilate,'' which
is incorporated by reference in accordance with 5 U.S.C. 552(a) and 1
CFR part 51, or
(iii) Method 375.3--``Gravimetric,'' which is incorporated by
reference in accordance with 5 U.S.C. 552(a) and 1 CFR part 51, or
(iv) Method 375.4--``Turbidimetric,'' which is incorporated by
reference in accordance with 5 U.S.C. 552(a) and 1
[[Page 13270]]
CFR part 51. The availability of these incorporation by reference is
given in paragraph (b)(4)(iii)(E) of this section.
[Note: the allowable levels in Sec. 165.110 for the chemicals
antimony, beryllium, cyanide, nickel, thallium, diquat, endothall,
glyphosate, and dioxin are stayed until further notice.]
* * * * * *
Dated: March 18, 1996.
William K. Hubbard,
Associate Commissioner for Policy Coordination.
[FR Doc. 96-6940 Filed 3-25-96; 8:45 am]
BILLING CODE 4160-01-P
Complete official Federal Register PDF
FR Doc. 96-6857 Large Multiple-Tube Fireworks Devices; Final Rule
[Federal Register Volume 61, Number 59 (Tuesday, March 26, 1996)]
[Rules and Regulations]
[Pages 13084-13097]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-6857]
=======================================================================
-----------------------------------------------------------------------
CONSUMER PRODUCT SAFETY COMMISSION
16 CFR Part 1500 and Part 1507
Large Multiple-Tube Fireworks Devices; Final Rule
AGENCY: Consumer Product Safety Commission.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Commission is amending its fireworks regulations under the
Federal Hazardous Substances Act. This final rule will require that
large multiple-tube fireworks devices that have any tube with an inner
diameter of 1.5 inches (3.8 cm) or greater pass a performance test for
stability. Under the test, these devices may not tip over when inclined
at an angle of 60 degrees from the horizontal. This requirement is
intended to reduce the risk of injury posed when these fireworks
devices tip over during firing. If they tip over, subsequent tubes may
discharge in the direction of spectators or others in the vicinity.
DATES: The rule will take effect on March 26, 1997, and will apply to
multiple-tube fireworks devices in which any tube has an inner diameter
of 1.5 inches or greater and that first enter interstate commerce or
are imported on or after that date.
Adversely affected persons have until April 25, 1996 to file
objections to this rule, stating grounds therefor and requesting a
public hearing on those objections. Objections and requests for
hearings must be mailed to the Office of the Secretary, Consumer
Product Safety Commission, Washington, D.C. 20207, or delivered to the
Office of the Secretary, Room 502, 4330 East-West Highway, Bethesda,
Maryland 20814 telephone (301) 504-6800.
FOR FURTHER INFORMATION CONTACT: Samuel B. Hall, Office of Compliance,
Consumer Product Safety Commission, Washington, DC 20207-0001;
telephone (301) 504-0400, ext. 1371.
SUPPLEMENTARY INFORMATION:
A. Background
Multiple-tube mine and shell fireworks devices (also called
``display racks'' and referred to in this notice as ``multiple-tube
devices'') are non-reloadable devices that fire multiple aerial shells,
comets, or other effects into the air to produce visual and audible
effects. These devices consist of several vertical tubes with a common
fuse, either with or without a horizontal base. They are classified by
the Department of Transportation (``DOT'') as 1.4G explosive devices
(formerly Class C common fireworks devices) which are suitable for use
by consumers.
The devices are designed to fire sequentially. This creates the
danger that the device's reaction to one shot may cause it to tip over.
Subsequent shots may then fire horizontally or at an angle and hit the
operator or spectators. The Commission is aware of two deaths to
spectators involving multiple-tube devices that occurred in this
manner. Both of these incidents involved devices with tubes larger than
1.5 inches in diameter.
The Commission regulates fireworks devices under the Federal
Hazardous Substances Act (``FHSA''). 15 U.S.C. 1261-1278. Under its
current regulations, the Commission has declared certain fireworks
devices to be ``banned hazardous substances.'' 16 CFR 1500.17(a) (3),
(8) and (9). Other fireworks devices must meet specific requirements to
avoid being classified as banned hazardous substances. 16 CFR Part
1507. Commission regulations also prescribe specific warnings required
on various legal fireworks devices, 16 CFR 1500.14(b)(7), and designate
the size and location of these warnings. 16 CFR 1500.121.
On July 1, 1994, the Commission issued an advance notice of
proposed rulemaking (``ANPR'') discussing the
[[Page 13085]]
hazard presented by multiple-tube devices of all sizes, but noted that
more severe incidents have occurred with large devices. 59 FR 33928.
The ANPR used 1 inch (2.54 cm) as the cutoff between small and large
devices. The ANPR explained that the Commission was considering the
following regulatory alternatives: (1) ban all multiple-tube devices;
(2) ban multiple-tube devices with an inside tube diameter of greater
than 1 inch; (3) require additional labeling on all multiple-tube
devices; (4) establish performance or design criteria to modify these
devices; (5) pursue individual product recalls; and (6) take no
mandatory action, but encourage development of a voluntary standard.
On July 5, 1995, the Commission issued a notice of proposed
rulemaking (``NPR'') in which it proposed a performance standard for
multiple-tube devices with any tube inner diameter of 1.5 inches or
more. 60 FR 34922. The Commission found that 1.5 inches is a more
appropriate measure to distinguish between large and small devices than
is 1 inch, and decided not to propose any further regulatory
requirements for smaller devices.1 The proposed performance
standard provided that all large multiple-tube devices have a minimum
tip angle greater than 60 degrees. With this notice, the Commission
issues the performance standard as a final rule.
\1\ The Commission concluded that additional work would be
needed to develop a standard that adequately addressed the tip-over
hazard with small (less than 1.5 inch diameter) multiple-tube
devices. For example, the Commission would need to test small
devices to determine if the 60-degree tip angle is the proper
criterion for this size device. Further, smaller devices are likely
to produce less force on impact, and may be less likely to cause
fatal injuries. Because not many small devices are marketed and the
known incidents involve large devices, a performance standard for
small multiple-tube devices may not be necessary. Accordingly, the
Commission decided to apply the stability criterion only to large
devices.
---------------------------------------------------------------------------
B. Statutory Authority
This proceeding is conducted under the FHSA. 15 U.S.C. 1261-1278.
Fireworks are ``hazardous substances'' within the meaning of section
2(f)(1)(A) of the FHSA because they are flammable or combustible
substances, or generate pressure through decomposition, heat, or other
means, and ``may cause substantial personal injury or substantial
illness during or as a proximate result of any customary or reasonably
foreseeable handling or use * * *.'' 15 U.S.C. 1261(f)(1)(A).
Under section 2(q)(1)(B) of the FHSA, the Commission may classify
as a ``banned hazardous substance'' any hazardous substance intended
for household use which, notwithstanding the precautionary labeling
that is or may be required by the FHSA, presents such a hazard that
keeping the substance out of interstate commerce is the only adequate
way to protect the public health and safety. Id. at 1261(q)(1)(B). A
proceeding to classify a substance as a banned hazardous substance
under section 2(q)(1) of the FHSA is governed by sections 3(f)-(i) of
the FHSA, and by sections 701(e)-(g) of the Federal Food, Drug, and
Cosmetic Act (``FDCA''), 21 U.S.C. 371(e)-(g). See 15 U.S.C.
1261(q)(2).
The July 1, 1994, ANPR was the required first step to declare the
specified multiple-tube devices to be banned hazardous substances under
section 2(q)(1). See 15 U.S.C. 1262(f). The proposed rule, published on
July 5, 1995, continued the regulatory process in accordance with 15
U.S.C. 1262(h). To fulfill additional statutory requirements, this
notice includes the text of the final rule and a final regulatory
analysis. Id. at 1262(i)(1). As required by the FHSA, the Commission
also makes findings here that: (1) compliance with any relevant
voluntary standard is unlikely to adequately reduce the risk of injury,
or substantial compliance by the industry with the voluntary standard
is unlikely; (2) the expected benefits of the regulation bear a
reasonable relationship to its expected costs; and (3) the regulation
imposes the least burdensome requirement that would adequately reduce
the risk of injury. Id. at 1262(i)(2).
C. Filing Objections Under Section 701(e) of the FDCA
The procedures established under section 701(e) of the FDCA also
govern this rulemaking. 15 U.S.C. 1261(q)(2). These procedures provide
that once the Commission issues a final rule, persons who would be
adversely affected by the rule have 30 days in which to file objections
with the Commission stating the grounds therefor, and to request a
public hearing on those objections. 21 U.S.C. 371(e). If objections are
filed, a hearing to receive evidence concerning the objections would be
held. The presiding officer would then issue an order, based upon
substantial evidence. Id. The Commission's procedural rules at 16 CFR
Part 1502 would apply to such a hearing.
Any objections and requests for a hearing must be filed with the
Commission's Office of the Secretary. They will be accepted for filing
if they meet the following conditions: (1) they are submitted within
the 30-day period specified; (2) each objection is separately numbered;
(3) each objection specifies with particularity the provision(s) of the
regulation to which the objection is directed; (4) each objection on
which a hearing is requested specifically requests a hearing; and (5)
each objection for which a hearing is requested includes a detailed
description of the basis for the objection and the factual information
or analysis in support thereof (failure to include this information
constitutes a waiver of the right to a hearing on that objection). 16
CFR 1502.6.
The Commission will publish a notice in the Federal Register
specifying any parts of the regulation that have been stayed by the
filing of proper objections or, if no objections have been filed,
stating that fact. Id. at Sec. 1502.7. As soon as practicable, the
Commission will review any objections and hearing requests that have
been filed to determine whether the regulation should be modified or
revoked, and whether a hearing is justified. Id. at Sec. 1502.8.
D. The Product
As explained in the proposed rule, this rulemaking only applies to
multiple-tube devices that have any tube equal to or greater than 1.5
inches in inner diameter (referred to below as ``large devices'').
Large devices were first introduced by domestic manufacturers around
1986. Generally, they consist of three or more tubes grouped together,
sometimes on a wooden base, and fused in a series to fire sequentially.
Bases, where used, come in a variety of sizes. The devices fire aerial
shells, comets, or other effects from the tubes, producing visual and
audible effects. These devices are among the largest fireworks
available to consumers. [13] 2
\2\ Numbers in brackets refer to documents listed at the end of
this notice.
---------------------------------------------------------------------------
The tubes may be individually labeled or have a single label
surrounding them. Commission regulations require that all multiple-tube
devices display the following conspicuous label:
Warning (or Caution) Emits Showers of Sparks (or Shoots Flaming Balls,
if More Descriptive)
Use only under [close] adult supervision.3
\3\ The word ``close'' is optional.
---------------------------------------------------------------------------
For outdoor use only.
Place on a hard smooth surface (or place upright on level ground, if
more descriptive).
Do not hold in hand.
Light fuse and get away.
16 CFR 1500.14(b)(7)(ix).
The National Fireworks Association (``NFA'') reports that retail
sales of large multiple-tube devices are between $24
[[Page 13086]]
and $36 million annually, with an estimated 400,000 to 700,000 units
sold per year. Prices range from $30 to $130 per unit, with most
devices in the $50 to $60 range. The NFA also reports that domestic
devices account for about 75 percent of the market by dollar volume and
somewhat less by unit sales. Imported devices are manufactured
primarily in China, and go through several wholesalers before reaching
the retail vendor. [13] Some devices have tubes that are imported from
China and then are inserted into larger tubes and assembled with bases
in the United States. CPSC considers such devices to be imported.
E. Risk of Injury
The devices fire sequentially, and under some conditions the force
from one shot can tip the device over, causing it to fall into a
horizontal position. A subsequent shot can discharge as the device is
falling or when it is horizontal. When this occurs, there is a risk
that one of the projectiles may strike the operator of the device or
spectators and cause serious injury, or even death.
The Commission is aware of two deaths involving large multiple-tube
devices. In both incidents, the device tipped over while functioning. A
projectile then fired horizontally from the device and struck the
victim. In each case, the victim was a spectator.
The first fatality occurred in July of 1991. A 3-year-old boy was
standing between his father's legs approximately 40 feet from an area
where fireworks were being set off at a family reunion. The device had
been placed on concrete blocks. The device tipped over after the third
shot, and the fourth shell fired horizontally in the direction of the
boy, striking him in the left ear. He died the next morning. [2, Tab A]
The second fatality occurred in July of 1992. The victim, a 65-
year-old grandmother, was sitting at the end of a picnic table watching
a family fireworks display approximately 40 feet away. Her son placed a
large multiple-tube device on a piece of wafer board that extended
about one foot over the end of a boat dock. He placed a 2x4 block of
wood under the end of the board so that the device would shoot out over
the lake. After lighting the device, he walked toward the shore and
noticed that the device had tipped over after the third shot. The
fourth shell discharged horizontally and struck his mother in the
temple and eye. She died the next morning. [2, Tab A]
CPSC's compliance testing indicates that the tip-over risk
evidenced by these two incidents continues to exist. In fiscal year
1994, all 24 samples of imported devices tested for the Commission's
routine compliance program, and 1 of 8 samples of domestic devices,
tipped over while functioning. In fiscal year 1995, 22 of 27 imported
samples and 1 of 5 domestic samples tipped over. [19]
F. Commission Tests to Develop a Standard
1. Testing Prior to the ANPR
After the first fatality, several domestic manufacturers of large
multiple-tube devices began developing a test for the potential of
these devices to tip over while functioning. The test used a 2-inch (5
cm) thick block of medium-density (2 pounds per cubic foot or 0.032g/
cm\3\) polyurethane upholstery foam to simulate uneven surfaces. When
placed on this surface, if a device tipped over while functioning, it
was deemed too unstable.
The American Fireworks Standards Laboratory (``AFSL'') then began
work to revise its standard for these devices to incorporate such a
dynamic stability test. AFSL issued an interim revised voluntary
standard in January 1993 and adopted it without changes on September 5,
1995. The Commission also collected samples of large multiple-tube
devices and tested them for tip-over using the industry's dynamic
stability test. [1 and 14]
2. CPSC's Dynamic Stability Testing
After issuing the ANPR, the Commission staff attempted to develop a
dynamic stability test that could provide a reliable performance
standard for multiple-tube devices. The staff's objective was to
develop a test that could reliably distinguish between large multiple-
tube devices that are dangerously unstable and those that do not
present an unreasonable tip-over risk. The staff attempted to identify
a test surface that would simulate grass (the surface believed to be
commonly used for fireworks displays), and that would produce
consistent results in repeated tests.
To accomplish this goal, the Commission had to identify a surface
on which the devices would consistently tip over or remain upright in a
manner corresponding to how the devices perform on grass. If the tip-
over rate was substantially greater on the test surface than on grass,
the standard might be too stringent, causing unnecessary changes to
reasonably safe products. If the tip-over rate was substantially lower
on the test surface than on grass, the standard might not adequately
protect consumers.
As explained in detail in the Federal Register notice that
published the proposed rule, the staff's testing did not yield
sufficiently reliable results to propose a dynamic standard. 60 FR
34922, 34924. The staff tested devices on several types of foam. First
it tested with 2-inch thick foams of three different densities. This
thickness was chosen, in part, because the AFSL standard specifies 2-
inch thick medium-density foam. However, the tip-over rates with all
three densities of two-inch thick foam in this initial test were
significantly greater than with grass (39 to 50 tip-overs out of 50
devices on foam compared with 4 out of 50 on grass). The staff then
tested three high-density foams of smaller thicknesses (0.75, 1.0, and
1.5 inches), hoping to better match the tip-over rates on grass. [6, 8]
However, none of the these three foams agreed consistently with grass
for all three devices tested. The results of this phase of testing are
summarized in Table 1.
Table 1.--Phase I--Incidence and Percentage of Tip-Over With Large
Multiple-Tube Devices on Grass or High Density Polyurethane Upholstery
Foam
------------------------------------------------------------------------
Polyurethane foam
-----------------------------
Device Grass 0.75
inch 1.0 inch 1.5 inch
------------------------------------------------------------------------
1............................... 4/50 4/50 14/50* 40/50*
8% 8% 28% 80%
2a.............................. 32/50 9/50* 25/50 43/50*
64% 18% 50% 86%
3a.............................. 27/50 2/50* 3/50* 7/50*
[[Page 13087]]
54% 4% 6% 14%
------------------------------------------------------------------------
* Significantly different from grass, P<0.05.
a Device modified to increase tip-over rate.
Of the three foams, 1-inch foam appeared to offer the best overall
relationship to grass, even though it produced inconsistent results.
[6, 8] Therefore, the staff continued testing with this foam.
In phase II of the Commission's testing, six additional devices
were tested on grass and on 1.0-inch thick high density foam. The
results were then combined with the results from phase I. Once again,
however, there was not consistent agreement between the tip-over rates
on foam and on grass (see Table 2).
Table 2.--Phase II--Incidence and Percentage of Tip-Over With Large
Multiple-Tube Devices on Grass or 1.0-Inch High Density Polyurethane
Upholstery Foam
------------------------------------------------------------------------
Device Grass Foam
------------------------------------------------------------------------
1 a................................................. 4/50 14/50 *
8% 28%
2 b................................................. 32/50 25/50
64% 50%
3 b................................................. 27/50 3/50 *
54% 6%
4 b................................................. 30/50 36/50
60% 72%
5................................................... 0/90 0/50
0% 0%
6 a................................................. 10/50 25/50 *
20% 50%
7................................................... 0/50 0/50
0% 0%
8................................................... 0/90 0/50
0% 0%
9................................................... 0/50 0/50
0% 0%
------------------------------------------------------------------------
* Significantly different from grass, P<0.05.
a Device has no base.
b Device modified to increase tip-over rate.
The staff concluded that the dynamic stability test it attempted to
develop could not reasonably form the basis for a standard addressing
the tip-over hazard with large multiple-tube devices. Particularly
problematic was the dynamic test's inconsistency. There were two cases
(devices 1 and 6) in which foam significantly overpredicted the tip-
over rate with grass. In another case (device 3) foam significantly
underpredicted the tip-over rate with grass. [6, 8] These tests showed
a highly significant ``interaction'' between the device and test
surface, so that one could not accurately predict, based on a device's
performance on foam, how the device would behave on grass. An accurate
test is needed to avoid unwarranted market disruption and, more
importantly, because a tip-over can lead to a fatality.
3. The Tip-Angle Test
Since the Commission's testing on foam did not yield a reliable
dynamic test, the staff looked to the physical properties of large
multiple-tube devices to develop a static test. The staff measured the
dimensions, mass, and static tip-over resistance (``tip angle'') of all
the devices tested. The angle at which a device will first tip over
depends on its base-height ratio, mass, and center of gravity. A
device's dynamic stability--its ability to remain upright when fired--
depends on its tip angle and other factors, such as its lift force, the
firing order, and the time between firings. The staff found that tip
angle could predict whether a device would tip over while functioning
and also be sufficiently sensitive for routine compliance testing. [9]
The staff measured the tip angle of devices by placing one edge of
the device against a mechanical stop approximately \1/16\-inch high (to
prevent sliding) at the edge of a horizontal hinged platform. The
platform was slowly raised from the horizontal until the device tipped
over. The tip angle was considered to be the angle at which the device
first tips over. The staff repeated the test for each edge of the
device to determine its minimum tip angle. In this manner, the staff
measured the tip angle for the nine large devices used in the dynamic
tests. The staff then compared these measurements and the results of
the dynamic tests to determine whether there was a relationship between
the minimum tip angle of a device and its dynamic stability on grass
(see Table 3). [9]
Table 3.--Static Tip-Over Resistance and Dynamic Tip-Over Rate of Large
Multiple-Tube Devices
------------------------------------------------------------------------
Tip-over rate on
grass
Minimum tip angle (degrees) ---------------------- Device
Percent Incidence
------------------------------------------------------------------------
35, 42 b................................ 54 27/50 3 a
37...................................... 64 32/50 2 a
37...................................... 20 10/50 6
37...................................... 8 4/50 1
40...................................... 60 30/50 4 a
61...................................... 0 0/90 5
64...................................... 0 0/50 7
65...................................... 2.5 1/40 4
68...................................... 0 0/40 2
69...................................... 0 0/50 9
70...................................... 0 0/40 3
78, 80 b................................ 0 0/90 8
------------------------------------------------------------------------
a Device modified to increase tip-over rate.
b Different samples of same device.
The staff also tested several large devices other than those it had
examined when considering a dynamic test. One device was a modified
form of device 1, that originally had no base. The staff glued a 12-
inch (30.5-cm) square particleboard base to the device. With this
modification, the tip angle increased from 37 degrees to 68 degrees.
The tip-over incidence on grass also decreased, from 4/50 to 0/50. This
additional test demonstrates that a device's stability can be improved
by adding a base. [9]
The second additional device that the staff tested, an imported
one, had a square plastic base. The tip angle of this device ranged
from 54 to 55 degrees (based on measurements of four individual
samples), and it did not tip over in 50 dynamic tests on grass. [16]
4
\4\ The staff had previously tested this type of device (tip
angle: 52-55 degrees and tip-over rate: 2/40), but the bases of some
of the devices in the earlier test were cracked. Therefore, the
Commission does not consider the earlier tests to be reliable and
has not considered them in determining an appropriate tip angle. [10
and 11]
---------------------------------------------------------------------------
None of the seven devices originally tested had tip angles between
43 and 61 degrees. Therefore, the staff modified the base of a device
that had a large particleboard base in order to obtain a tip angle near
50 degrees. The staff
[[Page 13088]]
trimmed 2\1/16\ inches off each of the two long edges of the base. The
minimum tip angle of the device then ranged from 50 to 51 degrees
(based on measurements of eight individual samples). This modified
device tipped over in 33 out of 51 tests on grass. [16] Table 4 shows
the tip angles and tip-over rates of the three additional devices that
the staff tested.
Table 4.--Static Tip-Over Resistance and Dynamic Tip-Over Rate of Additional Large Multiple-Tube Devices a
----------------------------------------------------------------------------------------------------------------
Tip-over rate on grass
Minimum tip angle (degrees) -------------------------- Description of device
Percent Incidence
----------------------------------------------------------------------------------------------------------------
50-51 b............................. 65 33/51 Four-tube device with base. Base trimmed to
obtain 50 degree tip angle.
54-55 b............................. 0 0/50 Seven-tube device with plastic base.
68.................................. 0 0/50 Seven-tube device. Same as device 1, but with
added 12 inch base.
----------------------------------------------------------------------------------------------------------------
a Does not include devices that the staff considered to present inconclusive results.
bRange of values for replicate samples.
The Commission proposed and now issues in final a standard
requiring that large multiple-tube devices must have a minimum tip
angle above 60 degrees. The Commission's data indicate that
substantially all of the devices measuring a tip angle above 60 degrees
did not tip over while functioning on grass. Among such devices, there
was only one tip-over in 450 tests. On the other hand, devices with tip
angles below 60 degrees had tip-over rates on grass as high as 65
percent. Among all devices tested with tip angles below 60 degrees,
there were 136 tipovers in 351 tests.
The Commission believes that requiring devices to have minimum tip
angles above 60 degrees offers an appropriate margin of safety. The
fact that the staff observed no tip-overs with one device that had a
tip angle of 54-55 degrees might appear to suggest that a tip angle of
54 degrees would be sufficient to protect against the tip-over hazard.
However, a device that had a tip angle of 50-51 degrees had a very high
incidence of tip-overs (33/51). This device had a small base, and would
have been even less stable if, like a number of other devices on the
market, it had no base extending outward from the tube configuration.
Thus, it is likely that some devices with 55-degree tip angles would
tip over when tested on grass. Furthermore, the tests were performed on
level ground, and in actual use there probably will be significant
variations from level in a number of cases. The Commission concludes
that in order to adequately protect the public, it is appropriate to
require that the minimum tip angle be above 60 degrees.
AFSL submitted comments on the NPR that included results from its
testing of 43 units (13 different devices). AFSL reported that 35
percent of the units it tested met a 60-degree tip-angle test and that
none of the devices it tested tipped in actual firing. As explained
below in Section G of this notice, this limited testing does not show
that a requirement for a tip angle above 60 degrees is too stringent a
measure of whether a multiple-tube device is unlikely to tip over in
use.
G. Comments Responding to the Proposed Rule
The Commission received eight comments in response to the proposed
rule. Some commenters stated that they support the proposed rule.
Significant issues raised by other comments, and the Commission's
responses, are summarized below.
1. Scope of the Rule
AFSL stated that it agreed with the Commission's decision to limit
the scope of the proposed rule to large multiple-tube devices and that
the Commission was correct in concluding that devices with inside
diameters greater than 1 inch, but less than 1.5 inches, are not
common.
2. Need for a Rule
Some commenters stated that the need for a rule had not been
demonstrated because the number of reported injuries is low or because
the injuries are caused by consumer misuse. As explained below, the
Commission disagrees with these contentions.
a. Injury Data
Comments: One commenter claimed that the number of multiple-tube
devices has increased, but that the number of injuries associated with
them has not. The commenter concludes that the small number of injuries
and deaths associated with multiple-tube devices or Class C fireworks
does not justify further regulation. This commenter also claimed that
multiple-tube fireworks devices are no different from other fireworks
with respect to the potential for injury.
One group of commenters stated that in their evaluation of injuries
recorded in the state of Indiana, multiple-tube devices and other
consumer fireworks either have not tipped over or have caused few or no
injuries.
Response: Mine and shell devices (both single and multiple shot)
are more powerful than most consumer fireworks. Although the number of
deaths and injuries associated with mine and shell devices is
relatively low, the severity of injuries is greater than with other
devices. Any tip-over of large multiple-tube devices has the potential
to cause death or serious injury. Two individuals are known to have
been struck by large multiple-tube devices. Both suffered fatal
injuries.
The yearly unit sales figures for fireworks are unknown. Therefore,
the Commission cannot accurately assess any possible trends in exposure
to large multiple-tube devices. However, the cases show that the
potential for tip-over and serious injury or death is high under
certain conditions of foreseeable use. Since, as explained below, there
is no voluntary standard that can adequately reduce this risk, the
mandatory standard proposed by the Commission is necessary.
Comment: The commenters on the Indiana data also requested that the
Commission survey dealers to inquire about reported cases or instances
of a problem with a multiple-tube mine and shell device.
Response: As noted above, a mandatory standard is appropriate
despite the low number of reported deaths and injuries. In view of
this, there is no need to perform the requested survey.
Comment: AFSL contends that the lack of any known serious injury
attributed to large multiple-tube devices since the adoption of the
AFSL standard in 1993 supports their view that the voluntary standard
is adequate.
[[Page 13089]]
Response: These devices had been on the market for 6 years by the
time the two known deaths occurred. Thus, the absence of any known
deaths since 1993 is not statistically significant. The adequacy of
AFSL's standard, and the extent to which it is adopted by industry, are
discussed below under the responses to comments favoring a dynamic test
and to comments favoring the alternative of a voluntary standard.
b. Possible Role of Misuse and Alcohol in Tip-Over Incidents
Comment: One commenter alleged that any increase in mortality
related to these items is the direct result of misuse and the failure
of consumers to follow the appropriate instructions. The same commenter
stated that the fireworks industry cannot be held accountable for all
injuries, particularly when the item is being blatantly misused. The
commenter also claimed that many fireworks-related injuries involve
some level of intoxication by the operator and that the correlation
between alcohol use and injury should be considered in the hazard
analysis for any product.
Response: The incident reports do not indicate that the fatalities
involving large multiple-tube devices were a result of misuse. Rather,
they appear to have occurred during reasonably foreseeable use of the
product. The two fatalities occurred during family gatherings a day or
two after the July 4th holiday.
The labels on multiple-tube devices generally state that the device
should be placed on a solid level surface prior to firing. In one
fatality, concrete blocks were stacked in the yard as a staging area.
In the other fatality, the fireworks device had been placed on a board
so that it would fire over a lake. The use of the devices on either of
these surfaces appears to indicate concern with the appropriate
placement of the fireworks device prior to firing.
Thus, the known cases involving fatalities support the conclusion
that the users were attempting to follow the instructions for proper
placement of the devices. In addition, there is no indication that
alcohol was a factor in either of the deaths. Accordingly, the
Commission disagrees with the commenter's contention that consumer
misuse or intoxication was the cause of these accidents.
Comment: One commenter claimed that, based on a 1992 CPSC study of
hospital emergency-room-treated injuries, ``a major problem with
fireworks injuries were the result of consumer misuse.''
Response: The study cited does not support this proposition for the
devices at issue here. In discussing the category of Shells and Mines
(the major two types of devices included in the this rulemaking), the
report states that ``little can be said to characterize this category
of fireworks due to the small sample size (five investigations).
However, it appeared that the flight path of the projectile,
particularly when tip-over was involved, may be a major concern.'' [23]
There may well have been misuse of the multiple shell devices
associated with some of the injuries in the study. However, nothing in
the report indicated that the injuries could be attributed to any such
misuse, as opposed to erratic flight path, tip-over, or other problems
with the devices.
c. Section 15 of the CPSA
Comment: One commenter stated that the proposed rule is unnecessary
because existing regulations and section 15 of the Consumer Product
Safety Act (``CPSA'') are adequate. 15 U.S.C. 2064. Section 15
authorizes the Commission to take corrective actions regarding product
defects that create a substantial risk of injury to the public. See 16
CFR 1115.4, 1115.12 (e) and (g).
Response: Existing fireworks regulations require only a base-to-
height ratio of at least 1:3. 16 CFR 1507.4. All the devices tested by
CPSC that tipped over during actual use complied with this standard.
Therefore, this requirement does not adequately address the tip-over
hazard.
In addition, the ongoing problem of numerous section 15 recalls of
multiple-tube devices under section 15 of the CPSA due to tip-over
indicates that existing regulations are not effective. Under these
circumstances, a performance standard that effectively addresses the
problem for all devices is more appropriate than case-by-case
investigation and recall.
3. Selection of the Tip-Over Angle
Comment: One commenter stated that there is no logical or
statistically valid reason for choosing any particular angle as the
minimum angle required by the static test.
Response: In developing the proposed rule, the staff considered
specifying minimum tip angles as low as 45 degrees. However, as noted
above, the Commission concluded that, to provide a margin of safety and
to address the likelihood that the devices will not be used on level
ground, the static test should require that a device not tip at an
angle of 60 degrees.
It is possible that a fireworks device might be constructed that
would not tip over in a static test at 60 degrees but would tip over
under foreseeable conditions on grass. In fact, 1 of the 450 devices
tested by the Commission with a tip angle over 60 degrees did tip over
when tested on grass. Increasing the stringency of the static test to
address such hypothetical ``outliers'' would make the requirement
unduly restrictive for the vast majority of designs that are likely to
be marketed. If such easy-to-tip designs are marketed in the future,
the Commission will consider action under section 15 of CPSA. 15 U.S.C.
2064.
Comment: One commenter suggested a more lenient tilt test for items
that do not present as much of a tip-over hazard as other available
designs. The commenter stated that a more lenient tilt test was
especially appropriate for devices with tubes clustered in the center
of the base. The commenter asserted that multiple-tube items with tubes
clustered close to the center of the base will more likely fail the
static test, but be more stable when tested on foam or grass than
multiple-tube items with tubes near the edge of the base. The commenter
provided sketches to illustrate this point, and also suggested a
formula to determine the tilt angle based on the geometry of the
devices relative to the geometry of the base:
T=45+15 (d/b), where:
T is the tip angle in degrees; d is the length of the diagonal of a
square (or diameter of a circle) enclosing the tubes; and b is the
length of the diagonal of a square base or diameter of a circular base.
The commenter stated that preliminary testing supports the formula,
but provided no data and admits that further tests are needed.
Response: The staff of the Commission's Engineering Laboratory
agrees that there are configurations that could provide greater or
lesser stability for a fired multiple-tube device. The commenter lists
base size, base thickness, lift charge, and size of the aerial load as
relevant factors affecting stability. However, firing order and rate,
as well as other variables, also affect the dynamic stability of
multiple-tube devices.
The commenter supplied no data on which to evaluate the suggested
formula. The Commission has very limited data on the tip-over
characteristics of devices with tip angles in the range of 45 to 60
degrees. As explained above, the Commission selected the 60-degree tip
angle criterion based on a device with a tip angle of 50 to 51 degrees
that tipped over a large proportion of the time (33/51) when tested
dynamically on grass. In addition, various combinations of the factors
that affect tip-over could cause a device with
[[Page 13090]]
a similar configuration to tip over more readily than the tested
device. The suggested formula does not account for these other
factors--such as load, firing rate, etc. The Commission's criterion
does account for these factors by correlating tip angle to dynamic tip-
over on grass.
The commenter's formula is intended to be applied to devices with a
square or circular base. The device with the 50-51 degree tip angle
that had a high tip-over rate had a rectangular base. It is not clear
how, if at all, the commenter would apply the formula in this case.
However, it can be expected that the formula will produce tip-angle
criteria ranging between 50 and 60 degrees, depending on the
configuration. Available data do not show that such criteria would
provide an adequate margin of safety. Accordingly, the Commission is
not adopting this commenter's suggestion.
Comment: As explained above, the Commission selected the 60-degree
criterion based on the performance on grass of a large number of tests
of various large devices. Some comments questioned the adequacy of this
testing. One commenter asked why the Commission did not test the
devices that were recalled as a result of failing the 2-inch foam test
and the device known to have been involved in the death of a 3-year-old
boy. The same commenter suggested that CPSC conduct additional tests
comparing the static test to the dynamic test with foam. Another
commenter questioned why the Commission did not test a larger sampling
of the various multiple-tube devices, including the W-800 inserts with
a wooden base and a tube around the insert.
Response: In developing the proposed standard, the Commission
selected devices that represented a cross section of the devices
available at the time and that provided a range of tip-over rates. The
Commission considered design characteristics such as base size, firing
order, internal fuse-burn time, lift charge, shell mass, device shape,
center of gravity, and quality of materials and construction. This
cross-section of devices is sufficient to ensure that the test selected
by the Commission is reasonable.
Devices that had been previously recalled--as well as the device
involved in the death of the 3-year-old boy--were not available at the
time that the CPSC conducted its tests. It is expected that had they
been available for testing, they would have been among those devices
found to be unstable. However, the Commission believes that it is more
reasonable to test currently available devices, rather than devices
that are no longer manufactured or available.
Comment: Some commenters stated that there are devices that are
stable in actual use even though they do not comply with the proposed
rule. AFSL submitted test data to support this view. These commenters
asserted that the proposed rule unfairly penalizes such devices.
Response: As explained above, AFSL presented limited test data on
12 large multiple-tube devices (one device included in AFSL's testing
was actually a small device). Seven of these did not meet the 60-degree
tip angle, but did not tip over in AFSL's dynamic tests.
AFSL's testing was very limited--only one sample of each device on
three surfaces (concrete, 2-inch foam, and grass), and one device was
not even tested on grass. A single test is not sufficient to establish
the dynamic stability of a device. For example, a device that tips over
1 in 10 times may present a serious risk of injury, but there is only a
1-in-10 chance of observing a tip-over in a single test. In CPSC's
tests, the staff tested from 40 to 90 samples of each device. The
Commission cannot conclude based on AFSL's limited data that the seven
devices it tested are stable when operated on grass.
4. Static v. Dynamic Test
Introduction. As noted above, the Commission's requirement involves
inclining the device at an angle of 60 degrees while it is prevented
from sliding by a stop on the inclined supporting surface. If the
device does not tip over further at that angle, it complies with the
requirement. This is a static test; it is affected only by the location
of the center of gravity of the device with respect to the edge of the
device that is against the stop.
Comments: A number of commenters would prefer a dynamic test, which
would involve actually firing the device while it rests on a specified
supporting surface to see if the device tips over. The American
Pyrotechnic Association (``APA'') and AFSL stated that, although they
support a requirement for static stability, a static requirement is not
sufficient by itself to address the tip-over hazard. These two
organizations and other commenters stated that, in addition to a static
test, the proposed rule should require dynamic testing, either for all
large devices or for those with tip angles between 45 and 60 degrees.
Response: Under the FHSA, manufacturers must consider whether their
products pose a hazard during ``reasonably foreseeable handling and
use.'' The Commission considers operation of multiple-tube devices on
grass to be ``reasonably foreseeable.'' Further, the resilient and
variable nature of grass makes it more likely that a device will tip
over when fired from a grass surface than from other common supporting
surfaces, such as dirt or pavement. Thus, an adequate test should
address the hazard of tip-over of these devices when fired while
sitting on grass as well as on more forgiving surfaces.
A substantial problem with dynamic testing of these devices is that
grass is not a reproducible test surface. Even patches of grass that
appear to be identical can react differently to the forces produced
when a device is fired.
Foams of various characteristics have been suggested as suitable
test surfaces for determining whether a device will tip over when
fired. AFSL uses 2-inch thick medium-density foam in its tip-over
testing.
The staff considered whether foam is an adequate surrogate for
grass--that is, whether there is a consistent relationship between the
tip-over behaviors on grass and foam for a variety of devices. Based on
the CPSC's tests, however, there was no consistent relationship between
the tip-over rates measured on grass and foam. In fact, the tests
suggested that there may be cases where devices that do not tip over
when tested on foam may tip over frequently on grass.
The Commission concludes that, because of the absence of any
suitable test surface, the use of dynamic testing for devices,
regardless of their tip angle, is not presently feasible. However, the
results of any voluntary dynamic tests by industry may provide valuable
information when considered in conjunction with a device's tip angle.
And, as explained above, the Commission will examine whether devices
that tip over when fired despite passing the 60-degree tip-angle test
present a substantial product hazard under section 15 of the CPSA.
5. Dynamic Variations in Tip-Over Potential
Comment: One commenter noted that the potential for tip-over from
multiple-tube mine and shell devices is not equal among all of the
various shapes, sizes, and configurations of devices.
Response: The Commission agrees that the potential for dynamic tip-
over from multiple-tube fireworks devices can differ among the various
shapes, sizes, and configurations of devices with the same static tip
angle. For example, devices that have larger or heavier bases or
smaller lift (propellant) charges are less likely to tip over.
Nevertheless, for
[[Page 13091]]
the reasons explained above, the 60-degree tip-angle test is the best
means available to determine whether a multiple-tube device is
unreasonably likely to tip over when fired.
Comments on specific factors that may affect tip-over potential are
discussed below.
Comment: One commenter stated that the rate of firing of the
projectiles from the tubes can affect dynamic stability and that this
should be examined.
Response: The Commission agrees that the rate of firing--the time
between the firing of individual tubes--may affect the dynamic
stability of multiple devices. A multiple-tube device can become less
stable as a result of rapid sequential tube firings. In compliance
testing, the Commission considers whether the firing rate may
contribute to tip-over. The staff has discussed with AFSL the
possibility of incorporating into their standard a minimum time between
the firing of successive tubes. However, the rate of firing is only one
of many variables that affect the dynamic stability of multiple-tube
devices. The 60-degree tip-angle test requirement, which takes into
account several factors, is the best known way to address the tip-over
hazard.
Comment: Several commenters stated that, in addition to the static
test, the proposed rule should limit the lift charge--i.e., the
propellant powder weight--to 12 grams per tube. AFSL presented test
data showing that increasing the lift charge above the 12-gram limit
may decrease the dynamic stability of multiple-tube devices. A
specially made device (not commercially available), with 20 grams of
lift charge per tube, tipped over in one test on 2-inch foam. A similar
device with 12 grams of lift charge did not tip over in one test on
foam. Another specially-made device did not tip over in one test on
foam, even though the lift charge was increased to 20 grams.
Several commenters asked why the CPSC did not study the effects on
stability of the amount of lift charge in devices.
Response: U.S. Department of Transportation (``DOT'') regulations
permit a maximum of 20 grams of lift charge per tube. The AFSL
voluntary standard limits the lift charge to 12 grams per tube. The
proposed rule did not separately address lift charge. The DOT mandatory
20-gram upper limit and AFSL voluntary 12-gram upper limit are
unaffected by this rulemaking.
The staff measured the lift charge in all the devices that were
tested. The lift charges in the two devices that tipped over on grass
(before they were modified) were 3.6 and 4.7 grams per tube. The lift
charges in devices that did not tip over ranged from 4.7 to 11.6 grams
per tube. [6] These results do not support limiting the lift charge.
Devices with a lift charge greater than 12 grams per tube were not
available to the staff.
The lift charge is only one of the variables that affect dynamic
stability. Other variables include firing order, firing rate, weight,
the configuration of the tubes, and base dimensions. Further, the lift
force (or propellant force)--rather than the lift charge--relates more
directly to dynamic stability. The lift force depends on factors in
addition to the lift charge, such as the type of powder and the design
of the product. Again, the staff's data show that the dynamic
performance of the device is better predicted by a static test.
It may be possible to construct a device that will tip over in
actual use, even though it passes the 60-degree static stability test.
AFSL's tests suggest this may be the case. But, the small number of
tests conducted by AFSL (two devices, one test each) and the mixed
results it reported (one device with 20 grams of lift powder tipped
over on foam while another did not) are not adequate to support a
mandatory 12-gram limit on the lift charge.
Manufacturers, importers, and distributors must see that their
products do not pose a substantial product hazard. Increasing the lift
charge might increase the tendency of multiple-tube devices to tip over
during operation. Devices developed in the future that exceed 12 grams
of lift charge will be tested by the Commission. Any device that tips
over while functioning, even though it complies with the static test,
may present a substantial product hazard. As explained above, the
Commission may take enforcement action in such a case under section 15
of the CPSA. Thus, although the Commission lacks data to warrant a
mandatory limit at this time, the Commission encourages manufacturers
and importers to continue compliance with the voluntary limit of 12
grams of lift charge per tube since the amount of lift charge may
affect tip-over.
6. Other Advantages of a Static Test
Comment: The AFSL and the APA stated that they favor a static test,
as in the proposed standard, because it is safer to perform than
dynamic testing. One commenter stated that it appears that the
Commission proposed a standard based on a static test, in part, because
it is easier to perform than dynamic testing.
Response: The Commission proposed a mandatory standard based on the
static test because it adequately addresses the hazard and a suitable
dynamic test is not available. That the static test is easier and safer
to perform are additional advantages.
7. Other Alternatives to the Proposed Rule
a. Additional Labeling
Comment: One commenter suggested requiring the warning label on
multiple-tube devices to include a phrase such as, ``PLACE UPRIGHT ON
HARD, SMOOTH LEVEL SURFACE BEFORE IGNITING. DO NOT FIRE ON GRASS OR
OTHER UNSTABLE SURFACE.''
Response: The Commission's current labeling requirement for mine
and shell devices includes the following statement: ``Place on hard
smooth surface (or place upright on level ground, if more
descriptive).'' 16 CFR 1500.14(a)(7)(ix). Except for the admonition not
to fire on grass, the commenter's suggested label is equivalent to the
Commission's current requirement. As to the statement ``do not fire on
grass,'' it is likely that users will place these devices on whatever
surface is at the desired location, including grass. Thus, the
Commission cannot conclude that there would be significant safety
benefits from a label advising against use on grass. Furthermore, the
longer label statement suggested by this commenter could reduce the
extent to which the basic message is noticed and read by users.
Although the Commission lacks the evidence to mandate the ``do not fire
on grass'' statement, and questions its effectiveness, the Commission
would not object if manufacturers voluntarily supply such a statement
after the required label.
In addressing a product hazard, the most effective approach is to
design the hazard out of the product. A warning does not remove the
hazard; it only informs the consumer of the hazard. Some users may read
and follow the information on a warning label. However, fireworks are
frequently used at night when it is too dark for the user to read a
warning label. Fireworks also are often used at a party or celebration
in which users are unlikely to take the time to read and follow warning
labels. And, spectators, like the two victims killed by multiple-tube
devices that tipped over, probably will not have an opportunity to read
the label.
Even if consumers read and follow a warning label, the device may
tip over. In the two death incidents, the fireworks devices were placed
on hard, smooth surfaces and they still tipped over. The Commission
believes that the proposed
[[Page 13092]]
tip-over performance requirement for multiple-tube devices will result
in less hazardous multiple-tube devices.
b. Defer to AFSL's Voluntary Standard
i. Adequacy of the Voluntary Standard
Comments: Several commenters supported AFSL's voluntary standard.
One group of commenters stated that they would prefer that the
Commission allow the industry to adopt a voluntary standard, rather
than issue a mandatory standard. Specifically, one commenter referred
to AFSL's standard--i.e., the 2-inch foam test--and asserted that foam
is a standard, reproducible test surface, even though it is not an
adequate surrogate for grass. Another commenter questioned CPSC's
conclusion that the AFSL standard did not adequately address the tip-
over hazard. AFSL commented that the foam test is intended to simulate
a worst-case scenario and that, even though the foam test may not be
suitable for a mandatory standard, it adequately addresses the tip-over
hazard.
Response: AFSL's foam test has many substantial shortcomings. AFSL
does not specify the properties of the foam--such as compressibility,
resiliency, and density--that are essential for a reproducible
test.5 Neither does AFSL specify the environmental conditions,
such as temperature and wind speed, that may affect the test results,
or the number of devices to be tested. All of these parameters must be
specified before the foam test could be considered a standard,
reproducible test. And, perhaps most significantly, there is simply no
evidence of a consistent relationship between tip-over rates on grass
and foam. Thus, a test on foam would not be appropriate even if all the
test parameters were specified.
\5\ Although AFSL specifies medium-density foam, the definition
of ``medium'' may differ among foam suppliers.
---------------------------------------------------------------------------
AFSL has never released test results showing that 2-inch foam is a
worst-case surface compared to grass. CPSC has only limited data from
tests of devices on both 2-inch foam and grass. The Commission's
initial tests showed that the 3 different densities of 2-inch foam
tested had considerably higher tip-over rates than did grass.
The more extensive tests that the Commission performed on other
thickness of foam show that, depending on the device tested, the tip-
over rate on foam may be greater than, equal to, or less than that on
grass. Furthermore, the Commission's compliance testing in 1995 showed
a domestic device that tipped over on grass (1 of 5 tested), but not on
2-inch medium-density foam. Therefore, the Commission concludes that
the currently available information does not support the conclusion
that 2-inch foam (or foam in other thicknesses) is a worst-case test
surface that is consistently more stringent than grass.
As regards tip angle, the AFSL standard requires a tip angle of
only 18 degrees, whereas CPSC tests show that a tip angle of 60 degrees
is needed to reasonably prevent tip-over. The Commission concludes that
the AFSL standard's tip-angle provision does not adequately address the
tip-over hazard with large multiple-tube fireworks devices.
ii. Likelihood of Compliance With the Voluntary Standard
Comment: AFSL commented that a domestic testing program to allow
manufacturers to obtain certification for their products has not been
established and that the decision to follow the voluntary standard
rests solely with individual manufacturers. However, AFSL states that
its recent testing of large multiple-tube mine and shell devices
indicated that products received from known manufacturers ``appeared to
comply with the stability provisions of the AFSL standard.'' According
to AFSL, under its China-based testing and certification program, all
large multiple-tube mine and shell devices (with tubes larger than 1''
inside diameter) from participating firms are tested for compliance
with the voluntary standard. Any devices that fail to comply are
``withheld from shipment to the participating U.S. importer.''
Response: Even if using 2-inch thick medium-density foam were
effective, the Commission concludes that AFSL's voluntary standard
would not adequately reduce the risk of tip-over because it is unlikely
that there will be substantial industry compliance with that standard.
The AFSL standard was adopted in January 1993. However, the results
of CPSC's compliance testing indicate that these devices still tip
over. In fiscal year 1994, all 24 imported devices tested by CPSC, and
1 of 8 domestic devices, tipped over on either grass or 2-inch thick
medium density foam. Of the 32 devices tested on the foam, 25 tipped
over, and 4 of these also tipped over when tested on grass. In fiscal
year 1995, 22 of 27 imported devices and 1 of 5 domestic devices tipped
over. Of the 32 devices tested that year on 2-inch medium-density foam,
21 tipped over, and 10 tipped over when tested on grass. If there were
substantial compliance with the AFSL standard, these high rates of tip-
over on foam would not likely occur.
There is no information to support a conclusion that the rates of
compliance with the AFSL standard will improve. The Commission
concludes, therefore, that there will not likely be substantial
compliance with the AFSL standard.
c. A Ban of Large Devices
The Commission also considered whether large multiple-tube devices
should be banned entirely.
Comment: The National Fire Protection Association (``NFPA'')
generally has taken the position that fireworks should be used only by
licensed professionals. However, in this case, NFPA agreed with the
Commission's conclusion that limiting multiple-tube devices to
professionals would not eliminate the tip-over hazard. Some commenters
stated that the performance standard is preferable to a total ban of
large devices.
Response: The Commission agrees that a performance standard is the
most appropriate option in this case.
8. Effective Date
Comment: One commenter stated that manufacturers need 1 year to
redesign devices, use up current inventory, order new packaging, and
obtain Department of Transportation (``DOT'') approval for that
packaging.
Response: The Commission proposed an effective date of 6 months
after publication of a final rule. The rule will apply only to devices
first introduced into commerce or imported on or after that date. The
vast majority of fireworks are ordered by dealers from July to December
and delivered from December to June. The Commission expects that most
of the devices currently not complying with the standard can be
modified to meet it--e.g., by adding a base. Consequently, any devices
still in manufacturers' or importers' inventories on the effective date
would not be rendered useless.
According to the DOT official responsible for enforcing regulations
on new packaging, it may take 6 to 12 months for firms to obtain DOT
approval of changes to the devices, order new packaging, and obtain DOT
approval for that packaging. Larger firms are likely to be the ones
that will need the full 12-month period, due to the larger number of
models that could be affected.
Therefore, a number of firms will need an effective date that is
longer than the proposed date of 6 months, and up to 12 months,
following publication of the final rule in the Federal Register.
Accordingly, the Commission is extending the effective date to 12
months following publication. The final
[[Page 13093]]
rule will thus become effective March 26, 1997.
As noted previously, fireworks deliveries are concentrated in the
period December through June. The effective date falls within that
period. Therefore, it is likely that some but not all large multiple-
tube devices sold at retail for the 1997 summer season will comply with
the tip-angle requirement.
9. The Costs of the Regulation
a. Portion of Existing Large Devices To Be Changed by the Rule
Comment: AFSL presented test data with large multiple-tube mine and
shell devices from what it claims are all five domestic
manufacturers.6 Based on these tests, AFSL claimed that only 35
percent of domestic devices complied with the proposed rule (60-degree
tilt test), although all were stable in dynamic testing. The
Commission's preliminary regulatory analysis assumed that almost all
domestic devices would comply with the proposed rule.
\6\ Although AFSL stated that all the devices tested were
``domestically manufactured,'' some contained imported inserts. CPSC
classifies these devices as imports.
---------------------------------------------------------------------------
Response: AFSL's results contrast with CPSC staff's tests, in which
all domestic large multiple-tube devices met the proposed 60-degree
tip-angle test. Several aspects of AFSL's testing lead the Commission
to question AFSL's conclusions about the anticipated level of
compliance with the 60-degree tip-angle test.
AFSL presented test results for 13 models of multiple-tube mine and
shell devices. Device number 7 had an inside tube diameter of only 1.25
inches, and is not subject to the rule (which applies only to devices
with tube inner diameters measuring 1.5 inches or more). The devices
numbered 1, 2, 3, 12, and 13 are essentially imported devices or
``inserts'' to which wooden bases have been added. Based on AFSL's test
data, 5 of 7 (71 percent) large domestic multiple-tube devices will
satisfy the rule. The only two domestic devices tested by AFSL that
would fail to comply with the rule are devices 8 and 11, since their
tip angles were about 57 degrees. Both are new devices that were not
available at the time that the CPSC tests were conducted. Combining
AFSL's test data with CPSC's, 11 of 13 (85 percent) of large domestic
multiple-tube devices would comply with the rule.\7\ Therefore, the
Commission disagrees with AFSL's claim that only 35 percent of domestic
devices will comply with the proposed rule.
\7\ It appears that one device was tested by both AFSL and
CPSC. In combining the data, this device was counted only once.
---------------------------------------------------------------------------
b. Cost of Modifying Noncomplying Devices
Comment: One commenter argued that retail prices of the modified
devices would increase by 35 to 45 percent. The commenter did not
present any basis for this estimate.
Response: The Commission's cost estimates are based on an average
per-unit increase of 25-30 percent. These estimates were provided by
the National Fireworks Association (NFA). The NFA is the fireworks
trade association with the largest number of members, and the only one
with a large contingent of retailers. The NFA estimate is the best one
available to the Commission's staff.
10. Environmental Impact
Comment: One commenter stated that there would be a significant
environmental impact due to increased rubbish from the larger bases.
Response: The rule is expected to result in modifications to
devices representing sales of 100,000-to-175,000 items per year. [21]
Consequently, the rule will result in a similar number of larger or new
bases, and added packaging, being discarded. Most of these devices are
expected to be thrown away after use with other residential trash (as
is currently being done). The added costs of disposing of the bases and
packaging will be negligible. The environmental impact of disposing of
the relatively small amount of additional material required to provide
a base, or increase its size, will be negligible. The additional cost
to landfills of handling the extra rubbish also will be negligible.
H. The Standard
The Commission is issuing a standard requiring that multiple-tube
devices that have any tube measuring 1.5 inches (3.8 cm) or more in
inner diameter must have a minimum tip angle greater than 60 degrees.
Large multiple-tube devices that do not meet the tip-angle requirement
will be banned. The tip angle may be measured by placing the device on
a smooth, flat surface inclined at 60 degrees from the horizontal. The
device must not tip over at the 60-degree angle when tested at any edge
of the device.
An apparatus or ``testing block'' for testing multiple-tube devices
is illustrated in Figure 1 to Sec. 1507.12. The height and width of the
inclined plane (not including the portion of the plane below the
mechanical stop) must be at least 1 inch (2.54 cm) greater than the
largest dimension of the base of the device to be tested. The test
apparatus must be placed on a smooth, hard surface that is horizontal,
as determined by a spirit level or equivalent instrument. The
mechanical stop must be \1/16\ inch (1.6 mm) in height and
perpendicular to the inclined plane. The stop must be positioned
parallel to the bottom edge of the inclined plane in such a way that no
portion of the device to be tested or its base touches the horizontal
surface.
Any device that cannot be tested using the apparatus described
above, or that presents a tip-over hazard while functioning even though
it complies with the static test, may be examined to determine whether
it presents a ``substantial product hazard'' under section 15 of the
CPSA. 15 U.S.C. 2064. If the Commission determines that a substantial
product hazard exists, appropriate enforcement action may be taken. See
15 U.S.C. 2064.
J. Regulatory Analysis [22]
1. Introduction
The Commission is amending the FHSA fireworks regulations to
establish new stability requirements for multiple-tube fireworks
devices that have any tube with an inside tube diameter of 1.5 inches
or greater. These devices present a tip-over hazard when firing that
has resulted in an average of about one death every 3 years over the
period for which data are available.
The amendment will reduce the risk of injury and death from tip-
overs. Devices that do not remain stable at an angle 60 degrees or
below in prescribed tests will be banned hazardous substances under the
amendment. It is expected that devices that do not currently pass this
test will be able to comply by adding or enlarging a base.
In the Federal Register of July 1, 1994, the Commission issued an
ANPR to develop a mandatory requirement to address the tip-over hazard.
Although the ANPR addressed both large and small multiple-tube
fireworks devices, the notice of proposed rulemaking (NPR) published
July 5, 1995, covered only large multiple-tube devices.
To issue this amendment under the FHSA, the Commission is required
to publish preliminary and final regulatory analyses containing a
discussion of various factors. These factors include a description of
the potential benefits and potential costs of the rule, including any
benefits and costs that cannot be quantified in monetary terms, and an
identification of those most likely to receive the benefits or bear the
costs. The FHSA also requires a description of any reasonable
alternatives to the rule,
[[Page 13094]]
together with a summary description of their costs and benefits, and a
brief explanation of why such alternatives were not chosen.
2. Background
Large multiple-tube devices became popular in the mid-1980's. These
devices typically consist of three or more tubes fused in a series to
fire sequentially; these tubes are grouped together, sometimes on top
of a wooden base. The devices are designed to fire aerial shells,
comets, or mines producing visual and audible effects from non-
reloadable tubes. They are among the largest fireworks available for
direct consumer use.
The National Fireworks Association (NFA) reports that retail sales
of these devices are between $24 million and $36 million annually, with
an estimated 400,000 to 700,000 units sold per year. Prices range from
$30 to $130 per unit, with most devices priced in the $50-$60 range.
The NFA reports that domestic devices account for about 75 percent of
the market by dollar value, and somewhat less by unit sales. There may
be hundreds of firms engaged in manufacturing, importing, and
distributing these fireworks. Imported devices are primarily
manufactured in China, and may go through several wholesalers before
reaching the retail vendor.
To comply with the standard, devices that do not have a base would
have to add one, and some currently used bases would have to be
enlarged. However, consumers are not likely to perceive any significant
loss of enjoyment as a result. While some devices may be discontinued,
loss of consumer choice would be minimized by the availability of
devices that do comply with the standard. Smaller (less than 1.5 inch
ID) multiple-tube devices are not covered by the rule and would
continue to be available without any change.
3. Regulatory Analysis of the Amendments
a. Potential Benefits. One of the potential risks of injury
associated with large multiple-tube fireworks devices results from the
tip-over hazard. The Commission's Directorate for Epidemiology and
Health Sciences reports two deaths associated with the tip-over hazard
from January 1, 1988, through December 1993. This averages to about 1
death every 3 years. The Commission has received no reports of injuries
with the product.
The Commission is issuing a performance standard that will require
these devices to have a minimum tip angle greater than 60 degrees.
According to the Commission's tests, devices that do not tip over at
this angle are not likely to tip while
FR Doc. 96-6857 Large Multiple-Tube Fireworks Devices; Final Rule
functioning. Thus, the
Commission believes that devices meeting this requirement are not
likely to fall over while firing, thereby minimizing this risk of death
and injury to operators or spectators. The avoidance of these deaths
and injuries represents the potential societal benefits of the proposed
amendments.
The costs per life saved of this rule are estimated to be between
$4.5 and $8 million. These costs are within the range of statistical
values of life suggested in the recent professional literature. [22]
Given that no significant substitution of more hazardous products is
expected, no offsetting reduction in these safety benefits is
anticipated. To the extent that nonfatal injuries are avoided, the
potential benefits would be somewhat higher.
b. Potential Costs. Most devices that already have bases will not
have to be modified to meet the amendments. The devices that are not
expected to need to be modified are generally manufactured domestically
and, according to the NFA, account for at least 75 percent of the
retail dollar volume of the market. It is expected that most of the
remaining devices (mainly imports) will be modified to meet the
amendments, with a resulting increase in cost of between 25 to 30
percent per modified unit.8
\8\ Trade and industry sources report that modifying the
devices would add about 25 to 30 percent to production costs
(although one commenter on the NPR stated that the per-unit cost
increase would be 35 to 45 percent). Various sales catalogs also
indicate that comparable devices without bases are significantly
less expensive.
---------------------------------------------------------------------------
In its comments responding to the NPR, AFSL reported that for the
43 units it examined, 65 percent did not meet the 60-degree tip-angle
test. The Commission is not using AFSL's estimate of 35 percent
compliance with the tip-angle test, since the Commission's staff raised
several questions about the accuracy of AFSL's estimate. Thus, the
Commission continues to use the industry-wide data provided by NFA to
estimate the portion of devices that would require modification (25
percent).
Assuming costs are passed on to consumers (as expected), the total
annual cost to consumers of modifying the affected devices would be
between $1.5 million and $2.7 million. While certain devices may be
discontinued, the loss of consumer choice would be minimized by the
availability of close substitutes--i.e., other large multiple-tube
devices that comply with the amendments. Additionally, since most
suppliers of currently noncomplying devices are expected to maintain
current sales levels and pass on costs to consumers, no significant
adverse impact is expected in the suppliers' competitive positions.
If the changes eliminate all deaths associated with these devices,
the cost per life saved would be between about $4.5 and $8 million.
This is within the range of statistical values of life suggested in the
recent professional literature. [22]
4. Alternatives to the Rule
The Commission considered several alternatives to the performance
standard issued below, including a product ban, deferral to the
voluntary standard, and additional labeling.
a. Product Ban. The expected benefits to society of banning all
large multiple-tube devices would be one life saved every 3 years, the
same as the potential benefits of the amendments. However, costs to
society of a ban (as opposed to the performance standard) in terms of
lost utility would be greater, because under a ban consumers would not
be able to use large multiple-tube devices.
Large multiple-tube devices are unique with respect to the height
and duration of their displays. There are no close substitutes for the
product. Single-tube devices are available, but they do not provide the
rapid sequential display of multiple-tube devices. The lost utility to
consumers of not being able to use large multiple-tube devices cannot
be measured precisely. However, the fact that consumers are willing to
spend $24-$36 million annually to buy these devices suggests that the
lost utility could be substantial.
The Commission believes that a ban of all large multiple-tube
devices is not necessary, because a performance standard will likely
achieve similar benefits with lower costs.
b. Defer to the Voluntary Standard. Another alternative is for the
Commission to take no mandatory action, and to depend on a voluntary
standard.
The AFSL revised its standard for mines and shells on an interim
basis on January 29, 1993, and adopted it on September 5, 1995. In
order to address the potential tip-over hazard associated with
multiple-tube fireworks devices, AFSL's Voluntary Standard for Mines
and Shells--Single or Multiple Shot requires that large multiple-tube
devices not tip over (except as the result of the last shot) when fired
on a 2-inch thick medium-density foam pad. [14] However, the Commission
has concerns about the adequacy of the provisions of, and the level of
conformance to, the AFSL standard.
[[Page 13095]]
The Commission also does not believe that AFSL's existing voluntary
standard adequately reduces the risk of injury due to large devices
tipping over while functioning. The Commission's tests using
polyurethane foam did not find sufficient agreement between tip-over
performance on foam and on grass. The Commission has no data that would
support AFSL's dynamic test. As explained in section G above, the test
results AFSL submitted in response to the NPR were limited and the
Commission does not believe they show that this dynamic test is
reliable.
In addition, even if the AFSL standard were effective, the
Commission concludes that compliance with the standard would not be
adequate. The majority of large multiple-tube devices are domestic. In
the NPR, the Commission stated that according to AFSL, not a single
domestically manufactured device has been certified as complying with
the AFSL standard. In comments responding to the NPR, AFSL stated that
their standards are voluntary ``and the decision to comply with the
standards rests solely with individual manufacturers.'' However, the
Commission must have assurance of an adequate level of compliance with
a voluntary standard in order to depend on that standard to reduce a
risk. AFSL's limited testing conducted in response to the NPR does not
substitute for an ongoing and comprehensive testing program.
AFSL reports that some shipments of imported large multiple-tube
devices have been tested and certified in China this year and that,
since January 1994, 30 percent of the lots it tested were rejected for
failure to comply with the AFSL standard. However, the results of
CPSC's compliance testing indicate that multiple-tube devices still tip
over while functioning in dynamic tests on grass. In fiscal year 1994,
all 24 imported devices the Commission tested, and 1 of 8 domestic
devices, tipped over while functioning. In fiscal year 1995, 22 of 27
imported devices and 1 of 5 domestic devices tipped over. [19]
c. Additional Labeling
The current product has extensive labeling. The text of the labels
required by the Commission is quoted in section D above. One
alternative available to the Commission is to add further warning or
instructional labeling to large multiple-tube devices or to modify the
existing warning. Although this may have less impact on manufacturers
and importers than a performance standard, the Commission believes that
any additional or altered labeling is unlikely to be effective in
reducing the risk of injury.
Fireworks are frequently used at night, reducing the likelihood
that warning labels will be read. The fact that fireworks are commonly
used at parties or celebrations further reduces the likelihood that the
user will read and follow a warning label. Moreover, tip-over may occur
even if the user reads and follows the warning label. In both incidents
involving large multiple-tube devices, the victims were spectators who
were approximately 40 feet (12 meters) away from the device, which they
probably believed was a safe distance. The devices were placed on
smooth, hard surfaces, although one was angled to shoot over a lake. In
light of these facts, it is unlikely that a warning label would have
prevented these deaths. [1, Tab E]
K. Regulatory Flexibility Certification
Under the Regulatory Flexibility Act, 5 U.S.C. Secs. 601-612,
agencies generally are required to prepare proposed and final
regulatory flexibility analyses describing the impact of the rule on
small businesses and other small entities. However, these analyses are
not required if the head of the agency certifies that the rule will not
have a significant effect on a substantial number of small entities. As
described below, the Commission has analyzed the potential effect of
the amendment on industry.
The Commission has determined that the proposed standard will not
have a significant impact on a substantial number of small businesses.
The devices subject to the standard constitute less than 1 percent of
the overall fireworks market. The foreign firms that make the types of
devices subject to this rule that are likely to require modification in
order to comply also make other types of fireworks. Only a small
portion of the total production of these firms involves the large
multiple-tube devices subject to the rule. Thus, the Commission
certifies that no significant adverse impact on a substantial number of
small firms, or other entities, will result from the amendment issued
below.
L. Environmental Considerations
The Commission's regulations governing environmental review
procedures state that the amendment of rules or safety standards
establishing design or performance requirements for products normally
have little or no potential for affecting the human environment. 16 CFR
1021.6(c)(1). The Commission does not foresee that this amendment to
the existing fireworks regulations will involve any special or unusual
circumstances that would alter this conclusion. The Commission
determines, therefore, that no significant environmental effects will
result from the standard. Accordingly, no environmental assessment or
environmental impact statement is required in this proceeding.
M. Effective Date
The rule will take effect in 1 year and will apply to multiple-tube
fireworks devices with any tube measuring 1.5 inches or more in inner
diameter that first enter commerce or are imported on or after the
effective date. However, provisions may be stayed by the filing of
proper objections. Notice of the filing of any objections or lack
thereof will be given by publication in the Federal Register.
List of Subjects in 16 CFR Part 1500
Consumer protection, Hazardous materials, Hazardous substances,
Imports, Infants and children, Labeling, Law enforcement, and Toys.
Conclusion
For the reasons given above, the Commission finds that cautionary
labeling required by the FHSA is not adequate for multiple-tube devices
having any tube 1.5 inches (3.8 cm) or larger in inner diameter and
having a minimum tip angle larger than 60 degrees. Further, in order to
protect the public health and safety and due to the degree and nature
of the tip-over hazard presented by these devices, it is necessary to
keep them out of commerce if they fail to meet this standard. Thus, the
Commission amends Parts 1500 and 1507 Title 16 of the Code of Federal
Regulations as follows:
PART 1500--[AMENDED]
1. The authority for Part 1500 continues to read as follows:
Authority: 15 U.S.C. 1261-1278
.2. Section 1500.17 is amended by adding a new paragraph (a)(12) to
read as follows:
Sec. 1500.17 Banned hazardous substances.
* * * * *
(a) * * *
(12) (i) Large multiple-tube devices. Multiple-tube mine and shell
fireworks devices that first enter commerce or are imported on or after
[insert date that is 1 year after publication], that have any tube
measuring 1.5 inches (3.8 cm) or more in inner diameter, and that have
a minimum tip angle greater than 60 degrees when tested in accordance
with the procedure of Sec. 1507.12 of this part.
[[Page 13096]]
(ii) Findings. (A) General. In order to issue a rule under the
section 2(q)(1) of the FHSA, 15 U.S.C. 1261(q)(1), classifying a
substance or article as a banned hazardous substance, the FHSA requires
the Commission to make certain findings and to include these in the
regulation. These findings are discussed in paragraphs (a)(12)(ii)(B)
through (D) of this section.
(B) Voluntary standard. (1) One alternative to the tip-angle
requirement that the Commission considered is to take no mandatory
action, and to depend on a voluntary standard. The American Fireworks
Safety Laboratory (AFSL) has a standard for mines and shells intended
to address the potential tip-over hazard associated with multiple-tube
fireworks devices. AFSL's Voluntary Standard for Mines and Shells--
Single or Multiple Shot requires that large multiple-tube devices not
tip over (except as the result of the last shot) when shot on a 2-inch
thick medium-density foam pad. The Commission cannot conclude that
AFSL's existing voluntary standard adequately reduces the risk of
injury from large devices that tip over while functioning. The
Commission's tests using polyurethane foam did not find sufficient
agreement between performance on foam and on grass. No other data are
available to show that this dynamic test is reliable.
(2) In addition, even if the AFSL standard is effective, the
Commission does not believe that compliance with the standard will be
adequate. AFSL reports that it has been testing in accordance with its
standard since January 1994. However, the results of CPSC's compliance
testing indicate that multiple-tube devices still tip over while
functioning. In fiscal year 1994, all 24 imported devices the
Commission tested, and 1 of 8 domestic devices, tipped over while
functioning. In fiscal year 1995, 22 of 27 imported devices and 1 of 5
domestic devices tipped over during Commission testing. The Commission
finds that there is unlikely to be substantial compliance with the
voluntary standard applicable to multiple-tube devices.
(C) Relationship of benefits to costs. The Commission estimates
that the 60-degree tip-angle standard will eliminate the unreasonable
tip-over risk posed by these devices. This will provide benefits of
saving one life about every 3 years, and preventing an unknown number
of nonfatal injuries. The annual cost of modifying affected devices is
estimated to be between $1.5 million and $2.7 million. The Commission
finds that the benefits from the regulation bear a reasonable
relationship to its costs.
(D) Least burdensome requirement. The Commission considered the
following alternatives: a ban of all multiple-tube devices with inner
tube diameters 1.5 inches or greater; a dynamic performance standard;
additional labeling requirements; and relying on the voluntary
standard. Although a ban of all large multiple-tube devices would
address the risk of injury, it would be more burdensome than the tip-
angle standard. The Commission was unable to develop a satisfactory
dynamic standard that would reduce the risk of injury. Neither
additional labeling requirements nor reliance on the voluntary standard
would adequately reduce the risk of injury. Thus, the Commission finds
that a standard requiring large multiple-tube devices to have a minimum
tip angle greater than 60 degrees is the least burdensome requirement
that would prevent or adequately reduce the risk of injury.
PART 1507--[AMENDED]
1. The authority for Part 1507 continues to read as follows:
Authority: Sec. 2(q)(1)(B), (2), 74 Stat. 374 as amended 80
Stat. 1304-1305; (15 U.S.C. 1261); sec. 701(e), 52 Stat. 1055 as
amended; 21 U.S.C. 371(e)); sec. 30(a), 86 Stat. 1231; 15 U.S.C.
2079(a)).
2. Part 1507 is amended by adding a new Sec. 1507.12 to read as
follows:
Sec. 1507.12 Multiple-tube Fireworks Devices.
(a) Application. Multiple-tube mine and shell fireworks devices
with any tube measuring 1.5 inches (3.8 cm) or more in inside diameter
and subject to Sec. 1500.17(a)(12) of this part shall not tip over when
subjected to the tip-angle test described in this section.
(b) Testing procedure. The device shall be placed on a smooth
surface that can be inclined at 60 degrees from the horizontal, as
shown in Figure 1 of this section. The height and width of the inclined
plane (not including the portion of the plane below the mechanical
stop) shall be at least 1 inch (2.54 cm) greater than the largest
dimension of the base of the device to be tested. The test shall be
conducted on a smooth, hard surface that is horizontal as measured by a
spirit level or equivalent instrument. The mechanical stop on the
inclined plane shall be 1/16 inches (1.6 mm) in height and
perpendicular to the inclined plane. The stop shall be positioned
parallel to the bottom edge of the inclined plane and so that no
portion of the device to be tested or its base touches the horizontal
surface. The device shall not tip over when the plane is inclined at
60-degrees from the horizontal. The procedure shall be repeated for
each edge of the device. Figure 1 to Sec. 1507.12
BILLING CODE 6355-01-P
[[Page 13097]]
[GRAPHIC] [TIFF OMITTED] TR26MR96.011
BILLING CODE 6355-01-C
Dated: March, 18, 1996.
Sadye E. Dunn,
Secretary, Consumer Product Safety Commission.
Reference Documents. (The following list of documents will not
be printed in the Code of Federal Regulations.)
The following documents contain information relevant to this
rulemaking proceeding and are available for inspection at the Office
of the Secretary, Consumer Product Safety Commission, Room 502, 4330
East-West Highway, Bethesda, Maryland 20814:
1. Multiple-tube Mine and Shell Fireworks Devices: Advance
Notice of Proposed Rulemaking; Request for Comments and Information,
59 Fed. Reg. 33928 (July 1, 1994).
2. Briefing Package: Multiple-tube Mine and Shell Fireworks
Devices, Consumer Product Safety Commission, May 31, 1994.
3. Briefing Memorandum on Multiple-tube Mine and Shell Fireworks
Devices, from Ronald L. Medford, EXHR and Michael Babich, EHHE, to
the Commission, June 8, 1995.
4. Memorandum from Michael Babich, Project Manager, HSHE,
``Responses to Public Comments on Multiple-tube Mine and Shell
Devices,'' May 22, 1995.
5. Memorandum from Leonard Schachter, EPHA, to Michael Babich,
HSHE, ``Annual Estimated Injuries Associated with Multiple-tube Mine
and Shell Fireworks Devices,'' June 1, 1995.
6. Memorandum from James Carleton and Jay Sonenthal, LSHS, to
Michael Babich, HSHE, ``Results for Dynamic Stability Testing of
Large Multiple-tube Mine and Shell Devices,'' May 18, 1995.
7. Memorandum from Thomas Caton, ESME, to Michael Babich, HSHE,
``Fireworks Testing: Test Surface Roughness,'' May 22, 1995.
8. Report from Terry Kissinger, EPHA, to Michael Babich, HSHE,
``A Comparison of the Tip-over Performances of Multiple-tube Mine
and Shell Devices on Grass and Foam,'' January 1995.
9. Memorandum from George F. Sushinsky, LSEL, to Michael Babich,
HSHE, ``Dimensional and Stability Measurements of Fireworks,'' March
10, 1995.
10. Memorandum from George F. Sushinsky, LSEL, to Michael
Babich, HSHE, ``Tip Angle Measurements of a Device with a Plastic
Base,'' April 13, 1995.
11. Memorandum from Jay Sonenthal, LSHL, to Michael Babich,
HSHE, ``Test of a Device with a Plastic Base,'' May 22, 1995.
12. Memorandum from Sam Hall, CERM, to Michael Babich, HSHE,
``Acceptable Tipover Rate for Multiple-tube Devices,'' November 21,
1994.
13. Memorandum from Anthony Homan, ECPA, to Michael Babich,
HSHE, ``Multiple-tube Mine and Shell Fireworks Devices--Regulatory
Analysis,'' May 18, 1995.
14. Memorandum from Sam Hall, CERM, to Michael Babich, HSHE,
``AFSL's Interim Voluntary Standard for Large Multiple-tube Mine and
Shell Devices and Staff's Proposed Mandatory Static Performance
Standard, May 25, 1995.
15. Product and Performance Standard for Mines and Shells--
Single or Multiple Shot,'' Version 1.1, American Fireworks Standards
Laboratory, Bethesda, Maryland, January 28, 1993.
16. Memorandum from Neal Gasser, LSHL, to Michael Babich, HSHE,
``Additional Tests of Multiple-tube Mine and Shell Devices,'' June
8, 1995.
17. Briefing Memorandum on Multiple-tube Mine and Shell
Fireworks Devices--Final Rule, from Michael Babich, EHHE, and Ronald
L. Medford, HIR, to the Commission, January 23, 1996.
18. Memorandum from Michael A. Babich, EHHE, ``Responses to
Comments on Multiple-tube Mine and Shell Devices,'' January 16,
1996.
19. Memorandum from Samuel B. Hall, CRM, to Michael Babich,
HSHE, ``Compliance Tests of Large Multiple-tube Mine and Shell
Devices under FY 1994 and FY 1995 Fireworks Enforcement Programs,''
December 8, 1995.
20. Memorandum from Leonard Schacter, EHHA, to Michael Babich,
HSHE, ``Annual Estimated Injuries Associated with Multiple-tube Mine
and Shell Fireworks Devices,'' November 1, 1995.
21. Memorandum from Anthony Homan, ECPA, to Michael Babich,
HSHE, ``Multiple-tube Mine and Shell Fireworks Devices--Final
Regulatory Analysis,'' January 16, 1996.
22. Viscusi, W.K., ``The Value of Risks to Life and Health,''
Journal of Economic Literature, December 1993.
23. Kissinger, T.L., Fireworks Injuries--results of a 1992 NEISS
study. U.S. Consumer Product Safety Commission, Washington, DC
20207. September 1993.
[FR Doc. 96-6857 Filed 3-25-96; 8:45 am]
BILLING CODE 6355-01-P
Complete official Federal Register PDF
FR Doc. 96-6607 Repeal of Employee Responsibilities and Conduct Regulations for Appalachian Regional Commission Federal Employees (Federal Staff); Correction
[Federal Register Volume 61, Number 59 (Tuesday, March 26, 1996)]
[Rules and Regulations]
[Page 13051]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-6607]
========================================================================
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. 59 / Tuesday, March 26, 1996 / Rules
and Regulations
[[Page 13051]]
APPALACHIAN REGIONAL COMMISSION
5 CFR Part 1900
Repeal of Employee Responsibilities and Conduct Regulations for
Appalachian Regional Commission Federal Employees (Federal Staff);
Correction
AGENCY: Appalachian Regional Commission.
ACTION: Final rule; correction.
-----------------------------------------------------------------------
SUMMARY: The Appalachian Regional Commission is correcting one
erroneous citation in its employee responsibilities and conduct
regulation published on December 7, 1995.
EFFECTIVE DATE: This final rule is effective March 26, 1996.
FOR FURTHER INFORMATION CONTACT:
Guy Paul Land, Counsel to the Federal Co-Chairman, Appalachian Regional
Commission, 1666 Connecticut Avenue NW., Washington, D.C. 20235, 202-
884-7660.
SUPPLEMENTARY INFORMATION: The Appalachian Regional Commission is
correcting one erroneous citation to the Office of Government Ethics
(OGE) executive branchwide standards of ethical conduct regulation
which appeared in the ARC's revision to 5 CFR Part 1900, published in
the Federal Register of Thursday, December 7, 1995, on page 62702. The
OGE executive branchwide standards of ethical conduct regulation was
erroneously cited as codified at CFR Part 3635. This final rule
corrects that citation to read 5 CFR Part 2635.
Administrative Procedure Act
Pursuant to 5 U.S.C 553(b), the Appalachian Regional Commission
finds good cause exists for waiving the general notice of proposed
rulemaking as to this final rule. The notice is being waived because
this rulemaking relating to ARC Federal employees concerns matters of
agency organization, practice and procedure. Further, it is in the
public interest that the citation be corrected as soon as possible.
Executive Order 12866
In promulgating this final regulation, the Appalachian Regional
Commission has adhered to the regulatory philosophy and the applicable
principles of regulation set forth in section 1 of Executive Order
12866, Regulatory Planning and Review. This final rule has not been
reviewed by the Office of Management and Budget under that Executive
order, since it deals with agency organization, management, and
personnel matters and is not in any event deemed ``significant''
thereunder.
Regulatory Flexibility Act
The Appalachian Regional Commission has determined under the
Regulatory Flexibility Act (5 U.S.C. chapter 6) that this regulation
will not have a significant impact on small business entities because
it affects only ARC Federal employees.
Paperwork Reduction Act
The Appalachian Regional Commission has determined that the
Paperwork Reduction Act (44 U.S.C. chapter 35) does not apply because
this regulation does not contain any information collection
requirements that require the approval of the Office of Management and
Budget.
List of Subjects in 5 CFR Part 1900
Conflict of interest, Government employees.
Approved: February 29, 1996.
Jesse L. White, Jr.,
Federal Co-Chairman, Appalachian Regional Commission.
For the reasons set forth in the preamble, the final rule published
on December 7, 1995 (60 FR 62702) is corrected as follows:
Sec. 1900.100 [Corrected]
On page 62702, in the third column, in Sec. 1900.100, ``5 CFR part
3635'' is corrected to read ``5 CFR part 2635''.
[FR Doc. 96-6607 Filed 3-25-96; 8:45 am]
BILLING CODE 6130-01-M
Complete official Federal Register PDF
FR Doc. 96-6511 Office of the Assistant Secretary for HousingFederal Housing Commissioner; Real Estate Settlement Procedures Act; Streamlining Final Rule
[Federal Register Volume 61, Number 59 (Tuesday, March 26, 1996)]
[Rules and Regulations]
[Pages 13232-13255]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-6511]
[[Page 13231]]
_______________________________________________________________________
Part II
Department of Housing and Urban Development
_______________________________________________________________________
24 CFR Part 3500
Real Estate Settlement Procedures Act; Streamlining Final Rule
Federal Register / Vol. 61, No. 59 / Tuesday, March 26, 1996 / Rules
and Regulations
[[Page 13232]]
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
24 CFR Part 3500
[Docket No. FR-4023-F-01]
RIN 2502-AG69
Office of the Assistant Secretary for Housing--Federal Housing
Commissioner; Real Estate Settlement Procedures Act; Streamlining Final
Rule
AGENCY: Office of the Assistant Secretary for Housing-Federal Housing
Commissioner, HUD.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This final rule amends HUD's regulations under the Real Estate
Settlement Procedures Act (RESPA). In an effort to comply with the
President's regulatory reform initiatives, this rule streamlines the
RESPA regulations by eliminating provisions that repeat statutes or are
otherwise unnecessary. A number of the appendices that were intended to
be illustrative, rather than regulatory, have been removed from
codification, but will be made available by the Department as Public
Guidance Documents. Therefore, this final rule makes the RESPA
regulations clearer and more concise.
EFFECTIVE DATE: April 25, 1996.
FOR FURTHER INFORMATION CONTACT: David R. Williamson, Director, Office
of Consumer and Regulatory Affairs, Room 5241, Department of Housing
and Urban Development, 451 Seventh Street SW., Washington, DC 20410,
telephone number (202) 708-4560 (this is not a toll-free number); or
for legal questions: Kenneth A. Markison, Assistant General Counsel for
GSE/RESPA, or Grant E. Mitchell, Senior Attorney for RESPA, Room 9262,
Department of Housing and Urban Development, 451 Seventh Street SW.,
Washington, DC 20410, telephone number (202) 708-1550 (this is not a
toll-free number). For hearing- or speech-impaired persons, this number
may be accessed via TDD by calling the Federal Information Relay
Service at 1-800-877-8339.
SUPPLEMENTARY INFORMATION: On March 4, 1995, President Clinton issued a
memorandum to all Federal departments and agencies regarding regulatory
reinvention. In response to this memorandum, the Department of Housing
and Urban Development conducted a page-by-page review of its
regulations to determine which could be eliminated, consolidated, or
otherwise improved. HUD has determined that the regulations for
implementing RESPA can be improved and streamlined by eliminating
unnecessary provisions.
Several provisions in the regulations repeat statutory language
from the Real Estate Settlement Procedures Act of 1974, 12 U.S.C. 2601
et seq. It is unnecessary to maintain statutory requirements in the
Code of Federal Regulations (CFR), since those requirements are
otherwise fully accessible and binding. Furthermore, if regulations
contain statutory language, HUD must amend the regulations whenever
Congress amends the statute. Therefore, this final rule will remove
repetitious statutory language and replace it with a citation to the
specific statutory section for easy reference. For example,
Sec. 3500.19(a) has been substantially streamlined to delete provisions
that simply repeated statutory provisions that do not need to be
implemented by regulation.
This final rule also removes from codification several of the
appendices that previously accompanied part 3500. The Department
intends to preserve the material contained in the appendices to be
removed, but will no longer codify that material. Instead, that
material will be available as Public Guidance Documents, as defined in
this rule. Although not codified, Public Guidance Documents have been
or will be published in the Federal Register and any amendments to the
documents will be published in the Federal Register, as well. In
addition, the rule specifies that these documents are available from
HUD at the address provided. The appendices being removed from
codification are as follows:
Appendix G--consisting of: (1) Appendix G-1 entitled
``Initial Escrow Account Disclosure Statement--Format,'' published at
60 FR 24736 (May 9, 1995); and (2) Appendix G-2 entitled ``Initial
Escrow Account Disclosure Statement--Example,'' published at 60 FR 8819
(Feb. 15, 1995), but amended at 60 FR 24735 (May 9, 1995).
Appendix H--consisting of Appendix H-1 and Appendix H-2,
each entitled ``Biweekly Payments--Example,'' published at 60 FR 8820-
8821 (Feb. 15, 1995).
Appendix I--consisting of: (1) Appendices I-1, I-2, I-5,
and I-6, each entitled ``Annual Escrow Account Disclosure Statement--
Format,'' published at 60 FR 24737-24740 (May 9, 1995); and (2)
Appendices I-3, I-4, I-7, and I-8, each entitled ``Annual Escrow
Account Disclosure Statement--Example,'' published at 60 FR 8824, 8825,
8828, and 8829 (Feb. 15, 1995).
Appendix J--consisting of Appendices J-1 and J-2, each
entitled ``Annual Escrow Account Disclosure Statement--Example,''
published at 60 FR 8830-8831 (Feb. 15, 1995).
Appendix K--consisting of Appendices K-1 through K-4, each
entitled ``Short Year Statements--Example,'' published at 60 FR 8832-
8835 (Feb. 15, 1995).
Appendix L--``Side-by-Side Presentation of Old Projection
and History,'' published at 60 FR 8836 (Feb. 15, 1995).
Appendix M--``Illustration of Option of Identifying
Simultaneous Deficiency and Shortage,'' published at 60 FR 8837 (Feb.
15, 1995).
Appendix N--``HUD-1 Aggregate Accounting Adjustment
Example,'' published at 60 FR 8838 (Feb. 15, 1995).
Aside from having been published previously in the Federal Register
as indicated above, these appendices were also published in the 1995
edition of the CFR (though after publication of the 1995 edition
further revisions to Appendices G and I were made at 60 FR 24735-24740
(May 9, 1995)). While the guidance in these appendices remains
applicable and the examples and explanations are very helpful to users,
it is not necessary that it be published in the CFR. HUD will more
appropriately provide this information through other public guidance
materials rather than maintain it in the CFR. HUD may update this
information from time to time by publication in the Federal Register.
The information is also available from HUD at the address indicated in
24 CFR 3500.3.
The investigation provisions formerly at Sec. 3500.20 previously
were removed from this Part and consolidated in a new part 3800 with
similar provisions for manufactured housing (part 3282) and interstate
land sales (part 1720) (see FR-4026, a reinvention rule published
shortly before this rule).
Justification for Final Rulemaking
HUD generally publishes a rule for public comment before issuing a
rule for effect, in accordance with its own regulations on rulemaking
in 24 CFR part 10. However, part 10 provides for exceptions to the
general rule if the agency finds good cause to omit advance notice and
public participation. The good cause requirement is satisfied when
prior public procedure is ``impracticable, unnecessary, or contrary to
the public interest'' (24 CFR 10.1). HUD finds that good cause exists
to publish this rule for effect without first soliciting public
comment. This rule removes unnecessary regulatory provisions and
nonbinding guidance material and corrects minor, nonsubstantive
editorial errors in the
[[Page 13233]]
text of the current regulations. Because of the nature of the changes,
prior public comment is unnecessary.
Other Matters
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 this rule will not have a significant economic
impact on a substantial number of small entities. This rule merely
streamlines regulations by removing unnecessary provisions. The rule
will have no adverse or disproportionate economic impact on small
businesses.
Environmental Impact
This rulemaking does not have an environmental impact. This
rulemaking simply amends an existing regulation by consolidating and
streamlining provisions and does not alter the environmental effect of
the regulations being amended. Findings of No Significant Impact with
respect to the environment were made in accordance with HUD regulations
in 24 CFR part 50 that implement section 102(2)(C) of the National
Environmental Policy Act of 1969 (42 U.S.C. 4332) at the time of
development of regulations implementing RESPA. Those findings remain
applicable to this rule, and are 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 General Counsel, Room 10276, Department of
Housing and Urban Development, 451 Seventh Street, SW, Washington, DC.
Executive Order 12612, Federalism
The General Counsel, as the Designated Official under section 6(a)
of Executive Order 12612, Federalism, has determined that this 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. No programmatic or policy changes
will result from this rule that would affect the relationship between
the Federal Government and State and local governments.
Executive Order 12606, The Family
The General Counsel, as the Designated Official under Executive
Order 12606, The Family, has determined that this rule will not have
the potential for significant impact on family formation, maintenance,
or 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.
List of Subjects in 24 CFR Part 3500
Consumer protection, Condominiums, Housing, Mortgages, Mortgage
servicing, Reporting and recordkeeping requirements.
Accordingly, part 3500 of title 24 of the Code of Federal
Regulations is amended as follows:
PART 3500--REAL ESTATE SETTLEMENT PROCEDURES ACT
1. The authority citation for part 3500 continues to read as
follows:
Authority: 12 U.S.C. 2601 et seq.; 42 U.S.C. 3535(d).
2. Sections 3500.1 through 3500.19 and 3500.21 are revised to read
as follows:
Sec. 3500.1 Designation.
This part may be referred to as Regulation X.
Sec. 3500.2 Definitions.
(a) Statutory terms. All terms defined in RESPA (12 U.S.C. 2602)
are used in accordance with their statutory meaning unless otherwise
defined in paragraph (b) of this section or elsewhere in this part.
(b) Other terms. As used in this part:
Application means the submission of a borrower's financial
information in anticipation of a credit decision, whether written or
computer-generated, relating to a federally related mortgage loan. If
the submission does not state or identify a specific property, the
submission is an application for a pre-qualification and not an
application for a federally related mortgage loan under this part. The
subsequent addition of an identified property to the submission
converts the submission to an application for a federally related
mortgage loan.
Business day means a day on which the offices of the business
entity are open to the public for carrying on substantially all of the
entity's business functions.
Dealer means, in the case of property improvement loans, a seller,
contractor, or supplier of goods or services. In the case of
manufactured home loans, ``dealer'' means one who engages in the
business of manufactured home retail sales.
Dealer loan or dealer consumer credit contract means, generally,
any arrangement in which a dealer assists the borrower in obtaining a
federally related mortgage loan from the funding lender and then
assigns the dealer's legal interests to the funding lender and receives
the net proceeds of the loan. The funding lender is the lender for the
purposes of the disclosure requirements of this part. If a dealer is a
``creditor'' as defined under the definition of ``federally related
mortgage loan'' in this part, the dealer is the lender for purposes of
this part.
Effective date of transfer is defined in section 6(i)(1) of RESPA
(12 U.S.C. 2605(i)(1)). In the case of a home equity conversion
mortgage or reverse mortgage as referenced in this section, the
effective date of transfer is the transfer date agreed upon by the
transferee servicer and the transferor servicer.
Federally related mortgage loan, also referred to in this rule as a
``mortgage loan,'' is defined in section 3(1) of RESPA (12 U.S.C.
2602(1)). If the residential property securing a mortgage loan is not
located in a State, it is not a federally related mortgage loan. A
federally related mortgage loan also includes:
(1) Any loan (other than temporary financing such as a construction
loan) which meets the requirements in section 3(1)(A) of RESPA (12
U.S.C. 2602(1)(A)) and which is either:
(i) Originated by a dealer or, if the obligation is to be assigned
to any maker of mortgage loans specified in section 3(1)(B)(i)-(iv) of
RESPA (12 U.S.C. 2602(1)(B)(i)-(iv), by a mortgage broker; or
(ii) The subject of a home equity conversion mortgage, also
frequently called a ``reverse mortgage,'' issued by any maker of
mortgage loans specified in section 3(1)(B)(i)-(iv) of RESPA (12 U.S.C.
2602(1)(B)(i)-(iv)).
(2) Any installment sales contract, land contract, or contract for
deed on otherwise qualifying residential property is a federally
related mortgage loan if the contract is funded in whole or in part by
proceeds of a loan made by any maker of mortgage loans specified in
section 3(1)(B)(i)-(iv) of RESPA (12 U.S.C. 2602(1)(B)(i)-(iv)).
Good faith estimate means an estimate, prepared in accordance with
section 5 of RESPA (12 U.S.C. 2604), of charges that a borrower is
likely to incur in connection with a settlement.
HUD-1 or HUD-1A settlement statement (also HUD-1 or HUD-1A) means
the statement that is prescribed by the Secretary in this part for
setting forth settlement charges in connection with either the purchase
or the refinancing (or other subordinate lien transaction) of 1- to 4-
family residential property.
[[Page 13234]]
Lender means, generally, the secured creditor or creditors named in
the debt obligation and document creating the lien. For loans
originated by a mortgage broker that closes a federally related
mortgage loan in its own name in a table funding transaction, the
lender is the person to whom the obligation is initially assigned at or
after settlement. A lender, in connection with dealer loans, is the
lender to whom the loan is assigned, unless the dealer meets the
definition of creditor as defined under ``federally related mortgage
loan'' in this section. See also Sec. 3500.5(b)(7), secondary market
transactions.
Manufactured home is defined in Sec. 3280.2 of this title.
Mortgage broker means a person (not an employee or exclusive agent
of a lender) who brings a borrower and lender together to obtain a
federally related mortgage loan, and who renders services as described
in the definition of ``settlement services'' in this section. A loan
correspondent meeting the requirements of the Federal Housing
Administration under Sec. 202.2(b) or Sec. 202.15(a) of this title is a
mortgage broker for purposes of this part.
Mortgaged property means the real property that is security for the
federally related mortgage loan.
Person is defined in section 3(5) of RESPA (12 U.S.C. 2602(5)).
Public Guidance Documents means documents that HUD has published in
the Federal Register, and that it may amend from time-to-time by
publication in the Federal Register. These documents are also available
from HUD at the address indicated in 24 CFR 3500.3.
Refinancing means a transaction in which an existing obligation
that was subject to a secured lien on residential real property is
satisfied and replaced by a new obligation undertaken by the same
borrower and with the same or a new lender. The following shall not be
treated as a refinancing, even when the existing obligation is
satisfied and replaced by a new obligation with the same lender (this
definition of ``refinancing'' as to transactions with the same lender
is similar to Regulation Z, 12 CFR 226.20(a)):
(1) A renewal of a single payment obligation with no change in the
original terms;
(2) A reduction in the annual percentage rate as computed under the
Truth in Lending Act with a corresponding change in the payment
schedule;
(3) An agreement involving a court proceeding;
(4) A workout agreement, in which a change in the payment schedule
or change in collateral requirements is agreed to as a result of the
consumer's default or delinquency, unless the rate is increased or the
new amount financed exceeds the unpaid balance plus earned finance
charges and premiums for continuation of allowable insurance; and
(5) The renewal of optional insurance purchased by the consumer
that is added to an existing transaction, if disclosures relating to
the initial purchase were provided.
Regulation Z means the regulations issued by the Board of Governors
of the Federal Reserve System (12 CFR part 226) to implement the
Federal Truth in Lending Act (15 U.S.C. 1601 et seq.), and includes the
Commentary on Regulation Z.
Required use means a situation in which a person must use a
particular provider of a settlement service in order to have access to
some distinct service or property, and the person will pay for the
settlement service of the particular provider or will pay a charge
attributable, in whole or in part, to the settlement service. However,
the offering of a package (or combination of settlement services) or
the offering of discounts or rebates to consumers for the purchase of
multiple settlement services does not constitute a required use. Any
package or discount must be optional to the purchaser. The discount
must be a true discount below the prices that are otherwise generally
available, and must not be made up by higher costs elsewhere in the
settlement process.
RESPA means the Real Estate Settlement Procedures Act of 1974, 12
U.S.C. 2601 et seq.
Servicer means the person responsible for the servicing of a
mortgage loan (including the person who makes or holds a mortgage loan
if such person also services the mortgage loan). The term does not
include:
(1) The Federal Deposit Insurance Corporation (FDIC) or the
Resolution Trust Corporation (RTC), in connection with assets acquired,
assigned, sold, or transferred pursuant to section 13(c) of the Federal
Deposit Insurance Act or as receiver or conservator of an insured
depository institution; and
(2) The Federal National Mortgage Corporation (FNMA); the Federal
Home Loan Mortgage Corporation (Freddie Mac); the RTC; the FDIC; HUD,
including the Government National Mortgage Association (GNMA) and the
Federal Housing Administration (FHA) (including cases in which a
mortgage insured under the National Housing Act (12 U.S.C. 1701 et
seq.) is assigned to HUD); the National Credit Union Administration
(NCUA); the Farmers Home Administration or its successor agency under
Public Law 103-354 (FmHA); and the Department of Veterans Affairs (VA),
in any case in which the assignment, sale, or transfer of the servicing
of the mortgage loan is preceded by termination of the contract for
servicing the loan for cause, commencement of proceedings for
bankruptcy of the servicer, or commencement of proceedings by the FDIC
or RTC for conservatorship or receivership of the servicer (or an
entity by which the servicer is owned or controlled).
Servicing means receiving any scheduled periodic payments from a
borrower pursuant to the terms of any mortgage loan, including amounts
for escrow accounts under section 10 of RESPA (12 U.S.C. 2609), and
making the payments to the owner of the loan or other third parties of
principal and interest and such other payments with respect to the
amounts received from the borrower as may be required pursuant to the
terms of the mortgage servicing loan documents or servicing contract.
In the case of a home equity conversion mortgage or reverse mortgage as
referenced in this section, servicing includes making payments to the
borrower.
Settlement means the process of executing legally binding documents
regarding a lien on property that is subject to a federally related
mortgage loan. This process may also be called ``closing'' or
``escrow'' in different jurisdictions.
Settlement service means any service provided in connection with a
prospective or actual settlement, including, but not limited to, any
one or more of the following:
(1) Origination of a federally related mortgage loan (including,
but not limited to, the taking of loan applications, loan processing,
and the underwriting and funding of such loans);
(2) Rendering of services by a mortgage broker (including
counseling, taking of applications, obtaining verifications and
appraisals, and other loan processing and origination services, and
communicating with the borrower and lender);
(3) Provision of any services related to the origination,
processing or funding of a federally related mortgage loan;
(4) Provision of title services, including title searches, title
examinations, abstract preparation, insurability determinations, and
the issuance of title commitments and title insurance policies;
[[Page 13235]]
(5) Rendering of services by an attorney;
(6) Preparation of documents, including notarization, delivery, and
recordation;
(7) Rendering of credit reports and appraisals;
(8) Rendering of inspections, including inspections required by
applicable law or any inspections required by the sales contract or
mortgage documents prior to transfer of title;
(9) Conducting of settlement by a settlement agent and any related
services;
(10) Provision of services involving mortgage insurance;
(11) Provision of services involving hazard, flood, or other
casualty insurance or homeowner's warranties;
(12) Provision of services involving mortgage life, disability, or
similar insurance designed to pay a mortgage loan upon disability or
death of a borrower, but only if such insurance is required by the
lender as a condition of the loan;
(13) Provision of services involving real property taxes or any
other assessments or charges on the real property;
(14) Rendering of services by a real estate agent or real estate
broker; and
(15) Provision of any other services for which a settlement service
provider requires a borrower or seller to pay.
Special information booklet means the booklet prepared by the
Secretary pursuant to section 5 of RESPA (12 U.S.C. 2604) to help
persons understand the nature and costs of settlement services. The
Secretary publishes the form of the special information booklet in the
Federal Register. The Secretary may issue or approve additional
booklets or alternative booklets by publication of a Notice in the
Federal Register.
State means any State of the United States, the District of
Columbia, the Commonwealth of Puerto Rico, and any territory or
possession of the United States.
Table funding means a settlement at which a loan is funded by a
contemporaneous advance of loan funds and an assignment of the loan to
the person advancing the funds. A table-funded transaction is not a
secondary market transaction (see Sec. 3500.5(b)(7)).
Title company means any institution, or its duly authorized agent,
that is qualified to issue title insurance.
Sec. 3500.3 Questions or suggestions from public and copies of public
guidance documents.
Any questions or suggestions from the public regarding RESPA, or
requests for copies of HUD Public Guidance Documents, should be
directed to the Director, Office of Consumer and Regulatory Affairs,
Department of Housing and Urban Development, 451 7th Street SW.,
Washington, DC 20410-8000, rather than to HUD field offices. Legal
questions may be directed to the Assistant General Counsel, GSE/RESPA
Division, at this address.
Sec. 3500.4 Reliance upon rule, regulation or interpretation by HUD.
(a) Rule, regulation or interpretation.--(1) For purposes of
sections 19 (a) and (b) of RESPA (12 U.S.C. 2617 (a) and (b)) only the
following constitute a rule, regulation or interpretation of the
Secretary:
(i) All provisions, including appendices, of this part. Any other
document referred to in this part is not incorporated in this part
unless it is specifically set out in this part;
(ii) Any other document that is published in the Federal Register
by the Secretary and states that it is an ``interpretation,''
``interpretive rule,'' ``commentary,'' or a ``statement of policy'' for
purposes of section 19(a) of RESPA. Such documents will be prepared by
HUD staff and counsel. Such documents may be revoked or amended by a
subsequent document published in the Federal Register by the Secretary.
(2) A ``rule, regulation, or interpretation thereof by the
Secretary'' for purposes of section 19(b) of RESPA (12 U.S.C. 2617(b))
shall not include the special information booklet prescribed by the
Secretary or any other statement or issuance, whether oral or written,
by an officer or representative of the Department of Housing and Urban
Development (HUD), letter or memorandum by the Secretary, General
Counsel, any Assistant Secretary or other officer or employee of HUD,
preamble to a regulation or other issuance of HUD, Public Guidance
Document, report to Congress, pleading, affidavit or other document in
litigation, pamphlet, handbook, guide, telegraphic communication,
explanation, instructions to forms, speech or other material of any
nature which is not specifically included in paragraph (a)(1) of this
section.
(b) Unofficial interpretations; staff discretion. In response to
requests for interpretation of matters not adequately covered by this
part or by an official interpretation issued under paragraph (a)(1)(ii)
of this section, unofficial staff interpretations may be provided at
the discretion of HUD staff or counsel. Written requests for such
interpretations should be directed to the address indicated in
Sec. 3500.3. Such interpretations provide no protection under section
19(b) of RESPA (12 U.S.C. 2617(b)). Ordinarily, staff or counsel will
not issue unofficial interpretations on matters adequately covered by
this Part or by official interpretations or commentaries issued under
paragraph (a)(1)(ii) of this section.
(c) All informal counsel's opinions and staff interpretations
issued before November 2, 1992, were withdrawn as of that date. Courts
and administrative agencies, however, may use previous opinions to
determine the validity of conduct under the previous Regulation X.
Sec. 3500.5 Coverage of RESPA.
(a) Applicability. RESPA and this part apply to all federally
related mortgage loans, except for the exemptions provided in paragraph
(b) of this section.
(b) Exemptions. (1) A loan on property of 25 acres or more.
(2) Business purpose loans. An extension of credit primarily for a
business, commercial, or agricultural purpose. The definition of such
an extension of credit for purposes of this exemption generally
parallels Regulation Z, 12 CFR 226.3(a)(1), and persons may rely on
Regulation Z in determining whether the exemption applies.
Notwithstanding the foregoing, the exemption in this section for
business purpose loans does not include any loan to one or more persons
acting in an individual capacity (natural persons) to acquire,
refinance, improve, or maintain 1- to 4-family residential property
used, or to be used, to rent to other persons. An individual who
voluntarily chooses to act as a sole proprietorship is not considered
to be acting in an individual capacity for purposes of this part.
(3) Temporary financing. Temporary financing, such as a
construction loan. The exemption for temporary financing does not apply
to a loan made to finance construction of 1- to 4-family residential
property if the loan is used as, or may be converted to, permanent
financing by the same lender or is used to finance transfer of title to
the first user. If a lender issues a commitment for permanent
financing, with or without conditions, the loan is covered by this
part. Any construction loan for new or rehabilitated 1- to 4-family
residential property, other than a loan to a bona fide builder (a
person who regularly constructs 1- to 4-family residential structures
for sale or lease), is subject to this part if its term is for two
years or more. A ``bridge loan'' or ``swing loan'' in which a lender
takes a security
[[Page 13236]]
interest in otherwise covered 1- to 4-family residential property is
not covered by RESPA and this part.
(4) Vacant land. Any loan secured by vacant or unimproved property,
unless within two years from the date of the settlement of the loan, a
structure or a manufactured home will be constructed or placed on the
real property using the loan proceeds. If a loan for a structure or
manufactured home to be placed on vacant or unimproved property will be
secured by a lien on that property, the transaction is covered by this
part.
(5) Assumption without lender approval. Any assumption in which the
lender does not have the right expressly to approve a subsequent person
as the borrower on an existing federally related mortgage loan. Any
assumption in which the lender's permission is both required and
obtained is covered by RESPA and this part, whether or not the lender
charges a fee for the assumption.
(6) Loan conversions. Any conversion of a federally related
mortgage loan to different terms that are consistent with provisions of
the original mortgage instrument, as long as a new note is not
required, even if the lender charges an additional fee for the
conversion.
(7) Secondary market transactions. A bona fide transfer of a loan
obligation in the secondary market is not covered by RESPA and this
part, except as set forth in section 6 of RESPA (12 U.S.C. 2605) and
Sec. 3500.21. In determining what constitutes a bona fide transfer, HUD
will consider the real source of funding and the real interest of the
funding lender. Mortgage broker transactions that are table-funded are
not secondary market transactions. Neither the creation of a dealer
loan or dealer consumer credit contract, nor the first assignment of
such loan or contract to a lender, is a secondary market transaction
(see Sec. 3500.2.)
Sec. 3500.6 Special information booklet at time of loan application.
(a) Lender to provide special information booklet. Subject to the
exceptions set forth in this paragraph, the lender shall provide a copy
of the special information booklet to a person from whom the lender
receives, or for whom the lender prepares, a written application for a
federally related mortgage loan. When two or more persons apply
together for a loan, the lender is in compliance if the lender provides
a copy of the booklet to one of the persons applying.
(1) The lender shall provide the special information booklet by
delivering it or placing it in the mail to the applicant not later than
three business days (as that term is defined in Sec. 3500.2) after the
application is received or prepared. However, if the lender denies the
borrower's application for credit before the end of the three-business-
day period, then the lender need not provide the booklet to the
borrower. If a borrower uses a mortgage broker, the mortgage broker
shall distribute the special information booklet and the lender need
not do so. The intent of this provision is that the applicant receive
the special information booklet at the earliest possible date.
(2) In the case of a federally related mortgage loan involving an
open-ended credit plan, as defined in Sec. 226.2(a)(20) of Regulation Z
(12 CFR), a lender or mortgage broker that provides the borrower with a
copy of the brochure entitled ``When Your Home is On the Line: What You
Should Know About Home Equity Lines of Credit'', or any successor
brochure issued by the Board of Governors of the Federal Reserve
System, is deemed to be in compliance with this section.
(3) In the categories of transactions set forth at the end of this
paragraph, the lender or mortgage broker does not have to provide the
booklet to the borrower. Under the authority of section 19(a) of RESPA
(12 U.S.C. 2617(a)), the Secretary may issue a revised or separate
special information booklet that deals with these transactions, or the
Secretary may chose to endorse the forms or booklets of other Federal
agencies. In such an event, the requirements for delivery by lenders
and the availability of the booklet or alternate materials for these
transactions will be set forth in a Notice in the Federal Register.
This paragraph shall apply to the following transactions:
(i) Refinancing transactions;
(ii) Closed-end loans, as defined in 12 CFR 226.2(a)(10) of
Regulation Z, when the lender takes a subordinate lien;
(iii) Reverse mortgages; and
(iv) Any other federally related mortgage loan whose purpose is not
the purchase of a 1- to 4-family residential property.
(b) Revision. The Secretary may from time to time revise the
special information booklet by publishing a notice in the Federal
Register.
(c) Reproduction. The special information booklet may be reproduced
in any form, provided that no change is made other than as provided
under paragraph (d) of this section. The special information booklet
may not be made a part of a larger document for purposes of
distribution under RESPA and this section. Any color, size and quality
of paper, type of print, and method of reproduction may be used so long
as the booklet is clearly legible.
(d) Permissible changes. (1) No changes to, deletions from, or
additions to the special information booklet currently prescribed by
the Secretary shall be made other than those specified in this
paragraph (d) or any others approved in writing by the Secretary. A
request to the Secretary for approval of any changes shall be submitted
in writing to the address indicated in Sec. 3500.3, stating the reasons
why the applicant believes such changes, deletions or additions are
necessary.
(2) The cover of the booklet may be in any form and may contain any
drawings, pictures or artwork, provided that the words ``settlement
costs'' are used in the title. Names, addresses and telephone numbers
of the lender or others and similar information may appear on the
cover, but no discussion of the matters covered in the booklet shall
appear on the cover.
(3) The special information booklet may be translated into
languages other than English.
Sec. 3500.7 Good faith estimate.
(a) Lender to provide. Except as provided in this paragraph (a) or
paragraph (f) of this section, the lender shall provide all applicants
for a federally related mortgage loan with a good faith estimate of the
amount of or range of charges for the specific settlement services the
borrower is likely to incur in connection with the settlement. The
lender shall provide the good faith estimate required under this
section (a suggested format is set forth in Appendix C of this part)
either by delivering the good faith estimate or by placing it in the
mail to the loan applicant, not later than three business days after
the application is received or prepared.
(1) If the lender denies the application for a federally related
mortgage loan before the end of the three-business-day period, the
lender need not provide the denied borrower with a good faith estimate.
(2) For ``no cost'' or ``no point'' loans, the charges to be shown
on the good faith estimate include any payments to be made to
affiliated or independent settlement service providers. These payments
should be shown as P.O.C. (Paid Outside of Closing) on the Good Faith
Estimate and the HUD-1 or HUD-1A.
(3) In the case of dealer loans, the lender is responsible for
provision of the good faith estimate, either directly or by the dealer.
(4) If a mortgage broker is the exclusive agent of the lender,
either the
[[Page 13237]]
lender or the mortgage broker shall provide the good faith estimate
within three business days after the mortgage broker receives or
prepares the application.
(b) Mortgage broker to provide. In the event an application is
received by a mortgage broker who is not an exclusive agent of the
lender, the mortgage broker must provide a good faith estimate within
three days of receiving a loan application based on his or her
knowledge of the range of costs (a suggested format is set forth in
Appendix C of this part). As long as the mortgage broker has provided
the good faith estimate, the funding lender is not required to provide
an additional good faith estimate, but the funding lender is
responsible for ascertaining that the good faith estimate has been
delivered. If the application for mortgage credit is denied before the
end of the three-business-day period, the mortgage broker need not
provide the denied borrower with a good faith estimate.
(c) Content of good faith estimate. A good faith estimate consists
of an estimate, as a dollar amount or range, of each charge which:
(1) Will be listed in section L of the HUD-1 or HUD-1A in
accordance with the instructions set forth in Appendix A to this part;
and
(2) That the borrower will normally pay or incur at or before
settlement based upon common practice in the locality of the mortgaged
property. Each such estimate must be made in good faith and bear a
reasonable relationship to the charge a borrower is likely to be
required to pay at settlement, and must be based upon experience in the
locality of the mortgaged property. As to each charge with respect to
which the lender requires a particular settlement service provider to
be used, the lender shall make its estimate based upon the lender's
knowledge of the amounts charged by such provider.
(d) Form of good faith estimate. A suggested good faith estimate
form is set forth in Appendix C to this part and is in compliance with
the requirements of the Act except for any additional requirements of
paragraph (e) of this section. The good faith estimate may be provided
together with disclosures required by the Truth in Lending Act, 15
U.S.C. 1601 et seq., so long as all required material for the good
faith estimate is grouped together. The lender may include additional
relevant information, such as the name/signature of the applicant and
loan officer, date, and information identifying the loan application
and property, as long as the form remains clear and concise and the
additional information is not more prominent than the required
material.
(e) Particular providers required by lender. (1) If the lender
requires the use (see Sec. 3500.2, ``required use'') of a particular
provider of a settlement service, other than the lender's own
employees, and also requires the borrower to pay any portion of the
cost of such service, then the good faith estimate must:
(i) Clearly state that use of the particular provider is required
and that the estimate is based on the charges of the designated
provider;
(ii) Give the name, address, and telephone number of each provider;
and
(iii) Describe the nature of any relationship between each such
provider and the lender. Plain English references to the relationship
should be utilized, e.g., ``X is a depositor of the lender,'' ``X is a
borrower from the lender,'' ``X has performed 60% of the lender's
settlements in the past year.'' (The lender is not required to keep
detailed records of the percentages of use. Similar language, such as
``X was used [regularly] [frequently] in our settlements the past
year'' is also sufficient for the purposes of this paragraph.) In the
event that more than one relationship exists, each should be disclosed.
(2) For purposes of paragraph (e)(1) of this section, a
``relationship'' exists if:
(i) The provider is an associate of the lender, as that term is
defined in 12 U.S.C. 2602(8);
(ii) Within the last 12 months, the provider has maintained an
account with the lender or had an outstanding loan or credit
arrangement with the lender; or
(iii) The lender has repeatedly used or required borrowers to use
the services of the provider within the last 12 months.
(3) Except for a provider that is the lender's chosen attorney,
credit reporting agency, or appraiser, if the lender is in a controlled
business relationship (see Sec. 3500.15) with a provider, the lender
may not require the use of that provider.
(4) If the lender maintains a controlled list of required providers
(five or more for each discrete service) or relies on a list maintained
by others, and at the time of application the lender has not yet
decided which provider will be selected from that list, then the lender
may satisfy the requirements of this section if the lender:
(i) Provides the borrower with a written statement that the lender
will require a particular provider from a lender-controlled or -
approved list; and
(ii) Provides the borrower in the Good Faith Estimate the range of
costs for the required provider(s), and provides the name of the
specific provider and the actual cost on the HUD-1 or HUD-1A.
(f) Open-end lines of credit (home-equity plans) under Truth in
Lending Act. In the case of a federally related mortgage loan involving
an open-end line of credit (home-equity plan) covered under the Truth
in Lending Act and Regulation Z, a lender or mortgage broker that
provides the borrower with the disclosures required by 12 CFR 226.5b of
Regulation Z at the time the borrower applies for such loan shall be
deemed to satisfy the requirements of this section.
(Approved by the Office of Management and Budget under control
number 2502-0265)
Sec. 3500.8 Use of HUD-1 or HUD-1A settlement statements.
(a) Use by settlement agent. The settlement agent shall use the
HUD-1 settlement statement in every settlement involving a federally
related mortgage loan in which there is a borrower and a seller. For
transactions in which there is a borrower and no seller, such as
refinancing loans or subordinate lien loans, the HUD-1 may be utilized
by using the borrower's side of the HUD-1 statement. Alternatively, the
form HUD-1A may be used for these transactions. Either the HUD-1 or the
HUD-1A, as appropriate, shall be used for every RESPA-covered
transaction, unless its use is specifically exempted, but the HUD-1 or
HUD-1A may be modified as permitted under this part. The use of the
HUD-1 or HUD-1A is exempted for open-end lines of credit (home-equity
plans) covered by the Truth in Lending Act and Regulation Z.
(b) Charges to be stated. The settlement agent shall complete the
HUD-1 or HUD-1A in accordance with the instructions set forth in
Appendix A to this part.
(c) Aggregate Accounting At Settlement. (1) After itemizing
individual deposits in the 1000 series using single-item accounting,
the servicer shall make an adjustment based on aggregate accounting.
This adjustment equals the difference in the deposit required under
aggregate accounting and the sum of the deposits required under single-
item accounting. The computation steps for both accounting methods are
set out in Sec. 3500.17(d). The adjustment will always be a negative
number or zero (-0-). The settlement agent shall enter the aggregate
adjustment amount on a final line in the 1000 series of the HUD-1 or
HUD-1A statement.
(2) During the phase-in period, as defined in Sec. 3500.17(b), an
alternative procedure is available. The settlement
[[Page 13238]]
agent may initially calculate the 1000 series deposits for the HUD-1
and HUD-1A settlement statement using single-item analysis with only a
one-month cushion (unless the mortgage loan documents indicate a
smaller amount). In the escrow account analysis conducted within 45
days of settlement, however, the servicer shall adjust the escrow
account to reflect the aggregate accounting balance. Appendix F to this
part sets out examples of aggregate analysis. Appendix A to this part
contains instructions for completing the HUD-1 or HUD-1A settlement
statements using an aggregate analysis adjustment and the alternative
process during the phase-in period.
(Approved by the Office of Management and Budget under control
numbers 2502-0265 and 2502-0491)
Sec. 3500.9 Reproduction of settlement statements.
(a) Permissible changes--HUD-1. The following changes and
insertions are permitted when the HUD-1 settlement statement is
reproduced:
(1) The person reproducing the HUD-1 may insert its business name
and logotype in Section A and may rearrange, but not delete, the other
information that appears in Section A.
(2) The name, address, and other information regarding the lender
and settlement agent may be printed in Sections F and H, respectively.
(3) Reproduction of the HUD-1 must conform to the terminology,
sequence, and numbering of line items as presented in lines 100-1400.
However, blank lines or items listed in lines 100-1400 that are not
used locally or in connection with mortgages by the lender may be
deleted, except for the following: Lines 100, 120, 200, 220, 300, 301,
302, 303, 400, 420, 500, 520, 600, 601, 602, 603, 700, 800, 900, 1000,
1100, 1200, 1300, and 1400. The form may be shortened correspondingly.
The number of a deleted item shall not be used for a substitute or new
item, but the number of a blank space on the HUD-1 may be used for a
substitute or new item.
(4) Charges not listed on the HUD-1, but that are customary locally
or pursuant to the lender's practice, may be inserted in blank spaces.
Where existing blank spaces on the HUD-1 are insufficient, additional
lines and spaces may be added and numbered in sequence with spaces on
the HUD-1.
(5) The following variations in layout and format are within the
discretion of persons reproducing the HUD-1 and do not require prior
HUD approval: size of pages; tint or color of pages; size and style of
type or print; vertical spacing between lines or provision for
additional horizontal space on lines (for example, to provide
sufficient space for recording time periods used in prorations);
printing of the HUD-1 contents on separate pages, on the front and back
of a single page, or on one continuous page; use of multicopy tear-out
sets; printing on rolls for computer purposes; reorganization of
Sections B through I, when necessary to accommodate computer printing;
and manner of placement of the HUD number, but not the OMB approval
number, neither of which may be deleted. The designation of the
expiration date of the OMB number may be deleted. Any changes in the
HUD number or OMB approval number may be announced by notice in the
Federal Register, rather than by amendment of this part.
(6) The borrower's information and the seller's information may be
provided on separate pages.
(7) Signature lines may be added.
(8) The HUD-1 may be translated into languages other than English.
(9) An additional page may be attached to the HUD-1 for the purpose
of including customary recitals and information used locally in real
estate settlements; for example, breakdown of payoff figures, a
breakdown of the borrower's total monthly mortgage payments, check
disbursements, a statement indicating receipt of funds, applicable
special stipulations between buyer and seller, and the date funds are
transferred. If space permits, such information may be added at the end
of the HUD-1.
(10) As required by HUD/FHA in FHA-insured loans.
(11) As allowed by Sec. 3500.17, relating to an initial escrow
account statement.
(b) Permissible changes--HUD-1A. The changes and insertions on the
HUD-1 permitted under paragraph (a) of this section are also permitted
when the HUD-1A settlement statement is reproduced, except the changes
described in paragraphs (a) (3) and (6) of this section.
(c) Written approval. Any other deviation in the HUD-1 or HUD-1A
forms is permissible only upon receipt of written approval of the
Secretary. A request to the Secretary for approval shall be submitted
in writing to the address indicated in Sec. 3500.3 and shall state the
reasons why the applicant believes such deviation is needed. The
prescribed form(s) must be used until approval is received.
(Approved by the Office of Management and Budget under control
numbers 2502-0265 and 2502-0491)
Sec. 3500.10 One-day advance inspection of HUD-1 or HUD-1A settlement
statement; delivery; recordkeeping.
(a) Inspection one day prior to settlement upon request by the
borrower. The settlement agent shall permit the borrower to inspect the
HUD-1 or HUD-1A settlement statement, completed to set forth those
items that are known to the settlement agent at the time of inspection,
during the business day immediately preceding settlement. Items related
only to the seller's transaction may be omitted from the HUD-1.
(b) Delivery. The settlement agent shall provide a completed HUD-1
or HUD-1A to the borrower, the seller (if there is one), the lender (if
the lender is not the settlement agent), and/or their agents. When the
borrower's and seller's copies of the HUD-1 or HUD-1A differ as
permitted by the instructions in Appendix A to this part, both copies
shall be provided to the lender (if the lender is not the settlement
agent). The settlement agent shall deliver the completed HUD-1 or HUD-
1A at or before the settlement, except as provided in paragraphs (c)
and (d) of this section.
(c) Waiver. The borrower may waive the right to delivery of the
completed HUD-1 or HUD-1A no later than at settlement by executing a
written waiver at or before settlement. In such case, the completed
HUD-1 or HUD-1A shall be mailed or delivered to the borrower, seller,
and lender (if the lender is not the settlement agent) as soon as
practicable after settlement.
(d) Exempt transactions. When the borrower or the borrower's agent
does not attend the settlement, or when the settlement agent does not
conduct a meeting of the parties for that purpose, the transaction
shall be exempt from the requirements of paragraphs (a) and (b) of this
section, except that the HUD-1 or HUD-1A shall be mailed or delivered
as soon as practicable after settlement.
(e) Recordkeeping. The lender shall retain each completed HUD-1 or
HUD-1A and related documents for five years after settlement, unless
the lender disposes of its interest in the mortgage and does not
service the mortgage. In that case, the lender shall provide its copy
of the HUD-1 or HUD-1A to the owner or servicer of the mortgage as a
part of the transfer of the loan file. Such owner or servicer shall
retain the HUD-1 or HUD-1A for the remainder of the five-year period.
The Secretary shall have the right to inspect or require copies of
records covered by this paragraph (e).
(Approved by the Office of Management and Budget under control
number 2502-0265)
[[Page 13239]]
Sec. 3500.11 Mailing.
The provisions of this part requiring or permitting mailing of
documents shall be deemed to be satisfied by placing the document in
the mail (whether or not received by the addressee) addressed to the
addresses stated in the loan application or in other information
submitted to or obtained by the lender at the time of loan application
or submitted or obtained by the lender or settlement agent, except that
a revised address shall be used where the lender or settlement agent
has been expressly informed in writing of a change in address.
Sec. 3500.12 No fee.
No fee shall be imposed or charge made upon any other person, as a
part of settlement costs or otherwise, by a lender in connection with a
federally related mortgage loan made by it (or a loan for the purchase
of a manufactured home), or by a servicer (as that term is defined
under 12 U.S.C. 2605(i)(2)) for or on account of the preparation and
distribution of the HUD-1 or HUD-1A settlement statement, escrow
account statements required pursuant to section 10 of RESPA (12 U.S.C.
2609), or statements required by the Truth in Lending Act, 15 U.S.C.
1601 et seq.
Sec. 3500.13 Relation to State laws.
(a) State laws that are inconsistent with RESPA or this part are
preempted to the extent of the inconsistency. However, RESPA and these
regulations do not annul, alter, affect, or exempt any person subject
to their provisions from complying with the laws of any State with
respect to settlement practices, except to the extent of the
inconsistency.
(b) Upon request by any person, the Secretary is authorized to
determine if inconsistencies with State law exist; in doing so, the
Secretary shall consult with appropriate Federal agencies.
(1) The Secretary may not determine that a State law or regulation
is inconsistent with any provision of RESPA or this part, if the
Secretary determines that such law or regulation gives greater
protection to the consumer.
(2) In determining whether provisions of State law or regulations
concerning controlled business arrangements are inconsistent with RESPA
or this part, the Secretary may not construe those provisions that
impose more stringent limitations on controlled business arrangements
as inconsistent with RESPA so long as they give more protection to
consumers and/or competition.
(c) Any person may request the Secretary to determine whether an
inconsistency exists by submitting to the address indicated in
Sec. 3500.3, a copy of the State law in question, any other law or
judicial or administrative opinion that implements, interprets or
applies the relevant provision, and an explanation of the possible
inconsistency. A determination by the Secretary that an inconsistency
with State law exists will be made by publication of a notice in the
Federal Register. ``Law'' as used in this section includes regulations
and any enactment which has the force and effect of law and is issued
by a State or any political subdivision of a State.
(d) A specific preemption of conflicting State laws regarding
notices and disclosures of mortgage servicing transfers is set forth in
Sec. 3500.21(h).
Sec. 3500.14 Prohibition against kickbacks and unearned fees.
(a) Section 8 violation. Any violation of this section is a
violation of section 8 of RESPA (12 U.S.C. 2607) and is subject to
enforcement as such under Sec. 3500.19.
(b) No referral fees. No person shall give and no person shall
accept any fee, kickback or other thing of value pursuant to any
agreement or understanding, oral or otherwise, that business incident
to or part of a settlement service involving a federally related
mortgage loan shall be referred to any person. Any referral of a
settlement service is not a compensable service, except as set forth in
Sec. 3500.14(g)(1). A company may not pay any other company or the
employees of any other company for the referral of settlement service
business.
(c) No split of charges except for actual services performed. No
person shall give and no person shall accept any portion, split, or
percentage of any charge made or received for the rendering of a
settlement service in connection with a transaction involving a
federally related mortgage loan other than for services actually
performed. A charge by a person for which no or nominal services are
performed or for which duplicative fees are charged is an unearned fee
and violates this section. The source of the payment does not determine
whether or not a service is compensable. Nor may the prohibitions of
this Part be avoided by creating an arrangement wherein the purchaser
of services splits the fee.
(d) Thing of value. This term is broadly defined in section 3(2) of
RESPA (12 U.S.C. 2602(2)). It includes, without limitation, monies,
things, discounts, salaries, commissions, fees, duplicate payments of a
charge, stock, dividends, distributions of partnership profits,
franchise royalties, credits representing monies that may be paid at a
future date, the opportunity to participate in a money-making program,
retained or increased earnings, increased equity in a parent or
subsidiary entity, special bank deposits or accounts, special or
unusual banking terms, services of all types at special or free rates,
sales or rentals at special prices or rates, lease or rental payments
based in whole or in part on the amount of business referred, trips and
payment of another person's expenses, or reduction in credit against an
existing obligation. The term ``payment'' is used throughout
Secs. 3500.14 and 3500.15 as synonymous with the giving or receiving
any ``thing of value'' and does not require transfer of money.
(e) Agreement or understanding. An agreement or understanding for
the referral of business incident to or part of a settlement service
need not be written or verbalized but may be established by a practice,
pattern or course of conduct. When a thing of value is received
repeatedly and is connected in any way with the volume or value of the
business referred, the receipt of the thing of value is evidence that
it is made pursuant to an agreement or understanding for the referral
of business.
(f) Referral--(1) A referral includes any oral or written action
directed to a person which has the effect of affirmatively influencing
the selection by any person of a provider of a settlement service or
business incident to or part of a settlement service when such person
will pay for such settlement service or business incident thereto or
pay a charge attributable in whole or in part to such settlement
service or business.
(2) A referral also occurs whenever a person paying for a
settlement service or business incident thereto is required to use (see
Sec. 3500.2, ``required use'') a particular provider of a settlement
service or business incident thereto.
(g) Fees, salaries, compensation, or other payments. (1) Section 8
of RESPA permits:
(i) A payment to an attorney at law for services actually rendered;
(ii) A payment by a title company to its duly appointed agent for
services actually performed in the issuance of a policy of title
insurance;
(iii) A payment by a lender to its duly appointed agent or
contractor for services actually performed in the origination,
processing, or funding of a loan;
(iv) A payment to any person of a bona fide salary or compensation
or other payment for goods or facilities
[[Page 13240]]
actually furnished or for services actually performed;
(v) A payment pursuant to cooperative brokerage and referral
arrangements or agreements between real estate agents and real estate
brokers. (The statutory exemption restated in this paragraph refers
only to fee divisions within real estate brokerage arrangements when
all parties are acting in a real estate brokerage capacity, and has no
applicability to any fee arrangements between real estate brokers and
mortgage brokers or between mortgage brokers.);
(vi) Normal promotional and educational activities that are not
conditioned on the referral of business and that do not involve the
defraying of expenses that otherwise would be incurred by persons in a
position to refer settlement services or business incident thereto;
(vii) An employer's payment to its own employees for any referral
activities; or
(viii) Any payment by a borrower for computer loan origination
services, so long as the disclosure set forth in Appendix E of this
part is provided the borrower.
(2) The Department may investigate high prices to see if they are
the result of a referral fee or a split of a fee. If the payment of a
thing of value bears no reasonable relationship to the market value of
the goods or services provided, then the excess is not for services or
goods actually performed or provided. These facts may be used as
evidence of a violation of section 8 and may serve as a basis for a
RESPA investigation. High prices standing alone are not proof of a
RESPA violation. The value of a referral (i.e., the value of any
additional business obtained thereby) is not to be taken into account
in determining whether the payment exceeds the reasonable value of such
goods, facilities or services. The fact that the transfer of the thing
of value does not result in an increase in any charge made by the
person giving the thing of value is irrelevant in determining whether
the act is prohibited.
(3) Multiple services. When a person in a position to refer
settlement service business, such as an attorney, mortgage lender, real
estate broker or agent, or developer or builder, receives a payment for
providing additional settlement services as part of a real estate
transaction, such payment must be for services that are actual,
necessary and distinct from the primary services provided by such
person. For example, for an attorney of the buyer or seller to receive
compensation as a title agent, the attorney must perform core title
agent services (for which liability arises) separate from attorney
services, including the evaluation of the title search to determine the
insurability of the title, the clearance of underwriting objections,
the actual issuance of the policy or policies on behalf of the title
insurance company, and, where customary, issuance of the title
commitment, and the conducting of the title search and closing.
(h) Recordkeeping. Any documents provided pursuant to this section
shall be retained for five (5) years from the date of execution.
(i) Appendix B of this part. Illustrations in Appendix B of this
part demonstrate some of the requirements of this section.
Sec. 3500.15 Controlled business arrangements.
(a) General. A controlled business arrangement is defined in
section 3(7) of RESPA (12 U.S.C. 2602(7)).
(b) Violation and exemption. A controlled business arrangement is
not a violation of section 8 of RESPA (12 U.S.C. 2607) and of
Sec. 3500.14 if the conditions set forth in this section are satisfied.
(1) The person making each referral has provided to each person
whose business is referred a written disclosure, in the format of the
Controlled Business Arrangement Disclosure Statement set forth in
Appendix D of this part, of the nature of the relationship (explaining
the ownership and financial interest) between the provider of
settlement services (or business incident thereto) and the person
making the referral and of an estimated charge or range of charges
generally made by such provider (which describes the charge using the
same terminology, as far as practical, as section L of the HUD-1
settlement statement). The disclosures must be provided on a separate
piece of paper no later than the time of each referral or, if the
lender requires use of a particular provider, the time of loan
application, except that:
(i) Where a lender makes the referral to a borrower, the condition
contained in paragraph (b)(1) of this section may be satisfied at the
time that the good faith estimate or a statement under Sec. 3500.7(d)
is provided; and
(ii) Whenever an attorney or law firm requires a client to use a
particular title insurance agent, the attorney or law firm shall
provide the disclosures no later than the time the attorney or law firm
is engaged by the client. Failure to comply with the disclosure
requirements of this section may be overcome if the person making a
referral can prove by a preponderance of the evidence that procedures
reasonably adopted to result in compliance with these conditions have
been maintained and that any failure to comply with these conditions
was unintentional and the result of a bona fide error. An error of
legal judgment with respect to a person's obligations under RESPA is
not a bona fide error. Administrative and judicial interpretations of
section 130(c) of the Truth in Lending Act shall not be binding
interpretations of the preceding sentence or section 8(d)(3) of RESPA
(12 U.S.C. 2607(d)(3)).
(2) No person making a referral has required (as defined in
Sec. 3500.2, ``required use'') any person to use any particular
provider of settlement services or business incident thereto, except if
such person is a lender, for requiring a buyer, borrower or seller to
pay for the services of an attorney, credit reporting agency, or real
estate appraiser chosen by the lender to represent the lender's
interest in a real estate transaction, or except if such person is an
attorney or law firm for arranging for issuance of a title insurance
policy for a client, directly as agent or through a separate corporate
title insurance agency that may be operated as an adjunct to the law
practice of the attorney or law firm, as part of representation of that
client in a real estate transaction.
(3) The only thing of value that is received from the arrangement
other than payments listed in Sec. 3500.14(g) is a return on an
ownership interest or franchise relationship.
(i) In a controlled business arrangement:
(A) Bona fide dividends, and capital or equity distributions,
related to ownership interest or franchise relationship, between
entities in an affiliate relationship, are permissible; and
(B) Bona fide business loans, advances, and capital or equity
contributions between entities in an affiliate relationship (in any
direction), are not prohibited--so long as they are for ordinary
business purposes and are not fees for the referral of settlement
service business or unearned fees.
(ii) A return on an ownership interest does not include:
(A) Any payment which has as a basis of calculation no apparent
business motive other than distinguishing among recipients of payments
on the basis of the amount of their actual, estimated or anticipated
referrals;
(B) Any payment which varies according to the relative amount of
referrals by the different recipients of similar payments; or
[[Page 13241]]
(C) A payment based on an ownership, partnership or joint venture
share which has been adjusted on the basis of previous relative
referrals by recipients of similar payments.
(iii) Neither the mere labelling of a thing of value, nor the fact
that it may be calculated pursuant to a corporate or partnership
organizational document or a franchise agreement, will determine
whether it is a bona fide return on an ownership interest or franchise
relationship. Whether a thing of value is such a return will be
determined by analyzing facts and circumstances on a case by case
basis.
(iv) A return on franchise relationship may be a payment to or from
a franchisee but it does not include any payment which is not based on
the franchise agreement, nor any payment which varies according to the
number or amount of referrals by the franchisor or franchisee or which
is based on a franchise agreement which has been adjusted on the basis
of a previous number or amount of referrals by the franchiser or
franchisees. A franchise agreement may not be constructed to insulate
against kickbacks or referral fees.
(c) Definitions. As used in this section:
(1) Associate is defined in section 3(8) of RESPA (12 U.S.C.
2602(8)).
(2) Affiliate relationship means the relationship among business
entities where one entity has effective control over the other by
virtue of a partnership or other agreement or is under common control
with the other by a third entity or where an entity is a corporation
related to another corporation as parent to subsidiary by an identity
of stock ownership.
(3) Beneficial ownership means the effective ownership of an
interest in a provider of settlement services or the right to use and
control the ownership interest involved even though legal ownership or
title may be held in another person's name.
(4) Control, as used in the definitions of ``associate'' and
``affiliate relationship,'' means that a person:
(i) Is a general partner, officer, director, or employer of another
person;
(ii) Directly or indirectly or acting in concert with others, or
through one or more subsidiaries, owns, holds with power to vote, or
holds proxies representing, more than 20 percent of the voting
interests of another person;
(iii) Affirmatively influences in any manner the election of a
majority of the directors of another person; or
(iv) Has contributed more than 20 percent of the capital of the
other person.
(5) Direct ownership means the holding of legal title to an
interest in a provider of settlement service except where title is
being held for the beneficial owner.
(6) Franchise is defined in 16 CFR 436.2(a).
(7) Franchisor is defined in 16 CFR 436.2(c).
(8) Franchisee is defined in 16 CFR 436.2(d).
(9) Person who is in a position to refer settlement service
business means any real estate broker or agent, lender, mortgage
broker, builder or developer, attorney, title company, title agent, or
other person deriving a significant portion of his or her gross income
from providing settlement services.
(d) Recordkeeping. Any documents provided pursuant to this section
shall be retained for 5 years after the date of execution.
(e) Appendix B of this part. Illustrations in Appendix B of this
part demonstrate some of the requirements of this section.
Sec. 3500.16 Title companies.
No seller of property that will be purchased with the assistance of
a federally related mortgage loan shall violate section 9 of RESPA (12
U.S.C. 2608). Section 3500.2 defines ``required use'' of a provider of
a settlement service. Section 3500.19(c) explains the liability of a
seller for a violation of this section.
Sec. 3500.17 Escrow accounts.
(a) General. This section sets out the requirements for an escrow
account that a lender establishes in connection with a federally
related mortgage loan. It sets limits for escrow accounts using
calculations based on monthly payments and disbursements within a
calendar year. If an escrow account involves biweekly or any other
payment period, the requirements in this section shall be modified
accordingly. A HUD Public Guidance Document entitled ``Biweekly
Payments--Example'' provides examples of biweekly accounting and a HUD
Public Guidance Document entitled ``Annual Escrow Account Disclosure
Statement--Example'' provides examples of a 3-year accounting cycle
that may be used in accordance with paragraph (c)(9) of this section.
(b) Definitions. As used in this section:
Acceptable accounting method means an accounting method that a
servicer uses to conduct an escrow account analysis for an escrow
account subject to the provisions of Sec. 3500.17(c).
Aggregate (or) composite analysis, hereafter called aggregate
analysis, means an accounting method a servicer uses in conducting an
escrow account analysis by computing the sufficiency of escrow account
funds by analyzing the account as a whole. Appendix F to this part sets
forth examples of aggregate escrow account analyses.
Annual Escrow Account Statement means a statement containing all of
the information set forth in Sec. 3500.17(i). As noted in
Sec. 3500.17(i), a servicer shall submit an annual escrow account
statement to the borrower within 30 calendar days of the end of the
escrow account computation year, after conducting an escrow account
analysis.
Conversion date means the date three years after the publication
date of the rule adding this section (i.e., October 27, 1997) by which
date all servicers shall use aggregate analysis.
Cushion or reserve (hereafter cushion) means funds that a servicer
may require a borrower to pay into an escrow account to cover
unanticipated disbursements or disbursements made before the borrower's
payments are available in the account, as limited by Sec. 3500.17(c).
Deficiency is the amount of a negative balance in an escrow
account. As noted in Sec. 3500.17(f), if a servicer advances funds for
a borrower, then the servicer must perform an escrow account analysis
before seeking repayment of the deficiency.
Delivery means the placing of a document in the United States mail,
first-class postage paid, addressed to the last known address of the
recipient. Hand delivery also constitutes delivery.
Disbursement date means the date on which the servicer actually
pays an escrow item from the escrow account. Section 3500.17(k)
provides that the servicer shall use as the disbursement date a date on
or before the earlier of the deadline to take advantage of discounts,
if available, or the deadline to avoid a penalty.
Escrow account means any account that a servicer establishes or
controls on behalf of a borrower to pay taxes, insurance premiums
(including flood insurance), or other charges with respect to a
federally related mortgage loan, including charges that the borrower
and servicer have voluntarily agreed that the servicer should collect
and pay. The definition encompasses any account established for this
purpose, including a ``trust account'', ``reserve account'', ``impound
account'', or other term in different localities. An ``escrow account''
includes any arrangement where the servicer adds a portion of the
borrower's payments to principal and subsequently deducts from
principal the disbursements for escrow account items.
[[Page 13242]]
For purposes of this section, the term ``escrow account'' excludes any
account that is under the borrower's total control.
Escrow account analysis
FR Doc. 96-6511 Office of the Assistant Secretary for HousingFederal Housing Commissioner; Real Estate Settlement Procedures Act; Streamlining Final Rule
means the accounting that a servicer
conducts in the form of a trial running balance for an escrow account
to:
(1) Determine the appropriate target balances;
(2) Compute the borrower's monthly payments for the next escrow
account computation year and any deposits needed to establish or
maintain the account; and
(3) Determine whether shortages, surpluses or deficiencies exist.
Escrow account computation year is a 12-month period that a
servicer establishes for the escrow account beginning with the
borrower's initial payment date. The term includes each 12-month period
thereafter, unless a servicer chooses to issue a short year statement
under the conditions stated in Sec. 3500.17(i)(4).
Escrow account item or separate item means any separate expenditure
category, such as ``taxes'' or ``insurance'', for which funds are
collected in the escrow account for disbursement. An escrow account
item with installment payments, such as local property taxes, remains
one escrow account item regardless of multiple disbursement dates to
the tax authority.
Initial escrow account statement means the first disclosure
statement that the servicer delivers to the borrower concerning the
borrower's escrow account. The initial escrow account statement shall
meet the requirements of Sec. 3500.17(g) and be in substantially the
format set forth in Sec. 3500.17(h).
Installment payment means one of two or more payments payable on an
escrow account item during an escrow account computation year. An
example of an installment payment is where a jurisdiction bills
quarterly for taxes.
Payment due date means the date each month when the borrower's
monthly payment to an escrow account is due to the servicer. The
initial payment date is the borrower's first payment due date to an
escrow account.
Phase-in period means the period beginning on the effective date of
this final rule and ending on the conversion date, i.e., October 27,
1997, by which date all servicers shall use the aggregate accounting
method in conducting escrow account analyses.
Post-rule account means an escrow account established in connection
with a federally related mortgage loan whose settlement date is on or
after the effective date of this section.
Pre-accrual is a practice some servicers use to require borrowers
to deposit funds, needed for disbursement and maintenance of a cushion,
in the escrow account some period before the disbursement date. Pre-
accrual is subject to the limitations of Sec. 3500.17(c).
Pre-rule account is an escrow account established in connection
with a federally related mortgage loan whose settlement date is before
the effective date of this rule.
Shortage means an amount by which a current escrow account balance
falls short of the target balance at the time of escrow analysis.
Single-item analysis means an accounting method servicers use in
conducting an escrow account analysis by computing the sufficiency of
escrow account funds by considering each escrow item separately.
Appendix F to this part sets forth examples of single-item analysis.
Submission (of an escrow account statement) means the delivery of
the statement.
Surplus means an amount by which the current escrow account balance
exceeds the target balance for the account.
System of recordkeeping means the servicer's method of keeping
information that reflects the facts relating to that servicer's
handling of the borrower's escrow account, including, but not limited
to, the payment of amounts from the escrow account and the submission
of initial and annual escrow account statements to borrowers.
Target balance means the estimated month end balance in an escrow
account that is just sufficient to cover the remaining disbursements
from the escrow account in the escrow account computation year, taking
into account the remaining scheduled periodic payments, and a cushion,
if any.
Trial running balance means the accounting process that derives the
target balances over the course of an escrow account computation year.
Section 3500.17(d) provides a description of the steps involved in
performing a trial running balance.
(c) Limits on payments to escrow accounts; acceptable accounting
methods to determine limits.
(1) A lender or servicer (hereafter servicer) shall not require a
borrower to deposit into any escrow account, created in connection with
a federally related mortgage loan, more than the following amounts:
(i) Charges at settlement or upon creation of an escrow account. At
the time a servicer creates an escrow account for a borrower, the
servicer may charge the borrower an amount sufficient to pay the
charges respecting the mortgaged property, such as taxes and insurance,
which are attributable to the period from the date such payment(s) were
last paid until the initial payment date. The ``amount sufficient to
pay'' is computed so that the lowest month end target balance projected
for the escrow account computation year is zero (-0-) (see Step 2 in
Appendix F to this part). In addition, the servicer may charge the
borrower a cushion that shall be no greater than one-sixth (\1/6\) of
the estimated total annual payments from the escrow account.
(ii) Charges during the life of the escrow account. Throughout the
life of an escrow account, the servicer may charge the borrower a
monthly sum equal to one-twelfth (\1/12\) of the total annual escrow
payments which the servicer reasonably anticipates paying from the
account. In addition, the servicer may add an amount to maintain a
cushion no greater than one-sixth (\1/6\) of the estimated total annual
payments from the account. However, if a servicer determines through an
escrow account analysis that there is a shortage or deficiency, the
servicer may require the borrower to pay additional deposits to make up
the shortage or eliminate the deficiency, subject to the limitations
set forth in Sec. 3500.17(f).
(2) Escrow analysis at creation of escrow account. Before
establishing an escrow account, the servicer shall conduct an escrow
account analysis to determine the amount the borrower shall deposit
into the escrow account, subject to the limitations of
Sec. 3500.17(c)(1)(i) and the amount of the borrower's periodic
payments into the escrow account, subject to the limitations of
Sec. 3500.17(c)(1)(ii). In conducting the escrow account analysis, the
servicer shall estimate the disbursement amounts according to
Sec. 3500.17(c)(7). Pursuant to Sec. 3500.17(k), the servicer shall use
a date on or before the earlier of the deadline to take advantage of
discounts, if available, or the deadline to avoid a penalty as the
disbursement date for the escrow item. Upon completing the initial
escrow account analysis, the servicer shall prepare and deliver an
initial escrow account statement to the borrower, as set forth in
Sec. 3500.17(g). The servicer shall use the escrow account analysis to
determine whether a surplus, shortage or deficiency exists since
settlement and shall make any adjustments to the account pursuant to
Sec. 3500.17(f).
(3) Subsequent escrow account analyses. For each escrow account,
the servicer shall conduct an escrow account analysis at the completion
of
[[Page 13243]]
the escrow account computation year to determine the borrower's monthly
escrow account payments for the next computation year, subject to the
limitations of Sec. 3500.17(c)(1)(ii). In conducting the escrow account
analysis, the servicer shall estimate the disbursement amounts
according to Sec. 3500.17(c)(7). Pursuant to Sec. 3500.17(k), the
servicer shall use a date on or before the earlier of the deadline to
take advantage of discounts, if available, or the deadline to avoid a
penalty as the disbursement date for the escrow item. The servicer
shall use the escrow account analysis to determine whether a surplus,
shortage or deficiency exists and shall make any adjustments to the
account pursuant to Sec. 3500.17(f). Upon completing an escrow account
analysis, the servicer shall prepare and submit an annual escrow
account statement to the borrower, as set forth in Sec. 3500.17(i).
(4) Acceptable accounting methods to determine escrow limits. The
following are acceptable accounting methods that servicers may use in
conducting an escrow account analysis.
(i) Pre-rule accounts. For pre-rule accounts, servicers may use
either single-item analysis or aggregate-analysis during the phase-in
period. In conducting the escrow account analysis, servicers shall use
``month-end'' accounting. Under month-end accounting, the timing of the
disbursements and payments within the month is irrelevant. As of the
conversion date, all pre-rule accounts shall comply with the
requirements for post-rule accounts in paragraph (c)(4)(ii) of this
section. During the phase-in period, the transfer of servicing of a
pre-rule account to another servicer does not convert the account to a
post-rule account. After the effective date of this rule, refinancing
transactions (as defined in Sec. 3500.2) shall comply with the
requirements for post-rule accounts.
(ii) Post-rule accounts. For post-rule accounts, servicers shall
use aggregate accounting to conduct an escrow account analysis. In
conducting the escrow account analysis, servicers shall use ``month-
end'' accounting. Under month-end accounting, the timing of the
disbursements and payments within the month is irrelevant.
(5) Cushion. For post-rule accounts, the cushion shall be no
greater than one-sixth (\1/6\) of the estimated total annual
disbursements from the escrow account using aggregate analysis
accounting. For pre-rule accounts, the cushion may not exceed the total
of one-sixth of the estimated annual disbursements for each escrow
account item using single-item analysis accounting. In determining the
cushion using single-item analysis, a servicer shall not divide an
escrow account item into sub-accounts, even if the payee requires
installment payments.
(6) Restrictions on pre-accrual. For pre-rule accounts, a servicer
shall not require any pre-accrual that results in the escrow account
balance exceeding the limits of paragraph (c)(1) of this section. In
addition, if the mortgage documents in a pre-rule account are silent
about the amount of pre-accrual, the servicer shall not require in
excess of one month of pre-accrual, subject to the additional
limitations provided in paragraph (c)(8) of this section. For post-rule
accounts, a servicer shall not practice pre-accrual.
(7) Servicer estimates of disbursement amounts. To conduct an
escrow account analysis, the servicer shall estimate the amount of
escrow account items to be disbursed. If the servicer knows the charge
for an escrow item in the next computation year, then the servicer
shall use that amount in estimating disbursement amounts. If the charge
is unknown to the servicer, the servicer may base the estimate on the
preceding year's charge, or the preceding year's charge as modified by
an amount not exceeding the most recent year's change in the national
Consumer Price Index for all urban consumers (CPI, all items). In cases
of unassessed new construction, the servicer may base an estimate on
the assessment of comparable residential property in the market area.
(8) Provisions in mortgage documents. The servicer shall examine
the mortgage loan documents to determine the applicable cushion and
limitations on pre-accrual for each escrow account. If the mortgage
loan documents provide for lower cushion limits or less pre-accrual
than this section, then the terms of the loan documents apply. Where
the terms of any mortgage loan document allow greater payments to an
escrow account than allowed by this section, then this section controls
the applicable limits. Where the mortgage loan documents do not
specifically establish an escrow account, whether a servicer may
establish an escrow account for the loan is a matter for determination
by State law. If the mortgage loan document is silent on the escrow
account limits (for cushion or pre-accrual) and a servicer establishes
an escrow account under State law, then the limitations of this section
apply unless State law provides for a lower amount. If the loan
documents provide for escrow accounts up to the RESPA limits, then the
servicer may require the maximum amounts consistent with this section,
unless an applicable State law sets a lesser amount.
(9) Assessments for periods longer than one year. Some escrow
account items may be billed for periods longer than one year. For
example, servicers may need to collect flood insurance or water
purification escrow funds for payment every three years. In such cases,
the servicer shall estimate the borrower's payments for a full cycle of
disbursements. For a flood insurance premium payable every 3 years, the
servicer shall collect the payments reflecting 36 equal monthly
amounts. For two out of the three years, however, the account balance
may not reach its low monthly balance because the low point will be on
a three-year cycle, as compared to an annual one. The annual escrow
account statement shall explain this situation (see example in the HUD
Public Guidance Document entitled ``Annual Escrow Account Disclosure
Statement--Example'', available in accordance with Sec. 3500.3).
(d) Methods of escrow account analysis. Paragraph (c) of this
section prescribes acceptable accounting methods. The following sets
forth the steps servicers shall use to determine whether their use of
an acceptable accounting method conforms with the limitations in
Sec. 3500.17(c)(1). The steps set forth in this section derive maximum
limits. Servicers may use accounting procedures that result in lower
target balances. In particular, servicers may use a cushion less than
the permissible cushion or no cushion at all. This section does not
require the use of a cushion.
(1) Aggregate analysis. (i) When a servicer uses aggregate analysis
in conducting the escrow account analysis, the target balances may not
exceed the balances computed according to the following arithmetic
operations:
(A) The servicer first projects a trial balance for the account as
a whole over the next computation year (a trial running balance). In
doing so the servicer assumes that it will make estimated disbursements
on or before the earlier of the deadline to take advantage of
discounts, if available, or the deadline to avoid a penalty. The
servicer does not use pre-accrual on these disbursement dates. The
servicer also assumes that the borrower will make monthly payments
equal to one-twelfth of the estimated total annual escrow account
disbursements.
(B) The servicer then examines the monthly trial balances and adds
to the first monthly balance an amount just sufficient to bring the
lowest monthly trial balance to zero, and adjusts all other monthly
balances accordingly.
[[Page 13244]]
(C) The servicer then adds to the monthly balances the permissible
cushion. The cushion is two months of the borrower's escrow payments to
the servicer or a lesser amount specified by State law or the mortgage
document (net of any increases or decreases because of prior year
shortages or surpluses, respectively).
(ii) Lowest monthly balance. Under aggregate analysis, the lowest
monthly target balance for the account shall be less than or equal to
one-sixth of the estimated total annual escrow account disbursements or
a lesser amount specified by State law or the mortgage document. The
target balances that the servicer derives using these steps yield the
maximum limit for the escrow account. Appendix F to this part
illustrates these steps.
(2) Single-item or other non-aggregate analysis method. (i) When a
servicer uses single-item analysis or any hybrid accounting method in
conducting an escrow account analysis during the phase-in period, the
target balances may not exceed the balances computed according to the
following arithmetic operations:
(A) The servicer first projects a trial balance for each item over
the next computation year (a trial running balance). In doing so the
servicer assumes that it will make estimated disbursements on or before
the earlier of the deadline to take advantage of discounts, if
available, or the deadline to avoid a penalty. The servicer does not
use pre-accrual on these disbursement dates. The servicer also assumes
that the borrower will make periodic payments equal to one-twelfth of
the estimated total annual escrow account disbursements.
(B) The servicer then examines the monthly trial balance for each
escrow account item and adds to the first monthly balance for each
separate item an amount just sufficient to bring the lowest monthly
trial balance for that item to zero, and then adjusts all other monthly
balances accordingly.
(C) The servicer then adds the permissible cushion, if any, to the
monthly balance for the separate escrow account item. The permissible
cushion is two months of escrow payments for the escrow account item
(net of any increases or decreases because of prior year shortages or
surpluses, respectively) or a lesser amount specified by State law or
the mortgage document.
(D) The servicer then examines the balances for each item to make
certain that the lowest monthly balance for that item is less than or
equal to one-sixth of the estimated total annual escrow account
disbursements for that item or a lesser amount specified by State law
or the mortgage document.
(ii) In performing an escrow account analysis using single-item
analysis, servicers may account for each escrow account item
separately, but servicers shall not further divide accounts into sub-
accounts, even if the payee of a disbursement requires installment
payments. The target balances that the servicer derives using these
steps yield the maximum limit for the escrow account. Appendix F to
this part illustrates these steps.
(e) Transfer of servicing. (1) If the new servicer changes either
the monthly payment amount or the accounting method used by the
transferor (old) servicer, then the new servicer shall provide the
borrower with an initial escrow account statement within 60 days of the
date of servicing transfer.
(i) Where a new servicer provides an initial escrow account
statement upon the transfer of servicing, the new servicer shall use
the effective date of the transfer of servicing to establish the new
escrow account computation year.
(ii) Where the new servicer retains the monthly payments and
accounting method used by the transferor servicer, then the new
servicer may continue to use the escrow account computation year
established by the transferor servicer or may choose to establish a
different computation year using a short-year statement. At the
completion of the escrow account computation year or any short year,
the new servicer shall perform an escrow analysis and provide the
borrower with an annual escrow account statement.
(2) The new servicer shall treat shortages, surpluses and
deficiencies in the transferred escrow account according to the
procedures set forth in Sec. 3500.17(f).
(3) A pre-rule account remains a pre-rule account upon the transfer
of servicing to a new servicer so long as the transfer occurs before
the conversion date.
(f) Shortages, surpluses, and deficiencies requirements. (1) Escrow
account analysis. For each escrow account, the servicer shall conduct
an escrow account analysis to determine whether a surplus, shortage or
deficiency exists.
(i) As noted in Sec. 3500.17(c) (2) and (3), the servicer shall
conduct an escrow account analysis upon establishing an escrow account
and at completion of the escrow account computation year.
(ii) The servicer may conduct an escrow account analysis at other
times during the escrow computation year. If a servicer advances funds
in paying a disbursement, which is not the result of a borrower's
payment default under the underlying mortgage document, then the
servicer shall conduct an escrow account analysis to determine the
extent of the deficiency before seeking repayment of the funds from the
borrower under this paragraph (f).
(2) Surpluses. (i) If an escrow account analysis discloses a
surplus, the servicer shall, within 30 days from the date of the
analysis, refund the surplus to the borrower if the surplus is greater
than or equal to 50 dollars ($50). If the surplus is less than 50
dollars ($50), the servicer may refund such amount to the borrower, or
credit such amount against the next year's escrow payments.
(ii) These provisions regarding surpluses apply if the borrower is
current at the time of the escrow account analysis. A borrower is
current if the servicer receives the borrower's payments within 30 days
of the payment due date. If the servicer does not receive the
borrower's payment within 30 days of the payment due date, then the
servicer may retain the surplus in the escrow account pursuant to the
terms of the mortgage loan documents.
(3) Shortages. (i) If an escrow account analysis discloses a
shortage of less than one month's escrow account payment, then the
servicer has three possible courses of action:
(A) The servicer may allow a shortage to exist and do nothing to
change it;
(B) The servicer may require the borrower to repay the shortage
amount within 30 days; or
(C) The servicer may require the borrower to repay the shortage
amount in equal monthly payments over at least a 12-month period.
(ii) If an escrow account analysis discloses a shortage that is
greater than or equal to one month's escrow account payment, then the
servicer has two possible courses of action:
(A) The servicer may allow a shortage to exist and do nothing to
change it; or
(B) The servicer may require the borrower to repay the shortage in
equal monthly payments over at least a 12-month period.
(4) Deficiency. If the escrow account analysis confirms a
deficiency, then the servicer may require the borrower to pay
additional monthly deposits to the account to eliminate the deficiency.
(i) If the deficiency is less than one month's escrow account
payment, then the servicer:
(A) May allow the deficiency to exist and do nothing to change it;
(B) May require the borrower to repay the deficiency within 30
days; or
[[Page 13245]]
(C) May require the borrower to repay the deficiency in 2 or more
equal monthly payments.
(ii) If the deficiency is greater than or equal to 1 month's escrow
payment, the servicer may allow the deficiency to exist and do nothing
to change it or may require the borrower to repay the deficiency in two
or more equal monthly payments.
(iii) These provisions regarding deficiencies apply if the borrower
is current at the time of the escrow account analysis. A borrower is
current if the servicer receives the borrower's payments within 30 days
of the payment due date. If the servicer does not receive the
borrower's payment within 30 days of the payment due date, then the
servicer may recover the deficiency pursuant to the terms of the
mortgage loan documents.
(5) Notice of Shortage or Deficiency in Escrow Account. The
servicer shall notify the borrower at least once during the escrow
account computation year if there is a shortage or deficiency in the
escrow account. The notice may be part of the annual escrow account
statement or it may be a separate document.
(g) Initial Escrow Account Statement. (1) Submission at settlement,
or within 45 calendar days of settlement. As noted in
Sec. 3500.17(c)(2), the servicer shall conduct an escrow account
analysis before establishing an escrow account to determine the amount
the borrower shall deposit into the escrow account, subject to the
limitations of Sec. 3500.17(c)(1)(i). After conducting the escrow
account analysis for each escrow account, the servicer shall submit an
initial escrow account statement to the borrower at settlement or
within 45 calendar days of settlement for escrow accounts that are
established as a condition of the loan.
(i) The initial escrow account statement shall include the amount
of the borrower's monthly mortgage payment and the portion of the
monthly payment going into the escrow account and shall itemize the
estimated taxes, insurance premiums, and other charges that the
servicer reasonably anticipates to be paid from the escrow account
during the escrow account computation year and the anticipated
disbursement dates of those charges. The initial escrow account
statement shall indicate the amount that the servicer selects as a
cushion. The statement shall include a trial running balance for the
account.
(ii) Pursuant to Sec. 3500.17(h)(2), the servicer may incorporate
the initial escrow account statement into the HUD-1 or HUD-1A
settlement statement. If the servicer does not incorporate the initial
escrow account statement into the HUD-1 or HUD-1A settlement statement,
then the servicer shall submit the initial escrow account statement to
the borrower as a separate document.
(2) Time of submission of initial escrow account statement for an
escrow account established after settlement. For escrow accounts
established after settlement (and which are not a condition of the
loan), a servicer shall submit an initial escrow account statement to a
borrower within 45 calendar days of the date of establishment of the
escrow account.
(h) Format for initial escrow account statement. (1) The format and
a completed example for an initial escrow account statement are set out
in HUD Public Guidance Documents entitled ``Initial Escrow Account
Disclosure Statement--Format'' and ``Initial Escrow Account Disclosure
Statement--Example'', available in accordance with Sec. 3500.3.
(2) Incorporation of Initial Escrow Account Statement Into HUD-1 or
HUD-1A Settlement Statement. Pursuant to Sec. 3500.9(a)(11), a servicer
may add the initial escrow account statement to the HUD-1 or HUD-1A
settlement statement. The servicer may include the initial escrow
account statement in the basic text or may attach the initial escrow
account statement as an additional page to the HUD-1 or HUD-1A
settlement statement.
(3) Identification of Payees. The initial escrow account statement
need not identify a specific payee by name if it provides sufficient
information to identify the use of the funds. For example, appropriate
entries include: county taxes, hazard insurance, condominium dues, etc.
If a particular payee, such as a taxing body, receives more than one
payment during the escrow account computation year, the statement shall
indicate each payment and disbursement date. If there are several
taxing authorities or insurers, the statement shall identify each
taxing body or insurer (e.g., ``City Taxes'', ``School Taxes'',
``Hazard Insurance'', or ``Flood Insurance,'' etc.).
(i) Annual Escrow Account Statements. For each escrow account, a
servicer shall submit an annual escrow account statement to the
borrower within 30 days of the completion of the escrow account
computation year. The servicer shall also submit to the borrower the
previous year's projection or initial escrow account statement. The
servicer shall conduct an escrow account analysis before submitting an
annual escrow account statement to the borrower.
(1) Contents of Annual Escrow Account Statement. The annual escrow
account statement shall provide an account history, reflecting the
activity in the escrow account during the escrow account computation
year, and a projection of the activity in the account for the next
year. In preparing the statement, the servicer may assume scheduled
payments and disbursements will be made for the final 2 months of the
escrow account computation year. The annual escrow account statement
shall include, at a minimum, the following:
(i) The amount of the borrower's current monthly mortgage payment
and the portion of the monthly payment going into the escrow account;
(ii) The amount of the past year's monthly mortgage payment and the
portion of the monthly payment that went into the escrow account;
(iii) The total amount paid into the escrow account during the past
computation year;
(iv) The total amount paid out of the escrow account during the
same period for taxes, insurance premiums, and other charges;
(v) The balance in the escrow account at the end of the period;
(vi) An explanation of how any surplus is being handled by the
servicer;
(vii) An explanation of how any shortage or deficiency is to be
paid by the borrower; and
(viii) If applicable, the reason(s) why the estimated low monthly
balance was not reached, as indicated by noting differences between the
most recent account history and last year's projection. HUD Public
Guidance Documents entitled ``Annual Escrow Account Disclosure
Statement--Format'' and ``Annual Escrow Account Disclosure Statement--
Example'' set forth an acceptable format and methodology for conveying
this information.
(2) No annual statements in the case of default, foreclosure, or
bankruptcy. This paragraph (i)(2) contains an exemption from the
provisions of Sec. 3500.17(i)(1). If at the time the servicer conducts
the escrow account analysis the borrower is more than 30 days overdue,
then the servicer is exempt from the requirements of submitting an
annual escrow account statement to the borrower under Sec. 3500.17(i).
This exemption also applies in situations where the servicer has
brought an action for foreclosure under the underlying mortgage loan,
or where the borrower is in bankruptcy proceedings. If the servicer
does not issue an annual statement pursuant to this exemption and the
loan subsequently is reinstated
[[Page 13246]]
or otherwise becomes current, the servicer shall provide a history of
the account since the last annual statement (which may be longer than 1
year) within 90 days of the date the account became current.
(3) Delivery with other material. The servicer may deliver the
annual escrow account statement to the borrower with other statements
or materials, including the Substitute 1098, which is provided for
federal income tax purposes.
(4) Short year statements. A servicer may issue a short year annual
escrow account statement (``short year statement'') to change one
escrow account computation year to another. By using a short year
statement a servicer may adjust its production schedule or alter the
escrow account computation year for the escrow account.
(i) Effect of short year statement. The short year statement shall
end the ``escrow account computation year'' for the escrow account and
establish the beginning date of the new escrow account computation
year. The servicer shall deliver the short year statement to the
borrower within 60 days from the end of the short year.
(ii) Short year statement upon servicing transfer. Upon the
transfer of servicing, the transferor (old) servicer shall submit a
short year statement to the borrower within 60 days of the effective
date of transfer.
(iii) Short year statement upon loan payoff. If a borrower pays off
a mortgage loan during the escrow account computation year, the
servicer shall submit a short year statement to the borrower within 60
days after receiving the pay-off funds.
(j) Formats for annual escrow account statement. The formats and
completed examples for annual escrow account statements using single-
item analysis (pre-rule accounts) and aggregate analysis are set out in
HUD Public Guidance Documents entitled ``Annual Escrow Account
Disclosure Statement--Format'' and ``Annual Escrow Account Disclosure
Statement--Example''.
(k) Timely payments. (1) If the terms of any federally related
mortgage loan require the borrower to make payments to an escrow
account, the servicer shall pay the disbursements in a timely manner,
that is, by the disbursement date, so long as the borrower's payment is
not more than 30 days overdue. In calculating the disbursement date,
the servicer shall use a date on or before the earlier of the deadline
to take advantage of discounts, if available, or the deadline to avoid
a penalty.
(2) The servicer shall advance funds to make disbursements in a
timely manner so long as the borrower's payment is not more than 30
days overdue. Upon advancing funds to pay a disbursement, the servicer
may seek repayment from the borrower for the deficiency pursuant to
Sec. 3500.17(f).
(l) System of recordkeeping. (1) Each servicer shall keep records,
which may involve electronic storage, microfiche storage, or any method
of computerized storage, so long as the information is easily
retrievable, reflecting the servicer's handling of each borrower's
escrow account. The servicer's records shall include, but not be
limited to, the payment of amounts into and from the escrow account and
the submission of initial and annual escrow account statements to the
borrower.
(2) The servicer responsible for servicing the borrower's escrow
account shall maintain the records for that account for a period of at
least five years after the servicer last serviced the escrow account.
(3) A servicer shall provide the Secretary with information
contained in the servicer's records for a specific escrow account, or
for a number or class of escrow accounts, within 30 days of the
Secretary's written request for the information. The servicer shall
convert any information contained in electronic storage, microfiche or
computerized storage to paper copies for review by the Secretary.
(i) To aid in investigations, the Secretary may also issue an
administrative subpoena for the production of documents, and for the
testimony of such witnesses as the Secretary deems advisable.
(ii) If the subpoenaed party refuses to obey the Secretary's
administrative subpoena, the Secretary is authorized to seek a court
order requiring compliance with the subpoena from any United States
district court. Failure to obey such an order of the court may be
punished as contempt of court.
(4) Borrowers may seek information contained in the servicer's
records by complying with the provisions set forth in 12 U.S.C. 2605(e)
and Sec. 3500.21(f).
(5) After receiving a request (by letter or subpoena) from the
Department for information relating to whether a servicer submitted an
escrow account statement to the borrower, the servicer shall respond
within 30 days. If the servicer is unable to provide the Department
with such information, the Secretary shall deem that lack of
information to be evidence of the servicer's failure to submit the
statement to the borrower.
(m) Penalties. A servicer's failure to submit to a borrower an
initial or annual escrow account statement meeting the requirements of
this part shall constitute a violation of section 10(d) of RESPA (12
U.S.C. 2609(d)) and this section. For each such violation, the
Secretary shall assess a civil penalty in accordance with section 10(d)
of RESPA.
(n) Civil penalties procedures. The following procedures shall
apply whenever the Department seeks to impose a civil money penalty for
violation of section 10(c) of RESPA (12 U.S.C. 2609(c)):
(1) Purpose and scope. This paragraph (n) explains the procedures
by which the Secretary may impose penalties under 12 U.S.C. 2609(d).
These procedures include administrative hearings, judicial review, and
collection of penalties. This paragraph (n) governs penalties imposed
under 12 U.S.C. 2609(d) and, when noted, adopts those portions of 24
CFR part 30, subpart E, that apply to all other civil penalty
proceedings initiated by the Secretary.
(2) Authority. The Secretary has the authority to impose civil
penalties under section 10(d) of RESPA (12 U.S.C. 2609(d)).
(3) Notice of intent to impose civil money penalties. Whenever the
Secretary intends to impose a civil money penalty for violations of
section 10(c) of RESPA (12 U.S.C. 2609(c)), the responsible program
official, or his or her designee, shall serve a written Notice of
Intent to Impose Civil Money Penalties (Notice of Intent) upon any
servicer on which the Secretary intends to impose the penalty. A copy
of the Notice of Intent must be filed with the Chief Docket Clerk,
Office of Administrative Law Judges, at the address provided in the
Notice of Intent. The Notice of Intent will provide:
(i) A short, plain statement of the facts upon which the Secretary
has determined that a civil money penalty should be imposed, including
a brief description of the specific violations under 12 U.S.C. 2609(c)
with which the servicer is charged and whether such violations are
believed to be intentional or unintentional in nature, or a combination
thereof;
(ii) The amount of the civil money penalty that the Secretary
intends to impose and whether the limitations in 12 U.S.C. 2609(d)(1),
apply;
(iii) The right of the servicer to a hearing on the record to
appeal the Secretary's preliminary determination to impose a civil
penalty;
(iv) The procedures to appeal the penalty;
(v) The consequences of failure to appeal the penalty; and
(vi) The name, address, and telephone number of the representative
of the Department, and the address of the Chief Docket Clerk, Office of
[[Page 13247]]
Administrative Law Judges, should the servicer decide to appeal the
penalty.
(4) Appeal procedures. (i) Answer. To appeal the imposition of a
penalty, a servicer shall, within 30 days after receiving service of
the Notice of Intent, file a written Answer with the Chief Docket
Clerk, Office of Administrative Law Judges, Department of Housing and
Urban Development, at the address provided in the Notice of Intent. The
Answer shall include a statement that the servicer admits, denies, or
does not have (and is unable to obtain) sufficient information to admit
or deny each allegation made in the Notice of Intent. A statement of
lack of information shall have the effect of a denial. Any allegation
that is not denied shall be deemed admitted. Failure to submit an
Answer within the required period of time will result in a decision by
the Administrative Law Judge based upon the Department's submission of
evidence in the Notice of Intent.
(ii) Submission of evidence. A servicer that receives the Notice of
Intent has a right to present evidence. Evidence must be submitted
within 45 calendar days from the date of service of the Notice of
Intent, or by such other time as may be established by the
Administrative Law Judge (ALJ). The servicer's failure to submit
evidence within the required period of time will result in a decision
by the Administrative Law Judge based upon the Department's submission
of evidence in the Notice of Intent. The servicer may present evidence
of the following:
(A) The servicer did submit the required escrow account
statement(s) to the borrower(s); or
(B) Even if the servicer did not submit the required statement(s),
that the failure was not the result of an intentional disregard of the
requirements of RESPA (for purposes of determining the penalty).
(iii) Review of the record. The Administrative Law Judge will
review the evidence submitted by the servicer, if any, and that
submitted by the Department. The Administrative Law Judge shall make a
determination based upon a review of the written record, except that
the Administrative Law Judge may order an oral hearing if he or she
finds that the determination turns on the credibility or veracity of a
witness, or that the matter cannot be resolved by review of the
documentary evidence. If the Administrative Law Judge decides that an
oral hearing is appropriate, then the procedural rules set forth at 24
CFR part 30, subpart E, shall apply, to the extent that they are not
inconsistent with this section.
(iv) Burden of Proof. The burden of proof or the burden of going
forward with the evidence shall be upon the proponent of an action. The
Department's submission of evidence that the servicer's system of
records lacks information that the servicer submitted the escrow
account statement(s) to the borrower(s) shall satisfy the Department's
burden. Upon the Department's presentation of evidence of this lack of
information in the servicer's system of records, the burden of proof
shifts from the Secretary to the servicer to provide evidence that it
submitted the statement(s) to the borrower.
(v) Standard of Proof. The standard of proof shall be the
preponderance of the evidence.
(5) Determination of the Administrative Law Judge.
(i) Following the hearing or the review of the written record, the
Administrative Law Judge shall issue a decision that shall contain
findings of fact, conclusions of law, and the amount of any penalties
imposed. The decision shall include a determination of whether the
servicer has failed to submit any required statements and, if so,
whether the servicer's failure was the result of an intentional
disregard for the law's requirements.
(ii) The Administrative Law Judge shall issue the decision to all
parties within 30 days of the submission of the evidence or the post-
hearing briefs, whichever is the last to occur.
(iii) The decision of the Administrative Law Judge shall constitute
the final decision of the Department and shall be final and binding on
the parties.
(6) Judicial review. (i) A person against whom the Department has
imposed a civil money penalty under this part may obtain a review of
the Department's final decision by filing a written petition for a
review of the record with the appropriate United States district court.
(ii) The petition must be filed within 30 days after the decision
is filed with the Chief Docket Clerk, Office of Administrative Law
Judges.
(7) Collection of penalties. (i) If any person fails to comply with
the Department's final decision imposing a civil money penalty, the
Secretary, if the time for judicial review of the decision has expired,
may request the Attorney General to bring an action in an appropriate
United States district court to obtain a judgment against the person
that has failed to comply with the Department's final decision.
(ii) In any such collection action, the validity and
appropriateness of the Department's final decision imposing the civil
penalty shall not be subject to review in the district court.
(iii) The Secretary may obtain such other relief as may be
available, including attorney fees and other expenses in connection
with the collection action.
(iv) Interest on and other charges for any unpaid penalty may be
assessed in accordance with 31 U.S.C. 3717.
(8) Offset. In addition to any other rights as a creditor, the
Secretary may seek to collect a civil money penalty through
administrative offset.
(9) At any time before the decision of the Administrative Law
Judge, the Secretary and the servicer may enter into an administrative
settlement. The settlement may include provisions for interest,
attorney's fees, and costs related to the proceeding. Such settlement
will terminate the appearance before the Administrative Law Judge.
(o) Discretionary payments. Any borrower's discretionary payment
(such as credit life or disability insurance) made as part of a monthly
mortgage payment is to be noted on the initial and annual statements.
If a discretionary payment is established or terminated during the
escrow account computation year, this change should be noted on the
next annual statement. A discretionary payment is not part of the
escrow account unless the payment is required by the lender, in
accordance with the definition of ``settlement service'' in
Sec. 3500.2, or the servicer chooses to place the discretionary payment
in the escrow account. If a servicer has not established an escrow
account for a federally related mortgage loan and only receives
payments for discretionary items, this section is not applicable.
(Approved by the Office of Management and Budget under control
number 2502-0501)
Sec. 3500.18 Validity of contracts and liens.
Section 17 of RESPA (12 U.S.C. 2615) governs the validity of
contracts and liens under RESPA.
Sec. 3500.19 Enforcement.
(a) Enforcement Policy. It is the policy of the Secretary regarding
RESPA enforcement matters to cooperate with Federal, State or local
agencies having supervisory powers over lenders or other persons with
responsibilities under RESPA. Federal agencies with supervisory powers
over lenders may use their powers to require compliance with RESPA. In
addition, failure to comply with RESPA may be grounds for
administrative action by the Secretary under part 24 of this title
concerning debarment, suspension, ineligibility of
[[Page 13248]]
contractors and grantees, or under part 25 of this title concerning the
HUD Mortgagee Review Board. Nothing in this paragraph is a limitation
on any other form of enforcement which may be legally available.
(b) Violations of section 8 of RESPA (12 U.S.C. 2607),
Sec. 3500.14, or Sec. 3500.15. Any person who violates Secs. 3500.14 or
3500.15 shall be deemed to violate Section 8 of RESPA and shall be
sanctioned accordingly.
(c) Violations of section 9 of RESPA (12 U.S.C. 2608) or
Sec. 3500.16. Any person who violates Section 3500.16 of this part
shall be deemed to violate Section 9 of RESPA and shall be sanctioned
accordingly.
(d) Investigations. The procedures for investigations and
investigational proceedings are set forth in 24 CFR part 3800.
Sec. 3500.21 Mortgage servicing transfers.
(a) Definitions. As used in this section:
Master servicer means the owner of the right to perform servicing,
which may actually perform the servicing itself or may do so through a
subservicer.
Mortgage servicing loan means a federally related mortgage loan, as
that term is defined in Sec. 3500.2, subject to the exemptions in
Sec. 3500.5, when the mortgage loan is secured by a first lien. The
definition does not include subordinate lien loans or open-end lines of
credit (home equity plans) covered by the Truth in Lending Act and
Regulation Z, including open-end lines of credit secured by a first
lien.
Qualified written request means a written correspondence from the
borrower to the servicer prepared in accordance with paragraph (e)(2)
of this section.
Subservicer means a servicer who does not own the right to perform
servicing, but who does so on behalf of the master servicer.
Transferee servicer means a servicer who obtains or who will obtain
the right to perform servicing functions pursuant to an agreement or
understanding.
Transferor servicer means a servicer, including a table funding
mortgage broker or dealer on a first lien dealer loan, who transfers or
will transfer the right to perform servicing functions pursuant to an
agreement or understanding.
(b) Servicing Disclosure Statement and Applicant Acknowledgement;
requirements. (1) At the time an application for a mortgage servicing
loan is submitted, or within 3 business days after submission of the
application, the lender, mortgage broker who anticipates using table
funding, or dealer who anticipates a first lien dealer loan shall
provide to each person who applies for such a loan a Servicing
Disclosure Statement. This requirement shall not apply when the
application for credit is turned down within three business days after
receipt of the application. A format for the Servicing Disclosure
Statement appears as Appendix MS-1 to this part. Except as provided in
paragraph (b)(2) of this section, the specific language of the
Servicing Disclosure Statement is not required to be used, but the
Servicing Disclosure Statement must include the information set out in
paragraph (b)(3) of this section, including the statement of the
borrower's rights in connection with complaint resolution. The
information set forth in Instructions to Preparer on the Servicing
Disclosure Statement need not be included on the form given to
applicants, and material in square brackets is optional or alternative
language.
(2) The Applicant's Acknowledgement portion of the Servicing
Disclosure Statement in the format stated is mandatory. Additional
lines may be added to accommodate more than two applicants.
(3) The Servicing Disclosure Statement must contain the following
information, except as provided in paragraph (b)(3)(ii) of this
section:
(i) Whether the servicing of the loan may be assigned, sold or
transferred to any other person at any time while the loan is
outstanding. If the lender, table funding mortgage broker, or dealer in
a first lien dealer loan does not engage in the servicing of any
mortgage servicing loans, the disclosure may consist of a statement to
the effect that there is a current intention to assign, sell, or
transfer servicing of the loan.
(ii) The percentages (rounded to the nearest quartile (25%)) of
mortgage servicing loans originated by the lender in each calendar year
for which servicing has been assigned, sold, or transferred for such
calendar year. Compliance with this paragraph (b)(3)(ii) is not
required if the lender, table funding mortgage broker, or dealer on a
first lien dealer loan chooses option B in the model format in
paragraph (b)(4) of this section, including in square brackets the
language ``[and have not serviced mortgage loans in the last three
years.]''. The percentages shall be provided as follows:
(A) This information shall be set out for the most recent three
calendar years completed, with percentages as of the end of each year.
This information shall be updated in the disclosure no later than March
31 of the next calendar year. Each percentage should be obtained by
using as the numerator the number of mortgage servicing loans
originated during the calendar year for which servicing is transferred
within the calendar year and, as the denominator, the total number of
mortgage servicing loans originated in the calendar year. If the volume
of transfers is less than 12.5 percent, the word ``nominal'' or the
actual percentage amount of servicing transfers may be used.
(B) This statistical information does not have to include the
assignment, sale, or transfer of mortgage loan servicing by the lender
to an affiliate or subsidiary of the lender. However, lenders may
voluntarily include transfers to an affiliate or subsidiary. The lender
should indicate whether the percentages provided include assignments,
sales, or transfers to affiliates or subsidiaries.
(C) In the alternative, if applicable, the following statement may
be substituted for the statistical information required to be provided
in accordance with paragraph (b)(3)(ii) of this section: ``We have
previously assigned, sold, or transferred the servicing of federally
related mortgage loans.''
(iii) The best available estimate of the percentage (0 to 25
percent, 26 to 50 percent, 51 to 75 percent, or 76 to 100 percent) of
all loans to be made during the 12-month period beginning on the date
of origination for which the servicing may be assigned, sold, or
transferred. Each percentage should be obtained by using as the
numerator the estimated number of mortgage servicing loans that will be
originated for which servicing may be transferred within the 12-month
period and, as the denominator, the estimated total number of mortgage
servicing loans that will be originated in the 12-month period.
(A) If the lender, mortgage broker, or dealer anticipates that no
loan servicing will be sold during the calendar year, the word ``none''
may be substituted for ``0 to 25 percent.'' If it is anticipated that
all loan servicing will be sold during the calendar year, the word
``all'' may be substituted for ``76 to 100 percent.''
(B) This statistical information does not have to include the
estimated assignment, sale, or transfer of mortgage loan servicing to
an affiliate or subsidiary of that person. However, this information
may be provided voluntarily. The Servicing Disclosure Statements should
indicate whether the percentages provided include assignments, sales or
transfers to affiliates or subsidiaries.
(iv) The information set out in paragraphs (d) and (e) of this
section.
[[Page 13249]]
(v) A written acknowledgement that the applicant (and any co-
applicant) has/have read and understood the disclosure, and understand
that the disclosure is a required part of the mortgage application.
This acknowledgement shall be evidenced by the signature of the
applicant and any co-applicant.
(4) The following is a model format, which includes several
options, for complying with the requirements of paragraph (b)(3) of
this section. The model format may be annotated with additional
information that clarifies or enhances the model language. The lender
or table funding mortgage broker (or dealer) should use the language
that best describes the particular circumstances.
(i) Model Format: The following is the best estimate of what will
happen to the servicing of your mortgage loan:
(A) Option A. We may assign, sell, or transfer the servicing of
your loan while the loan is outstanding. [We are able to service your
loan[.][,] and we [will] [will not] [haven't decided whether to]
service your loan.]; or
(B) Option B. We do not service mortgage loans[.][,] [and have not
serviced mortgage loans in the past three years.] We presently intend
to assign, sell, or transfer the servicing of your mortgage loan. You
will be informed about your servicer.
(C) As appropriate, the following paragraph may be used:
We assign, sell, or transfer the servicing of some of our loans
while the loans are outstanding, depending on the type of loan and
other factors. For the program for which you have applied, we expect to
[assign, sell, or transfer all of the mortgage servicing][retain all of
the mortgage servicing] [assign, sell, or transfer ________% of the
mortgage servicing].
(ii) [Reserved]
(c) Servicing Disclosure Statement and Applicant Acknowledgement;
delivery. The lender, table funding mortgage broker, or dealer that
anticipates a first lien dealer loan shall deliver Servicing Disclosure
Statements to each applicant for mortgage servicing loans. Each
applicant or co-applicant must sign an Acknowledgement of receipt of
the Servicing Disclosure Statement before settlement.
(1) In the case of a face-to-face interview with one or more
applicants, the Servicing Disclosure Statement shall be delivered at
the time of application. An applicant present at the interview may sign
the Acknowledgment on his or her own behalf at that time. An applicant
present at the interview also may accept delivery of the Servicing
Disclosure Statement on behalf of the other applicants.
(2) If there is no face-to-face interview, the Servicing Disclosure
Statement shall be delivered by placing it in the mail, with prepaid
first-class postage, within 3 business days from receipt of the
application. If co-applicants indicate the same address on their
application, one copy delivered to that address is sufficient. If
different addresses are shown by co-applicants on the application, a
copy must be delivered to each of the co-applicants.
(3) The signed Applicant Acknowledgment(s) shall be retained for a
period of 5 years after the date of settlement as part of the loan file
for every settled loan. There is no requirement for retention of
Applicant Acknowledgment(s) if the loan is not settled.
(d) Notices of Transfer; loan servicing. (1) Requirement for
notice. (i) Except as provided in this paragraph (d)(1)(i) or paragraph
(d)(1)(ii) of this section, each transferor servicer and transferee
servicer of any mortgage servicing loan shall deliver to the borrower a
written Notice of Transfer, containing the information described in
paragraph (d)(3) of this section, of any assignment, sale, or transfer
of the servicing of the loan. The following transfers are not
considered an assignment, sale, or transfer of mortgage loan servicing
for purposes of this requirement if there is no change in the payee,
address to which payment must be delivered, account number, or amount
of payment due:
(A) Transfers between affiliates;
(B) Transfers resulting from mergers or acquisitions of servicers
or subservicers; and
(C) Transfers between master servicers, where the subservicer
remains the same.
(ii) The Federal Housing Administration (FHA) is not required under
paragraph (d) of this section to submit to the borrower a Notice of
Transfer in cases where a mortgage insured under the National Housing
Act is assigned to FHA.
(2) Time of notice. (i) Except as provided in paragraph (d)(2)(ii)
of this section:
(A) The transferor servicer shall deliver the Notice of Transfer to
the borrower not less than 15 days before the effective date of the
transfer of the servicing of the mortgage servicing loan;
(B) The transferee servicer shall deliver the Notice of Transfer to
the borrower not more than 15 days after the effective date of the
transfer; and
(C) The transferor and transferee servicers may combine their
notices into one notice, which shall be delivered to the borrower not
less than 15 days before the effective date of the transfer of the
servicing of the mortgage servicing loan.
(ii) The Notice of Transfer shall be delivered to the borrower by
the transferor servicer or the transferee servicer not more than 30
days after the effective date of the transfer of the servicing of the
mortgage servicing loan in any case in which the transfer of servicing
is preceded by:
(A) Termination of the contract for servicing the loan for cause;
(B) Commencement of proceedings for bankruptcy of the servicer; or
(C) Commencement of proceedings by the Federal Deposit Insurance
Corporation (FDIC) or the Resolution Trust Corporation (RTC) for
conservatorship or receivership of the servicer or an entity that owns
or controls the servicer.
(iii) Notices of Transfer delivered at settlement by the transferor
servicer and transferee servicer, whether as separate notices or as a
combined notice, will satisfy the timing requirements of paragraph
(d)(2) of this section.
(3) Notices of Transfer; contents. The Notices of Transfer required
under paragraph (d) of this section shall include the following
information:
(i) The effective date of the transfer of servicing;
(ii) The name, consumer inquiry addresses (including, at the option
of the servicer, a separate address where qualified written requests
must be sent), and a toll-free or collect-call telephone number for an
employee or department of the transferee servicer;
(iii) A toll-free or collect-call telephone number for an employee
or department of the transferor servicer that can be contacted by the
borrower for answers to servicing transfer inquiries;
(iv) The date on which the transferor servicer will cease to accept
payments relating to the loan and the date on which the transferee
servicer will begin to accept such payments. These dates shall either
be the same or consecutive days;
(v) Information concerning any effect the transfer may have on the
terms or the continued availability of mortgage life or disability
insurance, or any other type of optional insurance, and any action the
borrower must take to maintain coverage;
(vi) A statement that the transfer of servicing does not affect any
other term or condition of the mortgage documents, other than terms
directly related to the servicing of the loan; and
[[Page 13250]]
(vii) A statement of the borrower's rights in connection with
complaint resolution, including the information set forth in paragraph
(e) of this section. Appendix MS-2 of this part illustrates a statement
satisfactory to the Secretary.
(4) Notices of Transfer; sample notice. Sample language that may be
used to comply with the requirements of paragraph (d) of this section
is set out in Appendix MS-2 of this part. Minor modifications to the
sample language may be made to meet the particular circumstances of the
servicer, but the substance of the sample language shall not be omitted
or substantially altered.
(5) Consumer protection during transfer of servicing. During the
60-day period beginning on the effective date of transfer of the
servicing of any mortgage servicing loan, if the transferor servicer
(rather than the transferee servicer that should properly receive
payment on the loan) receives payment on or before the applicable due
date (including any grace period allowed under the loan documents), a
late fee may not be imposed on the borrower with respect to that
payment and the payment may not be treated as late for any other
purposes.
(e) Duty of loan servicer to respond to borrower inquiries.
(1) Notice of receipt of inquiry. Within 20 business days of a
servicer of a mortgage servicing loan receiving a qualified written
request from the borrower for information relating to the servicing of
the loan, the servicer shall provide to the borrower a written response
acknowledging receipt of the qualified written response. This
requirement shall not apply if the action requested by the borrower is
taken within that period and the borrower is notified of that action in
accordance with the paragraph (f)(3) of this section. By notice either
included in the Notice of Transfer or separately delivered by first-
class mail, postage prepaid, a servicer may establish a separate and
exclusive office and address for the receipt and handling of qualified
written requests.
(2) Qualified written request; defined. (i) For purposes of
paragraph (e) of this section, a qualified written request means a
written correspondence (other than notice on a payment coupon or other
payment medium supplied by the servicer) that includes, or otherwise
enables the servicer to identify, the name and account of the borrower,
and includes a statement of the reasons that the borrower believes the
account is in error, if applicable, or that provides sufficient detail
to the servicer regarding information relating to the servicing of the
loan sought by the borrower.
(ii) A written request does not constitute a qualified written
request if it is delivered to a servicer more than 1 year after either
the date of transfer of servicing or the date that the mortgage
servicing loan amount was paid in full, whichever date is applicable.
(3) Action with respect to the inquiry. Not later than 60 business
days after receiving a qualified written request from the borrower,
and, if applicable, before taking any action with respect to the
inquiry, the servicer shall:
(i) Make appropriate corrections in the account of the borrower,
including the crediting of any late charges or penalties, and transmit
to the borrower a written notification of the correction. This written
notification shall include the name and telephone number of a
representative of the servicer who can provide assistance to the
borrower; or
(ii) After conducting an investigation, provide the borrower with a
written explanation or clarification that includes:
(A) To the extent applicable, a statement of the servicer's reasons
for concluding the account is correct and the name and telephone number
of an employee, office, or department of the servicer that can provide
assistance to the borrower; or
(B) Information requested by the borrower, or an explanation of why
the information requested is unavailable or cannot be obtained by the
servicer, and the name and telephone number of an employee, office, or
department of the servicer that can provide assistance to the borrower.
(4) Protection of credit rating. (i) During the 60-business day
period beginning on the date of the servicer receiving from a borrower
a qualified written request relating to a dispute on the borrower's
payments, a servicer may not provide adverse information regarding any
payment that is the subject of the qualified written request to any
consumer reporting agency (as that term is defined in section 603 of
the Fair Credit Reporting Act, 15 U.S.C. 1681a).
(ii) In accordance with section 17 of RESPA (12 U.S.C. 2615), the
protection of credit rating provision of paragraph (e)(4)(i) of this
section does not impede a lender or servicer from pursuing any of its
remedies, including initiating foreclosure, allowed by the underlying
mortgage loan instruments.
(f) Damages and costs. (1) Whoever fails to comply with any
provision of this section shall be liable to the borrower for each
failure in the following amounts:
(i) Individuals. In the case of any action by an individual, an
amount equal to the sum of any actual damages sustained by the
individual as the result of the failure and, when there is a pattern or
practice of noncompliance with the requirements of this section, any
additional damages in an amount not to exceed $1,000.
(ii) Class Actions. In the case of a class action, an amount equal
to the sum of any actual damages to each borrower in the class that
result from the failure and, when there is a pattern or practice of
noncompliance with the requirements of this section, any additional
damages in an amount not greater than $1,000 for each class member.
However, the total amount of any additional damages in a class action
may not exceed the lesser of Sec. 500,000 or 1 percent of the net worth
of the servicer.
(iii) Costs. In addition, in the case of any successful action
under paragraph (f) of this section, the costs of the action and any
reasonable attorneys' fees incurred in connection with the action.
(2) Nonliability. A transferor or transferee servicer shall not be
liable for any failure to comply with the requirements of this section,
if within 60 days after discovering an error (whether pursuant to a
final written examination report or the servicer's own procedures) and
before commencement of an action under this section and the receipt of
written notice of the error from the borrower, the servicer notifies
the person concerned of the error and makes whatever adjustments are
necessary in the appropriate account to ensure that the person will not
be required to pay an amount in excess of any amount that the person
otherwise would have paid.
(g) Timely payments by servicer. If the terms of any mortgage
servicing loan require the borrower to make payments to the servicer of
the loan for deposit into an escrow account for the purpose of assuring
payment of taxes, insurance premiums, and other charges with respect to
the mortgaged property, the servicer shall make payments from the
escrow account in a timely manner for the taxes, insurance premiums,
and other charges as the payments become due, as governed by the
requirements in Sec. 3500.17(k).
(h) Preemption of State laws. A lender who makes a mortgage
servicing loan or a servicer shall be considered to have complied with
the provisions of any State law or regulation requiring notice to a
borrower at the time of application for a loan or transfer of servicing
of a loan if the lender or servicer complies with the requirements of
this section. Any State law requiring notice to the borrower at the
time of application or at
[[Page 13251]]
the time of transfer of servicing of the loan is preempted, and there
shall be no additional borrower disclosure requirements. Provisions of
State law, such as those requiring additional notices to insurance
companies or taxing authorities, are not preempted by section 6 of
RESPA or this section, and this additional information may be added to
a notice prepared under this section, if the procedure is allowable
under State law.
(Approved by the Office of Management and Budget under control
number 2502-0458)
3. Appendix A is amended by revising the heading of the appendix to
read as follows:
Appendix A to Part 3500--Instructions for Completing HUD-1 and HUD-1A
Settlement Statements; Sample HUD 1 and HUD 1A Statements
4. Appendix B is amended in Illustration 11, in the paragraph
headed ``Comments,'' by substituting the reference ``section
3500.14(g)(1)'' for the reference ``Section 3500.14(g)(2)''.
5. Appendix MS-2 is revised to read as follows:
BILLING CODE 4210-27-P
[[Page 13252]]
[GRAPHIC] [TIFF OMITTED] TR26MR96.000
[[Page 13253]]
[GRAPHIC] [TIFF OMITTED] TR26MR96.001
[[Page 13254]]
[GRAPHIC] [TIFF OMITTED] TR26MR96.002
[[Page 13255]]
Dated: March 6, 1996.
Nicolas P. Retsinas,
Assistant Secretary for Housing-Federal Housing Commissioner,
[FR Doc. 96-6511 Filed 3-25-96; 8:45 am]
BILLING CODE 4210-27-C
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