issue-1996-05-17•Federal Register final rules — 1996-05-17
Federal Register final rules — 1996-05-17
issue-1996-05-17Federal Register final rules — 1996-05-17Regulation
Published Federal Register documents, not public-inspection drafts. The GPO XML/text rendition is a research aid; the linked complete official PDF retains the printed layout and all graphics. Graphics are retained in that PDF and are not independently reproduced in this text rendition. Publication does not establish that every provision remains legally in force.
FR Doc. 96-12497 Airworthiness Directives; Jetstream Aircraft Limited (Formerly British Aerospace, Regional Airlines Limited) HP137 Mk1, Jetstream Series 200, and Jetstream Model 3101 Airplanes
[Federal Register Volume 61, Number 97 (Friday, May 17, 1996)]
[Rules and Regulations]
[Pages 24884-24887]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-12497]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
14 CFR Part 39
[Docket No. 95-CE-79-AD; Amendment 39-9627; AD 96-11-02]
RIN 2120-AA64
Airworthiness Directives; Jetstream Aircraft Limited (Formerly
British Aerospace, Regional Airlines Limited) HP137 Mk1, Jetstream
Series 200, and Jetstream Model 3101 Airplanes
AGENCY: Federal Aviation Administration, DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This amendment adopts a new airworthiness directive (AD) that
applies to Jetstream Aircraft Limited (JAL) HP137 Mk1, Jetstream series
200, and Jetstream Model 3101 airplanes. This action requires
repetitively inspecting the spigot housing plate for cracks at the
wing/fuselage forward attachment sliding joint, replacing any cracked
housing plate, repetitively inspecting the spigots and spigot posts for
corrosion and installing improved spigots if corrosion is found that
exceeds certain limits, and eventually installing improved spigots if
corrosion that does not exceed certain limits is found. For certain
affected airplanes, this action requires repetitively inspecting the
spigot bushes for migration gaps, replacing the bushes with modified
bushes if gaps are found that exceed 0.5 inch, and eventually replacing
the bushes with modified bushes if migration gaps are not found.
Reports of bush migration gaps found on three of the affected airplanes
and another report of corrosion and several cracks found on the spigot
housing plate on a Jetstream Model 3101 airplane prompted this action.
The actions specified by this AD are intended to prevent structural
failure of the wing/fuselage area caused by a cracked or corroded
spigot housing assembly.
DATES: Effective July 2, 1996.
The incorporation by reference of certain publications listed in
the regulations is approved by the Director of the Federal Register as
of July 2, 1996.
ADDRESSES: Service information that applies to this AD may be obtained
from Jetstream Aircraft Limited, Prestwick International Airport,
Ayrshire, KA9 2RW, Scotland, telephone (44-292) 79888; facsimile (44-
292) 79703; or Jetstream Aircraft Inc., Librarian, P.O. Box 16029,
Dulles International Airport, Washington, D.C. 20041-6029; telephone
(703) 406-1161; facsimile (703) 406-1469. This information may also be
examined at the Federal Aviation Administration (FAA), Central Region,
Office of the Assistant Chief Counsel, Attention: Rules Docket 95-CE-
79-AD, Room 1558, 601 E. 12th Street, Kansas City, Missouri 64106; or
at the Office of the Federal Register, 800 North Capitol Street NW.,
suite 700, Washington, DC.
FOR FURTHER INFORMATION CONTACT: Ms. Dorenda Baker, Program Manager,
Brussels Aircraft Certification Office, FAA, Europe, Africa, and Middle
East Office, c/o American Embassy, B-1000 Brussels, Belgium; telephone
(32 2) 508.2715; facsimile (32 2) 230.6899; or Mr. Jeffrey Morfitt,
Project Officer, Small Airplane Directorate, Aircraft Certification
Service, FAA, 1201 Walnut, suite 900, Kansas City, Missouri 64105;
telephone (816) 426-6932; facsimile (816) 426-2169.
SUPPLEMENTARY INFORMATION:
Events Leading to the AD
A proposal to amend part 39 of the Federal Aviation Regulations (14
CFR part 39) to include an AD that would apply to JAL HP137 Mk1,
Jetstream series 200, and Jetstream Model 3101 airplanes was published
in the Federal Register on January 19, 1996 (61 FR
[[Page 24885]]
1295). The action proposed to require repetitively inspecting the
spigot housing plate for cracks at the wing/fuselage forward attachment
sliding joint, replacing any cracked housing plate, repetitively
inspecting the spigots and spigot posts for corrosion and installing
improved spigots if corrosion is found, and eventually installing
improved spigots if corrosion is not found. For certain affected
airplanes, the proposed action would require repetitively inspecting
the spigot bushes for migration gaps, replacing the bushes with
modified bushes if gaps are found that exceed 0.5 inch, and eventually
replacing the bushes with modified bushes if migration gaps are not
found. Accomplishment of the proposed inspections would be in
accordance with BAe Jetstream Alert Service Bulletin (ASB) 57-A-JA
920640, dated February 19, 1993; and Jetstream Service Bulletin (SB)
57-JA 930941, Revision 2, dated November 11, 1994. Accomplishment of
the proposed modifications would be in accordance with BAe Jetstream SB
57-JM 5259, dated February 5, 1993, and Erratum No. 1 to SB 57-JM 5259,
dated February 8, 1993; and Jetstream SB 57-JM 5326, dated September 3,
1993.
Interested persons have been afforded an opportunity to participate
in the making of this amendment. Due consideration has been given to
the comments received from two different commenters. One of these
commenters supports the proposal as written.
Comment Resolution
JAL states that the corrosion limits specified in paragraphs (b)(1)
and (b)(2) of the AD only specify the spigot posts. JAL further states
that Jetstream SB 57-JA 930941, Revision No. 2, dated November 11,
1994, also specifies corrosion limits for the spigots. JAL requests
that these corrosion limits and applicable service bulletin
instructions be added to the final rule. The FAA concurs and has
revised the AD accordingly.
JAL also recommends that the repetitive inspection interval be
changed to 48 calendar months instead of 12 calendar months to coincide
with Jetstream SB 57-JA 93041. The FAA established the initial
inspection in the proposal at 12 calendar months and meant to establish
the repetitive inspection interval at 48 calendar months, but
inadvertently established the repetitive inspection interval at 12
calendar months. The FAA's analysis of data initially submitted by JAL
indicates that repetitively inspecting the spigot housing area for
cracks and corrosion at 48 calendar month intervals provides the level
of safety necessary to correct the unsafe condition. The final rule AD
has been revised to reflect this change.
JAL asks whether an owner/operator who found a cracked spigot
housing plate could apply for an alternative method of compliance to
allow 150 flight hours before installation rather than prior to further
flight when a crack is found that is shorter than 0.2 inch. JAL states
that this would allow the owner/operator of the affected airplane time
to obtain the necessary parts, and also states that fatigue tests have
demonstrated slow crack growth. The FAA allows any owner/operator to
submit a request for an alternative method of compliance, including an
extension of the compliance time. The owner/operator should submit the
request with all substantiating data in accordance with the provisions
in the AD. The FAA will evaluate each request to determine whether the
alternative method of compliance establishes an equivalent level of
safety to the actions of the AD, and then will either approve or reject
the request accordingly.
No comments were received regarding the FAA's estimate of the cost
impact on the public.
After careful review of all available information related to the
subject presented above, the FAA has determined that air safety and the
public interest require the adoption of the rule as proposed except for
the changes previously discussed and minor editorial corrections. The
FAA has determined that these changes and minor corrections will not
change the meaning of the AD and will not add any additional burden
upon the public than was already proposed.
Aspects of the Action
The alternative to incorporating new modified spigots and bushes
would be to require repetitive inspections. FAA aging commuter-class
aircraft policy states that reliance on critical repetitive inspections
carries an unnecessary safety risk when a design change exists that
could eliminate or, in certain instances, reduce the number of those
critical inspections. Therefore, the required spigot and bush
replacements is consistent with the FAA's commuter-class aircraft
policy.
The compliance times of the repetitive inspections of the spigots
and spigot posts for corrosion and subsequent replacement, if
necessary, are presented in calendar time instead of hours time-in-
service (TIS). Corrosion can occur on airplanes regardless of whether
the airplane is in service or in storage. Therefore, to ensure that
corrosion is detected and corrected on all airplanes within a
reasonable period of time without inadvertently grounding any
airplanes, a compliance schedule based upon calendar time instead of
hours TIS is utilized.
Cost Impact
The FAA estimates that 143 airplanes in the U.S. registry will be
affected by this AD, that it will take approximately 61 workhours per
airplane to accomplish the inspections and modifications, and that the
average labor rate is approximately $60 an hour. Parts cost
approximately $320 per airplane. Based on these figures, the total cost
impact of this AD on U.S. operators is estimated to be $569,140 or
$3,980 per airplane. This figure only takes into account the cost of
initial inspections and does not take into account repetitive
inspection costs. The FAA has no way of determining the number of
repetitive inspections each affected airplane owner/operator will incur
over the life of the airplane.
The approximately 61 workhours it will take to accomplish the
required actions is based on each inspection and modification being
accomplished separately. The FAA anticipates that many owners/operators
of the affected airplanes will schedule all of the required actions to
be accomplished at the same time, thereby reducing the labor costs
associated with accomplishing these actions.
In addition, Jetstream Aircraft Limited has informed the FAA that
parts have been distributed to equip approximately 40 airplanes.
Assuming that each set of parts is installed on an affected HP137 Mk1,
Jetstream series 200, or Jetstream Model 3101 airplane, the cost impact
of this AD upon U.S. operators is reduced $159,200 from $569,140 to
$409,940.
Regulatory Impact
The regulations adopted herein will not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this final
rule does not have sufficient federalism implications to warrant the
preparation of a Federalism Assessment.
For the reasons discussed above, I certify that this action (1) is
not a ``significant regulatory action'' under Executive Order 12866;
(2) is not a ``significant rule'' under DOT Regulatory Policies and
Procedures (44 FR 11034, February 26, 1979); and (3) will not have a
significant economic impact, positive or negative, on a
[[Page 24886]]
substantial number of small entities under the criteria of the
Regulatory Flexibility Act. A copy of the final evaluation prepared for
this action is contained in the Rules Docket. A copy of it may be
obtained by contacting 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 a new airworthiness directive
(AD) to read as follows:
96-11-02 Jetstream Aircraft Limited: Amendment 39-9627; Docket No.
95-CE-79-AD.
Applicability: HP137 Mk1, Jetstream series 200, and Jetstream
Model 3101 airplanes (all serial numbers), certificated in any
category.
Compliance: Required as indicated in the body of this AD, unless
already accomplished.
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 (g) 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.
To prevent structural failure of the wing/fuselage area caused
by a cracked spigot housing assembly, accomplish the following:
(a) For all affected airplanes, upon the accumulation of 7,200
hours time-in-service (TIS) or within the next 1,200 hours TIS after
the effective date of this AD, whichever occurs later, and
thereafter at intervals not to exceed 7,200 hours TIS, accomplish
the following:
(1) Inspect the spigot housing plate at the wing/fuselage
forward attachment sliding joint for cracks in accordance with Part
1 of the ACCOMPLISHMENT INSTRUCTIONS section of Jetstream Service
Bulletin (SB) 57-JA 930941, Revision No. 2, dated November 11, 1994.
(2) If a cracked spigot housing plate is found, prior to further
flight, replace the cracked spigot housing plate in accordance with
Part 3 of the ACCOMPLISHMENT INSTRUCTIONS section of Jetstream SB
57-JA 930941, Revision No. 2, dated November 11, 1994.
(3) Replacing the spigot housing plate does not eliminate the
7,200-hour TIS interval repetitive inspection requirement.
(b) For all affected airplanes, within the next 12 calendar
months after the effective date of this AD, and thereafter at
intervals not to exceed 48 calendar months until Modification No. JM
5326 and Modification No. JM 5259 (as applicable) are incorporated
as required by paragraphs (d)(1) and (d)(2) of this AD, inspect the
spigots and spigot posts for corrosion in accordance with Part 2 of
the ACCOMPLISHMENT INSTRUCTIONS section of Jetstream SB 57-JA
930941, Revision No. 2, dated November 11, 1994.
(1) If corrosion damage is found in the spigot post that is 0.06
inch (1.52 mm) or less deep and does not extend to within 0.9 inch
(22.9 mm) from either end of the bore, prior to further flight,
treat the corrosion in accordance with paragraph (8)(d) of the
ACCOMPLISHMENT INSTRUCTIONS section of Jetstream SB 57-JA 930941,
Revision No. 2, dated November 11, 1994.
(2) If corrosion damage in the spigot post is found that is more
than 0.06 inch (1.52 mm) or extends to within 0.9 inch (22.9 mm)
from either end of the bore, prior to further flight, obtain a
repair scheme from the manufacturer through the Brussels Aircraft
Certification Office (ACO) at the address specified in paragraph (g)
of this AD, and incorporate this repair scheme.
(3) If corrosion damage in the spigot is found that penetrates
the protective surface of the spigot, within four calendar months
after finding the corrosion damage, replace both wing/fuselage
spigots with new modified spigots (Modification No. JM 5326) in
accordance with Jetstream SB 57-JM 5326, dated September 3, 1993.
Modification No. JM 5326 incorporates a new P/N 13781B401 spigot
assembly.
(c) For all affected HP137 Mk1 airplanes and all affected
Jetstream series 200 airplanes, and Jetstream Model 3101 airplanes
with a serial number in the range of 601 through 702 (inclusive),
within the next 1,200 hours TIS after the effective date of this AD,
inspect the wing/fuselage forward attachment spigot bushes for
migration gaps in accordance with the ACCOMPLISHMENT INSTRUCTIONS
section of BAe Jetstream Alert SB 57-A-JA 920640, dated February 19,
1993.
(1) If no migration gaps are found, reinspect at intervals not
to exceed 4,500 hours TIS until Modification No. JM 5259 is
incorporated. If migration gaps are found upon reinspection, install
modified bushes as specified in paragraph (c)(2) or (c)(3) of this
AD.
(2) If migration gaps are found that are 0.5 inch or less,
reinspect at intervals not to exceed 900 hours TIS until
Modification No. JM 5259 is incorporated. If migration gaps are
found upon reinspection that are larger than .5 inch, accomplish
paragraph (c)(3) of this AD, as applicable.
(3) If migration gaps are found that are larger than 0.5 inch,
within 150 hours TIS after the last inspection required by paragraph
(c)(1) or (c)(2) of this AD, install modified bushes at the wing/
fuselage forward attachment spigots (Modification JM 5259) in
accordance with the ACCOMPLISHMENT INSTRUCTIONS section of BAe
Jetstream SB 57-JM 5259, dated February 5, 1993, and Erratum No. 1
to SB 57-JM 5259, dated February 8, 1993.
(d) Upon accumulating 25,000 hours TIS or within 1,000 hours TIS
after the effective date of this AD, whichever occurs later,
accomplish the following:
(1) For all affected HP137 Mk1, Jetstream series 200, and
Jetstream Model 3101 airplanes, replace both wing/fuselage spigots
with new modified spigots (Modification No. JM 5326) in accordance
with Jetstream SB 57-JM 5326, dated September 3, 1993; and
(2) For all affected HP137 Mk1 airplanes and all affected
Jetstream series 200 airplanes, and Jetstream Model 3101 airplanes
with a serial number in the range of 601 through 702 (inclusive),
install modified bushes at the wing/fuselage forward attachment
spigots (Modification No. JM 5259) in accordance with the
ACCOMPLISHMENT INSTRUCTIONS section of BAe Jetstream SB 57-JM 5259,
dated February 5, 1993, and Erratum No. 1 to SB 57-JM 5259, dated
February 8, 1993.
(3) Incorporating Modification No. JM 5259 eliminates the
requirement of repetitively inspecting the wing/fuselage forward
attachment spigot bushes for migration gaps as required by all
designations of paragraph (c) of this AD.
(e) Incorporating both Modification No. JM 5326 and Modification
No. JM 5259 eliminates the repetitive inspections required by all
designations of paragraphs (b) and (c) of this AD. This does not
eliminate the repetitive inspections of the spigot housing plate as
required by paragraph (a) of this AD.
(f) Special flight permits may be issued in accordance with
sections 21.197 and 21.199 of the Federal Aviation Regulations (14
CFR 21.197 and 21.199) to operate the airplane to a location where
the requirements of this AD can be accomplished.
(g) An alternative method of compliance or adjustment of the
initial or repetitive compliance times that provides an equivalent
level of safety may be approved by the Manager, Brussels Aircraft
Certification Office (ACO), Europe, Africa, Middle East office, FAA,
c/o American Embassy, 1000 Brussels, Belgium. The request should be
forwarded through an appropriate FAA Maintenance Inspector, who may
add comments and then send it to the Manager, Brussels ACO.
Note 2: Information concerning the existence of approved
alternative methods of compliance with this AD, if any, may be
obtained from the Brussels ACO.
(h) The inspections required by this AD shall be done in
accordance with BAe Jetstream Alert Service Bulletin 57-A-JA 920640,
dated February 19, 1993; and
[[Page 24887]]
Jetstream Service Bulletin 57-JA 930941, Revision 2, dated November
11, 1994. The modifications required by this AD shall be done in
accordance with BAe Jetstream Service Bulletin 57-JM 5259, dated
February 5, 1993, and Erratum No. 1 to Service Bulletin 57-JM 5259,
dated February 8, 1993; and Jetstream Service Bulletin 57-JM 5326,
dated September 3, 1993. 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
Jetstream Aircraft Limited, Manager Product Support, Prestwick
Airport, Ayrshire, KA9 2RW Scotland; or Jetstream Aircraft Inc.,
Librarian, P.O. Box 16029, Dulles International Airport, Washington,
DC, 20041-6029. Copies may be inspected at the FAA, Central Region,
Office of the Assistant Chief Counsel, Room 1558, 601 E. 12th
Street, Kansas City, Missouri, or at the Office of the Federal
Register, 800 North Capitol Street NW., suite 700, Washington, DC.
(i) This amendment (39-9627) becomes effective on July 2, 1996.
Issued in Kansas City, Missouri, on May 10, 1996.
Michael Gallagher,
Manager, Small Airplane Directorate, Aircraft Certification Service.
[FR Doc. 96-12497 Filed 5-16-96; 8:45 am]
BILLING CODE 4910-13-U
Complete official Federal Register PDF
FR Doc. 96-12496 Airworthiness Directives; Jetstream Aircraft Limited; Jetstream Models 3101 and 3201 Airplanes
[Federal Register Volume 61, Number 97 (Friday, May 17, 1996)]
[Rules and Regulations]
[Pages 24883-24884]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-12496]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
14 CFR Part 39
[Docket No. 95-CE-18-AD; Amendment 39-9626; AD 96-11-01]
RIN 2120-AA64
Airworthiness Directives; Jetstream Aircraft Limited; Jetstream
Models 3101 and 3201 Airplanes
AGENCY: Federal Aviation Administration, DOT.
ACTION: Final rule.
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SUMMARY: This amendment adopts a new airworthiness directive (AD) that
applies to Jetstream Aircraft Limited (JAL) Jetstream Models 3101 and
3201 airplanes. This action requires modifying the automatic airframe
de-ice system to allow the wing and tail de-ice boots to automatically
operate through one cycle. The present system repeats the wing de-ice
boot inflation cycle before starting to inflate the tail de-ice boots.
Reports of ice accumulating on the tail faster than the automatic tail
de-ice boots inflate on the affected airplanes prompted this action.
The actions specified by this AD are intended to prevent excessive ice
accretion on the tail or wings of the affected airplanes, which could
result in loss of control of the airplane.
DATES: Effective July 2, 1996.
The incorporation by reference of certain publications listed in
the regulations is approved by the Director of the Federal Register as
of July 2, 1996.
ADDRESSES: Service information that applies to this AD may be obtained
from Jetstream Aircraft Limited, Prestwick International Airport,
Ayrshire, KA9 2RW, Scotland, telephone (44-292) 79888; facsimile (44-
292) 79703; or Jetstream Aircraft Inc., Librarian, P.O. Box 16029,
Dulles International Airport, Washington, D.C. 20041-6029; telephone
(703) 406-1161; facsimile (703) 406-1469. This information may also be
examined at the Federal Aviation Administration (FAA), Central Region,
Office of the Assistant Chief Counsel, Attention: Rules Docket 95-CE-
18-AD, Room 1558, 601 E. 12th Street, Kansas City, Missouri 64106; or
at the Office of the Federal Register, 800 North Capitol Street NW.,
suite 700, Washington, DC.
FOR FURTHER INFORMATION CONTACT: Ms. Dorenda Baker, Program Manager,
Brussels Aircraft Certification Office, FAA, Europe, Africa, and Middle
East Office, c/o American Embassy, B-1000 Brussels, Belgium; telephone
(32 2) 508.2715; facsimile (32 2) 230.6899; or Mr. Jeffrey Morfitt,
Project Officer, Small Airplane Directorate, Aircraft Certification
Service, FAA, 1201 Walnut, suite 900, Kansas City, Missouri 64105;
telephone (816) 426-6932; facsimile (816) 426-2169.
SUPPLEMENTARY INFORMATION:
Events Leading to the AD
A proposal to amend part 39 of the Federal Aviation Regulations (14
CFR part 39) to include an AD that would apply to JAL Jetstream Models
3101 and 3201 airplanes was published in the Federal Register on
February 21, 1996 (61 FR 6583). The action proposed to require
modifying the automatic airframe de-ice system to allow the wing and
tail de-ice boot systems to automatically operate through one cycle.
Accomplishment of the proposed modification would be in accordance with
Jetstream Service Bulletin 30-JK 12033, Revision No. 1, dated October
20, 1995.
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.
Comment Resolution
The commenter supports the proposal, but recommends that the final
rule not become effective until after May 1, 1996. The commenter
explains that this is necessary to ensure parts delivery and subsequent
scheduling of the modification within the compliance time. The issuance
of this AD is well after May 1, 1996, and the subsequent effective date
of the final rule gives this commenter ample time to accomplish the
modification.
No comments were received regarding the FAA's determination of the
cost impact on the public.
After careful review of all available information related to the
subject presented above, the FAA has determined that air safety and the
public interest require the adoption of the rule as proposed except for
minor editorial corrections. The FAA has determined that these minor
corrections will not change the meaning of the AD and will not add any
additional burden upon the public than was already proposed.
Cost Impact
The FAA estimates that 260 airplanes in the U.S. registry will be
affected by this AD, that it will take approximately 5 workhours per
airplane to accomplish the required action, and that the average labor
rate is approximately $60 an hour. Parts cost approximately $50 per
airplane. Based on these figures, the total cost impact of the AD on
U.S. operators is estimated to be $91,000. This figure is based on the
assumption that no owner/operator of the affected airplanes has
accomplished the required modification.
Jetstream has informed the FAA that parts have been distributed to
owners/operators to equip approximately 22 of the affected airplanes.
Assuming that each set of parts is installed on an affected airplane,
the cost impact of this AD upon U.S. owners/operators of the affected
airplanes is reduced $7,700 from $91,000 to $83,300.
Regulatory Impact
The regulations adopted herein will not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this final
rule does not have sufficient federalism implications to warrant the
preparation of a Federalism Assessment.
For the reasons discussed above, I certify that this action (1) Is
not a ``significant regulatory action'' under Executive Order 12866;
(2) is not a ``significant rule'' under DOT Regulatory Policies and
Procedures (44 FR 11034, February 26, 1979); and (3) will not have a
significant economic impact, positive or negative, on a substantial
number of small entities under the criteria of the Regulatory
Flexibility Act. A copy of the final evaluation prepared for this
action is contained in the Rules Docket. A copy of it may be obtained
by contacting the
[[Page 24884]]
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 a new airworthiness directive
(AD) to read as follows:
96-11-01 Jetstream Aircraft Limited: Amendment 39-9626; Docket No.
95-CE-18-AD.
Applicability: Jetstream Models 3101 and 3201 airplanes (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 (c) 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 within the next 1,000 hours time- in-
service after the effective date of this AD, unless already
accomplished.
To prevent excessive ice accretion on the tail or wings of the
affected airplanes, which could result in loss of control of the
airplane, accomplish the following:
(a) Modify the automatic airframe de-ice system in accordance
with the ACCOMPLISHMENT INSTRUCTIONS section of Jetstream Service
Bulletin No. 30-JK 12033, Revision No. 1, dated October 20, 1995.
(b) 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.
(c) An alternative method of compliance or adjustment of the
compliance time that provides an equivalent level of safety may be
approved by the Manager, Brussels Aircraft Certification Office
(ACO), Europe, Africa, Middle East office, FAA, c/o American
Embassy, B-1000 Brussels, Belgium. The request should be forwarded
through an appropriate FAA Maintenance Inspector, who may add
comments and then send it to the Manager, Brussels ACO.
Note 2: Information concerning the existence of approved
alternative methods of compliance with this AD, if any, may be
obtained from the Brussels ACO.
(d) The inspections required by this AD shall be done in
accordance with Jetstream Service Bulletin No. 30-JK 12033, Revision
No. 1, dated October 20, 1995. This incorporation by reference was
approved by the Director of the Federal Register in accordance with
5 U.S.C. 552(a) and 1 CFR part 51. Copies may be obtained from
Jetstream Aircraft Limited, Manager Product Support, Prestwick
Airport, Ayrshire, KA9 2RW Scotland; or Jetstream Aircraft Inc.,
Librarian, P.O. Box 16029, Dulles International Airport, Washington,
DC, 20041-6029. Copies may be inspected at the FAA, Central Region,
Office of the Assistant Chief Counsel, Room 1558, 601 E. 12th
Street, Kansas City, Missouri, or at the Office of the Federal
Register, 800 North Capitol Street NW., suite 700, Washington, DC.
(e) This amendment (39-9626) becomes effective on July 2, 1996.
Issued in Kansas City, Missouri, on May 10, 1996.
Michael Gallagher,
Manager, Small Airplane Directorate, Aircraft Certification Service.
[FR Doc. 96-12496 Filed 5-16-96; 8:45 am]
BILLING CODE 4910-13-U
Complete official Federal Register PDF
FR Doc. 96-12485 National Oil and Hazardous Substances Pollution Contingency Plan National Priorities List
[Federal Register Volume 61, Number 97 (Friday, May 17, 1996)]
[Rules and Regulations]
[Pages 24894-24895]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-12485]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 300
[FRL-5507-3]
National Oil and Hazardous Substances Pollution Contingency Plan
National Priorities List
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of deletion of the A.L. Taylor Superfund Site, Brooks,
Kentucky from the National Priorities List.
-----------------------------------------------------------------------
SUMMARY: The U.S. Environmental Protection Agency (EPA) announces the
deletion of the A.L. Taylor Superfund Site in Brooks, Kentucky, from
the National Priorities List (NPL) (Appendix B of 40 CFR Part 300 which
is the National Oil and Hazardous Substances Pollution Contingency Plan
(NCP)). EPA and the Commonwealth of Kentucky have determined that all
appropriate Fund-financed responses under the Comprehensive
Environmental Response, Compensation and Liability Act (CERCLA), as
amended, have been implemented and that no further cleanup is
appropriate. Moreover, EPA and the Commonwealth of Kentucky determined
that response actions
[[Page 24895]]
conducted at the site to date have been protective of public health,
welfare, and the environment. This deletion does not preclude future
action under Superfund.
EFFECTIVE DATE: June 1, 1996.
FOR FURTHER INFORMATION CONTACT: Liza Montalvo, Remedial Project
Manager, U.S. Environmental Protection Agency, Region 4, North
Superfund Remedial Branch, 345 Courtland Street NE., Atlanta, GA 30365,
(404) 347-7791, extension 2030.
SUPPLEMENTARY INFORMATION: The site to be deleted from the NPL is: A.L.
Taylor Superfund Site, Brooks, Kentucky.
A Notice of Intent to Delete for this site was published in July,
1988. A Revised Notice of Intent to Delete was published on March 8,
1996 (FRL-5436-8). The closing date for comments on the Revised Notice
of Intent to Delete was April 17, 1996. EPA received no comments.
EPA identifies sites that appear to present a significant risk to
public health, welfare, or the environment and it maintains the NPL as
the list of those sites. Any site deleted from the NPL remains eligible
for Fund-financed remedial actions in the unlikely event that
conditions at the site warrant such action in the future. Section
300.425(e)(3) of the NCP states that Fund-financed actions may be taken
at sites deleted from the NPL. Deletion of a site from the NPL does not
affect responsible party liability or impede agency efforts to recover
costs associated with response efforts.
List of Subjects in 40 CFR Part 300
Environmental protection, Air pollution control, Chemicals,
Hazardous waste, Hazardous substances, Intergovernmental relations,
Penalties, Reporting and recorkeeping requirements, Superfund, Water
pollution control, Water supply.
Dated: May 6, 1996.
A. Stanley Meiburg,
Acting Regional Administrator, USEPA Region 4.
For reasons set out in the preamble, 40 CFR part 300 is amended as
follows:
PART 300--[AMENDED]
1. The authority citation for part 300 continues to read as
follows:
Authority: 33 U.S.C. 1321(c)(2); 42 U.S.C. 9601-9657; E.O.
12777, 56 FR 54757; 3 CFR 1991 Comp., p. 351; E.O. 12580, 52 FR
2923; 3 CFR, 1987 Comp., p. 193.
Appendix B to Part 300--[Amended]
2. Table 1 of Appendix B to part 300 is amended by removing the
site A.L. Taylor, Brooks, Kentucky.
[FR Doc. 96-12485 Filed 5-16-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-12473 Scope of Rules: Prevention of Acts of Violence and Terrorism
[Federal Register Volume 61, Number 97 (Friday, May 17, 1996)]
[Rules and Regulations]
[Pages 25120-25121]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-12473]
[[Page 25119]]
_______________________________________________________________________
Part VI
Department of Justice
_______________________________________________________________________
Bureau of Prisons
_______________________________________________________________________
28 CFR Parts 501 and 550
Scope of Rules: Prevention of Acts of Violence and Terrorism and Drug
Abuse Treatment Programs: Early Release Consideration; Final Rules
Federal Register / Vol. 61, No. 97 / Friday, May 17, 1996 / Rules and
Regulations
[[Page 25120]]
DEPARTMENT OF JUSTICE
Bureau of Prisons
28 CFR Part 501
[BOP-1059-I]
RIN 1120-AA54
Scope of Rules: Prevention of Acts of Violence and Terrorism
AGENCY: Bureau of Prisons, Justice.
ACTION: Interim rule with request for comments.
-----------------------------------------------------------------------
SUMMARY: This document amends Bureau of Prisons regulations on
institutional management with respect to special administrative
measures that may be necessary to prevent acts of violence and
terrorism that may be caused by contacts with certain inmates. The
affected inmate must be notified in writing as promptly as possible of
the restrictions to be imposed. Restrictions may be imposed initially
for up to 120 days, and may be extended in further increments of 120
days only upon additional written notification that the circumstances
identified in the original certification continue to exist.
DATES: This rule shall take effect May 17, 1996; comments must be
submitted by July 16, 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 (``Bureau'') is
adopting interim regulations on the correctional management of inmates
whose contacts with other persons present the potential for acts of
violence and terrorism. Under these interim regulations, the Warden may
implement administrative measures that are reasonably necessary to
protect the public against such acts. Application of these measures is
likely to affect only a minute portion of the inmate population; those
inmates for whom there is an identified concern that the inmate's
communications with other persons could serve as an instrumentality for
acts of violence and terrorism. These measures will be subject to
strict controls, as their implementation may occur only upon written
notification by the Attorney General, the head of a federal law
enforcement agency, or the head of a member agency of the United States
intelligence community, that there is a substantial risk that a
prisoner's communications or contacts with persons could result in
death or serious bodily injury to persons, or substantial damage to
property that would entail the risk of death or serious bodily injury
to persons.
It is not the intention of the Bureau that the restrictions imposed
in these special cases routinely include complete curtailment of
privileges. An inmate upon whom these special restrictions are imposed
is entitled to notification in writing of the imposed restrictions and
the basis for the restrictions. The affected inmate may appeal
imposition of restrictions ordered under this section through the
Bureau's Administrative Remedy Program, 28 CFR part 542.
The Bureau is publishing this regulation as an interim rule under
the ``good cause'' provision of 5 U.S.C. 553(b) in order to protect the
public interest and to protect against the risk of acts of violence and
terrorism. Members of the public may submit comments concerning this
rule by writing to the previously cited address. These comments will be
considered before the rule is finalized.
The Bureau of Prisons has determined that this rule is not a
significant regulatory action for the purpose of E.O. 12866, and
accordingly this rule was not reviewed by the Office of Management and
Budget. After review of the law and regulations, the Director, Bureau
of Prisons, has certified that this rule, for the purpose of the
Regulatory Flexibility Act (Pub. L. 96-354), does not have a
significant economic impact on a substantial number of small entities.
This rule will not have substantial direct effects on the states, on
the relationship between the national government and the states, or the
distribution of power and responsibilities among the various levels of
government. Therefore, in accordance with section 6 of E.O. 12612, it
is determined that this rule does not have sufficient federalism
implications to warrant the preparation of a Federalism Assessment.
List of Subjects in 28 CFR Part 501
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 501 in subchapter A of 28
CFR, chapter V is amended as set forth below:
SUBCHAPTER A--GENERAL MANAGEMENT AND ADMINISTRATION
PART 501--SCOPE OF RULES
1. The authority citation for 28 CFR part 501 continues to read as
follows:
Authority: 5 U.S.C. 301; 18 U.S.C. 3621, 3622, 3624, 4001, 4042,
4081, 4082 (Repealed in part as to offenses committed on or after
November 1, 1987), 4161-4166 (Repealed as to offenses committed on
or after November 1, 1987), 5006-5024 (Repealed October 12, 1984 as
to offenses committed after that date), 5039; 28 U.S.C. 509, 510; 28
CFR 0.95-0.99.
2. Section 501.3 is added to part 501 to read as follows:
Sec. 501.3 Prevention of acts of violence and terrorism.
(a) Upon direction of the Attorney General, the Director, Bureau of
Prisons, may authorize the Warden to implement special administrative
procedures that are reasonably necessary to protect persons against the
risk of death or serious bodily injury. These procedures may be
implemented upon written notification to the Director, Bureau of
Prisons, by the Attorney General or, at the Attorney General's
direction, by the head of a federal law enforcement agency, or the head
of a member agency of the United States intelligence community, that
there is a substantial risk that a prisoner's communications or
contacts with persons could result in death or serious bodily injury to
persons, or substantial damage to property that would entail the risk
of death or serious bodily injury to persons. These special
administrative measures ordinarily may include housing the inmate in
administrative detention and/or limiting certain privileges, including,
but not limited to, correspondence, visiting, interviews with
representatives of the news media, and use of the telephone, as is
reasonably necessary to protect persons against the risk of acts of
violence or terrorism. The authority of the Director under this
paragraph may not be delegated below the level of Acting Director.
(b) Designated staff shall provide to the affected inmate, as soon
as practicable, written notification of the restrictions imposed and
the basis for these restrictions. The notice's statement as to the
basis may be limited in the interest of prison security or safety or to
protect against acts of violence or terrorism. The inmate shall sign
for and receive a copy of the notification.
(c) Initial placement of an inmate in administrative detention and/
or any limitation of the inmate's privileges in
[[Page 25121]]
accordance with paragraph (a) of this section may be imposed for up to
120 days. Special restrictions imposed in accordance with paragraph (a)
of this section may be extended thereafter by the Director, Bureau of
Prisons, in 120-day increments upon receipt by the Director of
additional written notification from the Attorney General, or, at the
Attorney General's direction, from the head of a federal law
enforcement agency, or the head of a member agency of the United States
intelligence community, that the circumstances identified in the
original notification continue to exist. The authority of the Director
under this paragraph may not be delegated below the level of Acting
Director.
(d) The affected inmate may seek review of any special restrictions
imposed in accordance with paragraph (a) of this section through the
Administrative Remedy Program, 28 CFR part 542.
[FR Doc. 96-12473 Filed 5-16-96; 8:45 am]
BILLING CODE 4410-05-P
Complete official Federal Register PDF
FR Doc. 96-12472 Drug Abuse Treatment Programs: Early Release Consideration
[Federal Register Volume 61, Number 97 (Friday, May 17, 1996)]
[Rules and Regulations]
[Pages 25121-25122]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-12472]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF JUSTICE
Bureau of Prisons
28 CFR Part 550
[BOP-1052-I]
RIN 1120-AA36
Drug Abuse Treatment Programs: Early Release Consideration
AGENCY: Bureau of Prisons, Justice.
ACTION: Further issuance of interim rule with request for comments.
-----------------------------------------------------------------------
SUMMARY: In this document, the Bureau of Prisons is further amending
its interim rule on Drug Abuse Treatment Programs which allows for
consideration of early release of eligible inmates who complete a
residential drug abuse treatment program, including a transitional
treatment phase. Based upon initial public comment, the Bureau is
adding to the interim regulations a requirement that an inmate seeking
consideration for early release must complete transitional drug
treatment services in a community-based program (i.e., in a Community
Corrections Center or on home confinement). This further amendment is
necessary to solicit additional comments from the public on this new
requirement.
DATES: Effective May 17, 1996; comments are due July 16, 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 further amending
its regulations on Drug Abuse Treatment Programs (28 CFR part 550,
subpart F). An interim rule on this subject which implemented Section
32001 of the Violent Crime Control and Law Enforcement Act of 1994
(codified at 18 U.S.C. 3621(e)) was published in the Federal Register
on May 25, 1995 (60 FR 27692).
Public comment received on the interim rule, published May 25,
1995, included comment from the American Psychiatric Association
(Association). The Association stated that it believed the program was
a good idea, but expressed concern about the adequacy of transitional
drug treatment services offered at an institution. Bureau regulations
in 28 CFR 550.59(a) require minimum participation of one hour per month
for such transitional services. The Association stated that this
minimum was probably not of sufficient intensity to facilitate a good
outcome and recommended enhanced psychiatric consultation and the
availability of a broad array of services.
The Bureau recognizes the importance of transitional services in
drug treatment programming and agrees with the Association that an
enhanced transitional program, such as is available in a community-
based program, increases the opportunity for a good outcome. The Bureau
recognizes that implementation of this requirement may preclude some
inmates from participation in a community-based program. However, while
the Bureau may be able to increase the availability of certain
transitional services at an institution, it cannot duplicate within the
institution the environment of community-based transitional services
(i.e., the evaluation of the inmate in conditions where the inmate is
reintegrating into the community). The Bureau, in exercising its
discretion in determining the successful completion of a residential
drug abuse treatment program under 18 U.S.C. 3621(e), is therefore
requiring that consideration for early release be contingent upon the
inmate's completion of transitional services in a community-based
program (i.e., in a Community Corrections Center or on home
confinement).
Section 550.58 has accordingly been amended to reflect this
addition. Inmates who will not be able to complete the community-based
portion of treatment will be those whose placement in such programs is
precluded due to custodial considerations. Such considerations would
include the presence of a detainer or the possibility that the inmate's
placement in a community-based program would pose a danger to the
public. The decision to place an inmate in a community-based program is
made by the Warden based on his or her professional discretion.
As of August 17, 1995, approximately 160 inmates who had already
qualified for early release consideration under the provisions of the
May 25, 1995 interim rule (meaning they had completed the residential
program or had been placed in the residential program with an adjusted
release date to follow) would not be able to complete the community-
based portion of the program due to the exclusion from community-based
programs as a result of a detainer. The Bureau has determined that this
group of inmates will not be adversely affected by this new interim
rule. They will be considered under the rules in effect at the time
they entered the residential program. However, any inmate in this group
who loses his or her eligibility for early release (due to expulsion
from the program or for other reasons as provided by the regulations)
must reenter the program and will then be governed by the eligibility
requirements of this new interim rule. Any inmate with a detainer,
however, who has not entered the residential drug treatment program by
August 17, 1995 will be subject to the restrictions of the new interim
rule.
This exception from application of this new interim rule for
inmates with detainers who had already entered the residential
treatment program will not be extended to any other group of inmates.
Inmates who are excluded for any other reasons from a community-based
program, such as posing a danger to the public, are no longer eligible
for an early release. The adjusted projected release dates for these
inmates will revert to their prior status. This action is similar to
the manner in which projected good time may be recomputed before it is
vested.
Additional changes to the introductory text have been made for the
sake of clarity. For example, the introductory text more clearly
emphasizes that early release consideration for inmates is applicable
to inmates sentenced to a term of imprisonment pursuant to the
provisions of 18 U.S.C. Chapter 227,
[[Page 25122]]
Subchapter D. Inmates sentenced under ``old law'' provisions are not
eligible, regardless of their eligibility for parole. The restriction
for inmates who have a prior federal and/or state conviction for
homicide, forcible rape, robbery, or aggravated assault has been
reworded to remove the phrase ``federal and/or state''. This is being
done in order to include foreign convictions.
The Bureau's response to other comments to the May 25, 1995 interim
rule will be contained in a future Federal Register document.
Interested persons may participate in this new interim rulemaking
by submitting data, views, or arguments in writing to the Bureau of
Prisons, 320 First Street, NW., HOLC Room 754, Washington, DC 20534.
Comments received on the interim rule provisions during the comment
period will be considered before final action is taken. All comments
received remain on file for public inspection at the above address.
The Bureau of Prisons has determined that this rule is not a
significant regulatory action for the purpose of E.O. 12866, and
accordingly this rule was not reviewed by the Office of Management and
Budget. After review of the law and regulations, the Director, Bureau
of Prisons has certified that this rule, for the purpose of the
Regulatory Flexibility Act (Pub. L. 96-354), does not have a
significant impact on a substantial number of small entities.
List of Subjects in 28 CFR Part 550
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 550 in subchapter C of 28
CFR, chapter V is amended as set forth below.
SUBCHAPTER C--INSTITUTIONAL MANAGEMENT
PART 550--DRUG PROGRAMS
1. The authority citation for 28 CFR part 550 continues to read as
follows:
Authority: 5 U.S.C. 301; 18 U.S.C. 3621, 3622, 3624, 4001, 4042,
4081, 4082 (Repealed in part as to offenses committed on or after
November 1, 1987), 4251-4255, 5006-5024 (repealed October 12, 1984
as to conduct occurring after that date), 5039; 28 U.S.C. 509, 510;
28 CFR 0.95-0.99.
2. In Sec. 550.58, the introductory text and paragraphs (a)(1)(iii)
and (a)(2)(i) are revised to read as follows:
Sec. 550.58 Consideration for early release.
Except as provided in this paragraph, an inmate who was sentenced
to a term of imprisonment pursuant to the provisions of 18 U.S.C.
Chapter 227, Subchapter D, and who completes a residential drug abuse
treatment program including subsequent transitional services in a
community-based program (i.e., in a Community Corrections Center or on
home confinement) during his or her current commitment may be eligible,
in accordance with paragraph (a) of this section, for early release by
a period not to exceed 12 months. The following categories of inmates
are not eligible: INS detainees, pretrial inmates, contractual boarders
(for example, D.C., State, or military inmates), inmates whose current
offense is determined to be a crime of violence as defined in 18 U.S.C.
924(c)(3), inmates who have a prior conviction for homicide, forcible
rape, robbery, or aggravated assault, and inmates who are not eligible
for participation in a community-based program as determined by the
Warden on the basis of his or her professional discretion.
(a) Eligibility. (1) * * *
* * * * *
(iii) The inmate completes a refresher treatment program and all
applicable transitional services programs in a community-based program
(i.e., in a Community Corrections Center or on home confinement); and
* * * * *
(2) * * *
(i) The inmate completes all applicable transitional services
programs in a community-based program (i.e., in a Community Corrections
Center or on home confinement); and
* * * * *
[FR Doc. 96-12472 Filed 5-16-96; 8:45 am]
BILLING CODE 4410-05-P
Complete official Federal Register PDF
FR Doc. 96-12454 Hazardous Materials in Intrastate Transportation; Extension of Comment Period
[Federal Register Volume 61, Number 97 (Friday, May 17, 1996)]
[Rules and Regulations]
[Pages 24904-24905]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-12454]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Research and Special Programs Administration
49 CFR Parts 171, 173 and 180
[Docket No. HM-200; Notice No. 96-9]
RIN 2137-AB37
Hazardous Materials in Intrastate Transportation; Extension of
Comment Period
AGENCY: Research and Special Programs Administration (RSPA), DOT.
ACTION: Supplemental notice of proposed rulemaking (SNPRM); extension
of comment period.
-----------------------------------------------------------------------
SUMMARY: RSPA is extending for 60 days, until August 16, 1996, the
period for submitting comments on its March 20, 1996 supplemental
notice of proposed rulemaking (SNPRM) in this proceeding. In the SNPRM,
RSPA proposed certain exceptions from requirements in the Hazardous
Materials Regulations that would otherwise apply to: the transportation
of small quantities of certain hazardous materials used by carriers,
particularly private carriers, in the conduct of their businesses
(``materials of trade''); smaller cargo tank motor vehicles (less than
13,250 liters [3,500 gallons] capacity) used exclusively in intrastate
transportation of flammable liquid petroleum products; and registered
inspections of these smaller cargo tank motor vehicles used exclusively
for transporting flammable liquid petroleum fuels.
DATES: Written comments: Comments must be received on or before August
16, 1996.
ADDRESSES: Comments: Address comments to Dockets Unit, Research and
Special Programs Administration, U.S. Department of Transportation,
Washington, DC 20590-0001. Comments should identify the Docket (HM-200)
and be submitted, if possible, in five copies. Persons wishing to
receive confirmation of receipt of their comments should include a
self-addressed stamped postcard showing the docket number. The Dockets
Unit is located in Room 8421 of the Nassif Building, 400 Seventh
Street, SW., Washington, DC 20590-0001. Telephone: 202-366-5046. Public
dockets may be reviewed between the hours of 8:30 a.m. and 5:30 p.m.;
Monday through Friday except Federal holidays.
FOR FURTHER INFORMATION CONTACT:
Jackie Smith or Diane LaValle, 202-366-8553, Office of Hazardous
Materials Standards, RSPA, 400 Seventh Street, SW., Washington, DC
20590-0001.
SUPPLEMENTARY INFORMATION: In July 1993, RSPA proposed to extend the
application of the Hazardous Materials Regulations (HMR), 49 CFR Parts
171-180, to all intrastate carriers of hazardous materials in commerce
and their shippers. The notice of proposed rulemaking (NPRM), was
published on July 9, 1993 (58 FR 36920), and a correction was published
on July 15, 1993 (58 FR 38111). Based on comments to that NPRM, on
March 20, 1996, RSPA published a supplemental notice proposing three
additional changes to the HMR. See 61 FR 11481. These changes would
provide: (1) An exception for ``materials of trade,'' certain small
quantities of hazardous materials transported and used by carriers,
particularly private carriers, in the conduct of their businesses; (2)
an exception to permit the continued use of non-specification smaller
cargo tank motor vehicles (i.e., less than 13,250 liters [3,500
gallons] capacity) used exclusively in intrastate transportation of
flammable liquid petroleum products; and (3) an exception from certain
[[Page 24905]]
requirements that address registered inspection of these smaller cargo
tank motor vehicles that are used exclusively for transporting
flammable liquid petroleum fuels. These proposals are aimed are
reducing regulatory burdens on persons subject to the HMR where costs
may be disproportionate to safety benefits.
A number of interested parties have requested additional time for
them to more fully consider these proposals. Farmers, farm suppliers,
and agricultural transporters state that they are presently occupied
with activities relating to planting this year's crop, and that they
need an extension of the comment period so that they may participate in
this important rulemaking. Because these parties' input to this
rulemaking would be valuable, RSPA is extending the comment period for
60 days, until August 16, 1996.
Issued in Washington, DC, on May 14, 1996, under authority
delegated in 49 CFR part 106, Appendix A.
Alan I. Roberts,
Associate Administrator for Hazardous Materials Safety.
[FR Doc. 96-12454 Filed 5-16-96; 8:45 am]
BILLING CODE 4910-60-M
Complete official Federal Register PDF
FR Doc. 96-12448 Groundfish of the Bering Sea and Aleutian Islands Area; Reserve Apportionment
[Federal Register Volume 61, Number 97 (Friday, May 17, 1996)]
[Rules and Regulations]
[Pages 24905-24906]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-12448]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
50 CFR Part 675
[Docket No. 960129019-6091-01; I.D. 050396A]
Groundfish of the Bering Sea and Aleutian Islands Area; Reserve
Apportionment
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
[[Page 24906]]
ACTION: Apportionment of reserve.
-----------------------------------------------------------------------
SUMMARY: NMFS is apportioning reserve to certain target species in the
Bering Sea and Aleutian Islands management area (BSAI). This action is
necessary to allow for ongoing harvest and account for previous harvest
of the total allowable catch (TAC). It is intended to promote the goals
and objectives of the North Pacific Fishery Management Council.
EFFECTIVE DATE: 12 noon, Alaska local time (A.l.t.), May 16, 1996,until
12 midnight, A.l.t., December 31, 1996.
FOR FURTHER INFORMATION CONTACT: Andrew N. Smoker, 907-586-7228.
SUPPLEMENTARY INFORMATION: The groundfish fishery in the U.S. 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 Director, Alaska Region, NMFS, has determined that the initial
TACs specified for pollock in the Bering Sea subarea; for pollock in
the Aleutian Islands subarea; for Atka mackerel in the combined Eastern
Aleutian District and Bering Sea subarea; for Pacific ocean perch in
the Eastern Aleutian District; for Atka mackerel and Pacific ocean
perch in the Central and Western Aleutian Districts; and for Pacific
cod, arrowtooth flounder, and the ``other species'' category in the
BSAI; need to be supplemented from the non-specific reserve in order to
continue operations and account for prior harvest.
Therefore, in accordance with Sec. 675.20(b), NMFS is apportioning
from the reserve to TACs for the following species: (1) for the Bering
Sea subarea - 89,250 metric tons (mt) to pollock, (2) for the Aleutian
Islands subarea - 2,670 mt to pollock, (3) for the combined Eastern
Aleutian District and Bering Sea subarea - 4,005 mt to Atka mackerel;
(4) for the Eastern Aleutian District- 454 mt to Pacific ocean perch;
(6) for the Central Aleutian District - 5,040 mt to Atka mackerel, 454
mt to Pacific ocean perch; (7) for the Western Aleutian District -
6,879 mt to Atka mackerel; 907 mt to Pacific ocean perch and (6) for
the BSAI - 40,500 mt to Pacific cod, 1,350 mt to arrowtooth flounder,
and 3,019 mt to the ``other species'' category.
These apportionments are consistent with Sec. 675.20(a)(2)(i) and
do not result in overfishing of a target species or the ``other
species'' category because the revised TACs are equal to or less than
specifications of acceptable biological catch.
Pursuant to Sec. 675.20(a)(3)(i), the apportionments of pollock are
allocated between the inshore and offshore components:
(1) for the Bering Sea subarea - 31,238 mt to vessels catching
pollock for processing by the inshore component and 58,012 mt to
vessels catching pollock for processing by the offshore component; (2)
for the Aleutian Islands subarea - 935 mt to vessels catching pollock
for processing by the inshore component and 1,735 mt to vessels
catching pollock for processing by the offshore component.
Pursuant to Sec. 675.20(a)(3)(iv), the apportionment of the BSAI
Pacific cod TAC is allocated 810 mt to vessels using jig gear, 17,820
mt to vessels using hook-and-line or pot gear, and 21,870 mt to vessels
using trawl gear.
In accordance with the 1996 final specifications for the Bering Sea
and Aleutian Islands (61 FR 4311, February 5, 1996), the allocation to
hook-and-line/pot gear will result in seasonal apportionments as
follows: for the period January 1 through
April 30 - 94,118 mt, for the period May 1 through August 31 -
21,176 mt, and for the period September 1 through December 31 - 3,506
mt.
This apportionment was proposed in the Federal Register (61 FR
16085, April 11, 1996) requesting public comment. The public comment
period ended on April 25, 1996, and no comments were received.
Classification
This action is taken under 50 CFR 675.20 and is in compliance with
E.O. 12866.
List of Subjects in 50 CFR Part 675
Fish, Fisheries, Reporting and recordkeeping requirements.
Authority: 16 U.S.C. 1801, et seq.
Dated: May 10, 1996.
Richard H. Schaefer,
Director, Office of Fisheries Conservation and Management, National
Marine Fisheries Service.
[FR Doc. 96-12448 Filed 5-16-96; 8:45 am]
BILLING CODE 3510-22-F
Complete official Federal Register PDF
FR Doc. 96-12446 Groundfish of the Bering Sea and Aleutian Islands Area; Other Nontrawl Fisheries in the Bering Sea and Aleutian Islands Management Area
[Federal Register Volume 61, Number 97 (Friday, May 17, 1996)]
[Rules and Regulations]
[Page 24905]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-12446]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
50 CFR Part 675
[Docket No. 960129019-6091-01, I.D. 051396E]
Groundfish of the Bering Sea and Aleutian Islands Area; Other
Nontrawl Fisheries in the Bering Sea and Aleutian Islands Management
Area
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Closure.
-----------------------------------------------------------------------
SUMMARY: NMFS is closing the directed fishery for groundfish in the
other nontrawl fishery in the Bering Sea and Aleutian Islands
management area (BSAI). This action is necessary to prevent exceeding
the 1996 bycatch allowance of Pacific halibut apportioned to the other
nontrawl fishery category in the BSAI.
EFFECTIVE DATE: 12 noon, Alaska local time (A.l.t.), May 15, 1996,
until 12 midnight, A.l.t., December 31, 1996.
FOR FURTHER INFORMATION CONTACT: Andrew 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 bycatch allowance of Pacific halibut apportioned to the
other nontrawl fishery category, which is defined at
Sec. 675.21(b)(2)(ii)(E), was established by the Final 1996 Harvest
Specifications of Groundfish (61 FR 4311, February 5, 1996) as 100
metric tons.
The Director, Alaska Region, NMFS, has determined, in accordance
with Sec. 675.21(d), that the 1996 bycatch allowance of Pacific halibut
apportioned to the other nontrawl fishery category in the BSAI has been
reached. Therefore, NMFS is closing the directed fishery for groundfish
in the other nontrawl fishery category in 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: May 13, 1996.
Donald J. Leedy,
Acting Director, Office of Fisheries Conservation and Management,
National Marine Fisheries Service.
[FR Doc. 96-12446 Filed 5-14-96; 3:07 pm]
BILLING CODE 3510-22-F
Complete official Federal Register PDF
FR Doc. 96-12445 Groundfish of the Bering Sea and Aleutian Islands Area; Pacific Cod by Vessels Using Hook-and-Line Gear in the Bering Sea and Aleutian Islands
[Federal Register Volume 61, Number 97 (Friday, May 17, 1996)]
[Rules and Regulations]
[Page 24905]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-12445]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 675
[Docket No. 960129019-6019-01; I.D. 051396D]
Groundfish of the Bering Sea and Aleutian Islands Area; Pacific
Cod by Vessels Using Hook-and-Line Gear in the Bering Sea and Aleutian
Islands
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Closure.
-----------------------------------------------------------------------
SUMMARY: NMFS is prohibiting directed fishing for Pacific cod by
vessels using hook-and-line gear in the Bering Sea and Aleutian Islands
management area (BSAI). This action is necessary because the second
seasonal Pacific halibut bycatch mortality allowance apportioned to the
Pacific cod hook-and-line fishery in the BSAI has been reached.
EFFECTIVE DATE: 12 noon, Alaska local time (A.l.t.), May 15, 1996,
until 12 midnight, A.l.t., December 31, 1996.
FOR FURTHER INFORMATION CONTACT: Mary Furuness, 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 second seasonal Pacific halibut bycatch mortality allowance for
the hook-and-line Pacific cod fishery, which is defined at
Sec. 675.21(b)(2)(ii)(A), is 40 metric tons (61 FR 4311, February 5,
1996).
The Director, Alaska Region, NMFS, has determined, in accordance
with Sec. 675.21(d), that the second seasonal Pacific halibut bycatch
mortality allowance for the Pacific cod hook-and-line fishery in the
BSAI has been reached. Therefore, NMFS is prohibiting directed fishing
for Pacific cod by vessels using hook-and-line gear in 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. 675.20 and is exempt from review
under E.O. 12866.
Authority: 16 U.S.C. 1801 et seq.
Dated: May 13, 1996.
Donald J. Leedy,
Acting Director, Office of Fisheries Conservation and Management,
National Marine Fisheries Service.
[FR Doc. 96-12445 Filed 5-14-96; 3:07 pm]
BILLING CODE 3510-22-F
Complete official Federal Register PDF
FR Doc. 96-12434 Onions Grown in South Texas; Change in Regulatory Period
[Federal Register Volume 61, Number 97 (Friday, May 17, 1996)]
[Rules and Regulations]
[Pages 24877-24878]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-12434]
========================================================================
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. 97 / Friday, May 17, 1996 / Rules and
Regulations
[[Page 24877]]
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 959
[Docket No. FV95-959-3FR]
Onions Grown in South Texas; Change in Regulatory Period
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This final rule changes the end of the regulatory period for
onions grown in South Texas under Marketing Order 959 from June 15 to
June 4 of each year. Terminating the handling regulation on June 4 will
relieve restrictions on handlers who ship late season onions and help
them become more competitive with handlers from non-marketing order
areas without diminishing South Texas marketing order objectives. A
corresponding change in the dates for the import regulation also will
be made in a second document. This final rule also includes a
conforming change recognizing that the onions previously defined as
``Extra large'' are now defined as ``Colossal'' under the U.S. grade
standards for onions.
EFFECTIVE DATE: June 4, 1996.
FOR FURTHER INFORMATION CONTACT: Belinda G. Garza, Marketing Order
Administration Branch, F&V, AMS, USDA, 1313 E. Hackberry, McAllen, TX
78501; telephone: 210-682-2833; FAX 210-682-5942; or Robert F.
Matthews, Marketing Specialist, Marketing Order Administration Branch,
F&V, AMS, USDA, room 2523-S, P.O. Box 96456, Washington, DC 20090-6456;
telephone: 202-690-0464; FAX 202-720-5698.
SUPPLEMENTARY INFORMATION: This final rule is issued under Marketing
Agreement No. 143 and Marketing Order No. 959 (7 CFR part 959), as
amended, regulating the handling of onions grown in South Texas,
hereinafter referred to as the ``order.'' This order is effective under
the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C
601-674), hereinafter referred to as the ``Act.''
The Department of Agriculture (Department) is issuing this rule in
conformance with Executive Order 12866.
This final rule has been reviewed under Executive Order 12778,
Civil Justice Reform. This rule is not intended to have retroactive
effect. This final rule will not preempt any State or local laws,
regulations, or policies, unless they present an irreconcilable
conflict with this rule.
The Act provides that administrative proceedings must be exhausted
before parties may file suit in court. Under section 608c(15)(A) of the
Act, any handler subject to an order may file with the Secretary a
petition stating that the order, any provision of the order, or any
obligation imposed in connection with the order is not in accordance
with law and request a modification of the order or to be exempted
therefrom. A handler is afforded the opportunity for a hearing on the
petition. After the hearing the Secretary will rule on the petition.
The Act provides that the district court of the United States in any
district in which the handler is an inhabitant, or has his or her
principal place of business, has jurisdiction to review the Secretary's
ruling on the petition, provided an action is filed not later than 20
days after the date of the entry of the ruling.
Pursuant to requirements set forth in the Regulatory Flexibility
Act (RFA), the Agricultural Marketing Service (AMS) has considered the
economic impact of this action on small entities.
The purpose of the RFA is to fit regulatory actions to the scale of
business subject to such actions in order that small businesses will
not be unduly or disproportionately burdened. Marketing orders issued
pursuant to the Act, and rules issued thereunder, are unique in that
they are brought about through group action of essentially small
entities acting on their own behalf. Thus, both statutes have small
entity orientation and compatibility.
There are 35 handlers of South Texas onions who are subject to
regulation under the marketing order and 89 producers in the regulated
area. Small agricultural service firms, which includes handlers, have
been defined by the Small Business Administration (13 CFR 121.601) as
those having annual receipts of less than $5,000,000, and small
agricultural producers are defined as those having annual receipts of
less than $500,000. The majority of handlers and producers of South
Texas onions may be classified as small entities.
At a public meeting on November 8, 1994, the South Texas Onion
Committee (committee) unanimously recommended, under the authority of
Sec. 959.52(c) of the order, changing the termination date of the
regulatory period for all varieties of regulated onions from June 15 to
June 4. Currently, order regulations are in effect from March 1 through
June 15 each year. The early and mid-season crop is produced in the
Lower Rio Grande Valley (District 1), which generally accounts for
about 80 percent of the total. The remaining crop, generally 20
percent, is produced in the Laredo-Winter Garden area of South Texas
(District 2). These are the last regulated shipments to leave the
production area each season.
In April 1994, based on a committee recommendation, the regulatory
period was extended from May 20 to June 15 (59 FR 17265; April 12,
1994). At that time, the committee believed that the application of
quality control requirements over a longer time was necessary to
enhance the South Texas onion industry's market research and promotion
efforts, and protect its quality image. The committee also believed
that District 2 handlers should pay assessments on more of their
shipments for the research and promotion programs that benefit the
entire industry.
After one season's experience, District 2 growers and handlers
requested the committee to reconsider the regulatory extension.
Shipments made from District 2 compete with onions produced in West
Texas and other areas of the United States not regulated under Federal
marketing orders. Onion prices are usually quite low during this period
and unregulated areas have a competitive advantage over District 2
because inspection costs for quality control purposes and
administrative assessments are not incurred by shippers from these
areas. Ending regulations on June 4, rather than June
[[Page 24878]]
15, will relieve restrictions on District 2 shippers and help them
become more competitive with shippers from these production areas
without diminishing program objectives.
Section 8e provides that whenever certain specified commodities,
including onions, are regulated under a Federal marketing order,
imports of that commodity must meet the same or comparable grade, size,
quality, and maturity requirements as those in effect for the
domestically produced commodity, subject to concurrence by the United
States Trade Representative. The Act further provides that when two or
more marketing orders covering the same commodity are concurrently in
effect, imports will be subject to the requirements established for the
commodity grown in the area with which the imported commodity is in
most direct competition. Because this rule changes the regulatory
period under the South Texas onion marketing order, corresponding
changes will be needed in the onion import regulations. Such changes
are addressed in a separate onion import rule.
The proposed rule concerning this action was published in the
February 20, 1996, Federal Register (61 FR 6328), with a 30-day comment
period ending March 21, 1996. One comment was received in opposition to
the proposed rule from a packer. The commenter stated that both South
Texas and Idaho-Eastern Oregon successfully compete with onion
producing areas that are not regulated. He further stated that he
believed that the order was necessary to improve quality and thus make
the production area a stronger competitor in the onion industry. The
committee contends that this competition tends to bring about low
prices to the late producing areas, and sometimes the addition of an
administrative assessment and inspection fee may leave the shipper of
late season South Texas onions at a competitive disadvantage. Thus, the
committee believes that removing inspection and assessment requirements
for a very short period will help shippers of late onions meet the
competition from production areas outside of South Texas without
diminishing program objectives.
After thoroughly analyzing the comment received and other available
information, the Department has concluded that ending the regulatory
period on June 4, rather than June 15, as recommended by the committee
will reduce the regulatory burden on late season shippers and help them
compete more effectively with shippers from unregulated areas in the
United States without adversely affecting the overall objectives of the
marketing order. As mentioned earlier, onion prices are usually quite
low late in the season and unregulated areas have a competitive
advantage over the late season shippers from South Texas because
inspection costs for quality control purposes and administrative
assessments are not incurred by shippers from many of these areas.
This final rule also changes the name of the largest size
classification of onions under the handling regulation (7 CFR
959.322(b)(5)) from ``Extra large'' to ``Colossal'' to bring that
designation into conformity with the designation used in the U.S.
Standards for Grades of Bermuda-Granex-Grano Type Onions (7 CFR
51.3195-51.3209), and the U.S. Standards for Grades of Onions (Other
Than Bermuda-Granex-Grano and Creole Types) (7 CFR 51.2830-51.2854).
The standards were revised effective October 10, 1995 (60 FR 46976).
One of the revisions was the addition of a new size classification
called ``Colossal'' for onions 3\3/4\ inches or larger in diameter. A
conforming change failed to be made in the handling regulations and
onions of this size continued to be referred to as ``Extra large'' in
paragraph (b)(5) of section 959.322. Hence, this term should be changed
to ``Colossal'' to bring the handling regulation into conformity with
the standards. The committee recommended this minor conforming change.
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 AMS has determined that this action will
not have a significant economic impact on a substantial number of small
entities.
After consideration of all relevant matter presented, including the
information and recommendations submitted by the commenter, committee
and other available information, it is hereby found that this rule, as
hereinafter set forth, will tend to effectuate the declared policy of
the Act.
Pursuant to 5 U.S.C 553, it is further found that good cause exists
for not postponing the effective date of this action until 30 days
after publication in the Federal Register because: (1) This regulation
relaxes restrictions on South Texas onion handlers by ending
regulations on June 4 of each season rather than June 15 of each
season; (2) the shipping season for South Texas onions has already
begun and the committee would like this action effective for this
season; (3) changing the ending date of the handling regulation was
discussed at a public meeting, and all interested persons had an
opportunity to provide input; and (4) there are no additional
regulatory burdens imposed by this rule which require special
preparations of handlers.
List of Subjects in 7 CFR Part 959
Marketing agreements, Onions, Reporting and recordkeeping
requirements.
For the reasons set forth in the preamble, 7 CFR part 959 is hereby
amended as follows:
PART 959--ONIONS GROWN IN SOUTH TEXAS
1. The authority citation for 7 CFR part 959 continues to read as
follows:
Authority: 7 U.S.C. 601-674.
2. In Sec. 959.322, the introductory text and paragraph (b)(5) are
revised to read as follows:
Sec. 959.322 Handling regulation.
During the period beginning March 1 and ending June 4, no handler
shall handle any onions unless they comply with paragraphs (a) through
(d), or (e), or (f) of this section. In addition, no handler may
package or load onions on Sunday during the period March 1 through May
20.
* * * * *
(b) * * *
(5) ``Colossal''--3\3/4\ inches or larger in diameter.
* * * * *
Dated: May 14, 1996.
Robert C. Keeney,
Director, Fruit and Vegetable Division.
[FR Doc. 96-12434 Filed 5-16-96; 8:45 am]
BILLING CODE 3410-02-P
Complete official Federal Register PDF
FR Doc. 96-12427 Safety Zone; Long Beach Harbor, CA
[Federal Register Volume 61, Number 97 (Friday, May 17, 1996)]
[Rules and Regulations]
[Pages 24892-24893]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-12427]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Coast Guard
33 CFR Part 165
[COTP Los Angeles-Long Beach, CA 96-008]
RIN 2115-AA97
Safety Zone; Long Beach Harbor, CA
AGENCY: Coast Guard, DOT.
ACTION: Final rule with request for comments.
-----------------------------------------------------------------------
SUMMARY: The Coast Guard is establishing a temporary safety zone in the
navigable waters of the United States in the vicinity of the South East
side of Pier ``J'' in the Long Beach Outer Harbor, California. The
event requiring the establishment of this safety zone is the Pier ``J''
breakwater construction project. Duration of this project is estimated
to be 11 months. A safety zone is necessary to safeguard recreational
and commercial craft from the dangers of the construction project and
to prevent interference with the vessels engaged in these operations.
The safety zone includes all waters within the boundaries defined by
the line connecting the following coordinates:
Latitude Longitude
33 deg. 44.5'N. 118 deg. 11.2'W.
33 deg. 44.5'N. 118 deg. 10.9'W.
33 deg. 44.3'N. 118 deg. 10.8'W.
33 deg. 44.0'N. 118 deg. 10.8'W.
33 deg. 44.0'N. 118 deg. 11.1'W.
Entry into, transit through, or anchoring within the safety zone by
vessels or persons other than those engaged in the construction
project, or vessels servicing the Maersk terminal is prohibited unless
authorized by the Captain of the Port.
DATES: Effective Date: This rule is effective at 12:01 a.m. PDT on
April, 24, 1996 and will remain in effect until 12:01 a.m. PST on March
31, 1997, unless cancelled earlier by the Captain of the Port Los
Angeles-Long Beach, Ca.
Comments: Comments on this regulation must be received by June 17,
1996.
ADDRESSES: Comments should be mailed to Commanding Officer, Coast Guard
Marine Safety Office, 165 N. Pico Avenue, Long Beach, Ca 90802.
Comments received will be available for inspection and copying within
the Port Safety Division at MSO Los Angeles-Long Beach. Normal office
hours are between 8 a.m. and 4 p.m., Monday through Friday, except
federal holidays.
FOR FURTHER INFORMATION CONTACT: Chief Petty Officer Daniel J. Walsh,
Port Safety and Security Division, Marine Safety Office Los Angeles-
Long Beach, (310) 980-4454.
SUPPLEMENTARY INFORMATION: 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. Following normal rulemaking procedures could not
be done in a timely fashion in that the Coast Guard was not approached
concerning the necessity for implementation of a safety zone until late
in the planning process. The actual stipulations of the safety zone
were not finalized until a date fewer than 30 days prior to the start
of the project.
Although this regulation is published as a final rule without prior
notice, an opportunity for public comment is nevertheless desirable to
ensure the regulation is both reasonable and workable. Accordingly,
persons wishing to comment may do so by submitting written comments to
the office listed under Addresses in this preamble. Those providing
comments should identify the docket number (COTP Los Angeles-Long
Beach, CA; 96-008) for the regulation and also include their name,
address, and reason(s) for each comment presented. Persons wanting
acknowledge of receipt of comments should enclose a stamped, self-
addressed postcard or envelope.
Based upon the comments received, the scope of the regulation may
be changed.
Discussion of Regulation
The project to construct a breakwater around the Pier ``J'' Maersk
terminal entrance has already been initiated. A safety zone is
necessary to safeguard recreational and commercial craft from the
dangers of the construction project and to prevent interference with
vessels engaged in these operations. This safety zone will be enforced
by U.S. Coast Guard personnel. The Coast Guard Auxiliary and the Long
Beach Lifeguards will assist in the enforcement of the safety zone.
Persons and vessels are prohibited from entering into, transiting
through, or anchoring within the safety zone unless authorized by the
Captain of the Port of his designated representative.
Regulatory Evaluation
This rule is not a significant regulatory action under section 3(f)
of Executive Order 12866 and does not require an assessment of
potential costs and benefits under section 6(a)(3) of that order. It
has been exempted from review 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 (44 FR 11040;
February 26, 1979). The Coast Guard expects the economic impact of this
regulation to be so minimal that a full Regulatory Evaluation under
paragraph 10(e) of the regulatory policies and procedures of the
Department of Transportation is unnecessary. The safety zone does not
extend into the vessel traffic lanes. It will have little or no impact
on commercial vessels transiting through the harbor.
Small Entities
Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), the
Coast Guard must consider whether this regulation will have a
significant economic impact on a substantial number of small entities.
``Small entities'' include independently owned and operated small
businesses that are not dominant in their field and that otherwise
qualify as ``small business concerns'' under Section 3 of the Small
Business Act (15 U.S.C. 632). As discussed in the ``Regulatory
Evaluation'' section, because it expects the impact of this regulation
to be minimal, the Coast Guard certifies under 5 U.S.C. 605(b) that
this regulation will not have a significant economic impact on a
substantial number of small entities.
Collection of Information
This regulation contains no collection of information requirements
under the
[[Page 24893]]
Paperwork Reduction Act (44 U.S.C. 3501 et. seq.).
Federalism
The Coast Guard has analyzed this regulation 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.
Environmental Assessment
The Coast Guard has considered the environmental impact of this
regulation and concluded that under section 2.B.2. of Commandant
Instruction M16475.1B it will have no significant environmental impact
and it 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, Waterways.
Regulation
In consideration of the foregoing, Subpart F of Part 165 of Title
33, Code of Federal Regulations, is amended as follows:
PART 165--[AMENDED]
1. The authority citation for 33 CFR part 165 continues to read as
follows:
Authority: 33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1(g),
6.04-1, 6.04-6 and 160.5; 49 CFR 1.46.
2. A new section 165.T11-058 is added to read as follows:
Sec. 165.T1158 Safety zone: Long Beach Harbor, CA
(a) Location. All waters within the boundaries defined by the line
connecting the following coordinates are established as a safety zone
(Datum: NAD 83):
Latitude Longitude
33 deg. 44.5' N 118 deg. 11.2' W.
33 deg. 44.5' N 118 deg. 10.9' W.
33 deg. 44.3' N 118 deg. 10.8' W.
33 deg. 44.0' N 118 deg. 10.8' W.
33 deg. 44.0' N 118 deg. 11.1' W.
(b) Effective Date. This section is effective at 12:01 a.m. PDT on
April 24, 1996. It will remain in effect until 12:01 a.m. PDT on March
31, 1997 unless cancelled earlier by the Captain of the Port.
(c) Regulations. The general regulations governing safety zones
contained in 33 CFR 165.23 apply. No person or vessel may enter or
remain within the designated zones without the permission of the
Captain of the Port Los Angeles-Long Beach, California or his
representative.
Dated: April 24, 1996.
E.E. Page,
Captain, U.S. Coast Guard, Captain of the Port, Los Angeles-Long Beach,
California.
[FR Doc. 96-12427 Filed 5-16-96; 8:45 am]
BILLING CODE 4910-14-M
Complete official Federal Register PDF
FR Doc. 96-12425 Opportunities for Youth: Youthbuild Program
[Federal Register Volume 61, Number 97 (Friday, May 17, 1996)]
[Rules and Regulations]
[Pages 25124-25125]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-12425]
[[Page 25123]]
_______________________________________________________________________
Part VII
Department of Housing and Urban Development
_______________________________________________________________________
24 CFR Part 585
Opportunities for Youth: Youthbuild Program; Interim Rule
Federal Register / Vol. 61, No. 97 / Friday, May 17, 1996 / Rules and
Regulations
[[Page 25124]]
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
Office of Assistant Secretary for Community Planning and Development
24 CFR Part 585
[Docket No. FR-4038-I-01]
RIN 2506-AB79
Opportunities for Youth: Youthbuild Program
AGENCY: Office of the Assistant Secretary for Community Planning and
Development, HUD.
ACTION: Interim rule.
-----------------------------------------------------------------------
SUMMARY: The Youthbuild program is one of many HUD programs that
directly invests in distressed communities, and opportunities to
further the goals of the program and stimulate community investment and
support for the Youthbuild program must be encouraged. This interim
rule amends the regulations for the Youthbuild Program to define
administrative costs for which Youthbuild funds may be expended.
DATES: Effective Date: June 17, 1996.
Comments Due Date: July 1, 1996.
ADDRESSES: Interested persons are invited to submit comments regarding
this interim rule to Rules Docket Clerk, Office of General Counsel,
Room 10276, Department of Housing and Urban Development, 451 Seventh
Street SW., Washington, D.C. 20410-0500.
Communications should refer to the above docket number and title.
Facsimile (FAX) comments are not acceptable. A copy of each
communications submitted will be available for public inspection and
copying between 7:30 a.m. and 5:30 p.m. weekdays at the above address.
FOR FURTHER INFORMATION CONTACT: The Office of Economic Development,
Department of Housing and Urban Development, Room 7136, 451 Seventh
Street SW., Washington, DC 20410. Telephone (202) 708-2035; TYY (202)
708-1455. (These telephone numbers are not toll-free.)
SUPPLEMENTARY INFORMATION:
Background
Section 164 of the Housing and Community Development Act of 1992
(Pub.L. 102-550) amended title IV of the National Affordable Housing
Act (42 U.S.C. 1437aaa) to add a new subtitle D which established the
Youthbuild program. On February 21, 1995, the Department published a
final rule at 60 FR 9734, which is codified at 24 CFR Part 585. This
interim rule is intended to further address the use of Youthbuild funds
for administrative costs, including overhead and salaries and wages
associated with an implementation grant.
The Department believes that the Youthbuild program is a valuable
tool to promote job skills, neighborhood revitalization and economic
self sufficiency and recognizes the need to staff these programs with
competent personnel to provide education and training, and other
support services to an ever growing population of disadvantaged youths.
The Department and Youthbuild grantees now have valuable program
experience in cost efficient ways of meeting the program's mission,
delivering quality training and services, and serving more youth
successfully. These times of shrinking Federal resources make it even
more imperative that Youthbuild funds benefit the greatest number of
youths. Examples of ways Youthbuild grantees have limited overhead
expense include eliminating some administrative positions and assigning
tasks to other personnel, physically locating the program in an
existing facility, utilizing the expertise and experience of other
programs and organizations, paying administrative costs with other
funds, using existing equipment from other programs, and securing non-
federal matching funds to cover administrative costs. These examples
demonstrate that partnerships with other public and private
organizations in the community can be one of the keys to an effective
program.
The Youthbuild program is one of many HUD programs that directly
invests in distressed communities, and opportunities to further the
goals of the program and stimulate community investment and support for
the Youthbuild program must be encouraged. Numerous Youthbuild grantees
have been particularly innovative in establishing partnerships with
local organizations such as educational institutions, training
organizations, apprenticeship programs, social agencies, foundations
and local governments, and adopting innovative and creative ways of
delivering program services.
This interim rule will affect only future grant awards.
Justification for Interim Rulemaking
HUD generally publishes a rule for public comment before issuing a
rule for effect, in accordance with HUD's 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, in that prior public comment is contrary to the public
interest. This rule ensures direct program benefits for the maximum
number of disadvantaged youths. Further, by letter dated December 6,
1995, the Department asked all Youthbuild implementation grantees to
describe innovative ways to limit overhead expenses as well as
suggestions for measuring success. This rule takes into consideration
those suggestions. Therefore, the Department believes that a 45-day
public comment period is more than adequate in light of the compelling
need to finalize the Department's policy for limiting overhead
expenses.
Other Matters
(a) Environmental Impact. A Finding of No Significant Impact with
respect to the environment for this interim rule 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
between 7:30 a.m. and 5:30 p.m. weekdays in the Office of the Rules
Docket Clerk, Office of the General Counsel, Department of Housing and
Urban Development, Room 10276, 451 Seventh Street SW., Washington, D.C.
20410.
(b) Regulatory Flexibility Act. The Secretary, in accordance with
the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this
interim rule before publication and by approving it certifies that this
interim rule would not have a significant economic impact on a
substantial number of small entities because the Youthbuild program
affects primarily economically disadvantaged young adults by providing
assistance for a wide range of multi-disciplinary activities to assist
those young adults. The opportunities are designed to help
disadvantaged young adults who have dropped out of high school to
obtain the education and employment skills necessary to achieve
economic self-sufficiency and develop leadership skills and a
commitment to community development in low-income communities. It is
anticipated that this interim rule will increase the number of young
adults receiving assistance under federally-funded Youthbuild programs.
[[Page 25125]]
(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 interim rule does not have
``federalism implications'' because it does not have substantial direct
effects on the States (including their political subdivisions), or on
the distribution of power and responsibilities among the various levels
of government.
(d) Executive Order 12606, The Family. The General Counsel, as the
Designated Official under Executive Order 12606, The Family, has
determined that some of the policies of this interim rule would have a
potential significant impact on family formation, maintenance, and
general well-being. The expected expansion of opportunities to
economically disadvantaged young adults to enhance their education and
employment skills will provide a positive impact on the family
maintenance and general well-being. However since the impact on the
family is beneficial and the interim rule involves very little HUD
discretion, no further review is necessary.
(e) Catalog of Federal Domestic Assistance. The Catalog of Federal
Domestic Assistance Program number assigned to this program is 14.243.
List of Subjects in 24 CFR Part 585
Grant programs--housing and community development, Homeless, Low-
and very low-income families, Reporting and recordkeeping requirements.
Accordingly, for the reasons set forth in the preamble, part 585 of
title 24 of the Code of Federal Regulations is amended as follows:
PART 585--YOUTHBUILD PROGRAM
1. The authority citation for part 585 continues to read as
follows:
Authority: 42 U.S.C. 3535(d) and 8011.
2. In Sec. 585.305, paragraph (m) is amended to add new paragraphs
(m)(1) and (m)(2), to read as follows:
Sec. 585.305 Eligible activities.
* * * * *
(m) * * *
(1) Administrative costs. The amount of Youthbuild funds used to
pay the following costs, in whole or in part, must be charged as
administrative costs:
(i) Salaries, wages and related costs of the grantee's staff or
other staff who are primarily engaged in general program administration
and oversight. Youthbuild funded staff presumed to be primarily engaged
in general program administration and oversight include the executive
director, the program manager, the fiscal officer, the secretary and
the administrative or program assistant. However, a grantee may provide
evidence to rebut this presumption for an individual case.
(ii) Other costs for goods and services required for the program,
such as rental or purchase of vehicles, office supplies and equipment,
utilities, insurance, legal, staff training, rental and maintenance of
office space, mailing, advertising, technical assistance and fund
raising.
(2) Further restrictions on the use of Youthbuild funds. (i)
Further restrictions may be imposed if the Department determines, based
on information readily available that:
(A) Costs are not sufficiently itemized;
(B) The amount of program funds for trainee wages and benefits,
including need-based stipends, benefits, incentives, tools and work
clothes and/or the number of Youthbuild participants served are low in
comparison to other comparable programs;
(C) The participant training period is shorter than that in other
comparable programs;
(D) Alternative use of funds for eligible activities would be in
the overall interest of the Youthbuild program.
(ii) Restrictions include, but are not limited to, limitations on
the use and availability of grant funds, reallocation of Youthbuild
program budget, or cancellation of grant.
Dated: April 24, 1996.
Andrew M. Cuomo,
Assistant Secretary for Community Planning and Development.
[FR Doc. 96-12425 Filed 5-16-96; 8:45 am]
BILLING CODE 4210-29-P
Complete official Federal Register PDF
FR Doc. 96-12390 Airworthiness Directives; The New Piper Aircraft, Inc. (Formerly Piper Aircraft Corporation) PA31, PA31P, and PA31T Series Airplanes
[Federal Register Volume 61, Number 97 (Friday, May 17, 1996)]
[Rules and Regulations]
[Pages 24878-24881]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-12390]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 39
[Docket No. 90-CE-62-AD; Amendment 39-9621; AD 96-10-14]
RIN 2120-AA64
Airworthiness Directives; The New Piper Aircraft, Inc. (Formerly
Piper Aircraft Corporation) PA31, PA31P, and PA31T Series Airplanes
AGENCY: Federal Aviation Administration, DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This amendment supersedes Airworthiness Directive (AD) 88-05-
05, which currently requires the following on certain The New Piper
Aircraft, Inc. (Piper) PA31, PA31P, and PA31T series airplanes:
repetitively inspecting both
[[Page 24879]]
the left and right main landing gear (MLG) forward sidebrace, and
replacing any cracked MLG forward sidebrace. The Federal Aviation
Administration's policy on aging commuter-class aircraft is to
eliminate or, in certain instances, reduce the number of certain
repetitive short-interval inspections when improved parts or
modifications are available. This action retains the current repetitive
inspection and necessary replacement requirements contained in AD 88-
05-05, and requires incorporating both a left and right MLG forward
sidebrace of improved design as terminating action for the repetitive
inspection requirement. The actions specified in this AD are intended
to prevent the MLG from retracting because of a cracked MLG forward
side brace, which, if not detected and corrected, could result in gear
collapse and loss of control of the airplane during landing operations.
DATES: Effective June 27, 1996.
The incorporation by reference of certain publications listed in
the regulations is approved by the Director of the Federal Register as
of June 27, 1996.
ADDRESSES: Service information that applies to this AD may be obtained
from The New Piper Aircraft, Inc., Customer Services, 2926 Piper Drive,
Vero Beach, Florida 32960. This information may also be examined at the
Federal Aviation Administration (FAA), Central Region, Office of the
Assistant Chief Counsel, Attention: Rules Docket 90-CE-62-AD, Room
1558, 601 E. 12th Street, Kansas City, Missouri 64106; or at the Office
of the Federal Register, 800 North Capitol Street NW., suite 700,
Washington, DC.
FOR FURTHER INFORMATION CONTACT: Christina Marsh, Aerospace Engineer,
FAA, Atlanta Aircraft Certification Office, Campus Building, 1701
Columbia Avenue, suite 2-160, College Park, Georgia 30337-2748;
telephone (404) 305-7362; facsimile (404) 305-7348.
SUPPLEMENTARY INFORMATION:
Events Leading to the AD
A proposal to amend part 39 of the Federal Aviation Regulations (14
CFR part 39) to include an AD that would apply to Piper PA31, PA31P,
and PA31T series airplanes was published in the Federal Register on
December 7, 1995 (60 FR 62776). The action proposed to supersede AD 88-
05-05 with a new AD that would (1) retain the requirement of
repetitively inspecting both the left and right MLG forward sidebrace
for cracks, and replacing any cracked MLG forward sidebrace; and (2)
require replacing both the left and right MLG forward sidebrace with a
part of improved design, part number (P/N) 85165-02 (left) and 85165-03
(right) or P/N 85166-02 (left) and 85166-03 (right), as applicable, as
terminating action for the repetitive inspection requirement.
Accomplishment of the proposed inspections would be in accordance with
Piper Service Bulletin No. 845A, dated October 9, 1987. The improved
MLG forward sidebrace installations would be accomplished in accordance
with the applicable maintenance manual.
Interested persons have been afforded an opportunity to participate
in the making of this amendment. No comments were received on the
proposed rule or the FAA's determination of the cost to the public.
After careful review of all available information related to the
subject presented above, the FAA has determined that air safety and the
public interest require the adoption of the rule as proposed except for
minor editorial corrections. The FAA has determined that these minor
corrections will not change the meaning of the AD and will not add any
additional burden upon the public than was already proposed.
Cost Impact
The FAA estimates that 2,384 airplanes in the U.S. registry will be
affected by this AD, that it will take approximately 8 workhours per
airplane to accomplish the required replacement, and that the average
labor rate is approximately $60 an hour. Parts cost approximately
$1,000 per airplane (2 MLG forward sidebraces per airplane at
approximately $500 per sidebrace). Based on these figures, the total
cost impact of this AD on U.S. operators is estimated to be $3,528,320
or $1,480 per airplane. This figure is based on the assumption that no
affected airplane owner/operator has accomplished the required
replacement.
Piper has informed the FAA that parts have been distributed to
owners/operators to equip 2,123 of the affected airplanes (4,246 MLG
forward sidebraces of improved design). Assuming that each set of parts
has been installed on an affected airplane, the cost impact of the
required replacement upon U.S. owners/operators of the affected
airplanes is reduced by $3,142,040 from $3,528,320 to $386,280.
The FAA's Aging Commuter Class Aircraft Policy
This AD is part of the FAA's aging commuter class airplane policy,
which briefly states that, when a modification exists that could
eliminate or reduce the number of required critical inspections, the
modification should be incorporated.
The intent of the FAA's aging commuter airplane program is to
ensure safe operation of commuter-class airplanes that are in
commercial service without adversely impacting private operators. The
FAA believes that a large number of the remaining 261 affected
airplanes (2,384 affected airplanes - 2,123 airplanes with a set of
parts distributed) that will be affected by this AD are operated in
various types of air transportation. This includes scheduled passenger
service, air cargo, and air taxi.
This AD allows 1,200 hours time-in-service (TIS) after the
effective date of the AD before mandatory accomplishment of the design
modification. The average utilization of the fleet for those airplanes
in air transportation is between 25 to 40 hours TIS per week. Based on
these figures, operators of commuter-class airplanes involved in
commercial operation will have to accomplish the required replacement
within 7 to 12 months after the AD becomes effective. For private
owners, who typically operate between 100 to 200 hours TIS per year,
this allows 6 to 12 years before the required replacement will be
mandatory.
The FAA established the 1,200 hours TIS replacement compliance time
based on its engineering evaluation of the problem. Among the issues
examined during this engineering evaluation were analysis of service
difficulty reports, the difficulty level of the inspection, and how
critical the situation would be if cracks occurred in the subject area
despite accomplishment of the repetitive inspections.
Usually, the FAA establishes the mandatory design modification
compliance time on AD's affecting aging commuter-class airplanes upon
the accumulation of a certain number of hours TIS on the airplane. For
this action, the FAA is mandating the replacement for all operators
``within the next 1,200 hours TIS after the effective date of this
AD.'' The total TIS levels of the airplane fleet vary from under 1,000
hours TIS to over 5,000 hours TIS, and annual accumulation rates vary
from 50 hours TIS to over 1,000 hours TIS. Establishing a long-term set
compliance time of hours TIS accumulated on Piper PA31, PA31P, and
PA31T series airplanes (such as 5,000 hours TIS) imposes an undue
burden on the manufacturer of having to maintain a supply of
replacement parts for the entire fleet when many airplanes in the fleet
may never reach this compliance time.
[[Page 24880]]
Instead, the FAA believes that Piper should maintain parts for
several years; in this case about 12 years to allow low-usage airplanes
time to accumulate the 1,200 hours TIS after the effective date of the
AD. The FAA has determined that the compliance time of this AD provides
the level of safety required for commuter air service while still
minimizing the impact on the private airplane owners of Piper PA31,
PA31P, and PA31T series airplanes.
Regulatory Impact
The regulations adopted herein will not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this final
rule does not have sufficient federalism implications to warrant the
preparation of a Federalism Assessment.
For the reasons discussed above, I certify that this action (1) is
not a ``significant regulatory action'' under Executive Order 12866;
(2) is not a ``significant rule'' under DOT Regulatory Policies and
Procedures (44 FR 11034, February 26, 1979); and (3) will not have a
significant economic impact, positive or negative, on a substantial
number of small entities under the criteria of the Regulatory
Flexibility Act. A copy of the final evaluation prepared for this
action is contained in the Rules Docket. A copy of it may be obtained
by contacting the Rules Docket at the location provided under the
caption ADDRESSES.
List of Subjects in 14 CFR Part 39
Air transportation, Aircraft, Aviation safety, Incorporation by
reference, Safety.
Adoption of the Amendment
Accordingly, pursuant to the authority delegated to me by the
Administrator, the Federal Aviation Administration amends part 39 of
the Federal Aviation Regulations (14 CFR part 39) as follows:
PART 39--AIRWORTHINESS DIRECTIVES
1. The authority citation for part 39 continues to read as follows:
Authority: 49 U.S.C 106(g), 40113, 44701.
Sec. 39.13 [Amended]
2. Section 39.13 is amended by removing Airworthiness Directive
(AD) 88-05-05, Amendment 39-5861, and by adding a new AD to read as
follows:
96-10-14 The New Piper Aircraft, Inc. (formerly Piper Aircraft
Corporation): Amendment 39-9621; Docket No. 90-CE-62-AD. Supersedes
AD 88-05-05, Amendment 39-5861.
Applicability: The following model and serial number airplanes,
certificated in any category, that do not have left and right main
landing gear (MLG) forward sidebraces of improved design installed,
part numbers (P/N) 85165-02 (left) and 85165-03 (right) or P/N
85166-02 (left) and 85166-03 (right).
------------------------------------------------------------------------
Models Serial Nos.
------------------------------------------------------------------------
PA31, PA31-300, and PA31-325........ 31-2 through 31-8312019.
PA31-350............................ 31-5001 through 31-8553002.
PA31P............................... 31P-2 through 31P-7730012.
PA31P-350........................... 31P-8414001 through 31P-8414050.
PA31T............................... 31T-7400002 through 31T-8120104.
PA31T1.............................. 31T-7804001 through 31T-8304003
and 31T-1104004 through 31T-
1104017.
PA31T2.............................. 31T-8166001 through 31T-8166076
and 31T-1166001 through 31T-
1166008.
------------------------------------------------------------------------
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 (g) 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 in the body of this AD, unless
already accomplished.
To prevent the MLG from retracting because of a cracked MLG
forward side brace, which, if not detected and corrected, could
result in gear collapse and loss of control of the airplane during
landing operations, accomplish the following:
(a) Within the next 100 hours time-in-service (TIS) after the
effective date of this AD, unless already accomplished (compliance
with AD 88-05-05), and thereafter at intervals not to exceed 100
hours TIS until the modification required by paragraph (d) of this
AD is incorporated, inspect (using dye penetrant methods) both the
left and right MLG sidebraces for cracks. Accomplish the inspections
in accordance with the INSTRUCTIONS section of Piper Service
Bulletin No. 845A, dated October 9, 1987.
(b) The initial dye penetrant inspection type must be utilized
for all future repetitive inspections. Dye penetrant inspection
types consist of Type I: fluorescent; Type II: non-fluorescent or
visible dye; and Type III: dual sensitivity.
(c) If cracks are found during any of the inspections required
in paragraph (a) of this AD, prior to further flight, replace the
cracked MLG sidebrace with a part of improved design, P/N 85165-02
(left) or 85165-03 (right) or P/N 85166-02 (left) or 85166-03
(right), as applicable. Accomplish this replacement in accordance
with the applicable maintenance manual.
(d) Within the next 1,200 hours TIS after the effective date of
this AD, unless already accomplished as required by paragraph (c) of
this AD, replace both the left and right MLG side braces with parts
of improved design, P/N 85165-02 (left) and 85165-03 (right) or
P/N 85166-02 (left) and 85166-03 (right), as applicable. Accomplish
these replacements in accordance with the applicable maintenance
manual.
(e) Installing both the left and right MLG side braces with
parts of improved design, P/N 85165-02 (left) and 85165-03 (right)
or P/N 85166-02 (left) and 85166-03 (right), as applicable, as
required by paragraph (d) of this AD is considered terminating
action for the repetitive inspection requirement of this AD.
(f) Special flight permits may be issued in accordance with
sections 21.197 and 21.199 of the Federal Aviation Regulations (14
CFR 21.197 and 21.199) to operate the airplane to a location where
the requirements of this AD can be accomplished.
(g) An alternative method of compliance or adjustment of the
initial or repetitive compliance times that provides an equivalent
level of safety may be approved by the Manager, Atlanta Aircraft
Certification Office (ACO), Campus Building, 1701 Columbia Avenue,
suite 2-160, College Park, Georgia 30337-2748. The request shall be
forwarded through an appropriate FAA Maintenance Inspector, who may
add comments and then send it to the Manager, Atlanta ACO.
Note 2: Information concerning the existence of approved
alternative methods of compliance with this AD, if any, may be
obtained from the Atlanta ACO.
Note 3: Alternative methods of compliance approved in accordance
with AD 88-05-05 (superseded by this AD) are not considered approved
for this AD.
(h) The inspection required by this AD shall be done in
accordance with Piper Service Bulletin No. 845A, dated October 9,
1987. 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 The New Piper Aircraft, Inc.,
2926 Piper Drive, Vero Beach, Florida 32960. Copies may be inspected
at the FAA, Central Region, Office of the Assistant Chief Counsel,
Room 1558, 601 E. 12th Street, Kansas City, Missouri, or at the
Office of the Federal Register, 800 North Capitol Street NW., suite
700, Washington, DC.
(i) This amendment (39-9621) supersedes AD 88-05-05, Amendment
39-5861.
(j) This amendment (39-9621) becomes effective on June 27, 1996.
[[Page 24881]]
Issued in Kansas City, Missouri, on May 8, 1996.
Henry A. Armstrong,
Acting Manager, Small Airplane Directorate, Aircraft Certification
Service.
[FR Doc. 96-12390 Filed 5-16-96; 8:45 am]
BILLING CODE 4910-13-U
Complete official Federal Register PDF
FR Doc. 96-12389 Airworthiness Directives; The New Piper Aircraft, Inc. (Formerly Piper Aircraft Corporation) Models PA31, PA31-300, PA31-325, and PA31- 350 Airplanes
[Federal Register Volume 61, Number 97 (Friday, May 17, 1996)]
[Rules and Regulations]
[Pages 24881-24883]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-12389]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
14 CFR Part 39
[Docket No. 90-CE-63-AD; Amendment 39-9622; AD 96-10-15]
RIN 2120-AA64
Airworthiness Directives; The New Piper Aircraft, Inc. (Formerly
Piper Aircraft Corporation) Models PA31, PA31-300, PA31-325, and PA31-
350 Airplanes
AGENCY: Federal Aviation Administration, DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This amendment supersedes Airworthiness Directive (AD) 80-14-
06, which currently requires the following on The New Piper Aircraft,
Inc. (Piper) Models PA31, PA31-300, PA31-325, and PA31-350 airplanes:
repetitively inspecting the outboard flap tracks, wing rib flanges, and
the rear spar web at Wing Station (WS) 147.5 on each wing, and
modifying the area at WS 147.5 on both wings if any cracks are found as
terminating action for the repetitive inspection requirement. The
Federal Aviation Administration's policy on aging commuter-class
aircraft is to eliminate or, in certain instances, reduce the number of
certain repetitive short-interval inspections when improved parts or
modifications are available. This action retains the repetitive
inspection requirement of AD 80-14-06, and requires modifying the area
at WS 147.5 on both wings as terminating action for the repetitive
inspection requirement. The actions specified in this AD are intended
to prevent structural failure under certain load conditions caused by
cracked areas at WS 147.5, which, if not detected and corrected, could
result in loss of control of the airplane.
DATES: Effective June 27, 1996.
The incorporation by reference of certain publications listed in
the regulations is approved by the Director of the Federal Register as
of June 27, 1996.
ADDRESSES: Service information that applies to this AD may be obtained
from The New Piper Aircraft, Inc., Customer Services, 2926 Piper Drive,
Vero Beach, Florida 32960. This information may also be examined at the
Federal Aviation Administration (FAA), Central Region, Office of the
Assistant Chief Counsel, Attention: Rules Docket 90-CE-63-AD, Room
1558, 601 E. 12th Street, Kansas City, Missouri 64106; or at the Office
of the Federal Register, 800 North Capitol Street NW., suite 700,
Washington, DC.
FOR FURTHER INFORMATION CONTACT: Christina Marsh, Aerospace Engineer,
FAA, Atlanta Aircraft Certification Office, Campus Building, 1701
Columbia Avenue, suite 2-160, College Park, Georgia 30337-2748;
telephone (404) 305-7362; facsimile (404) 305-7348.
SUPPLEMENTARY INFORMATION:
Events Leading to the AD
A proposal to amend part 39 of the Federal Aviation Regulations (14
CFR part 39) to include an AD that would apply to Piper Models PA31,
PA31-300, PA31-325, and PA31-350 airplanes was published in the Federal
Register on December 7, 1995 (60 FR 62779). The action proposed to
supersede AD 80-14-06 with a new AD that would (1) retain the
requirement of repetitively inspecting the outboard flap track, wing
rib flanges, and the rear spar web at WS 147.5 for cracks, and, if any
cracks are found, modifying the area at WS 147.5 by incorporating Piper
Kit 763 986 as terminating action for the repetitive inspection
requirement; and (2) require incorporating Piper Kit 763 986 at a
specified hours TIS time-period for airplanes where no cracks were
found during the inspections as terminating action for the repetitive
inspection requirement. Accomplishment of the modification would be in
accordance with the instructions included with Piper Kit 763 986,
Revised April 15, 1991, as referenced in Piper SB No. 647A, dated
November 24, 1980.
Interested persons have been afforded an opportunity to participate
in the making of this amendment. No comments were received on the
proposed rule or the FAA's determination of the cost to the public.
After careful review of all available information related to the
subject presented above, the FAA has determined that air safety and the
public interest require the adoption of the rule as proposed except for
minor editorial corrections. The FAA has determined that these minor
corrections will not change the meaning of the AD and will not add any
additional burden upon the public than was already proposed.
Cost Impact
The FAA estimates that 2,906 airplanes in the U.S. registry will be
affected by this AD, that it will take approximately 30 workhours per
airplane to accomplish the required modification, and that the average
labor rate is approximately $60 an hour. Parts cost approximately $468
per airplane. Based on these figures, the total cost impact of the
required modification on U.S. operators is estimated to be $6,590,808
or $2,268 per airplane. This figure is based on the assumption that no
affected airplane owner/operator has accomplished the required
modification.
Piper has informed the FAA that parts have been distributed to
enough owners/operators to equip 234 of the affected airplanes.
Assuming that each set of parts has been installed on an affected
airplane, the cost impact of this AD upon U.S. owners operators of the
affected airplanes is reduced by $530,712 from $6,590,808 to
$6,060,096.
The FAA's Aging Commuter Class Aircraft Policy
This AD is part of the FAA's aging commuter class airplane policy,
which briefly states that, when a modification exists that could
eliminate or reduce the number of required critical inspections, the
modification should be incorporated.
The intent of the FAA's aging commuter airplane program is to
ensure safe operation of commuter-class airplanes that are in
commercial service without adversely impacting private operators. The
FAA believes that a large number of the remaining 2,672 affected
airplanes (2,906 airplanes--234 sets of parts distributed) that will be
affected by this AD are operated in various types of air
transportation. This includes scheduled passenger service, air cargo,
and air taxi.
This AD allows 1,000 hours time-in-service (TIS) after the
effective date of the AD before mandatory accomplishment of the design
modification. The average utilization of the fleet for those airplanes
in air transportation is between 25 to 40 hours TIS per week. Based on
these figures, operators of commuter-class airplanes involved in
commercial operation will have to accomplish the required modification
within 6 to 10 months after this AD becomes effective. For private
owners, who typically operate between 100 to 200 hours TIS per year,
this allows 5 to 10 years before the required modification is
mandatory.
The FAA established the 1,000 hours TIS modification compliance
time based on its engineering evaluation of the problem. Among the
issues examined during this engineering evaluation were analysis of
service difficulty reports, the
[[Page 24882]]
difficulty level of the inspection, and how critical the situation
would be if cracks occurred in the subject area despite accomplishment
of the repetitive inspections.
Usually, the FAA establishes the mandatory design modification
compliance time on AD's affecting aging commuter-class airplanes upon
the accumulation of a certain number of hours TIS on the airplane. For
this action, the FAA is mandating the modification for all operators
``within the next 1,000 hours TIS after the effective date of this
AD.'' The total TIS levels of the airplane fleet vary from under 1,000
hours TIS to over 5,000 hours TIS, and annual accumulation rates vary
from 50 hours TIS to over 1,000 hours TIS. Establishing a long-term set
compliance time of hours TIS accumulated on a Piper Model PA31, PA31-
300, PA31-325, or PA31-350 airplane (such as 5,000 hours TIS) imposes
an undue burden on the manufacturer of having to maintain a supply of
replacement parts for the entire fleet when many airplanes in the fleet
may never reach this compliance time.
Instead, the FAA believes that Piper should maintain parts for
several years; in this case about 10 years to allow low-usage airplanes
time to accumulate the ``1,000 hours TIS after the effective date of
the AD.'' The FAA has determined that the compliance time of this AD
provides the level of safety required for commuter air service while
still minimizing the impact on the private airplane owners of Piper
Models PA31, PA31-300, PA31-325, and PA31-350 airplanes.
Regulatory Impact
The regulations adopted herein will not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this final
rule does not have sufficient federalism implications to warrant the
preparation of a Federalism Assessment.
For the reasons discussed above, I certify that this action (1) is
not a ``significant regulatory action'' under Executive Order 12866;
(2) is not a ``significant rule'' under DOT Regulatory Policies and
Procedures (44 FR 11034, February 26, 1979); and (3) will not have a
significant economic impact, positive or negative, on a substantial
number of small entities under the criteria of the Regulatory
Flexibility Act. A copy of the final evaluation prepared for this
action is contained in the Rules Docket. A copy of it may be obtained
by contacting the Rules Docket at the location provided under the
caption ADDRESSES.
List of Subjects in 14 CFR Part 39
Air transportation, Aircraft, Aviation safety, Incorporation by
reference, Safety.
Adoption of the Amendment
Accordingly, pursuant to the authority delegated to me by the
Administrator, the Federal Aviation Administration amends part 39 of
the Federal Aviation Regulations (14 CFR part 39) as follows:
PART 39--AIRWORTHINESS DIRECTIVES
1. The authority citation for part 39 continues to read as follows:
Authority: 49 U.S.C 106(g), 40113, 44701.
Sec. 39.13 [Amended]
2. Section 39.13 is amended by removing Airworthiness Directive
(AD) 80-14-06, Amendment 39-3805, and by adding a new AD to read as
follows:
96-10-15 The New Piper Aircraft, Inc. (formerly Piper Aircraft
Corporation): Amendment 39-9622; Docket No. 90-CE-63-AD. Supersedes
AD 80-14-06, Amendment 39-3805.
Applicability: The following model and serial number airplanes,
certificated in any category, that do not have Piper Kit 763 986
incorporated in the area of Wing Station (WS) 147.5:
------------------------------------------------------------------------
Models Serial Nos.
------------------------------------------------------------------------
PA31 and PA31-300................... 31-2 through 31-8012010.
PA31-325............................ 31-7512006 through 31-8012010.
PA31-350............................ 31-5001 through 31-8052025.
------------------------------------------------------------------------
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 (f) 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 in the body of this AD, unless
already accomplished.
To prevent structural failure under certain load conditions
caused by cracked areas at WS 147.5, which, if not detected and
corrected, could result in loss of control of the airplane,
accomplish the following:
(a) Within the next 100 hours time-in-service (TIS) after the
effective date of this AD, unless already accomplished (compliance
with AD 80-14-06), and thereafter at intervals not to exceed 100
hours TIS until the modification required by paragraph (b) or (c) of
this AD is incorporated, inspect the outboard flap tracks, wing rib
flanges, and the rear spar web on both wings in the area of WS 147.5
by accomplishing the following:
(1) Lower the flaps to 40 degrees.
(2) Inspect the attachment of the flap track rib to the rear
spar on the inboard and outboard sides of the flap track using 10-
power magnification.
(3) Remove the rectangular access plate from the bottom wing
skin. The rectangular access plate is located forward of the wing
spar at WS 153.
(4) Inspect the WS 147.5 rib attachment angle using 10-power
magnification.
Note 2: The 100-hour TIS repetitive inspection interval was
established to coincide with regularly scheduled maintenance.
(b) If cracks are found during any of the inspections required
in paragraph (a) of this AD, prior to further flight, incorporate
Piper Kit 763 986 in accordance with the instructions included with
Piper Kit 763 986, Revised April 15, 1991, as referenced in Piper SB
No. 647A, dated November 24, 1980.
(c) Within the next 1,000 hours TIS after the effective date of
this AD, unless already accomplished as required by paragraph (b) of
this AD, incorporate Piper Kit 763 986 in the area of WS 147.5.
Accomplish this action in accordance with the instructions included
with Piper Kit 763 986, Revised April 15, 1991, as referenced in
Piper SB No. 647A, dated November 24, 1980.
(d) Incorporating Piper Kit 763 986 as required by paragraphs
(b) and (c) of this AD is considered terminating action for the
repetitive inspection requirement of this AD.
(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) An alternative method of compliance or adjustment of the
initial or repetitive compliance times that provides an equivalent
level of safety may be approved by the Manager, Atlanta Aircraft
Certification Office (ACO), Campus Building, 1701 Columbia Avenue,
suite 2-160, College Park, Georgia 30337-2748. The request shall be
forwarded through an appropriate FAA Maintenance Inspector, who may
add comments and then send it to the Manager, Atlanta ACO.
Note 3: Information concerning the existence of approved
alternative methods of compliance with this AD, if any, may be
obtained from the Atlanta ACO.
Note 4: Alternative methods of compliance approved in accordance
with AD 80-14-06 (superseded by this action) are not considered
approved as alternative methods of compliance with this AD.
[[Page 24883]]
(g) The modification required by this AD shall be done in
accordance with the instructions included with Piper Kit 763 986,
Revised April 15, 1991. 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 The New Piper
Aircraft, Inc., 2926 Piper Drive, Vero Beach, Florida 32960. Copies
may be inspected at the FAA, Central Region, Office of the Assistant
Chief Counsel, Room 1558, 601 E. 12th Street, Kansas City, Missouri,
or at the Office of the Federal Register, 800 North Capitol Street,
NW., suite 700, Washington, DC.
(h) This amendment (39-9622) supersedes AD 80-14-06, Amendment
39-3805.
(i) This amendment (39-9622) becomes effective on June 27, 1996.
Issued in Kansas City, Missouri, on May 8, 1996.
Henry A. Armstrong,
Acting Manager, Small Airplane Directorate, Aircraft Certification
Service.
[FR Doc. 96-12389 Filed 5-16-96; 8:45 am]
BILLING CODE 4910-13-U
Complete official Federal Register PDF
FR Doc. 96-12373 Prohibited/Restricted Merchandise; Enforcement of Foreign Assets Control Regulations
[Federal Register Volume 61, Number 97 (Friday, May 17, 1996)]
[Rules and Regulations]
[Pages 24888-24889]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-12373]
-----------------------------------------------------------------------
DEPARTMENT OF THE TREASURY
19 CFR Parts 12, 145, and 161
[T.D. 96-42]
RIN 1515-AB91
Prohibited/Restricted Merchandise; Enforcement of Foreign Assets
Control Regulations
AGENCY: Customs Service, Treasury.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This document amends the Customs Regulations to more clearly
provide that Customs enforces the laws and regulations of the Office of
Foreign Assets Control (OFAC) of the Department of the Treasury
regarding economic sanctions applicable to those countries that have
been designated by the President as constituting a threat to the
national security, foreign policy, or economy of the United States.
Currently, the Customs Regulations refer to OFAC regulations only in
the context of merchandise arriving by mail. This document clarifies
that Customs enforces the laws and regulations administered by OFAC
regardless of how subject merchandise, services, and technology arrive
in or depart from the U.S.
EFFECTIVE DATE: May 17, 1996.
FOR FURTHER INFORMATION CONTACT: Louis Alfano, Office of Field
Operations, Commercial Enforcement Branch, (202) 927-0005.
SUPPLEMENTARY INFORMATION:
Background
As part of Customs continuing effort to ensure that its regulations
are informative and up-to-date, Customs has determined that its
regulations do not clearly set forth the fact that Customs enforces the
laws and regulations administered by the Office of Foreign Assets
Control (OFAC) of the Department of the Treasury (31 CFR Chapter V).
These laws include the Trading With the Enemy Act (50 U.S.C. App. 1-
44), the National Emergencies Act (50 U.S.C. 1641 et seq.), the
International Emergency Economic Powers Act (50 U.S.C. 1701-1706), and
the International Security and Development Cooperation Act (22 U.S.C.
2349aa8-9); the regulations are found at Chapter V of Title 31 of the
Code of Federal Regulations (Money and Finance) (31 CFR Chapter V).
These laws and regulations impose prohibitions or restrictions on
importations, exportations, and other transactions involving funds,
merchandise, services, and technology with and of those countries that
have been designated by the President, pursuant to applicable statutory
provisions. Currently, the Customs Regulations refer to OFAC
regulations only in part 145 of the Customs Regulations (19 CFR Part
145), the provisions of which apply only to merchandise arriving by
mail. This document clarifies that Customs enforces the laws and
regulations administered by OFAC regardless of how the subject
merchandise, services, and technology arrive in or depart from the U.S.
by amending three sections in as many parts to provide further notice
to the public of Customs enforcement obligations concerning the
application of economic sanctions to designated countries.
In reviewing Sec. 145.56 of the Customs Regulations (19 CFR
145.56), which concerns the applicability of OFAC controls on
merchandise arriving by mail, Customs has determined that the listing
of countries subject to controls administered by OFAC is not up-to-
date. (The list of countries in the section has not been updated since
the section was promulgated in 1973 and is outdated and inconsistent
with OFAC regulations: two of the four countries currently listed are
no longer subject to OFAC's controls (North Vietnam (now Vietnam) and
Rhodesia (now Zimbabwe)) and other countries that have since been
designated by the President as subject to sanctions have not been added
to the list). Each time the President sanctions and lifts sanctions on
designated countries, OFAC amends its regulations accordingly.
Repeating the list of sanctioned countries in the Customs Regulations
merely duplicates the efforts of OFAC and, if not done timely, could
result in future inconsistencies between OFAC and Customs Regulations.
Accordingly, Customs has determined that to avoid the possibility of
future inconsistencies between OFAC and Customs Regulations in the
listing of sanctioned countries, Customs will no longer set forth such
a list in its regulations, but will simply refer readers to the OFAC
regulations. Thus, in amending Sec. 145.56, this document retains the
procedural provisions, but removes the listing of countries subject to
economic sanctions.
This document also clarifies the extent of Customs responsibility
in enforcing OFAC controls by adding sections regarding OFAC controls
in both Part 12, which concerns regulations of various Federal agencies
which Customs enforces and special classes of merchandise, and in Part
161, which concerns general enforcement provisions. A new Sec. 12.150
is added to Part 12, which cross-references OFAC regulations at 31 CFR
Chapter V, explains how OFAC regulations work, and provides an address
for further information from OFAC. Also, a specific authority citation
is added to account for Customs import (19 U.S.C. 1595a(c)) and export
(22 U.S.C 401) seizure authority and to account for the terms and
conditions for release (19 U.S.C. 1618). Section 161.2 is amended to
list OFAC as an agency whose laws are enforced by Customs. Also, the
parenthetical legal authority citations at the end of Sec. 161.2 are
amended to account for changes in the law since 1972, when the
citations were first provided, and are placed under the general
authority citation at the beginning of Part 161.
Inapplicability of Public Notice and Comment Requirements, Delayed
Effective Date Requirements, the Regulatory Flexibility Act, and
Executive Order 12866
Because this amendment merely provides further notice to the public
that Customs enforces the laws and regulations administered by the
Office of Foreign Assets Control of the Department of the Treasury,
pursuant to 5 U.S.C. 553(b)(B), good cause exists for dispensing with
notice and public procedure thereon as unnecessary. For the same
reasons, good cause exists for dispensing with a delayed effective date
under 5 U.S.C. 553(d)(1) and (d)(3). Since this document is not subject
to the notice and public procedure requirements of 5 U.S.C. 553, it is
not subject to provisions of the Regulatory Flexibility Act (5 U.S.C.
601 et seq.). This document does not meet the criteria for a
``significant regulatory action'' as specified in E.O. 12866.
List of Subjects
19 CFR Part 12
Customs duties and inspection, Economic sanctions, Imports,
Licensing, Prohibited merchandise, Restricted merchandise, Reporting
and recordkeeping requirements, Sanctions, Seizure and forfeiture.
[[Page 24889]]
19 CFR Part 145
Customs duties and inspection, Imports, Mail, Postal service,
Prohibited merchandise, Restricted merchandise, Reporting and
recordkeeping requirements, Seizure and forfeiture.
19 CFR Part 161
Customs duties and inspection, Imports, Law enforcement.
Amendments to the Regulations
For the reasons stated above, parts 12, 145, and 161 of the Customs
Regulations (19 CFR parts 12, 145, and 161), are amended as set forth
below:
PART 12--SPECIAL CLASSES OF MERCHANDISE
1. The general authority citation for Part 12 continues and a
specific authority citation for new Sec. 12.150 is added to read as
follows:
Authority: 5 U.S.C. 301; 19 U.S.C. 66, 1202 (General Note 20,
Harmonized Tariff Schedule of the United States (HTSUS)), 1624;
* * * * *
Section 12.150 also issued under 19 U.S.C. 1595a and 1618; 22
U.S.C. 401.
2. Part 12 is amended by adding a centerheading and new Sec. 12.150
to read as follows:
Merchandise Subject to Economic Sanctions
Sec. 12.150 Merchandise prohibited by economic sanctions; detention;
seizure or other disposition; blocked property.
(a) Generally. Merchandise from certain countries designated by the
President as constituting a threat to the national security, foreign
policy, or economy of the United States shall be detained until the
question of its release, seizure, or other disposition has been
determined under law and regulations issued by the Treasury
Department's Office of Foreign Assets Control (OFAC) (31 CFR Chapter
V).
(b) Seizure. When an unlicensed importation of merchandise subject
to OFAC's regulations is determined to be prohibited, no entry for any
purpose shall be permitted and, unless the immediate reexportation or
other disposition of such merchandise under Customs supervision has
previously been authorized by OFAC, the merchandise shall be seized.
(c) Licenses. OFAC's regulations may authorize OFAC to issue
licenses on a case-by-case basis authorizing the importation of
otherwise prohibited merchandise under certain conditions. If such a
license is issued subsequent to the attempted entry and seizure of the
merchandise, importation shall be conditioned upon the importer:
(1) Agreeing in writing to hold the Government harmless, and
(2) Paying any storage and other Customs fees, costs, or expenses,
as well as any mitigated forfeiture amount or monetary penalty imposed
or assessed by Customs or OFAC, or both.
(d) Blocked property. Merchandise which constitutes property in
which the government or any national of certain designated countries
has an interest may be blocked (frozen) pursuant to OFAC's regulations
and may not be transferred, sold, or otherwise disposed of without an
OFAC license.
(e) Additional information. For further information concerning
importing merchandise prohibited under economic sanctions programs
currently in effect, the Office of Foreign Assets Control of the
Department of the Treasury should be contacted. The address of that
office is 1500 Pennsylvania Ave., N.W., Annex 2nd Floor, Washington,
D.C. 20220.
PART 145--MAIL IMPORTATIONS
1. The general authority citation for Part 145 is revised to read
as follows:
Authority: 19 U.S.C. 66, 1202 (General Note 20, Harmonized
Tariff Schedule of the United States), 1624;
* * * * *
Sec. 145.56 [Amended]
2. Section 145.56 is amended by removing the words ``North Korea,
North Vietnam, Cuba, or Rhodesia'' and adding, in their place, the
words ``certain designated countries''; and by adding the parenthetical
words ``(See also 19 CFR 12.150)'' at the end of the section before the
period.
PART 161--GENERAL ENFORCEMENT PROVISIONS
1. The general authority citation for Part 161 is revised, and a
specific authority citation for section 161.2 is added, to read as
follows:
Authority: 5 U.S.C. 301; 19 U.S.C. 66, 1600, 1619, 1624, 1646a;
Section 161.2 also issued under 12 U.S.C. 95a; 18 U.S.C. 545; 19
U.S.C. 1595(a); 22 U.S.C. 401, 1934, 2349aa8-9;
42 U.S.C. 1804, 1807; 50 U.S.C. 1641 et seq., 1701 et seq.;
50 U.S.C. App. 1-44, 2411.
* * * * *
2. Section 161.2 is amended by adding paragraph (a)(3) and removing
the parenthetical authority citations at the end of the section. The
revision reads as follows:
Sec. 161.2 Enforcement for other agencies.
(a) * * *
(1) * * *
(2) * * *
(3) Importations, exportations, and transactions involving
identified goods, services, and technology with any of those countries
designated as subject to economic sanctions under the laws and
regulations administered by the Office of Foreign Assets Control of the
Department of the Treasury.
* * * * *
Michael H. Lane,
Acting Commissioner of Customs.
Approved: April 8, 1996.
John P. Simpson,
Deputy Assistant Secretary of the Treasury.
[FR Doc. 96-12373 Filed 5-16-96; 8:45 am]
BILLING CODE 4820-02-P
Complete official Federal Register PDF
FR Doc. 96-12372 Removal of Customs Regulations Relating to the Steel Voluntary Restraint Arrangement Program
[Federal Register Volume 61, Number 97 (Friday, May 17, 1996)]
[Rules and Regulations]
[Pages 24887-24888]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-12372]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE TREASURY
Customs Service
19 CFR Part 10
[T.D. 96-41]
RIN 1515-AB04
Removal of Customs Regulations Relating to the Steel Voluntary
Restraint Arrangement Program
AGENCY: U.S. Customs Service, Department of the Treasury.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: On September 13, 1990, T.D. 90-70 was published in the Federal
Register (55 FR 37701) to set forth interim amendments to the Customs
Regulations regarding the entry requirements applicable to imported
steel products which are subject to voluntary restraint arrangements
negotiated between the United States and certain steel-exporting
countries. This document removes those interim regulations as a
consequence of the expiration of the steel voluntary restraint
arrangement program.
EFFECTIVE DATE: May 17, 1996.
FOR FURTHER INFORMATION CONTACT: Frank Crowe, Office of Field
Operations (202-927-0164).
SUPPLEMENTARY INFORMATION:
Background
On September 13, 1990, Customs published in the Federal Register
T.D. 90-70, 55 FR 37701, which amended Part 10 of the Customs
Regulations (19 CFR Part 10) by setting forth interim regulations
concerning entry requirements applicable to imported steel products
subject to voluntary restraint arrangements (VRAs) negotiated between
the United States and certain steel-exporting countries and enforced
under the Steel Import Stabilization Act (title VIII of Public Law 98-
573, codified at 19 U.S.C. 2253 note), as amended by the Steel Trade
Liberalization Program Implementation Act (Public Law 101-221, 103
Stat. 1886). The interim regulations consisted of new Secs. 10.321-
10.323 (19 CFR 10.321-10.323) and set forth, in Sec. 10.323, the basic
requirement that a valid and properly executed original export
certificate or export license, issued by the country of origin of the
products, shall be submitted at the time of entry of each shipment of
arrangement products. The interim regulations went into effect on the
date of publication. On October 22, 1990, Customs published a document
in the Federal Register at 55 FR 42556 to correct the interim
regulations by removing paragraph (d) from new interim section 10.323,
with effect from September 13, 1990. No document was ever published in
the Federal Register adopting the interim regulations as a final rule.
As noted in the background discussion set forth in T.D. 90-70,
section 3(a) of the Steel Trade Liberalization Program Implementation
Act, cited above, extended the President's authority to enforce the
VRAs until March 31, 1992, and it was for this reason that
Sec. 10.322(a) of the interim regulations, in defining the term
``arrangement'' for purposes of Sec. 10.323, referred specifically to a
period extending only through that date. Thus, in the absence of a
further extension of the President's authority and a consequential
amendment to the interim regulations, it was intended that those
regulations would by their own terms cease to have effect after March
31, 1992.
Since no action was taken by Congress to extend the President's VRA
enforcement authority beyond March 31, 1992, that authority, and thus
in effect the VRA program itself, expired on that date and Customs
thereafter ceased to enforce the interim regulatory provisions.
Accordingly, because those interim regulations no longer have any
purpose or effect, Customs believes that it is appropriate to remove
them.
Inapplicability of Notice and Delayed Effective Date Requirements
Since this amendment merely conforms the Customs Regulations to
current legal requirements and has no substantive effect on the public,
pursuant to the provisions of 5 U.S.C. 553(b)(B), it is determined that
notice and public procedures thereon are unnecessary. For the same
reasons, it is determined under the provisions of 5 U.S.C. 553(d)(3)
that good cause exists for dispensing with a delayed effective date.
Executive Order 12866
This document does not meet the criteria for a ``significant
regulatory action'' as specified in Executive Order 12866.
Regulatory Flexibility Act
Pursuant to the provisions of the Regulatory Flexibility Act (5
U.S.C. 601 et seq.), it is certified that the amendment will not have a
significant economic impact on a substantial number of small entities
because the amendment merely removes regulatory provisions that have
already ceased to have legal effect. Accordingly, the amendment is not
subject to the regulatory analysis or other requirements of 5 U.S.C.
603 and 604.
Drafting Information
The principal author of this document was Francis W. Foote, Office
of Regulations and Rulings, U.S. Customs Service. However, personnel
from other offices participated in its development.
List of Subjects in 19 CFR Part 10
Customs duties and inspections, Imports, Steel products.
Amendments to the Regulations
Accordingly, for the reasons set forth above, Part 10, Customs
Regulations (19 CFR Part 10), is amended as set forth below.
PART 10--ARTICLES CONDITIONALLY FREE, SUBJECT TO A REDUCED RATE,
ETC.
1. The general authority citation for Part 10 continues to read as
follows, and the specific authority citation for Secs. 10.321 through
10.323 is removed:
Authority: 19 U.S.C. 66, 1202 (General Note 20, Harmonized
Tariff Schedule of the United States), 1321, 1481, 1484, 1498, 1508,
1623, 1624, 3314;
* * * * *
[[Page 24888]]
Sec. 10.321 through 10.323 [Removed]
2. Sections 10.321 through 10.323 and their center heading are
removed.
George J. Weise,
Commissioner of Customs.
Approved: April 29, 1996.
John P. Simpson,
Deputy Assistant Secretary of the Treasury.
[FR Doc. 96-12372 Filed 5-16-96; 8:45 am]
BILLING CODE 4820-02-P
Complete official Federal Register PDF
FR Doc. 96-12351 Allyl Isothiocyanate as a Component of Food Grade Oil of Mustard; Exemption From the Requirement of a Tolerance
[Federal Register Volume 61, Number 97 (Friday, May 17, 1996)]
[Rules and Regulations]
[Pages 24893-24894]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-12351]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 180
[PP 5F4445/R2235; FRL-5366-4]
Allyl Isothiocyanate as a Component of Food Grade Oil of Mustard;
Exemption From the Requirement of a Tolerance
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This rule establishes an exemption from the requirement for a
tolerance for residues of the insecticide and repellent, Allyl
isothiocyanate (as a component of food grade Oil of Mustard), in or on
all raw agricultural commodities, when applied according to approved
labeling. Champon 100% Natural Products, Inc. of Boca Raton, Florida,
requested this exemption.
EFFECTIVE DATE: This regulation becomes effective May 17, 1996.
ADDRESSES: Written objections and hearing requests, identified by the
document control number, [[PP 5F4445/R2235], may be submitted to:
Hearing Clerk (1900), Environmental Protection Agency, Rm. M3708, 401 M
St., SW., Washington, DC 20460. Fees accompanying objections and
hearing requests shall be labeled ``Tolerance Petition Fees'' and
forwarded to: EPA Headquarters Accounting Operations Branch, OPP
(Tolerance Fees), P.O. Box 360277M, Pittsburgh, PA 15251. A copy of any
objections and hearing requests filed with the Hearing Clerk should be
identified by the document control number and submitted to: Public
Response and Program Resources Branch, Field Operations Division
(7506C), Office of Pesticide Programs, Environmental Protection Agency,
401 M St., SW., Washington, DC 20460. In person, bring copy of
objections and hearing requests to: Rm. 1132, CM #2, 1921 Jefferson
Davis Hwy., Arlington, VA 22202.
A copy of objections and hearing requests filed with the Hearing
Clerk may also be submitted electronically by sending electronic mail
(e-mail) to: [email protected]. Copies of objections and
hearing requests must be submitted as an ASCII file avoiding the use of
special characters and any form of encryption. Copies of objections and
hearing requests will also be accepted on disks in WordPerfect in 5.1
file format or ASCII file format. All copies of objections and hearing
requests in electronic form must be identified by the docket number [PP
5F4445/R2235]. No Confidential Business Information (CBI) should be
submitted through e-mail. Electronic copies of objections and hearing
requests on this rule may be filed online at many Federal Depository
Libraries. Additional information on electronic submissions can be
found below in this document.
FOR FURTHER INFORMATION CONTACT: By mail: Robert Forrest, Product
Manager (PM) 14, Registration Division (7505C), Environmental
Protection Agency, 401 M St., SW., Washington, DC 20460. Office
location and telephone number: Rm. 219, CM #2, 1921 Jefferson Davis
Highway, Arlington, VA 22202. (703) [305-6600].
SUPPLEMENTARY INFORMATION: In the Federal Register of October 25, 1995,
(60 FR 54689), EPA issued a notice that Champon 100% Natural Products,
Inc., had submitted pesticide petition (PP) 5F4445 to EPA proposing to
amend 40 CFR part 180 by establishing a regulation pursuant to section
408 of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C.
346a(d), ``... to establish an exemption from the requirement of a
tolerance for allyl isothiocyanate (a component of oil of mustard) in
or on all fruits and vegetables, nuts, berries, and grains.'' There
were no public comments received as a result of the publication of the
notice of filing.
Allyl isothiocyanate, the subject of this exemption request, is a
component of Oil of Mustard. The Agency has registered this active
ingredient as a dog or cat repellent since 1962. Then, in 1991, the
Agency registered three products as an insecticide and repellent to
Champon 100% Natural Products for non-food/non-feed uses. This
exemption request expands the use of this active ingredient for food/
feed uses.
The Agency has evaluated the data and other relevant material
submitted with the petition or obtained from other sources. These data
and material show that:
1. Allyl isothiocyanate, as a component of oil of mustard, is on
the Food and Drug Administration (FDA) Generally Recognized as Safe
(GRAS) list (21 CFR 182.10, 182.20, 582.10 and 582.20).
[[Page 24894]]
2. Oil of Mustard, as a component of household Yellow Mustard and
Brown Mustard, has been used in a variety of food products [baked
goods, oils, meats, processed vegetables, snack foods, soups, nut
products, and gravies at concentrations up to 18,344 parts per million
(ppm)], for a long time, without any known deleterious health effects.
3. The Acute Oral LD50 for Allyl isothiocyanate, in rats, is
339 mg/kg body weight (Toxicity Category II). An end-use formulation,
as applied, contains only 0.2% Allyl isothiocyanate, which represents a
500-fold dilution of active ingredient.
4. The Acute Oral LD50 for Oil of Mustard, in rats, is 14.8 g/
kg body weight (Toxicity Category IV).
The toxicology data and other information provided are sufficient
to demonstrate that there are no foreseeable human health hazards
likely to arise from the use of the insecticide, Allyl isothiocyanate
(as a component of food grade Oil of Mustard), in or all raw
agricultural commodities.
This pesticide/repellent is considered useful for the purpose for
which the exemption from tolerance is sought and capable of achieving
its physical or technical effect.
Based on the information considered, the Agency concludes that
establishment of a tolerance is not necessary to protect the public
health. Therefore, the exemption from tolerance is established as set
forth below.
Any person adversely affected by this regulation may, within 30
days after publication of this document in the Federal Register, file
written objections to the regulation and may also request a hearing on
those objections. Objections and hearing requests must be filed with
the Hearing Clerk, at the address given above (40 CFR 178.20). A copy
of the objections and/or hearing requests filed with the Hearing Clerk
should be submitted to the OPP docket for this rulemaking. The
objections submitted must specify the provisions of the regulation
deemed objectionable and the grounds for the objections (40 CFR
178.25). Each objection must be accompanied by the fee prescribed by 40
CFR 180.33(i). If a hearing is requested, the objections must include a
statement of the factual issue(s) on which a hearing is requested, the
requestor's contentions on such issues, and a summary of any evidence
relied upon by the objector (40 CFR 178.27). A request for a hearing
will be granted if the Administrator determines that the material
submitted shows the following: There is genuine and substantial issue
of fact; there is reasonable possibility that available evidence
identified by the requestor would, if established, resolve one or more
of such issues in favor of the requestor, taking into account
uncontested claims or facts to the contrary; and resolution of the
factual issue(s) in the manner sought by the requestor would be
adequate to justify the action requested (40 CFR 178.32).
Under Executive Order 12866 (58 FR 51735, October 4, 1993), the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to all the requirements of the Executive Order
(i.e., Regulatory Impact Analysis, review by the Office of Management
and Budget (OMB)). Under section 3(f), the order defines
``significant'' as those actions likely to lead to a rule (1) having an
annual effect on the economy of $100 million or more, or adversely and
materially affecting a sector of the economy, productivity,
competition, jobs, the environment, public health or safety, or State,
local or tribal governments or communities (also known as
``economically significant''); (2) creating serious inconsistency or
otherwise interfering with an action taken or planned by another
agency; (3) materially altering the budgetary impacts of entitlement,
grants, user fees, or loan programs; or (4) raising novel legal or
policy issues arising out of legal mandates, the President's
priorities, or the principles set forth in this Executive Order.
Pursuant to the terms of this Executive Order, EPA has determined
that this rule is not ``significant'' and is therefore not subject to
OMB review. In addition, this action does not impose any enforceable
duty, or contain any ``unfunded mandates'' as described in Title II of
the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4), or require
prior consultation as specified by Executive Order 12875 (58 FR 58093,
October 28, 1993), entitled Enhancing the Intergovernmental
Partnership, or special considerations as required by Executive Order
12898 (59 FR 7629, February 16, 1994).
Pursuant to the requirements of the Regulatory Flexibility Act
(Pub. L. 96-354, 94 Stat. 1164, 5 U.S.C. 601-612), the Administrator
has determined that regulations establishing new tolerances or raising
tolerance levels or establishing exemptions from tolerance requirements
do not have a significant economic impact on a substantial number of
small entities. A certification statement to this effect was published
in the Federal Register of May 4, 1981 (46 FR 24950).
List of Subjects in 40 CFR Part 180
Environmental protection, Administrative practice and procedure,
Agricultural commodities, Pesticides and pests, Reporting and
recordkeeping requirements.
Dated: May 8, 1996.
Daniel M. Barolo,
Director, Office of Pesticide Programs.
PART 180--[AMENDED]
Therefore, 40 CFR Part 180 is amended as follows:
1. The authority citation for part 180 continues to read as
follows:
Authority: 21 U.S.C. 346A and 371.
2. By adding Sec. 180.1167 to subpart D to read as follows:
Sec. 180.1167 Allyl isothiocyanate as a component of food grade oil
of mustard; exemption from the requirement of a tolerance.
The insecticide and repellent Allyl isothiocyanate is exempt from
the requirement of a tolerance for residues when used as a component of
food grade oil of mustard, in or on all raw agricultural commodities,
when applied according to approved labeling.
[FR Doc. 96-12351 Filed 5-16-96; 8:45 am]
BILLING CODE 6560-50-F
Complete official Federal Register PDF
FR Doc. 96-12341 Capital Leases
[Federal Register Volume 61, Number 97 (Friday, May 17, 1996)]
[Rules and Regulations]
[Pages 25088-25090]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-12341]
[[Page 25087]]
_______________________________________________________________________
Part III
Department of Transportation
_______________________________________________________________________
Federal Transit Administration
_______________________________________________________________________
49 CFR Part 639
Capital Leases; Final Rule
Federal Register / Vol. 61, No. 97 / Friday, May 17, 1996 / Rules and
Regulations
[[Page 25088]]
DEPARTMENT OF TRANSPORTATION
Federal Transit Administration
49 CFR Part 639
[Docket No. FTA-96-1031]
RIN 2132-AA55
Capital Leases
AGENCY: Federal Transit Administration, DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This final rule amends ``Capital Leases'' to treat maintenance
costs under a commercial lease of a capital asset as an eligible
capital expense. ``Capital Leases'' implements section 308 of the
Surface Transportation and Uniform Relocation Assistance Act of 1987,
which allows capital grants under the Federal transit laws to be used
for leasing facilities or equipment if a lease is more cost effective
than purchase or construction of such items. FTA believes that this
amendment is consistent with industry practice and with recent Federal
initiatives to streamline federally assisted procurement practices and
to ensure that Federal investment in the nation's transportation
infrastructure is properly protected.
EFFECTIVE DATE: June 17, 1996.
ADDRESS: United States Department of Transportation, Central Dockets
Office, P-125, 400 Seventh Street, S.W., Washington, D.C. 20590.
FOR FURTHER INFORMATION CONTACT: Rita Daguillard, Deputy Assistant
Chief Counsel, Office of Chief Counsel, (202) 366-1936, or Douglas
Kerr, Office of Program Guidance and Support, (202) 366-1656.
I. Supplementary Information
A. -Background
Under 49 U.S.C. 5307, Federal funds are provided to urbanized areas
on the basis of a statutory formula. These funds are available for the
acquisition or construction of mass transportation facilities and
equipment (``capital assistance grants''), as well as for payment of a
portion of the net operating cost of mass transportation facilities and
equipment (``operating assistance grants'').
Historically, Federal Transit Administration (FTA) recipients had
the discretion to acquire capital assets by long-term or short-term
lease, but few did so, since the significant portion of the lease cost
(as much as forty percent) representing imputed interest was ineligible
for reimbursement under Office of Management and Budget (OMB) cost
principles (OMB Circular A-87, ``Cost Principles for State, Local, and
Indian Tribal Governments'').
In 1987, section 308 of the Surface Transportation and Uniform
Relocation Assistance Act, Public Law 100-17 (STURAA), expressly
authorized the use of section 5307 capital assistance funds to acquire
facilities and equipment by lease where leasing is more cost effective
than purchase or construction. As explained in the accompanying Senate
Report, section 308
-permits grantees to use [section 5307] grant funds to lease major
capital cost items such as computers, maintenance of way and other
heavy equipment, maintenance of effort rail equipment, radio
equipment, bus garages, property or structures for park and ride,
and other buildings or facilities used for mass transit purposes.
The Committee recognizes that it is often more cost effective for
grantees to lease rather than purchase major capital items. Leasing
arrangements can also provide transit authorities with flexibility
that is needed, for example, to maintain technological advance in
their communications and computing equipment or to adapt buildings
and other facilities to changing needs. By including this section,
the Committee intends to help grantees better manage their
operations and conduct long-term and short-term planning.
S. Rep. No. 3, 100th Cong., 1st Sess. 6 (1987).
On October 15, 1991, FTA issued 49 CFR Part 639 (56 FR 51786),
which implements section 308. The rule provides that capital grants
under section 5307 may be used for leasing facilities or equipment if
leasing is more cost effective than purchase or construction of such
items. Section 639.27 lists maintenance costs among the factors that a
recipient may consider in making its cost-effectiveness determination.
Section 639.17, provides that ``only costs directly attributable to
making a capital asset available to the lessee are eligible for capital
assistance'' and cites as examples finance charges and ancillary costs
such as delivery and installation charges.
B. -The Notice of Proposed Rulemaking
On January 31, 1996, FTA issued a notice of proposed rulemaking
(NPRM) that would amend section 639.17 to recognize maintenance costs
as ``costs directly attributable to making a capital asset available to
the lessee.'' In the NPRM, FTA stated that this amendment appeared to
be consistent with common industry practice and Federal procurement
streamlining measures.
The NPRM pointed out that in reviewing the subject of capital
leases, particularly vehicle leases, FTA had noted that maintenance and
repair costs are often an integral component of standard commercial
lease agreements and that use of capital assistance for such costs is
expressly permitted under section 5307. Many commercial vehicle leases,
for instance, state that the lessor will provide all maintenance,
repairs, and replacement parts needed to keep the capital asset in good
operating condition. These services are included in the overall lease
cost, rather than being itemized as a separate charge. In such cases,
it is not feasible for lessees to separate maintenance charges from the
overall lease cost. The NPRM stated that requiring grantees to do so
imposes an accounting burden that is inconsistent with Congress'
recognition that leasing is often more cost effective and with its
intention in section 308 to facilitate grantee operations.
The NPRM moreover noted that since regular maintenance is necessary
to ensure the availability and adequate functioning of a capital asset,
FTA believes that it is an essential and inseparable element of the
lease agreement. Congress has expressly recognized this relationship in
allowing capital assistance to be used to acquire ``associated capital
maintenance items'' under section 5307(b)(1), where such items would
otherwise have to be funded under the operating assistance program. FTA
therefore proposed to recognize maintenance charges as eligible capital
costs under a commercial lease directly attributable to the lessee's
use of the asset within the definition of section 639.17.
The NPRM pointed out that this proposal is consistent with several
recent initiatives, including the President's National Performance
Review, Executive Order 12931 (Federal Procurement Reform), and the
Federal Acquisition Streamlining Act of 1994 (FASA) (Pub. L. 103-355,
108 Stat. 3243 (October 13, 1994)), which direct Federal agencies to
remove administrative burdens in procurement processes. They encourage
and facilitate the procurement of commercially available items by
exempting agencies from unnecessarily burdensome government-unique
certifications and accounting requirements that add costs and
discourage companies from doing business with them. Section 8203 of
FASA, for instance, requires that agencies use uniform, simplified
contracts for the procurement of commercial items and that they revise
all procurement procedures not required by law to eliminate impediments
to use of such contracts. In the NPRM, FTA stated that requiring its
recipients to account separately for maintenance costs under a
commercial lease is
[[Page 25089]]
unnecessarily burdensome and makes such leases more costly and
cumbersome to administer. Recognizing these costs explicitly in section
639.17 should facilitate recipients' acquisition and maintenance of
capital assets by allowing them to enter into standard commercial lease
agreements more easily and at less cost.
The NPRM stated that this proposal is consistent with FTA's
recently issued Circular 4220.1C (``Third Party Contracting
Requirements,'' October 1, 1995''), which reduces FTA requirements;
provides grantees increased flexibility in soliciting, awarding, and
administering contracts; reduces FTA's role in third party procurement
activity; and allows recipients to use their own procurement practices
that reflect State or local laws, provided that they conform to
applicable Federal law. FTA noted that neither section 308 of the
STURAA nor the accompanying Senate Report indicates that maintenance
costs should not be treated as eligible capital expenses.
In the NPRM, FTA sought comment on its proposal to recognize
maintenance costs as eligible capital expenses under leasing
agreements.
C. Comments on the NPRM
FTA received ten comments in response to the NPRM: six from public
transit agencies, two from State departments of transportation, one
from a metropolitan planning organization, and one from an association
representing local mass transit systems.
All of the commenters strongly supported FTA's proposal to
recognize maintenance costs as eligible capital expenses under leasing
agreements. They pointed out that the proposed amendment would
streamline the procurement process for transit managers and allow them
to make contractual arrangements consistent with standard business
practices. Two commenters opined that in the current climate of
declining Federal operating assistance, the ability to charge
maintenance costs as capital expenditures would somewhat ease the
impact of these reductions. Overall, the commenters agreed that the
amendment would be a positive step toward both increased flexibility in
the use of grant funds and decreased administrative burdens on
grantees.
One commenter asked whether the costs of maintaining shared
elements of a communications network could be eligible capital expenses
under the amendment. The commenter noted that the capital items
mentioned in the NPRM were for the exclusive use of the lessee, e.g.,
bus garages, computers, etc. Communications networks, on the other
hand, include both shared elements and components that are used
exclusively by the lessee. Both, however, are inseparable elements of
the network, and maintenance of both is essential to its proper
operation.
As the NPRM indicated, the proposed amendment is intended to allow
all maintenance services included in the overall lease cost of a
capital item to be treated as an eligible capital expense. Therefore,
any maintenance services charged to a grantee's capital lease would be
eligible, whether they are for shared-use or exclusive-use segments of
a system. Moreover, sections 639.25 and 639.27 of the regulation
provide that estimated lease costs must be reasonable based on
conditions applicable to the recipient, and that recipients are to use
maintenance costs as a criterion in comparing leasing with purchasing
or constructing an asset. Therefore, recipients may enter into leases
of communications networks only if their share of the costs of
maintaining common elements is reasonable, and if the cost of leasing,
including the maintenance services, is more advantageous than purchase
or construction. To the extent that these criteria are met, the cost of
maintaining common elements of a communications or other network under
a lease agreement would be an eligible capital expense.
One commenter recommended extending the amendment to rural transit
services using Federal funds under 49 U.S.C. 5311, since rural systems
play an integral role in State transportation networks but lack
adequate maintenance resources. As indicated above, under the OMB
Circular A-87 requirements that were in effect at the time FTA's
leasing regulation was initially promulgated, the portion of the lease
cost representing imputed interest was ineligible for reimbursement
unless expressly authorized by statute. Because section 308 of the
STURAA applied specifically to the use of section 5307 funds, the
leasing regulation covered only that program. However, in a recent
revision of Circular A-87 (60 FR 26484, May 17, 1995), OMB changed its
requirements to allow the reimbursement of interest payments under
financing arrangements such as lease agreements. Therefore, specific
statutory authorization is no longer required to permit capital
reimbursement for the interest portion of any federally funded lease.
Accordingly, 49 CFR Part 639 is now applicable to all FTA programs. -
One commenter suggested that FTA allow all maintenance costs,
including those that are not part of a lease agreement, to be treated
as eligible capital expenses. The commenter stated that regular
maintenance is necessary to ensure the availability and adequate
functioning of all capital assets. Therefore, even in instances where
maintenance expenses are paid separately by a recipient under either a
lease or purchase arrangement, reimbursement at the capital rate should
be allowed.
The commenter's suggestion goes far beyond the scope of this
proposed amendment, whose purpose is to facilitate recipient's entry
into standard commercial leases that include maintenance and repair
costs as integral components. Moreover, as noted above, neither section
308 of the STURAA nor the accompanying Senate Report indicates that
maintenance costs should not be treated as eligible capital expenses
under a lease arrangement. FTA therefore believes that it has the
statutory authority necessary to amend the regulation to allow the
reimbursement as capital expenses of maintenance costs included in
lease payments. However, FTA does not at the present time interpret its
statutory authority to permit maintenance costs incurred outside of a
lease agreement to be treated as capital expenses. In order to provide
recipients with greater flexibility in their use of grant funds, FTA is
considering seeking such authorization, and will amend its grant
requirements accordingly at such time.
Another commenter noted that under its Capital Cost of Contracting
Policy (FTA Circular 7010.1, December 5, 1986), FTA must approve all
leases for vanpool vehicles when section 5307 funds represent more than
35 percent of the lease cost. The commenter proposed that this
requirement be eliminated in the interest of streamlining the grant
process and removing administrative burdens on acquisitions.
First, the Capital Cost of Contracting Policy should not be
confused with capital leasing under 49 CFR 639. Under the Capital Cost
of Contracting Policy, a recipient contracts with a private carrier to
provide mass transit service. The percentage of the service
representing ``the capital consumed in the contract'' may be paid for
with capital funds. Under the capital leasing rule, recipients may
acquire tangible assets by lease, and all eligible lease costs may be
reimbursed as capital expenses. Second, FTA has used industry studies
and other objective data to determine which percentage of the service
under a Capital Cost of Contracting arrangement
[[Page 25090]]
should be eligible for capital reimbursement. Until it receives
information justifying another percentage, it will not amend its
Capital Cost of Contracting Policy, and reserves the right to review
all contracts in which reimbursement with section 5307 capital funds
exceeds that percentage.
Five commenters remarked that the language of section 639.17(b) as
currently written contradicts the intent of the NPRM, since it could be
construed to disqualify maintenance costs as eligible capital expenses.
Section 639.17(b) now provides that ``the costs of materials, supplies
and services provided under the terms of the lease may not be eligible
for capital assistance, if they would not be eligible for capital
assistance under a traditional purchase or construction grant.''
Maintenance costs have not been eligible for capital assistance under a
traditional purchase or construction grant, and section 639.17(b) could
be interpreted to preclude their reimbursement at the capital level.
The commenters requested clarification of section 639.17(b), and one
recommended revised language for that section providing such
clarification.
D. FTA'S Final Action
In keeping with the comments received, FTA will amend section
639.17(a) to recognize maintenance costs as eligible capital expenses
under a lease agreement. FTA believes that this action removes a
significant impediment to capital leasing, and provides flexibility
that can foster further innovations in the use of Federal funds.
FTA is also revising section 639.17(b) to define eligibility for
capital assistance in a manner that should not be construed to
eliminate maintenance costs as an eligible capital expense.
II. Regulatory Impacts
A. -Executive Order 12866
FTA has determined that this action is not significant under
Executive Order 12866 or the regulatory policies and procedures of
Department of Transportation regulatory policies and procedures. Since
this final rule makes only a technical amendment to current regulatory
language, it is anticipated that the economic impact of this rulemaking
will be minimal; therefore, a full regulatory evaluation is not
required.
B. -Regulatory Flexibility Act
In accordance with 5 U.S.C. 603(a), as added by the Regulatory
Flexibility Act, Pub. L. 96-354, FTA certifies that this rule will not
have a significant impact on a substantial number of small entities
within the meaning of the Act.
C. -Paperwork Reduction Act
This action does not contain a collection of information
requirement for purposes of the Paperwork Reduction Act of 1995.
D. -Executive Order 12612
This action has been reviewed under Executive Order 12612 on
Federalism and FTA has determined that it does not have implications
for principles of federalism that warrant the preparation of a
Federalism Assessment. If promulgated, this rule will not limit the
policy making or administrative discretion of the States, nor will it
impose additional costs or burdens on the States, nor will it affect
the States' abilities to discharge the traditional governmental
functions or otherwise affect any aspect of State sovereignty.
III. List of Subjects in 49 CFR Part 639
Government contracts, Grant programs--Transportation, Mass
transportation.
Accordingly, for the reasons described in the Preamble of this
document, FTA is proposing to amend Title 49, Code of Federal
Regulations, Part 639 as follows:
PART 639--[AMENDED]
1. The authority citation for Part 639 is revised to read as
follows:
Authority: 49 U.S.C. 5307; 49 CFR 1.51.
2. Section 639.17 is revised to read as follows:
Sec. 639.17 Eligible lease costs.
(a) All costs directly attributable to making a capital asset
available to the lessee are eligible for capital assistance, including,
but not limited to--
(1) Finance charges, including interest;
(2) Ancillary costs such as delivery and installation charges; and
(3) Maintenance costs.
(b) Any asset leased under this part must be eligible for capital
assistance under a traditional purchase or construction grant.
Issued on: May 13, 1996. ----------------
Gordon J. Linton,
Administrator.
[FR Doc. 96-12341 Filed 5-16-96; 8:45 am]
BILLING CODE 4910-57-U
Complete official Federal Register PDF
FR Doc. 96-12217 Implementation of Section 273(d)(5) of the Communications Act of 1934, as Amended by the Telecommunications Act of 1996; Dispute Resolution Regarding Equipment Standards
[Federal Register Volume 61, Number 97 (Friday, May 17, 1996)]
[Rules and Regulations]
[Pages 24897-24904]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-12217]
=======================================================================
-----------------------------------------------------------------------
FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 64
[GC Docket No. 96-42; FCC 96-205]
Implementation of Section 273(d)(5) of the Communications Act of
1934, as Amended by the Telecommunications Act of 1996; Dispute
Resolution Regarding Equipment Standards
AGENCY: Federal Communications Commission.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: In order to implement a new statutory provision of the
Telecommunications Act of 1996, the Commission adopts rules
establishing a default dispute resolution process to be used when
technical disputes arise between a non-accredited standards development
organization (NASDO) and any party who funds the activities of the
NASDO. Under the new rules, disputes will be resolved by a
recommendation of a three-person expert panel, selected by both the
disputing party and the NASDO, with the recommendation subject to
disapproval by a vote of three-fourths of the other funding parties. As
intended by Congress, this procedure ensures that disputes can be
resolved in an open, non-discriminatory, and unbiased fashion within 30
days, and it will be used only when all of the parties are unable to
agree on a process for resolving their disputes. In addition, persons
who willfully refer frivolous disputes will be subject to forfeiture
pursuant to section 503(b) of the Communications Act.
EFFECTIVE DATE: June 17, 1996.
FOR FURTHER INFORMATION CONTACT: Sharon B. Kelley, Office of General
Counsel, (202) 418-1720.
SUPPLEMENTARY INFORMATION:
Adopted: May 7, 1996.
Released: May 7, 1996.
I. Introduction
1. The Telecommunications Act of 1996,1 amended the
Communications Act by creating new sections 273 (d)(4) and (d)(5),
which set forth procedures to be followed by non-accredited standards
development organizations (NASDOs),2 such as Bellcore, when these
organizations promulgate industry-wide 3 standards and generic
requirements 4 for telecommunications equipment. Typically, as in
the case of Bellcore, carriers fund these voluntary standard setting
activities in order to assist the carriers in developing standards to
guide their subsequent purchases of telecommunications equipment.
---------------------------------------------------------------------------
\1\ Pub. L. 104-104, 110 Stat. 56 (1996).
\2\ As defined in section 273(d)(8)(E), ``[t]he term
`accredited standards development organization' means any entity
composed of industry members which have been accredited by an
institution vested with the responsibility for standards
accreditation by the industry.'' 47 U.S.C. 273(d)(8)(E). Thus, for
example, Bell Communications Research, Inc. (Bellcore) would not be
an accredited standards development organization and is subject to
the section 273 procedures. H.R. Cong. Rep. No. 230, 104th Cong., 2d
Sess. 39 (1996).
\3\ As defined in section 273(d)(8)(C), ``[t]he term `industry-
wide' means activities funded by or performed on behalf of local
exchange carriers for use in providing wireline telephone exchange
service whose combined total of deployed access lines in the United
States constitutes at least 30 percent of all access lines deployed
by telecommunications carriers in the United States as of the date
of the enactment of the Telecommunications Act of 1996.'' 47 U.S.C.
273(d)(8)(C).
\4\ As defined in section 273(d)(8)(B), ``[t]he term `generic
requirement' means a description of acceptable product attributes
for use by local exchange carriers in establishing product
specification for the purchase of telecommunications equipment,
customer premises equipment, and software integral thereto.'' 47
U.S.C. 273(d)(8)(B).
---------------------------------------------------------------------------
2. In this Report and Order, the Commission adopts rules to
implement new section 273(d)(5), which requires the Commission to
prescribe a default dispute resolution process when technical disputes
arise between the NASDO and any parties who fund the standards setting
activities of the NASDO. In accordance with the statute, this
``default'' procedure would be used only when all funding parties are
unable to reach agreement as to a means for resolving technical
disputes. As described below, we have decided that disputes governed by
section 273(d)(5) should be resolved in accordance with the
recommendation of a three-person
[[Page 24898]]
expert panel, selected by both the disputing party and the NASDO, with
the recommendation subject to disapproval by a vote of three-fourths of
the other funding parties.
II. Background
3. As detailed in the Notice of Proposed Rulemaking (NPRM), 61 FR
9966, March 12, 1996, the purpose of this proceeding is to establish
dispute resolution procedures in accordance with new section 273(d)(5)
of the Act.5 Section 273(d)(5) was enacted in conjunction with
other procedures, set forth in section 273(d)(4), that impose new
procedural requirements on voluntary standards setting activities by
NASDOs, such as Bellcore, which is owned by the regional Bell operating
companies (RBOCs). As indicated above, Bellcore sets voluntary
standards to assist in the carriers' purchase of telecommunications
equipment. The statutory procedures generally require more openness and
fairness in the standards setting process, particularly in light of the
potential that, under other provisions of the Telecommunications Act,
the BOCs may be permitted to engage in the manufacture of
telecommunications equipment.6
---------------------------------------------------------------------------
\5\ 61 FR 9966, at para. 2.
\6\ 47 U.S.C. 273 (d)(4), (e).
---------------------------------------------------------------------------
4. To foster more open procedures, under new section 273(d)(4), a
NASDO is required to issue a public invitation to interested industry
parties to fund and participate in setting any industry-wide standards
or generic requirements. Further, such funding and participation must
be allowed ``on a reasonable and nondiscriminatory basis, administered
in such a manner as not to unreasonably exclude any interested industry
party.'' 7 In the event of disputes on technical issues, the
NASDOs and funding parties must also attempt to develop a dispute
resolution process.8 Section 273(d)(5) requires the Commission to
prescribe within 90 days of the section's enactment a dispute
resolution process to be used if the parties cannot agree to a dispute
resolution process.9
---------------------------------------------------------------------------
\7\ Id.
\8\ Id.
\9\ 47 U.S.C. 273(d)(5).
---------------------------------------------------------------------------
5. Specifically, section 273(d)(5) provides:
[W]ithin 90 days after the date of enactment of the
Telecommunications Act of 1996, the Commission shall prescribe a
dispute resolution process to be utilized in the event that a
dispute resolution process is not agreed upon by all the parties
when establishing and publishing any industry-wide standard or
industry-wide generic requirement for telecommunications equipment
or customer premises equipment pursuant to paragraph (4)(A)(v). The
Commission shall not establish itself as a party to the dispute
resolution process. Such dispute resolution process shall permit any
funding party to resolve a dispute with the entity conducting the
activity that significantly affects such funding party's interests,
in an open, nondiscriminatory, and unbiased fashion, within 30 days
after the filing of such dispute. Such disputes may be filed within
15 days after the date the funding party receives a response to its
comments from the entity conducting the activity. The Commission
shall establish penalties to be assessed for delays caused by
referral of frivolous disputes to the dispute resolution process.
Thus, as described in new section 273(d)(5), the Commission's
dispute resolution process must be conducted in an open, non-
discriminatory and unbiased fashion and so that disputes are resolved
within 30 days of the filing of the dispute. The process is triggered
only if all funding parties fail to agree to a process for resolving
technical issues. Section 273(d)(5) also requires the Commission to
establish penalties to be assessed for delays caused by referral of
frivolous disputes to the dispute resolution process.10
---------------------------------------------------------------------------
\10\ Id.
---------------------------------------------------------------------------
6. In the NPRM, we invited members of the public to comment on our
proposal to require binding arbitration as the dispute resolution
process.11 We asked commenters to address the methods for
selecting an arbitrator or neutral and whether the Commission should
make its employees available to serve in that capacity.12 In
addition, we invited commenters to submit alternative proposals to
implement this statutory provision.13 Finally, the NPRM solicited
proposals or recommendations concerning the types of penalties that
should be assessed for delays caused by the referral of frivolous
disputes to the dispute resolution process.14
---------------------------------------------------------------------------
\11\ 61 FR at 9966-9967, para.3-para.6.
\12\ Id. at 9967, para.6.
\13\ Id. at 9966, para.2.
\14\ Id. at 9967, para.8.
---------------------------------------------------------------------------
7. We received comments from the following entities: (1) Bell
Atlantic; (2) Bellcore; (3) BellSouth Corporation and BellSouth
Communications, Inc. (BellSouth); (4) Corning Incorporated (Corning);
(5) Telecommunications Industry Association (TIA); and (6) U.S. West,
Inc. (U.S. West). Reply comments were received from: (1) Ameritech; (2)
American National Standards Institute (ANSI); (3) Alliance for
Telecommunications Industry Solutions (ATIS); (4) Bellcore; (5)
BellSouth; (6) Corning; (7) Northern Telecom, Inc. (Nortel); (8)
Pacific Bell; (9) SBC Communications, Inc. (SBC); (10) SpecTran Corp;
and (11) TIA. The Commission also received late-filed reply comments
from MCI and ex parte submissions from Bellcore, Corning and Nortel.
III. Discussion
A. Commission's Binding Arbitration Proposal
8. In the NPRM, we sought comment on a binding arbitration as a
method that could be used to satisfy the statutory dispute resolution
default provision requirement.15 We observed that this approach
appeared consistent with the stated purpose of section 273(d)(5), set
forth in the Conference Report, to ``enable all interested parties to
influence the final resolution of the dispute without significantly
impairing the efficiency, timeliness and technical quality of the
activity.'' 16 In addition, the NPRM concluded that binding
arbitration seemed to be the only feasible dispute resolution process
in view of the 30 day deadline for completion of the process.17
---------------------------------------------------------------------------
\15\ See note 10, supra.
\16\ Id. at 9967, para.3.
\17\ Id. at para.4.
---------------------------------------------------------------------------
9. For a variety of reasons, the commenting parties overwhelmingly
opposed the binding arbitration proposal set forth in the NPRM.18
The parties generally agreed with Corning's view in its initial
comments that binding arbitration would not adequately take into
account the broad impact of standards-related disputes on industry
participants other than the NASDO and the participating party who
invokes the dispute resolution process.19 The commenters also
indicated it would be difficult to identify a neutral arbitrator to
resolve these highly technical issues and to arbitrate these issues
within the 30-day time frame required by the law. TIA also stated that
the use of arbitrators would lead to ``compromise'' solutions that were
inappropriate in view of the technical nature of these disputes.20
Others, including Bellcore and U.S. West, believed that imposing
binding arbitration, without the consent of the parties, was
inconsistent with the
[[Page 24899]]
voluntary nature of the underlying standards process.21
---------------------------------------------------------------------------
\18\ See comments of Corning at ii, 6-7; comments of
Telecommunications Industry Association (TIA) at 2-3; comments of
Bellcore at i, 16-18; comments of Bell Atlantic at 2; comments of
U.S. West at 2-3; comments of BellSouth at 2-3; comments of Nortel
at 4; reply comments of Pacific Bell at 1; reply comments of
Alliance for Telecommunications Industry Solutions (ATIS) at 2;
reply comments of BellSouth at 1; reply comments of SBC at 2; reply
comments of Corning at 2; reply comments of Bellcore at 1. But see
late-filed comments of MCI at 1.
\19\ Comments of Corning at 6.
\20\ Comments of TIA at 2-3.
\21\ Comments of Bellcore at i, 16; comments of U.S. West at 3.
---------------------------------------------------------------------------
10. For example, as U.S. West observed, nothing in the
Telecommunications Act alters the fact that standards setting
activities by both accredited and non-accredited entities, continue to
remain voluntary, depending almost entirely on the good faith of the
individual funding entities for their ultimate success or
failure.22 Bellcore further observed in its comments that generic
requirements complement standards which by their very nature are not
binding on anyone, vendors or purchasers.23 While noting that
generic requirements provide valuable technical information to exchange
carriers, Bellcore underscored the fact that such requirements ``only
have meaning if exchange carriers choose to use them and if suppliers
choose to conform their products to them.'' 24
---------------------------------------------------------------------------
\22\ Comments of U.S. West at 2.
\23\ Comments of Bellcore at 17.
\24\ Id. at 5 and 17.
---------------------------------------------------------------------------
11. In late-filed comments, one commenter, MCI, supported the
Commission's binding arbitration proposal, finding it preferable to
either of two alternative proposals, discussed more fully below, that
had been submitted by Corning (Corning I) and Bellcore.25 As
discussed below, however, we conclude that a second proposal submitted
by Corning (Corning II) resolves many of the defects that had been
evident in both the Corning I and Bellcore alternatives. This proposal
also appears to be superior in some respects to the Commission's
proposal to use binding arbitration. Therefore, as explained below, we
have decided not to use binding arbitration as the default dispute
mechanism under section 273(d)(5). We will instead use the alternative
procedure proposed by Corning, the Corning II proposal, with some
modifications.
---------------------------------------------------------------------------
\25\ Late-filed reply comments of MCI at 1-3.
---------------------------------------------------------------------------
B. Commenters' Alternative Proposals
12. In addition to proposing the use of binding arbitration, the
NPRM invited commenters to submit alternative proposals. We noted that
other methods of alternative dispute resolution included, for example,
mediation, neutral evaluation, and hybrids of these methods.26 In
response, two very different alternative proposals were initially
submitted, one by Corning, a manufacturer of fiber optics equipment,
and another by Bellcore.
---------------------------------------------------------------------------
\26\ 61 FR at 9967,para.5.
---------------------------------------------------------------------------
13. The Corning I proposal involved referral of the technical
dispute to an accredited standards development organization (SDO). Many
parties commented on this proposal. Although comment was somewhat
divided, much of the comment was sharply critical of the proposal. For
example, Bellcore and many of the BOCs believed that the Corning I
proposal was inconsistent with congressional intent because it excluded
the funding parties from participating in resolution of the technical
dispute, even though the funders played a major role in funding the
NASDO's work and would be most affected by any dispute
resolution.27 They also pointed out that there was no assurance
that the SDOs had procedures in place that would enable resolution of
the dispute within the 30 day statutory time period. They further
believed that the process would often lead to no resolution at all of
key technical issues, thereby frustrating the essential purpose of
NASDOs to create standards that lead to efficiencies and
interoperability within the communications industry. Similarly, in its
late filed comments, MCI opposed the Corning I proposal because it was
unlikely to result in a binding decision.28
---------------------------------------------------------------------------
\27\ Comments of Bellcore at 3-4, 7; comments of BellSouth at 4.
\28\ Late-filed reply comments of MCI at 3.
---------------------------------------------------------------------------
14. The two organizations representing relevant SDOs who commented
were divided on the Corning I proposal. One of these, TIA, approved the
proposal, but the other organization, ATIS, strongly criticized the
proposal as promoting ``forum shopping.'' 29 ATIS further stated
that its Committee T1, which develops standards for network interfaces,
could not accommodate the statutorily mandated 30 day resolution
period.30 Similarly, the two manufacturing companies who commented
were divided, with one commenter, SpecTran Corp., supporting the
Corning I proposal, and the other, Nortel, strongly disagreeing with it
as inviting forum shopping and abuse.31
---------------------------------------------------------------------------
\29\ Comments of TIA at 2-3; reply comments of ATIS at 4-5.
\30\ Reply comments of ATIS at 4.
\31\ Comments of Nortel at 2-3; comments of SpecTran at 1.
---------------------------------------------------------------------------
15. Bellcore's original proposal is discussed below, in the context
of modifications to it suggested by Corning. In response to the
Bellcore proposal, Corning submitted a second proposal, which it
characterized as a compromise proposal, and which incorporated many
features of the dispute resolution proposal that had been submitted by
Bellcore.32 For the reasons discussed below, we conclude that
Corning's latest proposal, which we shall refer to as the Corning II
proposal, is generally consistent with the dispute resolution procedure
envisioned by Congress in section 273(d)(5). In addition, we believe
the Corning II proposal avoids many of the practical and other problems
associated with both the Corning I and Bellcore proposals. We have
therefore decided to adopt, with some modifications, the Corning II
proposal, which is described and discussed below.
---------------------------------------------------------------------------
\32\ Ex Parte submission of Corning at 1.
---------------------------------------------------------------------------
C. The Corning II Proposal
16. As indicated above, the dispute resolution rule we adopt in
this proceeding is based on a proposal suggested by Bellcore that has
been modified by Corning. The Corning II proposal retains many
significant features of the original Bellcore proposal that were
praised by those commenters who preferred Bellcore's proposal over
Corning I. Most significantly, unlike the Corning I plan, the Corning
II variation does not require that technical disputes be resolved in
forums other than the NASDO. Bellcore's original plan, and the Corning
II variation adopted here, permit the funding parties to resolve these
disputes internally. To that extent, we believe that the Corning II
proposal is consistent with Congress's intent that the process we
select should enable all interested parties to influence the final
resolution of the dispute.
17. Corning, however, suggests several changes to Bellcore's
proposal that we believe will better enable the resolution of disputes
in an ``open, non-discriminatory and unbiased fashion,'' consistent
with section 273(d)(5). For example, some commenters, primarily Corning
and MCI, expressed concern that the Bellcore proposal afforded too much
power to the BOCs and Bellcore in controlling resolution of any
disputes.33 The Corning II variation makes five major changes to
Bellcore's plan. Most of those changes, we believe, better promote the
statutory objectives of fair, unbiased decisionmaking. In response to
ex parte comments from Bellcore, however, we have modified some aspects
of the Corning II proposal to develop the dispute resolution default
process we now adopt.34
---------------------------------------------------------------------------
\33\ Reply comments of Corning at 14-16; late-filed comments of
MCI at 2.
\34\ See generally, ex parte submission of Bellcore.
---------------------------------------------------------------------------
18. Tri-Partite Panel. The Corning II proposal permits the
disputant to select only one dispute resolution approach. Under the
approach proposed by
[[Page 24900]]
Bellcore, the funding parties could, by majority vote, choose among
several ``default'' options for resolving disputes. These options
included ``escalating'' the dispute to higher decisionmaking bodies
within the NASDO; resolution of the dispute by a majority of those
funding the standards development effort; or, resolution of the dispute
based on the recommendation of a three-party expert advisory panel. The
Corning II variation, in contrast, retains only the option of using a
three-party expert panel, with one panelist selected by the disputing
party, another selected by the NASDO, and a third panelist selected
jointly by the panelists representing the NASDO and disputing party.
Persons who participated in the generic requirements or standards
development process, including the disputing party and the NASDO, are
eligible to serve on the panel. As with Bellcore's proposal, this
three-member panel, by majority vote, would make a written
recommendation concerning the dispute.
19. Several parties, including MCI, criticized some of the dispute
resolution options permitted under Bellcore's proposal, particularly
the escalation and majority vote options, because these options
appeared to give the BOCs undue power in resolving disputes.35 We
agree that the Corning II proposal, which retains only the option of
using a tri-partite expert panel, is superior in terms of avoiding the
potential that the BOCs or Bellcore would unduly dominate
decisionmaking.
---------------------------------------------------------------------------
\35\ Late-filed reply comments of MCI at 2.
---------------------------------------------------------------------------
20. In commenting on the Corning II proposal, however, Bellcore
continues to believe that, while a tri-partite panel should be
available as an option and as the fall-back in the event of a deadlock,
the funding parties should also be able to use escalation and other
procedures.36 We recognize that this variation on Bellcore's plan
removes some of the flexibility that several commenters had applauded
in commenting on Bellcore's proposal. We nevertheless conclude that the
advantage of the Corning II proposal in terms of avoiding possible
unfairness far outweighs any concern about loss of flexibility.
---------------------------------------------------------------------------
\36\ April 18, 1996, ex parte letter from Bellcore at 1.
---------------------------------------------------------------------------
21. Further, as reflected in Corning's comments and in the Corning
II proposed rule, disputing parties and Bellcore are also permitted to
agree to a means of dispute resolution other than the default procedure
provided for in section 273(d)(5). The statutory dispute provision
clearly is a remedial measure, which is designed to protect the
interests of disputing parties. Hence, the statute merely provides that
a disputing party has the option of using the section 273(d)(5) default
procedure. Section 273(d)(4) thus states that a disputing party ``may
utilize the dispute resolution procedures established pursuant to
[section 273(d)(5)] * * *'' (Emphasis added.) 37 The default
procedure therefore is not mandatory if the disputing party and
Bellcore both agree to select another approach. Accordingly, we believe
that parties will not be deprived of desirable flexibility even though
we have decided to limit the default dispute resolution procedure to a
single approach. We emphasize, as do many of the commenters, that
funding parties should adopt their own dispute resolution procedures
whenever possible.
---------------------------------------------------------------------------
\37\ 47 U.S.C. 273(d)(4).
---------------------------------------------------------------------------
22. Override Provision. A second major change to Bellcore's
proposal involves the Bellcore provision that would have allowed a
majority of the funding parties to reject the recommendation of the
tri-partite expert panel. We are sympathetic to the argument that any
dispute resolution procedure should permit the funding parties to
participate in dispute resolution by having some final say in how the
dispute is resolved. Nevertheless, we agree with Corning and other
parties, such as MCI and Nortel, who believe that allowing
``overrides'' by a simple majority of funders may afford too much power
to particular blocks of funding parties, including the regional BOCs
who currently own Bellcore.38
---------------------------------------------------------------------------
\38\ Ex parte submission of Corning at 1, note 1; reply comments
of Nortel at 7; late-filed comments of MCI at 2.
---------------------------------------------------------------------------
23. To resolve this concern, the Corning II proposal would
generally permit funding parties to override a panel recommendation by
a vote of three-fourths of the funding parties, excluding the party who
invoked the dispute resolution process and the NASDO. Each funding
party would have one vote. However, when a funding party has an
indirect equity interest in the NASDO or any ownership interest in
intellectual property that would be advantaged by the final resolution
of the dispute, a decision to reject the recommendation must be by a
unanimous vote of the funding parties, again excluding the party which
invoked the dispute resolution process and the NASDO.
24. Presumably, due to the regional BOCs' ownership interests in
Bellcore, the unanimous vote requirement would apply to Bellcore.
Bellcore is concerned that requiring a unanimous vote would permit an
affiliate of a disputing party, or another serving as its proxy, to
veto the decision of all carriers. Bellcore also believes that Nortel
has proposed a reasonable compromise in suggesting that a vote of two-
thirds of the funding parties voting be required to reject a panel
recommendation.39
---------------------------------------------------------------------------
\39\ Ex parte submission of Bellcore at 1.
---------------------------------------------------------------------------
25. In contrast to the original Bellcore proposal, we think a more
stringent ``override'' proposal offers better protection against biased
decisionmaking. We agree with Bellcore that requiring a unanimous vote
of funders may be too onerous. However, we think a fair compromise is
to require a vote by three-fourths of the voting funders both to reject
a panel's recommendation and to substitute another resolution of the
dispute. The three-fourths proposal avoids Bellcore's concern that a
unanimous vote requirement affords the disputing party the power to
veto the decision of all the carriers. At the same time, the three-
fourths requirement also decreases Corning's fear that a simple
majority--or possibly even a two-thirds vote--affords too much control
to the RBOC's.
26. Standard for Recommended Decision. The Corning II proposal has
recommended a third change that improves upon the original Bellcore
proposal. Bellcore proposed that the appropriate issue to be resolved
by the recommending panel was ``whether there is a sound technical
basis for the position of the [NASDO] * * *.'' That standard, we
believe, unfairly disadvantages the disputant by placing upon it an
undue burden to demonstrate that the NASDO's approach is not based on a
sound technical basis, instead of focusing more on the relative merits
of the two approaches. The Corning II proposal, in contrast, focuses
more on the relative merits of the technical arguments by requiring the
panel to choose ``the option that provides the most technically sound
solution that is commercially viable* * *.'' 40 We recognize that
the statutory 30-day deadline will create difficulties in resolving the
technical merits. Bellcore, for example, objects to the standard
proposed by Corning, believing that the panel will be unable to decide
within the statutory timeline what is ``the most technically sound
solution.'' 41 The statute, however, places no limitation on the
types of technical disputes that may be raised by funding parties. We
therefore do not believe that the standard for dispute resolution can
be
[[Page 24901]]
limited to whether the NASDO's proposal can be reasonably supported by
technical evidence, as Bellcore proposes.
---------------------------------------------------------------------------
\40\ Ex parte submission of Corning at 3.
\41\ Ex parte submission of Bellcore at 3.
---------------------------------------------------------------------------
27. For the same reason, we do not agree with Bellcore's view that
the panel should be precluded from deciding ``that a particular issue
is not ready for a decision because there is insufficient technical
evidence to support the soundness of any one proposal over any other
proposal.'' 42 Moreover, such a recommendation would not
necessarily lead to the absence of a decision on a standard, as
Bellcore claims. As indicated above, even if that were the panel's
recommendation, the funders would still be able to select a technical
standard by a two-third's vote.
---------------------------------------------------------------------------
\42\ Id.
---------------------------------------------------------------------------
28. Finally, Bellcore believes that ``commercial viability'' should
not be part of the decisional basis, claiming that such a basis may go
beyond the technical matters contemplated by section 273(a)(5).43
Bellcore also believes such a standard may involve economic analysis
and competitively sensitive business information, data that may be
difficult for the panel to obtain.44
---------------------------------------------------------------------------
\43\ Id. at 4.
\44\ Id.
---------------------------------------------------------------------------
29. We think that in resolving technical disputes it may well be
appropriate to consider the complexity and practical feasibility of
particular technical solutions in some circumstances. However, we also
believe that the decisional standard proposed by Corning places undue
emphasis on commercial and cost-related issues not the technical
issues.45 We shall therefore modify the standard to state that a
panel is not precluded from taking into account the complexity of
technical approaches and other practical considerations in deciding
which option is most technically sound.
---------------------------------------------------------------------------
\45\ Ex parte submission of Nortel.
---------------------------------------------------------------------------
30. Disclosure Requirements. The Corning II proposal also includes
a new disclosure provision requiring that any party in interest
submitting information for consideration by the panel must disclose its
ownership of intellectual property that may be advantaged or
disadvantaged by the final decision, and that the panel must consider
this information in making its recommendation.46 This provision
seems designed to lead to decisionmaking that is more fully informed
about the possible biases of commenting parties and to result in
technical standards that may be met by a broader spectrum of equipment
manufacturers. Bellcore objects to this proposal. It states that ANSI-
accredited standards development organizations encourage early
disclosure of intellectual property rights, but do not require it.
Bellcore also believes that requiring disclosure of intellectual
property rights would inhibit funding and participation in the
activities of the NASDO.
---------------------------------------------------------------------------
\46\ Ex parte submission of Corning at 2.
---------------------------------------------------------------------------
31. We believe the disclosure provisions suggested by Corning are
generally consistent with requirements of ANSI-accredited standards
organizations. The TIA Engineering Manual, for example, has a policy of
encouraging early disclosure of essential patents, and requires its
Committees to ask at the beginning of each meeting where a potential
standard is being considered whether there is knowledge of essential
patents, the use of which may be essential to the standard being
developed. Moreover, the fact that the question was asked will be
recorded in the meeting report, along with any affirmative responses.
Similarly, ANSI's patent policy requires that, prior to approval of any
proposed standard, any licenses will be made available to applicants
without compensation or ``under reasonable terms and conditions.''
47
---------------------------------------------------------------------------
\47\ Reply comments of ANSI at 4.
---------------------------------------------------------------------------
32. We think that the Corning II proposal that parties submitting
information to the panel disclose similar information is generally
consistent with these ANSI requirements. However, we shall modify the
Corning II proposal somewhat to make it more consistent with the rule
followed by the TIA Engineering Manual. Specifically, the rule will
require that the panel ask commenting parties whether there is
knowledge of patents, the use of which may be essential to the standard
or generic requirement being considered. In addition, the fact that the
question was asked along with any affirmative responses may be recorded
and considered in the panel's recommendation. We do not believe that
such a requirement will affect funding and participation in NASDOs. The
requirement applies only to those who submit comments to the expert
panel, and moreover, such requirements have apparently not discouraged
participation in ANSI accredited standards development organizations.
In addition, Nortel points out that there appears to be no precedent
for ANSI-accredited bodies to link voting rights to intellectual
property interests. We see no reason, therefore, to disqualify the
holders of such interests from voting on the recommendations of the
tri-partite panel.
33. Costs of Dispute Resolution. Finally, whereas the Bellcore
proposal had required the disputing party to bear the entire cost of
the default dispute resolution procedure, the Corning-Bellcore
variation requires that the cost of resolving disputes be absorbed by
all of the funding parties. This modification, in our view, better
ensures that disputants are not unduly discouraged from raising
technical issues. In addition, all of the funding parties should
benefit from the fairer and more open resolution of these technical
questions. It is therefore fitting that they should all share in the
cost.
34. In summary, we believe that the statutory objectives can be
best fulfilled by the new Corning II approach, with some modifications.
This approach incorporates the best aspects of the Bellcore proposal
and modifies them to achieve the goal of unbiased decisionmaking. The
proposal to utilize a tri-partite expert panel to make recommendations
resolving disputes, with a provision that allows the funding parties to
override the recommendation, also ensures that, as Congress intended,
all of the funding parties are able to participate in influencing the
final outcome. The approach is set out in detail in the Appendix of the
Report and Order.
D. Funding Parties
35. The commenters were divided over the meaning of the term
``funding party.'' Corning and TIA take the position that Congress
intended to allow any interested party access to the alternative
dispute resolution process.48 While acknowledging that sections
273(d)(4) and (d)(5) refer to ``funding parties,'' Corning argues that
the clear intent of the statute was only to provide a basis for
determining the legitimacy of parties interested in participating in
NASDO processes.49
---------------------------------------------------------------------------
\48\ Reply comments of TIA at 2.
\49\ Reply comments of Corning at 12.
---------------------------------------------------------------------------
36. To put this in perspective, Corning explained that the direct
costs of Bellcore's generic requirements were traditionally borne by
the affected carriers, with vendors generally making some form of ``in-
kind'' contributions, i.e., technical presentation or technical
support.50 Corning also argues that, under the new statute,
funding levels may not be used as an exclusionary device. In this same
vein, TIA maintains that a funding party should not be defined by the
amount that the party contributed to funding the standards
[[Page 24902]]
setting activities but rather, by ``any amount that demonstrates the
party shows a responsible interest in the proceeding.'' 51 TIA
suggests that parties could meet this requirement by posting a
performance bond.52
---------------------------------------------------------------------------
\50\ Id.
\51\ Comments of TIA at 3-4.
\52\ Id.
---------------------------------------------------------------------------
37. In response, Bellcore and the RBOC's state that, since there
was no congressional debate on section 273(d), the Commission must look
to the plain language of the statute. As noted by Bellcore, section
273(d)(4)(A)(v) provides that ``a funding party may utilize the dispute
resolution procedures established pursuant to paragraph (5)'' and
section 273(d)(5) states that ``[s]uch dispute resolution process shall
permit any funding party to resolve a dispute .''* * * 53 Bellcore
thus opposes TIA's performance bond proposal, concluding that if a
vague genuine interest and not actual funding is to be the standard,
this could open the door to a variety of ill-motivated though colorable
``technical'' disputes that the section 273(d)(5) process should not
promote.54
---------------------------------------------------------------------------
\53\ Reply comments of Bellcore at 10-11.
\54\ Id. at 7-9.
---------------------------------------------------------------------------
38. We conclude that the language of the statute clearly supports
that only a funding party is permitted to invoke the dispute resolution
process contained in Section 273(d). The statute expressly provides
that a party may become a funder after a public invitation is issued to
interested industry parties ``to fund and to participate'' and that
only a ``funding party'' may invoke dispute resolution. Moreover,
consistent with the clear language of the statute, we think that only
parties who are willing to provide actual funding to support the
standards setting process may utilize the statutory dispute resolution
process. We thus do not agree with TIA's suggestion that merely by
posting a performance bond an entity may become a funding party, nor
with Corning that ``in-kind'' contributions are necessarily adequate.
39. At the same time, section 273(d)(4)(A)(2) of the statute
expressly requires that funding and participation be allowed on ``a
reasonable and nondiscriminatory basis, administered in such a manner
as not to unreasonably exclude any interested industry party.'' We
therefore believe that the statute requires that NASDOs must make
reasonable and nondiscriminatory efforts to ensure that the funding
requirement is not manipulated so as to unreasonably exclude outside
participants.
E. Referral of Frivolous Disputes
40. Section 273(d)(5) directs the Commission to establish penalties
for delays caused by the referral of frivolous disputes to the
Commission's default process. Both Bellcore and Corning endorsed the
proposal made in our NPRM to rely on section 1.52 of the Commission's
rules to define the term ``frivolous dispute.'' Section 1.52 requires
that any document filed with the Commission be signed by the party or
attorney and that such signature certifies that the person has read the
document, that there is good ground to support it, and thus it is not
filed for the purpose of delay.
41. Other commenters either offered alternate suggestions or raised
concerns with our proposal. For example, we were referred to the
``sham'' exception to antitrust immunity enjoyed by parties under the
Noerr-Pennington doctrine.55 Another party referred us to the
standards used by federal courts to determine whether complaints are
filed in good faith.56 Another commenter questioned whether we
need to assess the motive of the disputant if the claim has no
legitimate basis.57
---------------------------------------------------------------------------
\55\ Comments of Corning at 13.
\56\ See Rule 11 of the Federal Rules of Civil Procedure;
comments of Bellcore at 23.
\57\ Comments of Corning at 13.
---------------------------------------------------------------------------
42. We recognize that any attempt to give meaning to the term
``frivolous'' is inherently difficult, as reflected by attempts the
courts have made to grapple with similar problems. We have decided,
however, to be guided by our existing rule which appears to be as
workable as any of the alternatives suggested. Thus, the party
responsible for referring a dispute to our process does so with the
understanding that the dispute, as defined in section 1.52, is not
frivolous, is supported by good ground, and is not filed for the
purpose of delay.
43. In seeking comment on the penalties that should be assessed
against delaying parties, the NPRM asked whether the Commission should
rely on its forfeiture authority contained in section 503(b) of the
Communications Act, or whether other penalties should be imposed ``such
as barring the party from further participation in the standards
development processes or the imposition of costs on the complainant if
its complaint is found to be frivolous.'' 58 The NPRM also sought
comment on whether procedural protections were necessary to protect the
party subject to the dispute.59 In this connection, commenters
were asked to consider whether there should be a citation and
subsequent misconduct before the assessment of such forfeitures.60
---------------------------------------------------------------------------
\58\ 61 FR 9967 at para.8.
\59\ Id.
\60\ Id.
---------------------------------------------------------------------------
44. U.S. West argued that ``punitive actions being taken to prevent
frivolous invocation of the mediation process'' were unnecessary and
emphasized that the Commission could later adopt rules if
necessary.61 Bellcore argued against the imposition of penalties
by the tri-partite panel, emphasizing that the panel's role is a
``technical one, not a legalistic penalty-imposing one.'' 62 In
addition, Bellcore proposes that the remedy of barring further
participation should ``be reserved to address only a pattern of abuse,
and not an isolated act'' 63 and Corning maintains that it ``could
substantially impair the subject company's ability to compete in the
manufacture and marketing of products which are the subject of the
relevant NASDO activities'' and is ``neither required not authorized by
the statute.'' 64 Finally, Bellcore advocates that, in cases where
the Commission determines that a frivolous dispute was referred to the
dispute resolution process, in addition to imposing forfeitures as
proposed in the NPRM, we should require ``the party raising a frivolous
claim to bear all costs of dispute resolution, and compensating the
funding parties for delay.'' 65
---------------------------------------------------------------------------
\61\ Comments of U.S. West at 8.
\62\ Comments of Bellcore at 23.
\63\ Id. at 23-24.
\64\ Comments of Bellcore at 24; comments of Corning at 15.
\65\ Comments of Bellcore at 23.
---------------------------------------------------------------------------
45. We have concluded that, in light of the above comments, at this
time, violations for filing frivolous disputes can be handled best
pursuant to our forfeiture authority under section 503(b) of the
Communications Act. While we clearly expect referrals of frivolous
disputes to be rare occurrences, we will not hesitate to revisit this
issue, if necessary, to determine whether more severe penalties should
be imposed.
F. Sunset Provision
46. In its initial comments, Corning urged the Commission to make
clear that an applicant seeking removal of the requirements of sections
273(d)(3) or 273(d)(4) provide appropriate documentary evidence to
support such a request.66 Bellcore, in response, believes
Corning's request is premature.67 We agree that adoption of
evidentiary requirements at this time appears premature. The statute
prescribes a public comment period on
[[Page 24903]]
any such application. We believe we will be in a better position to
evaluate the adequacy of the support for any particular application
after we have received comment on it.
---------------------------------------------------------------------------
\66\ Comments of Corning at 16.
\67\ Comments of Bellcore at 24.
---------------------------------------------------------------------------
IV. Procedural Matters
47. Final Regulatory Flexibility Analysis. Pursuant to the
Regulatory Flexibility Act of 1980, the Commission's final analysis is
as follows:
Reason for Action
The Telecommunications Act of 1996 permits a Bell Operating
Company, through a separate subsidiary, to engage in the manufacture of
telecommunications equipment and customer premises equipment after the
Commission authorizes the company to provide in-region interLATA
services. As one of the safeguards for the manufacturing process, the
Telecommunications Act of 1996 amended the Communications Act by
creating a new section 273, which sets forth procedures for a ``non-
accredited standards development organization,'' such as Bell
Communications Research, Inc., to set industry standards for
manufacturing such equipment. The statutory procedures allow outside
parties to fund and participate in setting the organization's standards
and require the organization and the funding parties to attempt to
develop a process for resolving any technical disputes. Section
273(d)(5) requires the Commission ``to prescribe a dispute resolution
process'' to be used in the event that all parties cannot agree to a
mutually satisfactory dispute resolution process. 47 U.S.C. 273(d)(5).
The purpose of this Report and Order is to implement Congress's goal by
prescribing a dispute resolution process which ``enable[s] all
interested parties to influence the final resolution of the dispute
without significantly impairing the efficiency, timeliness and
technical quality of the activity.'' H.R. Conf. Rep. No. 230, 104th
Cong., 2d Sess. 39 (1996).
Summary of the Issues Raised by the Public Comments in Response to the
Initial Regulatory Flexibility Analysis
There were no comments submitted in response to the Initial
Regulatory Flexibility Analysis.
Significant Alternatives Considered
The Notice of Proposed Rulemaking in this proceeding offered a
binding arbitration proposal and solicited alternative proposals from
the commenters. The commenters overwhelmingly opposed the binding
arbitration proposal. Alternative proposals were also submitted by the
commenters. The regulation selected, a tri-partite expert panel,
fulfills the specific statutory parameters of section 273--that the
process shall permit resolution ``in an open, non-discriminatory and
unbiased fashion within 30 days after the filing of such dispute'' and
that the process will ``enable all interested parties to influence the
final resolution of the dispute without significantly impairing the
efficiency, timeliness and technical quality of the activity.''
48. Accordingly, it is ordered that Subpart Q, Part 64 of the
Commission's rules is adopted effective June 17, 1996 as set forth
below.
49. The action taken herein is taken pursuant to sections 4(i),
4(j), 273(d)(5), 303(r) and 403 of the Communications Act, 47 U.S.C.
Secs. 154(i) and (j), 273(d)(5), 303(r) and 403.
List of Subjects in 47 CFR Part 64
Communications common carriers, Dispute resolution process,
Manufacturing by Bell Operating Companies, Non-accredited standards
development organizations, Penalties for delaying parties.
Federal Communications Commission.
William F. Caton,
Acting Secretary.
Rule Changes
Part 64 of Title 47 of the Code of Federal Regulations is amended
as follows:
PART 64--MISCELLANEOUS RULES RELATING TO COMMON CARRIERS
1. The authority citation for Part 64 is revised to read as
follows:
Authority: 47 U.S.C. 154, unless otherwise noted. Interpret or
apply 47 U.S.C. 201, 218, 226, 228, 273(d)(5), unless otherwise
noted.
2. A new Subpart Q is added to Part 64 to read as follows:
Subpart Q--Implementation of Section 273(d)(5) of the Communications
Act: Dispute Resolution Regarding Equipment Standards
Sec.
64.1700 Purpose and scope.
64.1701 Definitions.
64.1702 Procedures.
64.1703 Dispute resolution default process.
64.1704 Frivolous disputes/penalties.
Subpart Q--Implementation of Section 273(d)(5) of the Communiations
Act: Dispute Resolution Regarding Equipment Standards
Sec. 64.1700 Purpose and scope.
The purpose of this subpart is to implement the Telecommunications
Act of 1996 which amended the Communications Act by creating section
273(d)(5), 47 U.S.C. 273(d)(5). Section 273(d) sets forth procedures to
be followed by non-accredited standards development organizations when
these organizations set industry-wide standards and generic
requirements for telecommunications equipment or customer premises
equipment. The statutory procedures allow outside parties to fund and
participate in setting the organization's standards and require the
organization and the parties to develop a process for resolving any
technical disputes. In cases where all parties cannot agree to a
mutually satisfactory dispute resolution process, section 273(d)(5)
requires the Commission to prescribe a dispute resolution process.
Sec. 64.1701 Definitions.
For purposes of this subpart, the terms ``accredited standards
development organization,'' ``funding party,'' ``generic requirement,''
and ``industry-wide'' have the same meaning as found in 47 U.S.C. 273.
Sec. 64.1702 Procedures.
If a non-accredited standards development organization (NASDO) and
the funding parties are unable to agree unanimously on a dispute
resolution process prior to publishing a text for comment pursuant to
47 U.S.C. 273(d)(4)(A)(v), a funding party may use the default dispute
resolution process set forth in section 64.1703.
Sec. 64.1703 Dispute resolution default process.
(a) Tri-Partite Panel. Technical disputes governed by this section
shall be resolved in accordance with the recommendation of a three-
person panel, subject to a vote of the funding parties in accordance
with paragraph (b) of this section. Persons who participated in the
generic requirements or standards development process are eligible to
serve on the panel. The panel shall be selected and operate as follows:
(1) Within two (2) days of the filing of a dispute with the NASDO
invoking the dispute resolution default process, both the funding party
seeking dispute resolution and the NASDO shall select a representative
to sit on the panel;
(2) Within four (4) days of their selection, the two panelists
shall select
[[Page 24904]]
a neutral third panel member to create a tri-partite panel;
(3) The tri-partite panel shall, at a minimum, review the proposed
text of the NASDO and any explanatory material provided to the funding
parties by the NASDO, the comments and any alternative text provided by
the funding party seeking dispute resolution, any relevant standards
which have been established or which are under development by an
accredited-standards development organization, and any comments
submitted by other funding parties;
(4) Any party in interest submitting information to the panel for
consideration (including the NASDO, the party seeking dispute
resolution and the other funding parties) shall be asked by the panel
whether there is knowledge of patents, the use of which may be
essential to the standard or generic requirement being considered. The
fact that the question was asked along with any affirmative responses
shall be recorded, and considered, in the panel's recommendation; and
(5) The tri-partite panel shall, within fifteen (15) days after
being established, decide by a majority vote, the issue or issues
raised by the party seeking dispute resolution and produce a report of
their decision to the funding parties. The tri-partite panel must adopt
one of the five options listed below:
(i) The NASDO's proposal on the issue under consideration;
(ii) The position of the party seeking dispute resolution on the
issue under consideration;
(iii) A standard developed by an accredited standards development
organization that addresses the issue under consideration;
(iv) A finding that the issue is not ripe for decision due to
insufficient technical evidence to support the soundness of any one
proposal over any other proposal; or
(v) Any other resolution that is consistent with the standard
described in section 64.1703(a)(6).
(6) The tri-partite panel must choose, from the five options
outlined above, the option that they believe provides the most
technically sound solution and base its recommendation upon the
substantive evidence presented to the panel. The panel is not precluded
from taking into account complexity of implementation and other
practical considerations in deciding which option is most technically
sound. Neither of the disputants (i.e., the NASDO and the funding party
which invokes the dispute resolution process) will be permitted to
participate in any decision to reject the mediation panel's
recommendation.
(b) The tri-partite panel's recommendation(s) must be included in
the final industry-wide standard or industry-wide generic requirement,
unless three-fourths of the funding parties who vote decide within
thirty (30) days of the filing of the dispute to reject the
recommendation and accept one of the options specified in paragraphs
(a)(5) (i) through (v) of this section. Each funding party shall have
one vote.
(c) All costs sustained by the tri-partite panel will be
incorporated into the cost of producing the industry-wide standard or
industry-wide generic requirement.
Sec. 64.1704 Frivolous disputes/penalties.
(a) No person shall willfully refer a dispute to the dispute
resolution process under this subpart unless to the best of his
knowledge, information and belief there is good ground to support the
dispute and the dispute is not interposed for delay.
(b) Any person who fails to comply with the requirements in
paragraph (a) of this section, may be subject to forfeiture pursuant to
section 503(b) of the Communications Act, 47 U.S.C. 503(b).
[FR Doc. 96-12217 Filed 5-16-96; 8:45 am]
BILLING CODE 6712-01-U
Complete official Federal Register PDF
FR Doc. 96-12188 Cargo PreferenceU.S.-Flag Vessels; Available U.S.-Flag Commercial Vessels
[Federal Register Volume 61, Number 97 (Friday, May 17, 1996)]
[Rules and Regulations]
[Pages 24895-24897]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-12188]
=======================================================================
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DEPARTMENT OF TRANSPORTATION
Maritime Administration
46 CFR Part 381
[Docket No. R-165]
RIN 2133-AB25
Cargo Preference--U.S.-Flag Vessels; Available U.S.-Flag
Commercial Vessels
AGENCY: Maritime Administration, Department of Transportation.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This amendment to the cargo preference regulations of the
Maritime Administration (MARAD) provides that during the five year
period beginning with the 1996 Great Lakes shipping season when the St.
Lawrence Seaway is in use, MARAD will consider the legal requirement
for the carriage of bulk agricultural commodity preference cargoes on
privately-owned ``available'' U.S.-flag commercial vessels to have been
satisfied where the cargo is initially loaded at a Great Lakes port on
one or more U.S.-flag or foreign-flag vessels, transferred to a U.S.-
flag commercial vessel at a Canadian transshipment point outside the
St. Lawrence Seaway, and carried on that U.S.-flag vessel to a foreign
destination. This provision will allow U.S. Great Lakes ports to
compete for certain bulk agricultural commodity preference cargoes
under agricultural assistance programs administered by the U.S.
Department of Agriculture (USDA) and the U.S. Agency for International
Development (USAID). This rule will extend that policy for an
additional five years, after which the Agency would assess the merits
of making the rule permanent. MARAD issued substantially identical
rules in 1994 and 1995 related to the Great Lakes Shipping season for
each of those years, respectively.
EFFECTIVE DATE: May 17, 1996.
FOR FURTHER INFORMATION CONTACT: John E. Graykowski, Deputy Maritime
Administrator for Inland Waterways and Great Lakes, Maritime
Administration, Washington, DC, Telephone (202)366-1718.
SUPPLEMENTARY INFORMATION: United States law at sections 901(b) and
901b, Merchant Marine Act, 1936, as amended (the ``Act''), 46 App.
U.S.C. 1241(b) and 1241f, requires that at least 75 percent of certain
agricultural product cargoes ``impelled'' by Federal programs
(preference cargoes), and transported by sea, be carried on privately-
owned United States-flag commercial vessels, to the extent that such
vessels ``are available at fair and reasonable rates for United States-
flag commercial vessels, in such manner as will insure a fair and
reasonable participation of United States-Flag commercial vessels in
such cargoes by geographical areas.'' The Secretary of Transportation
wishes to administer that program so that all ports and port ranges,
including U.S. Great Lakes ports, may participate in the carriage of
preference cargoes under five programs administered by the United
States Department of Agriculture (USDA) and United States Agency for
International Development (USAID), pursuant to Titles I, II and III of
the Agricultural Trade Development and Assistance Act of 1954, as
amended; P.L. 480 (7 U.S.C. 1701-1727); the Agricultural Act of 1949,
as amended (7 U.S.C. 2791(c)); and the Food for Progress Act of 1985,
as amended (7 U.S.C. 1736).
Prior Rulemakings
On August 18, 1994, MARAD published a final rule on this subject in
the Federal Register (59 FR 40261). That rule stated that it was
intended to allow U.S. Great Lakes ports to participate with ports in
other U.S. port ranges in the carriage of bulk agricultural commodity
preference cargoes. It stated that dramatic changes in shipping
conditions have occurred since 1990, including the disappearance of any
all-U.S.-flag commercial ocean-going bulk cargo service to foreign
countries from U.S. Great Lakes ports. The static configuration of the
St. Lawrence Seaway system and the evolving greater size of commercial
vessels contributed to the disappearance of any all-U.S.-flag service.
No bulk grain preference cargo has moved on U.S.-flag vessels out
of the Great Lakes since 1989, with the exception of one trial shipment
in 1993. Under the Food Security Act of 1985, Public Law 99-198,
codified at 46 app. U.S.C. 1241f(c)(2), a certain minimum amount of
Government-impelled cargo was required to be allocated to Great Lakes
ports during the Great Lakes shipping seasons of 1986, 1987, 1988 and
1989. That ``set-aside'' expired in 1989, and was not renewed by the
Congress. The disappearance of
[[Page 24896]]
Government-impelled agricultural cargo flowing from the Great Lakes
coincided with the expiration of the Great Lakes ``set-aside.''
At the time of the opening of the 1994 Great Lakes shipping season
on April 5, 1994, the Great Lakes did not have any all-U.S.-flag ocean
freight capability for carriage of bulk preference cargo. The absence
of any all-U.S.-flag ocean freight capability on the Great Lakes
continues to this day. In contrast, the total export nationwide by non-
liner vessels of USDA and USAID agricultural assistance program cargoes
subject to cargo preference in the 1994-1995 cargo preference year (the
latest program year for which figures are available) amounted to 6.2
million metric tons, of which 4.9 million (78 percent) was transported
on U.S.-flag vessels.
As predicted by numerous commenters, the timing of the 1994 final
rule, published on August 18, 1994, did not allow for a true trial
period since it actually extended for less than one-half of the 1994
Great Lakes Shipping season. Because of the long lead time required for
arranging shipments of bulk agriculture commodity preference cargoes,
there apparently was no real opportunity for U.S.-flag vessel operators
to make the necessary arrangements and bid on preference cargoes.
Accordingly, MARAD proposed to extend this policy to the 1995 Great
Lakes shipping season and issued a final rule that was published in the
Federal Register on May 9, 1995 (60 FR 24560).
Great Lakes participation in cargo preference shipments under the
five programs administered by the USDA and USAID could be significantly
improved if foreign-flag feeder vessels were authorized to transport
bulk grain commodities from Great Lakes ports to Canadian transshipment
points for export on oceangoing U.S.-flag bulk carriers to the final
destination port. MARAD issued its 1994 and 1995 final rules to
authorize the use of foreign-flag feeder vessels for the transportation
of bulk agricultural commodities cargoes from the Great Lakes ports to
Canadian transshipment ports outside the St. Lawrence Seaway during the
1994 and 1995 Great Lakes shipping seasons, respectively. Outside the
St. Lawrence Seaway, the cargo will be transferred to a U.S.-flag
vessel for delivery to its foreign destination.
Subsequently, USDA indicated that section 406(b)(4) of P.L. 480
regulating the payment of freight by USDA for shipments under Title II,
Section 416(b) and the Food For Progress Act of 1985, negatively
impacted on suppliers that bid on Great Lakes cargoes to be transhipped
to Canadian shipping points. USDA indicated that these provisions
prevent them from paying for freight on commodities shipped from a
Canadian port. The P.L. 480 Title I program is not affected by this
provision. As a consequence, the Great Lakes region has been, in
effect, prohibited from utilizing the rule and participating during the
past two years in the shipment of bulk cargo under Title II of P.L.
480, Section 416 of the Agricultural Act of 1949 and the Food for
Progress Act of 1985 programs.
USDA proposed an amendment to Section 406 in the 1996 Farm Bill
which would allow USDA to pay the cost of the foreign-flag Great Lakes
transit leg and for the transshipment from Canadian ports.
MARAD proposed in a new NPRM to extend its policy stated in the
1994 and 1995 rules for an additional five years, after which it would
reassess the merits of making the rule permanent, consistent with the
USDA legislative proposal (61 FR 9670; March 11, 1996). The amendment
proposed by the USDA is included in the Federal Agriculture Improvement
and Reform Act of 1966, Pub. L. 104-127, 110 Stat. 888. It amends
Section 406(b)(4) of the Agricultural Trade, Development and Assistance
Act of 1954, 7 U.S.C. 1736, to accomplish USDA's proposal, above.
Comments on 1996 NPRM
MARAD received 12 comments on this NPRM from 11 commenters
representing business, trade associations, State and local port
authorities, and State Transportation Departments. All commenters were
in favor of the policy stated in the NPRM, without reservation. One
commenter supporting the proposal to establish a five-year trial period
stated, ``Similar rulemakings in the 1994 and 1995 years provided too
limited of a window of opportunity to truly test this concept.'' That
commenter referred to the current common practice in the private sector
of exporting bulk agricultural commodities from Great Lakes ports in
foreign-flag feeder vessels to transshipment points east of the St.
Lawrence Seaway, concluding that ``transshipping Government
agricultural exports should, on occasion, be cost effective.''
Another commenter stated that taxpayers, food aid recipient
countries and vessel owners will benefit from this competition. From
the perspective of U.S. maritime labor, one commenter stated,
``International cargoes are the lifeblood of Great Lakes longshoremen
and return of P.L. 480 cargoes to the Great Lakes will generate
thousands of manhours for dockworkers in virtually every Great Lakes
port.'' Another commenter was hopeful that the trend of increased
international trade ``to the Lakes via the Seaway in the past three
navigation seasons will continue because of this rulemaking.''
One commenter, while acknowledging that the proposed rule offers
some possible relief for Great Lakes-originated cargo, requested MARAD
to issue a rule which allows shipment of bulk agricultural commodities
from Great Lakes ports for the entire voyage from origin to destination
on foreign-flag vessels where U.S.-flag vessels are not available for
such voyages from Great Lakes ports. Unless U.S.-flag vessels are
unavailable from any port range in the United States, MARAD lacks the
authority to issue such a rule under the cargo preference laws of the
United States.
Rulemaking Analyses and Notices
Executive Order 12866 (Regulatory Planning and Review)
This rulemaking is not considered to be an economically significant
regulatory action under section 3(f) of Executive Order 12866. Also, it
is not a major rule under Pub. L. 104-121, 5 U.S.C. 804, or a
significant rule under the Department's Regulatory Policies and
Procedures. Accordingly, it has not been reviewed by the Office of
Management and Budget.
MARAD projects that this rule will allow the annual movement of up
to 300,000 metric tons of agricultural commodities from Great Lakes
ports, with a reduction in the shipping cost to sponsoring Federal
agencies of up to $2 per metric ton ($600,000). MARAD will evaluate the
results of this rulemaking over a five-year trial period before
determining whether to issue a rule to make this provision permanent.
Since the 1996 Great Lakes shipping season opened on March 29,
1996, a delay in the effective date of this rule for 30 days would be
conterproductive to the accomplishment of the purpose of this rule to
allow U.S. Great Lakes ports to compete effectively for agricultural
commodity preference cargo shipments. Accordingly, pursuant to section
553(d) of the Administrative Procedure Act, 5 U.S.C. 553(d), MARAD
finds that good cause exists for the rule to become effective on
publication.
Federalism
The Maritime Administration has analyzed this rulemaking in
accordance with the principles and criteria contained in Executive
Order 12612, and it has been determined that these regulations do not
have sufficient
[[Page 24897]]
federalism implications to warrant the preparation of a Federalism
Assessment.
Regulatory Flexibility Act
The Maritime Administration certifies that this rulemaking will not
have a significant economic impact on a substantial number of small
entities.
Environmental Assessment
The Maritime Administration has considered the environmental impact
of this rulemaking and has concluded that an environmental impact
statement is not required under the National Environmental Policy Act
of 1969.
Paperwork Reduction Act
This rulemaking contains no reporting requirement that is subject
to OMB approval under 5 CFR Part 1320, pursuant to the Paperwork
Reduction Act of 1980 (44 U.S.C. 3501, et seq.)
List of Subjects in 46 CFR Part 381
Freight, Maritime carriers.
Accordingly, MARAD hereby amends 46 CFR Part 381 as follows:
PART 381--[AMENDED]
1. The authority citation for Part 381 continues to read as
follows:
Authority: 46 App. U.S.C. 1101, 1114(b), 1122(d) and 1241; 49
CFR 1.66.
2. Section 381.9 is revised to read as follows:
Sec. 381.9 Available U.S.-flag service.
For purposes of shipping bulk agricultural commodities under
programs administered by sponsoring Federal agencies from U.S. Great
Lakes ports during the 1996-2000 Great Lakes shipping seasons, if
direct all-U.S.-flag service, at fair and reasonable rates, is not
available at U.S. Great Lakes ports, a joint service involving a
foreign-flag vessel(s) carrying cargo no farther than a Canadian
port(s) or other point(s) on the Gulf of St. Lawrence, with
transshipment via a U.S.-flag privately-owned commercial vessel to the
ultimate foreign destination, will be deemed to comply with the
requirement of ``available'' commercial U.S.-flag service under the
Cargo Preference Act of 1954. Shipper agencies considering bids
resulting in the lowest landed cost of transportation based on U.S.-
flag rates and service shall include within the comparison of U.S.-flag
rates and service, for shipments originating in U.S. Great Lakes ports,
through rates (if offered) to a Canadian port or other point on the
Gulf of St. Lawrence and a U.S.-flag leg for the remainder of the
voyage. The ``fair and reasonable'' rate for this mixed service will be
determined by considering the U.S.-flag component under the existing
regulations at 46 CFR Part 382 or 383, as appropriate, and
incorporating the cost for the foreign-flag component into the U.S.-
flag ``fair and reasonable'' rate in the same way as the cost of
foreign-flag vessels used to lighten U.S.-flag vessels in the recipient
country's territorial waters. Alternatively, the supplier of the
commodity may offer the Cargo FOB Canadian transshipment point, and
MARAD will determine fair and reasonable rates accordingly.
Dated: May 10, 1996.
By Order of the Maritime Administrator.
Joel Richard,
Secretary, Maritime Administration.
[FR Doc. 96-12188 Filed 5-16-96; 8:45 am]
BILLING CODE 4910-81-P
Complete official Federal Register PDF
FR Doc. 96-11799 United States Trustees; Guidelines Relating to the Bankruptcy Reform Act of 1994
[Federal Register Volume 61, Number 97 (Friday, May 17, 1996)]
[Rules and Regulations]
[Pages 24889-24892]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-11799]
=======================================================================
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DEPARTMENT OF JUSTICE
28 CFR Part 58
United States Trustees; Guidelines Relating to the Bankruptcy
Reform Act of 1994
AGENCY: Department of Justice.
ACTION: Final internal procedural guidelines.
-----------------------------------------------------------------------
SUMMARY: The Department of Justice is establishing internal procedural
guidelines for reviewing applications for compensation and
reimbursement of expenses filed by case trustees and professionals
under section 330 of Title 11, United States Code. These procedural
guidelines are not intended to supersede local rules, but are to be
read as complementing the procedures set forth in local rules.
To keep all published rules, regulations, and guidelines pertaining
to the United States Trustee Program in one section of the Code of
Federal Regulations, the title to 28 CFR 58 will be amended to include
the Bankruptcy Reform Act of 1994.
EFFECTIVE DATE: January 30, 1996.
FOR FURTHER INFORMATION CONTACT:
Martha L. Davis, General Counsel, or Kathleen Dunivin Schmitt,
Attorney, (202) 307-1399. This is not a toll-free number.
SUPPLEMENTARY INFORMATION: This action is in response to the Bankruptcy
Reform Act of 1994, which amended 28 U.S.C. 586(a)(3)(A) to direct
United States Trustees to review applications for compensation and
reimbursement of expenses in accordance with procedural guidelines
adopted by the Executive Office for United States Trustees. The
guidelines are to be applied uniformly by the United States Trustees,
except when circumstances warrant different treatment.
[[Page 24890]]
Executive Order 12866
These guidelines have been drafted and reviewed in accordance with
Executive Order 12866, section 1(b), Principles of Regulation. The
Director, Executive Office for United States Trustees, has determined
that these guidelines are not a ``significant regulatory action'' under
Executive Order 12866 section 3(f), Regulatory Planning and Review.
These guidelines pertain to the internal management of the Department
and as such are not subject to central Office of Management and Budget
review pursuant to section 6 of Executive Order 12866. Accordingly,
these guidelines have not been reviewed by the Office of Management and
Budget pursuant to Executive Order 12866.
Regulatory Flexibility Act
The Director, Executive Office for United States Trustees, in
accordance with the Regulatory Flexibility Act (5 U.S.C. Sec. 605(b)),
has reviewed these guidelines and by approving them certifies that
these guidelines will not have a significant economic impact on a
substantial number of small entities.
List of Subjects in 28 CFR Part 58
Bankruptcy, Trusts, and Trustees.
For the reasons set forth in the preamble, the Department of
Justice proposes to amend 28 CFR part 58 as follows:
PART 58--REGULATIONS RELATING TO THE BANKRUPTCY REFORM ACTS OF 1978
AND 1994
1. The heading of Part 58 is revised to read as set forth above.
2. The authority citation for Part 58 continues to read as follows:
Authority: 28 U.S.C. 509, 510, 586(e), 588(d).
3. Appendix A is added to Part 58 to read as follows:
Appendix A to Part 58--Guidelines for Reviewing Applications for
Compensation and Reimbursement of Expenses Filed Under 11 U.S.C. 330
(a) General Information. (1) The Bankruptcy Reform Act of 1994
amended the responsibilities of the United States Trustees under 28
U.S.C. 586(a)(3)(A) to provide that, whenever they deem appropriate,
United States Trustees will review applications for compensation and
reimbursement of expenses under section 330 of the Bankruptcy Code,
11 U.S.C. 101, et seq. (``Code''), in accordance with procedural
guidelines (``Guidelines'') adopted by the Executive Office for
United States Trustees (``Executive Office''). The following
Guidelines have been adopted by the Executive Office and are to be
uniformly applied by the United States Trustees except when
circumstances warrant different treatment.
(2) The United States Trustees shall use these Guidelines in all
cases commenced on or after October 22, 1994.
(3) The Guidelines are not intended to supersede local rules of
court, but should be read as complementing the procedures set forth
in local rules.
(4) Nothing in the Guidelines should be construed:
(i) To limit the United States Trustee's discretion to request
additional information necessary for the review of a particular
application or type of application or to refer any information
provided to the United States Trustee to any investigatory or
prosecutorial authority of the United States or a state;
(ii) To limit the United States Trustee's discretion to
determine whether to file comments or objections to applications; or
(iii) To create any private right of action on the part of any
person enforceable in litigation with the United States Trustee or
the United States.
(5) Recognizing that the final authority to award compensation
and reimbursement under section 330 of the Code is vested in the
Court, the Guidelines focus on the disclosure of information
relevant to a proper award under the law. In evaluating fees for
professional services, it is relevant to consider various factors
including the following: the time spent; the rates charged; whether
the services were necessary to the administration of, or beneficial
towards the completion of, the case at the time they were rendered;
whether services were performed within a reasonable time
commensurate with the complexity, importance, and nature of the
problem, issue, or task addressed; and whether compensation is
reasonable based on the customary compensation charged by comparably
skilled practitioners in non-bankruptcy cases. The Guidelines thus
reflect standards and procedures articulated in section 330 of the
Code and Rule 2016 of the Federal Rules of Bankruptcy Procedure for
awarding compensation to trustees and to professionals employed
under section 327 or 1103. Applications that contain the information
requested in these Guidelines will facilitate review by the Court,
the parties, and the United States Trustee.
(6) Fee applications submitted by trustees are subject to the
same standard of review as are applications of other professionals
and will be evaluated according to the principles articulated in
these Guidelines. Each United States Trustee should establish
whether and to what extent trustees can deviate from the format
specified in these Guidelines without substantially affecting the
ability of the United States Trustee to review and comment on their
fee applications in a manner consistent with the requirements of the
law.
(b) Contents of Applications for Compensation and Reimbursement
of Expenses. All applications should include sufficient detail to
demonstrate compliance with the standards set forth in 11 U.S.C.
Sec. 330. The fee application should also contain sufficient
information about the case and the applicant so that the Court, the
creditors, and the United States Trustee can review it without
searching for relevant information in other documents. The following
will facilitate review of the application.
(1) Information about the Applicant and the Application. The
following information should be provided in every fee application:
(i) Date the bankruptcy petition was filed, date of the order
approving employment, identity of the party represented, date
services commenced, and whether the applicant is seeking
compensation under a provision of the Bankruptcy Code other than
section 330.
(ii) Terms and conditions of employment and compensation, source
of compensation, existence and terms controlling use of a retainer,
and any budgetary or other limitations on fees.
(iii) Names and hourly rates of all applicant's professionals
and paraprofessionals who billed time, explanation of any changes in
hourly rates from those previously charged, and statement of whether
the compensation is based on the customary compensation charged by
comparably skilled practitioners in cases other than cases under
title 11.
(iv) Whether the application is interim or final, and the dates
of previous orders on interim compensation or reimbursement of
expenses along with the amounts requested and the amounts allowed or
disallowed, amounts of all previous payments, and amount of any
allowed fees and expenses remaining unpaid.
(v) Whether the person on whose behalf the applicant is employed
has been given the opportunity to review the application and whether
that person has approved the requested amount.
(vi) When an application is filed less than 120 days after the
order for relief or after a prior application to the Court, the date
and terms of the order allowing leave to file at shortened
intervals.
(vii) Time period of the services or expenses covered by the
application.
(2) Case Status. The following information should be provided to
the extent that it is known to or can be reasonably ascertained by
the applicant:
(i) In a chapter 7 case, a summary of the administration of the
case including all moneys received and disbursed in the case, when
the case is expected to close, and, if applicant is seeking an
interim award, whether it is feasible to make an interim
distribution to creditors without prejudicing the rights of any
creditor holding a claim of equal or higher priority.
(ii) In a chapter 11 case, whether a plan and disclosure
statement have been filed and, if not yet filed, when the plan and
disclosure statement are expected to be filed; whether all quarterly
fees have been paid to the United States Trustee; and whether all
monthly operating reports have been filed.
(iii) In every case, the amount of cash on hand or on deposit,
the amount and nature of accrued unpaid administrative expenses, and
the amount of unencumbered funds in the estate.
(iv) Any material changes in the status of the case that occur
after the filing of the fee
[[Page 24891]]
application should be raised, orally or in writing, at the hearing
on the application or, if a hearing is not required, prior to the
expiration of the time period for objection.
(3) Summary Sheet. All applications should contain a summary or
cover sheet that provides a synopsis of the following information:
(i) Total compensation and expenses requested and any amount(s)
previously requested;
(ii) Total compensation and expenses previously awarded by the
court;
(iii) Name and applicable billing rate for each person who
billed time during the period, and date of bar admission for each
attorney;
(iv) Total hours billed and total amount of billing for each
person who billed time during billing period; and
(v) Computation of blended hourly rate for persons who billed
time during period, excluding paralegal or other paraprofessional
time.
(4) Project Billing Format. (i) To facilitate effective review
of the application, all time and service entries should be arranged
by project categories. The project categories set forth in Exhibit A
should be used to the extent applicable. A separate project category
should be used for administrative matters and, if payment is
requested, for fee application preparation.
(ii) The United States Trustee has discretion to determine that
the project billing format is not necessary in a particular case or
in a particular class of cases. Applicants should be encouraged to
consult with the United States Trustee if there is a question as to
the need for project billing in any particular case.
(iii) Each project category should contain a narrative summary
of the following information:
(A) a description of the project, its necessity and benefit to
the estate, and the status of the project including all pending
litigation for which compensation and reimbursement are requested;
(B) identification of each person providing services on the
project; and
(C) a statement of the number of hours spent and the amount of
compensation requested for each professional and paraprofessional on
the project.
(iv) Time and service entries are to be reported in
chronological order under the appropriate project category.
(v) Time entries should be kept contemporaneously with the
services rendered in time periods of tenths of an hour. Services
should be noted in detail and not combined or ``lumped'' together,
with each service showing a separate time entry; however, tasks
performed in a project which total a de minimis amount of time can
be combined or lumped together if they do not exceed .5 hours on a
daily aggregate. Time entries for telephone calls, letters, and
other communications should give sufficient detail to identify the
parties to and the nature of the communication. Time entries for
court hearings and conferences should identify the subject of the
hearing or conference. If more than one professional from the
applicant firm attends a hearing or conference, the applicant should
explain the need for multiple attendees.
(5) Reimbursement for Actual, Necessary Expenses. Any expense
for which reimbursement is sought must be actual and necessary and
supported by documentation as appropriate. Factors relevant to a
determination that the expense is proper include the following:
(i) Whether the expense is reasonable and economical. For
example, first class and other luxurious travel mode or
accommodations will normally be objectionable.
(ii) Whether the requested expenses are customarily charged to
non-bankruptcy clients of the applicant.
(iii) Whether applicant has provided a detailed itemization of
all expenses including the date incurred, description of expense
(e.g., type of travel, type of fare, rate, destination), method of
computation, and, where relevant, name of the person incurring the
expense and purpose of the expense. Itemized expenses should be
identified by their nature (e.g., long distance telephone, copy
costs, messengers, computer research, airline travel, etc,) and by
the month incurred. Unusual items require more detailed explanations
and should be allocated, where practicable, to specific projects.
(iv) Whether applicant has prorated expenses where appropriate
between the estate and other cases (e.g., travel expenses applicable
to more than one case) and has adequately explained the basis for
any such proration.
(v) Whether expenses incurred by the applicant to third parties
are limited to the actual amounts billed to, or paid by, the
applicant on behalf of the estate.
(vi) Whether applicant can demonstrate that the amount requested
for expenses incurred in-house reflect the actual cost of such
expenses to the applicant. The United States Trustee may establish
an objection ceiling for any in-house expenses that are routinely
incurred and for which the actual cost cannot easily be determined
by most professionals (e.g., photocopies, facsimile charges, and
mileage).
(vii) Whether the expenses appear to be in the nature
nonreimbursable overhead. Overhead consists of all continuous
administrative or general costs incident to the operation of the
applicant's office and not particularly attributable to an
individual client or case. Overhead includes, but is not limited to,
word processing, proofreading, secretarial and other clerical
services, rent, utilities, office equipment and furnishings,
insurance, taxes, local telephones and monthly car phone charges,
lighting, heating and cooling, and library and publication charges.
(viii) Whether applicant has adhered to allowable rates for
expenses as fixed by local rule or order of the Court.
Exhibit A--Project Categories
Here is a list of suggested project categories for use in most
bankruptcy cases. Only one category should be used for a given
activity. Professionals should make their best effort to be
consistent in their use of categories, whether within a particular
firm or by different firms working on the same case. It would be
appropriate for all professionals to discuss the categories in
advance and agree generally on how activities will be categorized.
This list is not exclusive. The application may contain additional
categories as the case requires. They are generally more applicable
to attorneys in chapter 7 and chapter 11, but may be used by all
professionals as appropriate.
Asset Analysis and Recovery: Identification and review of
potential assets including causes of action and non-litigation
recoveries.
Asset Disposition: Sales, leases (Sec. 365 matters), abandonment
and related transaction work.
Business Operations: Issues related to debtor-in-possession
operating in chapter 11 such as employee, vendor, tenant issues and
other similar problems.
Case Administration: Coordination and compliance activities,
including preparation of statement of financial affairs; schedules;
list of contracts; United States Trustee interim statements and
operating reports; contacts with the United States Trustee; general
creditor inquiries.
Claims Administration and Objections: Specific claim inquiries;
bar date motions; analyses, objections and allowances of claims.
Employee Benefits/Pensions: Review issues such as severance,
retention, 401K coverage and continuance of pension plan.
Fee/Employment Applicants: Preparation of employment and fee
applications for self or others; motions to establish interim
procedures.
Fee/Employment Objections: Review of and objections to the
employment and fee applications of others.
Financing: Matters under Secs. 361, 363 and 364 including cash
collateral and secured claims; loan document analysis.
Litigation: There should be a separate category established for
each matter (e.g., XYZ Litigation).
Meetings of Creditors: Preparing for and attending the
conference of creditors, the Sec. 341(a) meeting and other
creditors' committee meetings.
Plan and Disclosure Statement: Formulation, presentation and
confirmation; compliance with the plan confirmation order, related
orders and rules; disbursement and case closing activities, except
those related to the allowance and objections to allowance of
claims.
Relief From Stay Proceedings: Matters relating to termination or
continuation of automatic stay under Sec. 362.
The following categories are generally more applicable to
accountants and financial advisors, but may be used by all
professionals as appropriate.
Accounting/Auditing: Activities related to maintaining and
auditing books of account, preparation of financial statements and
account analysis.
Business Analysis: Preparation and review of company business
plan; development and review of strategies; preparation and review
of cash flow forecasts and feasibility studies.
[[Page 24892]]
Corporate Finance: Review financial aspects of potential
mergers, acquisitions and disposition of company or subsidiaries.
Data Analysis: Management information systems review,
installation and analysis, construction, maintenance and reporting
of significant case financial data, lease rejection, claims, etc.
Litigation Consulting: Providing consulting and expert witness
services relating to various bankruptcy matters such as insolvency,
feasibility, avoiding actions, forensic accounting, etc.
Reconstruction Accounting: Reconstructing books and records from
past transactions and bringing accounting current.
Tax Issues: Analysis of tax issues and preparation of state and
federal tax returns.
Valuation: Appraise or review appraisals of assets.
Dated: April 25, 1996.
Joseph Patchan,
Director.
[FR Doc. 96-11799 Filed 5-16-96; 8:45 am]
BILLING CODE 4410-01-M
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