issue-1996-06-21•Federal Register final rules — 1996-06-21
Federal Register final rules — 1996-06-21
issue-1996-06-21Federal Register final rules — 1996-06-21Regulation
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. 96-15915 Standard Instrument Approach Procedures; Miscellaneous Amendments
[Federal Register Volume 61, Number 121 (Friday, June 21, 1996)]
[Rules and Regulations]
[Pages 31828-31830]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15915]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
14 CFR Part 97
[Docket No. 28600; Amdt. No. 1734]
RIN 2120-AA65
Standard Instrument Approach Procedures; Miscellaneous Amendments
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This amendment establishes, amends, suspends, or revokes
Standard Instrument Approach Procedures (SIAPs) for operations at
certain airports. These regulatory actions are needed because of
changes occurring in the National Airspace System, such as the
commissioning of new navigational facilities, addition of new
obstacles, or changes in air traffic requirements. These changes are
designed to provide safe and efficient use of the navigable airspace
and to promote safe flight operations under instrument flight rules at
the affected airports.
DATES: An effective date for each SIAP is specified in the amendatory
provisions.
Incorporation by reference-approved by the Director of the Federal
Register on December 31, 1980, and reapproved as of January 1, 1982.
ADDRESSES: Availability of matter incorporated by reference in the
amendment is as follows:
For Examination
1. FAA Rules Docket, FAA Headquarters Building, 800 Independence
Avenue, SW., Washington, DC 20591;
2. The FAA Regional Office of the region in which affected airport
is located; or
3. The Flight Inspection Area Office which originated the SIAP.
For Purchase
Individual SIAP copies may be obtained from:
1. FAA Public Inquiry Center (APA-200), FAA Headquarters Building,
800 Independence Avenue, SW., Washington, DC 20591; or
2. The FAA Regional Office of the region in which the affected
airport is located.
By Subscription
Copies of all SIAPs, mailed once every 2 weeks, are for sale by the
[[Page 31829]]
Superintendent of Documents, US Government Printing Office, Washington,
DC 20402.
FOR FURTHER INFORMATION CONTACT:
Paul J. Best, Flight Procedures Standards Branch (AFS-420), Technical
Programs Division, Flight Standards Service, Federal Aviation
Administration, 800 Independence Avenue, SW., Washington, DC 20591;
telephone (202) 267-8277.
SUPPLEMENTARY INFORMATION: This amendment to part 97 of the Federal
Aviation Regulations (14 CFR part 97) establishes, amends, suspends, or
revokes Standard Instrument Approach Procedures (SIAPs). The complete
regulatory description on each SIAP is contained in the appropriate FAA
Form 8260 and the National Flight Data Center (FDC)/Permanent (P)
Notices to Airmen (NOTAM) which are incorporated by reference in the
amendment under 5 U.S.C. 552(a), 1 CFR part 51, and Sec. 97.20 of the
Federal Aviation Regulations (FAR). Materials incorporated by reference
are available for examination or purchase as stated above.
The large number of SIAPs, their complex nature, and the need for a
special format make their verbatim publication in the Federal Register
expensive and impractical. Further, airmen do not use the regulatory
text of the SIAPs, but refer to their graphic depiction of charts
printed by publishers of aeronautical materials. Thus, the advantages
of incorporation by reference are realized and publication of the
complete description of each SIAP contained in FAA form documents is
unnecessary. The provisions of this amendment state the affected CFR
(and FAR) sections, with the types and effective dates of the SIAPs.
This amendment also identifies the airport, its location, the procedure
identification and the amendment number.
The Rule
This amendment to part 97 of the Federal Aviation Regulations (14
CFR part 97) establishes, amends, suspends, or revokes SIAPs. For
safety and timeliness of change considerations, this amendment
incorporates only specific changes contained in the content of the
following FDC/P NOTAM for each SIAP. The SIAP information in some
previously designated FDC/Temporary (FDC/T) NOTAMs is of such duration
as to be permanent. With conversion to FDC/P NOTAMs, the respective
FDC/P NOTAMs have been cancelled.
The FDC/P NOTAMs for the SIAPs contained in this amendment are
based on the criteria contained in the U.S. Standard for Terminal
Instrument Approach Procedures (TERPS). In developing these chart
changes to SIAPs by FDC/P NOTAMs, the TERPS criteria were applied to
only these specific conditions existing at the affected airports. All
SIAP amendments in this rule have been previously issued by the FAA in
a National Flight Data Center (FDC) Notice to Airmen (NOTAM) as an
emergency action of immediate flight safety relating directly to
published aeronautical charts. The circumstances which created the need
for all these SIAP amendments requires making them effective in less
than 30 days.
Further, the SIAPs contained in this amendment are based on the
criteria contained in the TERPS. Because of the close and immediate
relationship between these SIAPs and safety in air commerce, I find
that notice and public procedure before adopting these SIAPs are
impracticable and contrary to the public interest and, where
applicable, that good cause exists for making these SIAPs effective in
less than 30 days.
Conclusion
The FAA has determined that this regulation only involves an
established body of technical regulations for which frequent and
routine amendments are necessary to keep them operationally current.
It, therefore--(1) is not a ``significant regulatory action'' under
Executive Order 12866; (2) is not a ``significant rule'' under DOT
Regulatory Policies and Procedures (44 FR 11034; February 26, 1979);
and (3) does not warrant preparation of a regulatory evaluation as the
anticipated impact is so minimal. For the same reason, the FAA
certifies that this amendment will not have a significant economic
impact on a substantial number of small entities under the criteria of
the Regulatory Flexibility Act.
List of Subjects in 14 CFR Part 97
Air traffic control, Airports, Navigation (Air).
Issued in Washington, DC on June 14, 1996.
Thomas C. Accardi,
Director, Flight Standards Service.
Adoption of the Amendment
Accordingly, pursuant to the authority delegated to me, part 97 of
the Federal Aviation Regulations (14 CFR part 97) is amended by
establishing, amending, suspending, or revoking Standard Instrument
Approach Procedures, effective at 0901 UTC on the dates specified, as
follows:
PART 97--STANDARD INSTRUMENT APPROACH PROCEDURES
1. The authority citation for part 97 is revised to read as
follows:
Authority: 49 U.S.C. 40103, 40113, 40120, 44701; 49 U.S.C.
106(g); and 14 CFR 11.49(b)(2).
2. Part 97 is amended to read as follows:
Secs. 97.23, 97.25, 97.27, 97.29, 97.31, 97.33, 97.35 [Amended]
By amending: Sec. 97.23 VOR, VOR/DME, VOR or TACAN, and VOR/DME or
TACAN; Sec. 97.25 LOC, LOC/DME, LDA, LDA/DME, SDF, SDF/DME; Sec. 97.27
NDB, NDB/DME; Sec. 97.29 ILS, ILS/DME, ISMLS, MLS, MLS/DME, MLS/RNAV;
Sec. 97.31 RADAR SIAPs; Sec. 97.33 RNAV SIAPs; and Sec. 97.35 COPTER
SIAPs, identified as follows:
* * * Effective Upon Publication
--------------------------------------------------------------------------------------------------------------------------------------------------------
FDC date State City Airport FDC No. SIAP
--------------------------------------------------------------------------------------------------------------------------------------------------------
05/30/96............. CA Colusa.............. Colusa County....... FDC 6/3334 VOR or GPS-A AMDT 4...
05/30/96............. CA Willows............. Willows-Glen County. FDC 6/3335 VOR RWY 34 AMDT 4...
05/30/96............. CA Willows............. Willows-Glen County. FDC 6/3336 VOR/DME or GPS RWY 34 AMDT 4...
05/30/96............. FL Tampa............... Tampa Intl.......... FDC 6/3347 ILS RWY 18L AMDT 38C...
05/31/96............. FL Miami............... Miami Intl.......... FDC 6/3388 NDB or GPS RWY 27L AMDT 18A...
06/05/96............. FL St Petersburg....... St Petersburg/Albert FDC 6/3496 VOR or GPS RWY 18 AMDT 6...
Whitted.
06/05/96............. KS Colby............... Shaltz Field........ FDC 6/3510 NDB or GPS RWY 17 ORIG...
06/07/96............. CA Monterey............ Monterey Peninsula.. FDC 6/3572 LOC/DME RWY 28L AMDT 3...
06/07/96............. KS Independence........ Independence Muni... FDC 6/3574 VOR or GPS-A AMDT 1...
06/07/96............. NM Taos................ Taos Muni........... FDC 6/3576 VOR/DME or GPS-B AMDT 2A...
[[Page 31830]]
06/07/96............. NM Taos................ Taos Muni........... FDC 6/3577 NDB RWY 4 ORIG-A...
06/10/96............. AR Malvern............. Malvern Muni........ FDC 6/3643 NDB or GPS RWY 21 AMDT 1...
06/10/96............. IL Macomb.............. Macomb Muni......... FDC 6/3644 NDB or GPS RWY 27 AMDT 2A...
06/10/96............. IL Springfield......... Capital Airport..... FDC 6/3646 ILS RWY 4 AMDT 24...
06/10/96............. NC Wilmington.......... New Hanover......... FDC 6/3669 NDB or GPS RWY 35, AMDT 16A...
06/10/96............. NC Wilmington.......... New Hanover......... FDC 6/3670 RADAR-1, AMDT 6...
06/10/96............. WI Rice Lake........... Rice Lake Regional- FDC 6/3655 NDB RWY 19 ORIG...
Carl's Field.
06/11/96............. NM Albuquerque......... Albuquerque Intl.... FDC 6/3713 ILS RWY 3 ORIG...
06/12/96............. NY Wellsville.......... Wellsville Muni- FDC 6/3753 LOC RWY 28 AMDT 3...
Tarantine Field. This replaces FDC NOTAM 6/3249 in TL 96-13.
--------------------------------------------------------------------------------------------------------------------------------------------------------
[FR Doc. 96-15915 Filed 6-20-96; 8:45 am]
BILLING CODE 4910-13-M
Complete official Federal Register PDF
FR Doc. 96-15914 Standard Instrument Approach Procedures; Miscellaneous Amendments
[Federal Register Volume 61, Number 121 (Friday, June 21, 1996)]
[Rules and Regulations]
[Pages 31830-31831]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15914]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
14 CFR Part 97
[Docket No. 28602; Amdt. No. 1736]
Standard Instrument Approach Procedures; Miscellaneous Amendments
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This amendment establishes, amends, suspends, or revokes
Standard Instrument Approach Procedures (SIAPs) for operations at
certain airports. These regulatory actions are needed because of the
adoption of new or revised criteria, or because of changes occurring in
the National Airspace System, such as the commissioning of new
navigational facilities, addition of new obstacles, or changes in air
traffic requirements. These changes are designed to provide safe and
efficient use of the navigable airspace and to promote safe flight
operations under instrument flight rules at the affected airports.
DATES: An effective date for each SIAP is specified in the amendatory
provisions.
Incorporation by reference-approved by the Director of the Federal
Register on December 31, 1980, and reapproved as of January 1, 1982.
ADDRESSES: Availability of matters incorporated by reference in the
amendment is as follows:
For Examination
1. FAA Rules Docket, FAA Headquarters Building, 800 Independence
Avenue, SW., Washington DC 20591;
2. The FAA Regional Office of the region in which the affected
airport is located; or
3. The Flight Inspection Area Office which originated the SIAP.
For Purchase
Individual SIAP copies may be obtained from:
1. FAA Public Inquiry Center (APA-200), FAA Headquarters Building,
800 Independence Avenue, SW., Washington, DC 20591; or
2. The FAA Regional Office of the region in which the affected
airport is located.
By Subscription
Copies of all SIAPs, mailed once every 2 weeks, are for sale by the
Superintendent of Documents, U.S. Government Printing Office,
Washington, DC 20402.
FOR FURTHER INFORMATION CONTACT:
Paul J. Best, Flight Procedures Standards Branch (AFS-420), Technical
Programs Division, Flight Standards Service, Federal Aviation
Administration, 800 Independence Avenue, SW., Washington, DC 20591;
telephone (202) 267-8277.
SUPPLEMENTARY INFORMATION: This amendment to part 97 of the Federal
Aviation Regulations (14 CFR part 97) establishes, amends, suspends, or
revokes Standard Instrument Approach Procedures (SIAPs). The complete
regulatory description of each SIAP is contained in official FAA form
documents which are incorporated by reference in this amendment under 5
U.S.C. 552(a), 1 CFR part 51, and Sec. 97.20 of the Federal Aviation
Regulations (FAR). The applicable FAA forms are identified as FAA Form
8260-5. Materials incorporated by reference are available for
examination or purchase as stated above.
The large number of SIAPs, their complex nature, and the need for a
special format make their verbatim publication in the Federal Register
expensive and impractical. Further, airmen do not use the regulatory
text of the SIAPs, but refer to their graphic depiction on charts
printed by publishers of aeronautical materials. Thus, the advantages
of incorporation by reference are realized and publication of the
complete description of each SIAP contained in FAA form documents is
unnecessary. The provisions of this amendment state the affected CFR
(and FAR) sections, with the types and effective dates of the SIAPs.
This amendment also identifies the airport, its location, the procedure
identification and the amendment number.
This amendment to part 97 is effective upon publication of each
separate SIAP as contained in the transmittal. The SIAPs contained in
this amendment are based on the criteria contained in the United States
Standard for Terminal Instrument Approach Procedures (TERPS). In
developing these SIAPs, the TERPS criteria were applied to the
conditions existing or anticipated at the affected airports.
The FAA has determined through testing that current non-localizer
type, non-precision instrument approaches developed using the TERPS
criteria can be flown by aircraft equipped with Global Positioning
System (GPS) equipment. In consideration of the above, the applicable
Standard Instrument Approach Procedures (SIAPs) will be altered to
include ``or GPS'' in the title without otherwise reviewing or
modifying the procedure. (Once a stand alone GPS procedure is
developed, the procedure title will be altered to remove ``or GPS''
from these non-localizer, non-precision instrument approach procedure
titles.) Because of the close and immediate relationship between these
SIAPs and safety in air commerce, I find that notice and public
procedure before adopting these SIAPs are, impracticable and contrary
to the public interest and, where applicable, that good cause exists
for making some SIAPs effective in less than 30 days.
The FAA determined that this regulation only involves an
established body of technical regulations for which frequent and
routine amendments are necessary to keep them operationally
[[Page 31831]]
current. It, therefore--(1) is not a ``significant regulatory action''
under Executive Order 12866; (2) is not a ``significant rule'' under
DOT Regulatory Policies and Procedures (44 FR 11034; February 26,
1979); and (3) does not warrant preparation of a regulatory evaluation
as the anticipated impact is so minimal. For the same reason, the FAA
certifies that this amendment will not have a significant economic
impact on a substantial number of small entities under the criteria of
the Regulatory Flexibility Act.
List of Subjects in 14 CFR Part 97
Air traffic control, Airports, Navigation (Air).
Issued in Washington, DC on June 14, 1996.
Thomas C. Accardi,
Director, Flight Standards Service.
Adoption of the Amendment
Accordingly, pursuant to the authority delegated to me, part 97 of
the Federal Aviation Regulations (14 CFR part 97) is amended by
establishing, amending, suspending, or revoking Standard Instrument
Approach Procedures, effective at 0901 UTC on the dates specified, as
follows:
PART 97--STANDARD INSTRUMENT APPROACH PROCEDURES
1. The authority citation for part 97 is revised to read as
follows:
Authority: 49 U.S.C. 40103, 40113, 40120, 44701; 49 U.S.C.
106(g); and 14 CFR 11.49(b)(2).
2. Part 97 is amended to read as follows:
Sec. Sec. 97.23, 97.27, 97.33, 97.35 [Amended]
By amending: Sec. 97.23 VOR, VOR/DME, or TACAN, and VOR/DME or
TACAN; Sec. 97.27 NDB, NDB/DME; Sec. 97.33 RNAV SIAPs; and Sec. 97.35
COPTER SIAPs, identified as follows:
***Effective August 15, 1996
Bartow, FL, Bartow Muni, VOR/DME or GPS RWY 9L, Amdt 1A Cancelled
Bartow, FL, Bartow Muni, VOR/DME RWY 9L, Amdt 1A
Lake Providence, LA, Byerley, NDB or GPS RWY 17, Amdt 1 Cancelled
Lake Providence, LA, Byerley, NDB RWY 17, Amdt 1
Marksville, LA, Marksville Muni, NDB or GPS RWY 4, Amdt 1A Cancelled
Marksville, LA, Marksville Muni, NDB RWY 4, Amdt 1A
Mansfield, MA, Mansfield Muni, NDB or GPS RWY 32, Amdt 4 Cancelled
Mansfield, MA, Mansfield Muni, NDB RWY 32, Amdt 4
Willmar, MN, Willmar Muni-John L. Rice Field, VOR or GPS RWY 10,
Amdt 1A Cancelled
Willmar, MN, Willmar Muni-John L. Rice Field, VOR RWY 10, Amdt 1A
Imperial, NE, Imperial Muni, NDB or GPS RWY 31, Amdt 2 Cancelled
Imperial, NE, Imperial Muni, NDB RWY 31, Amdt 2
Portsmouth, NH, Pease International Tradeport, VOR or TACAN or GPS
RWY 16, Amdt 1A Cancelled
Portsmouth, NH, Pease International Tradeport, VOR or TACAN RWY 16,
Amdt 1A
Trenton, NJ, Mercer County, VOR/DME RNAV or GPS RWY 16, Amdt 4
Cancelled
Trenton, NJ, Mercer County, VOR/DME RNAV RWY 16, Amdt 4
Trenton, NJ, Mercer County, VOR/DME RNAV or GPS RWY 34, Amdt 5
Cancelled
Trenton, NJ, Mercer County, VOR/DME RNAV RWY 34, Amdt 5
North Kingstown, RI, Quonset State, VOR or GPS RWY 34, Orig
Cancelled
North Kingstown, RI, Quonset State, VOR RWY 34, Orig.
Hondo, TX, Hondo Muni, VOR or GPS RWY 17L, Orig Cancelled
Hondo, TX, Hondo Muni, VOR RWY 17L, Orig.
[FR Doc. 96-15914 Filed 6-20-96; 8:45 am]
BILLING CODE 4910-13-M
Complete official Federal Register PDF
FR Doc. 96-15913 Standard Instrument Approach Procedures; Miscellaneous Amendments
[Federal Register Volume 61, Number 121 (Friday, June 21, 1996)]
[Rules and Regulations]
[Pages 31827-31828]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15913]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
14 CFR Part 97
[Docket No. 28601; Amdt. No. 1735]
RIN 2120-AA65
Standard Instrument Approach Procedures; Miscellaneous Amendments
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This amendment establishes, amends, suspends, or revokes
Standard Instrument Approach Procedures (SIAPs) for operations at
certain airports. These regulatory actions are needed because of the
adoption of new or revised criteria, or because of changes occurring in
the National Airspace System, such as the commissioning of new
navigational facilities, addition of new obstacles, or changes in air
traffic requirements. These changes are designed to provide safe and
efficient use of the navigable airspace and to promote safe flight
operations under instrument flight rules at the affected airports.
DATES: An effective date for each SIAP is specified in the amendatory
provisions.
Incorporation by reference-approved by the Director of the Federal
Register on December 31, 1980, and reapproved as of January 1, 1982.
ADDRESSES: Availability of matters incorporated by reference in the
amendment is as follows:
For Examination
1. FAA Rules Docket, FAA Headquarters Building, 800 Independence
Avenue, SW., Washington, DC 20591;
2. The FAA Regional Office of the region in which the affected
airport is located; or
3. The Flight Inspection Area Office which originated the SIAP.
For Purchase
Individual SIAP copies may be obtained from:
1. FAA Public Inquiry Center (APA-200), FAA Headquarters Building,
800 Independence Avenue, SW., Washington, DC 20591; or
2. The FAA Regional Office of the region in which the affected
airport is located.
By Subscription
Copies of all SIAPs, mailed once every 2 weeks, are for sale by the
Superintendent of Documents, U.S. Government Printing Office,
Washington, DC 20402.
FOR FURTHER INFORMATION CONTACT: Paul J. Best, Flight Procedures
Standards Branch (AFS-420), Technical Programs Division, Flight
Standards Service, Federal Aviation Administration, 800 Independence
Avenue, SW., Washington, DC 20591; telephone (202) 267-8277.
SUPPLEMENTARY INFORMATION: This amendment to part 97 of the Federal
Aviation Regulations (14 CFR part 97) establishes, amends, suspends, or
revokes Standard Instrument Approach Procedures (SIAPs). The complete
regulatory description of each SIAP is contained in official FAA form
documents which are incorporated by reference in this amendment under 5
U.S.C. 552(a), 1 CFR part 51, and Sec. 97.20 of the Federal Aviation
Regulations (FAR). The applicable FAA Forms are identified as FAA Forms
8260-3, 8260-4, and 8260-5. Materials incorporated by reference are
available for examination or purchase as stated above.
The large number of SIAPs, their complex nature, and the need for a
special format make their verbatim publication in the Federal Register
expensive and impractical. Further, airmen do not use the regulatory
text of the SIAPs, but refer to their graphic depiction on charts
printed by publishers of aeronautical materials. Thus, the advantages
of incorporation by reference are realized and publication of the
complete description of each SIAP contained in FAA form documents is
unnecessary. The provisions of this amendment state the affected CFR
(and FAR) sections, with the types and effective dates of the SIAPs.
This amendment also identifies the airport, its location, the procedure
identification and the amendment number.
The Rule
This amendment to part 97 is effective upon publication of each
separate SIAP as contained in the transmittal. Some SIAP amendments may
have been previously issued by the FAA in a National Flight Data Center
(FDC) Notice to Airmen (NOTAM) as an emergency action of immediate
flight safety relating directly to published aeronautical charts. The
circumstances which created the need for some SIAP amendments may
require making them effective in less than 30 days. For the remaining
SIAPs, an effective date at least 30 days after publication is
provided.
Further, the SIAPs contained in this amendment are based on the
criteria contained in the U.S. Standard for Terminal Instrument
Approach Procedures (TERPS). In developing these SIAPs, the TERPS
criteria were applied to the conditions existing or anticipated at the
affected airports. Because of the close and immediate relationship
between these SIAPs and safety in air commerce, I find that notice and
public procedure before adopting these SIAPs are impracticable and
contrary to the public interest and, where applicable, that good cause
exists for making some SIAPs effective in less than 30 days.
The FAA has determined that this regulation only involves an
established body of technical regulations for which frequent and
routine amendments are necessary to keep them operationally current.
It, therefore--(1) is not a ``significant regulatory action'' under
Executive Order 12866; (2) is not a ``significant rule'' under DOT
Regulatory Policies and Procedures (44 FR 11034; February 26, 1979);
and (3) does not warrant preparation of a regulatory evaluation as the
anticipated
[[Page 31828]]
impact is so minimal. For the same reason, the FAA certifies that this
amendment will not have a significant economic impact on a substantial
number of small entities under the criteria of the Regulatory
Flexibility Act.
List of Subjects in 14 CFR Part 97
Air traffic control, Airports, Navigation (Air).
Issued in Washington, DC on June 14, 1996.
Thomas C. Accardi,
Director, Flight Standards Service.
Adoption of the Amendment
Accordingly, pursuant to the authority delegated to me, part 97 of
the Federal Aviation Regulations (14 CFR part 97) is amended by
establishing, amending, suspending, or revoking Standard Instrument
Approach Procedures, effective at 0901 UTC on the dates specified, as
follows:
PART 97--STANDARD INSTRUMENT APPROACH PROCEDURES
1. The authority citation for part 97 is revised to read as
follows:
Authority: 49 U.S.C. 106(g), 40103, 40113, 40120, 44701; and 14
CFR 11.49(b)(2).
2. Part 97 is amended to read as follows:
Secs. 97.23, 97.25, 97.27, 97.29, 97.31, 97.33, 97.35 [Amended]
By amending: Sec. 97.23 VOR, VOR/DME, VOR or TACAN, and VOR/DME or
TACAN; Sec. 97.25 LOC, LOC/DME, LDA, LDA/DME, SDF, SDF/DME; Sec. 97.27
NDB, NDB/DME; Sec. 97.29 ILS, ILS/DME, ISMLS, MLS, MLS/DME, MLS/RNAV;
Sec. 97.31 RADAR SIAPs; Sec. 97.33 RNAV SIAPs; and Sec. 97.35 COPTER
SIAPs, identified as follows:
* * * Effective July 18, 1996
Norfolk, VA, Norfolk International, GPS RWY 14, Orig
* * * Effective August 15, 1996
Springerville, AZ, Springerville Babbitt Field, GPS RWY 21, Orig
Byron, CA, Bryon, GPS RWY 30, Orig
Groton/New London, CT, Groton-New London, GPS RWY 33, Orig
Nashville, GA, Berrien County, GPS RWY 9, Orig
Rome, GA, Richard B. Russell, LOC/DME BC RWY 19, Amdt 1, Cancelled
Agana, GU, Guam International, VOR-A, Orig
Agana, GU, Guam International, ILS RWY 6L, Orig
Agana, GU, Guam International, VOR/DME or TACAN RWY 6L, Orig
Agana, GU, Guam International, TACAN RWY 24R, Orig
Agana, GU, Guam International, NDB/DME RWY 24R, Orig
Russell, KS, Russell Muni, GPS RWY 16, Orig
Russell, KS, Russell Muni, GPS RWY 34, Orig
Georgetown, KY, Georgetown Scott County--Marshall Fld, GPS RWY 3,
Orig
Georgetown, KY, Georgetown Scott County--Marshall Fld, GPS RWY 21,
Orig
Lake Providence, LA, Byerley, GPS RWY 17, Orig
Marksville, LA, Marksville Municipal, GPS RWY 4, Orig
Eliot, ME, Littlebrook Air Park, VOR OR GPS-A, Amdt 1
Eilot, ME, Littlebrook Air Park, GPS RWY 30, Orig
Frederick, MD, Frederick Muni, VOR or GPS-A, Amdt 1
Leonardtown, MD, St Marys County, GPS RWY 11, Orig
Fall River, MA, Fall River Muni, NDB or GPS RWY 24, Amdt 8,
Cancelled
Mansfield, MA, Mansfield Muni, GPS RWY 32, Orig
Mansfield, MA, Mansfield Muni, NDB RWY 32, Amdt 5
New Bedford, MA, New Bedford Regional, GPS RWY 23, Orig
Southbridge, MA, Southbridge Muni, VOR/DME-B, Amdt 7
Southbridge, MA, Southbridge Muni, GPS RWY, 2 Orig
Butler, MO, Butler Memorial, GPS RWY 18, Orig
Imperial, NE, Imperial Muni, GPS RWY 31, Orig
Imperial, NE, Imperial Muni, NDB RWY 31, Amdt 2
Seward, NE, Seward Municipal, NDB RWY 16, Orig
Seward, NE, Seward Municipal, NDB RWY 34, Orig
Blairstown, NJ, Blairstown, GPS RWY 7, Orig
Calverton, NY, Calverton Naval Weapons Industrial Reserve, VOR/DME
or TACAN or GPS-A, Amdt 2, Cancelled
Calverton, NY, Calverton Naval Weapons Industrial Reserve, VOR/DME
or TACAN or GPS RWY 32, Amdt 2, Cancelled
Williamson/Sodus, NY, Williamson-Sodus, GPS RWY 28, Orig
Smithfield, NC, Johnston County, LOC/DME RWY 3, Amdt 1
Portland, OR, Protland Intl, VOR/DME-C, Orig, Cancelled
Portland, OR, Protland Intl, LORAN RNAV RWY 10R, Orig, Cancelled
Portland, OR, Protland Intl, LORAN RNAV RWY 28R, Orig, Cancelled
Philadelphia, PA, Wings Field, VOR/DME RNAV RWY 6, Amdt 4
Eagle Butte, SD, Cheyenne Eagle Butte, GPS RWY 31, Orig
Brenham, TX, Brenham Muni, GPS RWY 16, Orig
Spokane, WA, Felts Field, GPA-A, Orig
Fairmont, WV, Fairmont Muni, GPS RWY 22, Orig
Riverton, WY, Riverton Regional, GPS RWY 10, Orig
Riverton, WY, Riverton Regional, GPS RWY 28, Orig
Note: The FAA published an Amendment in Docket No. 28594, Amdt.
No. 1732 to part 97 of the Federal Aviation Regulations (Volume 61,
FR No. 111, Page 29016, dated Friday, June 7, 1996) under section
97.33 effective June 20, 1996 is hereby rescinded:
Norfolk, VA, Norfolk Intl, GPS RWY 14, Orig
[FR Doc. 96-15913 Filed 6-20-96; 8:45 am]
BILLING CODE 4910-13-M
Complete official Federal Register PDF
FR Doc. 96-15890 Ocean Salmon Fisheries Off the Coasts of Washington, Oregon, and California; Closure from Cape Arago, OR, to the Oregon-California Border
[Federal Register Volume 61, Number 121 (Friday, June 21, 1996)]
[Rules and Regulations]
[Page 31873]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15890]
=======================================================================
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 661
[Docket No. 960126016-6121-04; I.D. 061196C]
Ocean Salmon Fisheries Off the Coasts of Washington, Oregon, and
California; Closure from Cape Arago, OR, to the Oregon-California
Border
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Closure.
-----------------------------------------------------------------------
SUMMARY: NMFS announces that the commercial salmon fishery in the area
from Cape Arago, OR, to the Oregon-California border was closed at 1700
hours, June 5, 1996. The Director, Northwest Region, NMFS (Regional
Director), has determined that the commercial quota of 5,300 chinook
salmon for the area has been reached. This action is necessary to
conform to the preseason announcement of the 1996 management measures
and is intended to ensure conservation of chinook salmon.
DATES: Effective 1700 hours local time, June 5, 1996, through 2400
hours local time, June 30, 1996. Comments will be accepted through July
5, 1996.
ADDRESSES: Comments may be mailed to William Stelle, Jr., Director,
Northwest Region, National Marine Fisheries Service, NOAA, 7600 Sand
Point Way NE., BIN C15700-Bldg. 1, Seattle, WA 98115-0070. Information
relevant to this action has been compiled in aggregate form and is
available for public review during business hours at the office of the
Regional Director.
FOR FURTHER INFORMATION CONTACT: William L. Robinson, 206-526-6140.
SUPPLEMENTARY INFORMATION: Regulations governing the ocean salmon
fisheries at 50 CFR 661.21(a)(1) state that when a quota for the
commercial or the recreational fishery, or both, for any salmon species
in any portion of the fishery management area is projected by the
Regional Director to be reached on or by a certain date, the Secretary
of Commerce will, under 50 CFR 661.23, close the commercial or
recreational fishery, or both, for all salmon species in the portion of
the fishery management area to which the quota applies as of the date
the quota is projected to be reached.
In the annual management measures for ocean salmon fisheries (61 FR
20175, May 6, 1996), NMFS announced that the 1996 commercial fishery in
the area between Cape Arago, OR, and the Oregon-California border would
open on May 1 and continue through June 30 or attainment of the 5,300
chinook salmon quota, whichever occurred first.
The best available information on June 3 indicated that commercial
catches in this area totaled about 4,300 chinook salmon through June 2.
Based on the recent catch and effort levels, NMFS determined to close
the commercial fishery at 1200 hours, June 4. The U.S. Coast Guard
Notice to Mariners was not broadcast, however, until Wednesday
afternoon, June 5. Therefore, the Federal closure was not effective
until 1700 hours, June 5. The season remains closed under the terms of
the preseason announcement of the 1996 management measures.
The Regional Director consulted with representatives of the Pacific
Fishery Management Council and the Oregon Department of Fish and
Wildlife regarding this closure. The State of Oregon closed its
commercial fishery between Cape Arago and the Oregon-California border
at 1200 hours on June 4. As provided by the inseason notice procedures
of 50 CFR 661.23, actual notice to fishermen of this action was given
prior to 1700 hours local time, June 5, 1996, by telephone hotline
number 206-526-6667 or 800-662-9825 and by U.S. Coast Guard Notice to
Mariners broadcasts on Channel 16 VHF-FM and 2182 kHz. Because of the
need for immediate action to stop the fishery upon achievement of the
quota, NMFS has determined that good cause exists for this action to be
issued without affording a prior opportunity for public comment. This
action does not apply to other fisheries that may be operating in other
areas.
Classification
This action is authorized by 50 CFR 661.21 and 661.23 and is exempt
from review under E.O. 12866.
Authority: 16 U.S.C. 1801 et seq.
Dated: June 17, 1996.
Richard W. Surdi,
Acting Director, Office of Fisheries Conservation and Management,
National Marine Fisheries Service.
[FR Doc. 96-15890 Filed 6-20-96; 8:45 am]
BILLING CODE 3510-22-F
Complete official Federal Register PDF
FR Doc. 96-15881 Approval and Promulgation of Implementation Plans and Designation of Areas for Air Quality Planning Purposes; State of Michigan
[Federal Register Volume 61, Number 121 (Friday, June 21, 1996)]
[Rules and Regulations]
[Pages 31831-31850]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15881]
=======================================================================
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 81
[MI43-03-7258; FRL-5525-4]
Approval and Promulgation of Implementation Plans and Designation
of Areas for Air Quality Planning Purposes; State of Michigan
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: On April 2, 1996 the Environmental Protection Agency (EPA)
published a proposal to approve the redesignation to attainment and
associated section 175A maintenance plan for the ozone National Ambient
Air Quality Standard (NAAQS) for the two-county Grand Rapids, Michigan
area as a State Implementation Plan (SIP) revision. The 30-day comment
period concluded on May 2, 1996. A total of 1 comment letter was
received in response to the April 2, 1996 proposal. On May 1, 1996, the
EPA published a 14-day partial extension of the comment period on the
redesignation request and section 175A maintenance plan, limited to the
State's April 11, 1996 revision to the section 175A maintenance plan
which was not available in EPA's docket prior to April 15, 1996. The
reopened comment period concluded on May 16, 1996. One additional
comment letter was received in response to the May 1, 1996, extension
of public comment period. This final rule summarizes all comments and
EPA's responses, and finalizes the approval of the redesignation to
attainment for ozone and associated section 175A maintenance plan for
the Grand Rapids area.
EFFECTIVE DATE: This action will be effective June 21, 1996.
ADDRESSES: Copies of the SIP revisions, public comments and EPA's
responses are available for inspection at the following address: (It is
recommended that you telephone Jacqueline Nwia at (312) 886-6081 before
visiting the Region 5 Office.) United States Environmental Protection
Agency, Region 5, Air and Radiation Division, 77 West Jackson
Boulevard, Chicago, Illinois 60604.
FOR FURTHER INFORMATION CONTACT: Jacqueline Nwia, Regulation
Development Section (AR-18J), Air Programs Branch, Air and Radiation
Division, United States Environmental Protection Agency, Region 5, 77
West Jackson Boulevard, Chicago, Illinois 60604, Telephone Number (312)
886-6081.
SUPPLEMENTARY INFORMATION:
I. Background Information
The redesignation request and maintenance plan for the Grand Rapids
and Muskegon moderate ozone nonattainment areas discussed in this rule
were submitted on March 9, 1995 and May 1, 1995 (with a revision on
April 11, 1996), by the Michigan Department of Environmental Quality
(MDEQ). However, the April 2, 1996 proposal and this final rule address
only the Grand Rapids area, which consists of Kent and Ottawa Counties.
On April 2, 1996, (61 FR 14522) the EPA published a proposal to approve
the redesignation request and associated section 175A maintenance plan
as a revision to the Michigan ozone SIP. On May 1, 1996 (61 FR 19233),
the EPA published a partial 14-day extension of the comment period on
the redesignation request and section 175A maintenance plan, limited to
the State's April 11, 1996 revision to the section 175A maintenance
plan, which was not available in EPA's docket prior to April 15, 1996.
The reopened comment period concluded on May 16, 1996. Adverse comments
were received regarding the proposed rule. The final rule contained in
this Federal Register addresses the comments which were received during
the public comment periods and announces EPA's final action regarding
the redesignation and section 175A maintenance plan for the Grand
Rapids
[[Page 31832]]
area. A more detailed discussion in response to each comment is
contained in the EPA's Technical Support Document (TSD), dated XXX,
1995 from Jacqueline Nwia to the Docket, entitled ``Response to
Comments on the April 2, 1996 Proposal to Approve the Redesignation to
Attainment for Ozone and Section 175A Maintenance Plan for the Grand
Rapids Area,'' which is available from the Region 5 office listed
above.
II. Public Comments and EPA Responses and Final Rulemaking Actions
The following discussion summarizes and responds to the comments
received regarding the redesignation of the Grand Rapids area to
attainment for ozone.
Comment: The commentor requested additional time to review and
provide comments on the proposed redesignation because: the proposal
was contingent on Michigan's submittal of a revision to the section
175A maintenance plan which was not available for public review until
April 15, 1996; the proposed action concerns the public health of many
of the requestor's members; and the proposed action incorporates new
guidance and policy which have broad implications throughout the Lake
Michigan basin and beyond. The commentor requested a minimum of 30 days
beyond the date of Michigan's most recent submittal or May 15, 1996.
Response: EPA extended the public comment period only for those
portions of the redesignation and section 175A maintenance plan
pertaining to Michigan's April 11, 1996 maintenance plan SIP that did
not become available in EPA's docket until April 15, 1996. The 14-day
extension concluded on May 16, 1996. The EPA believes this provides the
commentor with an adequate opportunity to review and submit comments on
the subject of this rulemaking action.
Comment: The commentor notes that the proposed redesignation
violates the specific and general intent of Congress in specifying
requirements for redesignation. The commentor elaborates by stating
that the proposed approval violates redesignation requirements of the
Clean Air Act Amendments of 1990 (Act) by lowering the threshold for
redesignation of these areas by reinterpretation of longstanding
redesignation guidance and granting of waivers and exemptions of
applicable statutory requirements. The waivers granted to the Grand
Rapids area include: waiver from adoption of volatile organic compounds
(VOC) reasonably available control technology (RACT) rules; waiver of
the reasonable further progress (RFP) requirement; waiver of the part D
New Source Review (NSR) requirement and waiver from the adoption of
conformity rules.
Response: At the outset, EPA rejects the contention that its
actions violate the redesignation requirements of the Act. The EPA has
not granted the Grand Rapids area ``waivers,'' or ``exemptions'' from,
nor reinterpreted longstanding guidance pertaining to, RFP requirements
or conformity. The EPA did propose an exception to current policy
regarding the need to adopt certain VOC RACT rules prior to
redesignation and applied the October 14, 1994 memorandum from Mary
Nichols, Assistant Administrator for Air and Radiation entitled ``Part
D New Source Review (part D NSR) Requirements for Areas Requesting
Redesignation to Attainment,'' 1 regarding the requirements for
part D NSR.
---------------------------------------------------------------------------
\1\ Hereinafter referred to as ``October 1994 Nichols
memorandum.''
---------------------------------------------------------------------------
With respect to the RFP requirement, on July 20, 1995, the EPA made
a determination regarding the applicability of certain RFP and
attainment demonstration requirements. This final rule determined that
since the Grand Rapids area had demonstrated attainment of the ozone
standard, a factual determination based on 3 years of complete quality
assured monitoring data, certain provisions of the Act, whose explicit
purpose is to achieve attainment of the standard, do not require SIP
revisions to be made by the State for so long as the area continues to
attain the standard. Those provisions include RFP, the section
172(c)(9) contingency measures and attainment demonstration. The EPA
believes it is reasonable to interpret provisions regarding RFP and
attainment demonstrations, along with certain other related provisions,
so as not to require SIP submissions if an ozone nonattainment area
subject to those requirements is monitoring attainment of the ozone
standard (i.e., attainment of the NAAQS demonstrated with three
consecutive years of complete, quality-assured, air quality monitoring
data). As explained in a memorandum from John S. Seitz, Director,
Office of Air Quality Planning and Standards, entitled ``RFP,
Attainment Demonstration, and Related Requirements for Ozone
Nonattainment Areas Meeting the Ozone National Ambient Air Quality
Standard,'' dated May 10, 1995,2 EPA believes it is appropriate to
interpret the more specific RFP, attainment demonstration and related
provisions of subpart 2 in the same manner as EPA had previously
interpreted the general provisions of subpart 1 of part D of Title I
(sections 171 and 172).
---------------------------------------------------------------------------
\2\ Hereinafter referred to as ``May 1995 Seitz memorandum.''
---------------------------------------------------------------------------
EPA has explained at length in other notices, including the July
20, 1995 determination of attainment regarding the Grand Rapids area
(60 FR 37366), its rationale for the reasonableness of that
interpretation of the Act and incorporates those explanations by
reference here. See Approval and Promulgation of Implementation Plans
and Designation of Areas for Air Quality Planning Purposes; Ohio, 61 FR
20458 (May 7, 1996); Determination of Attainment of Ozone Standard for
Salt Lake and Davis Counties, Utah, 60 FR 36723 (July 18, 1995). EPA
emphasizes that it has not suspended or granted the Grand Rapids area
an exemption from any applicable requirements. Rather, EPA has
interpreted the requirements of sections 182(b)(1)(A)(I) and 172(c)(9)
as not being applicable once an area has attained the standard, as long
as it continues to do so. This is not a waiver of requirements that by
their terms clearly apply; it is a determination that certain
requirements are written so as to be operative only if the area is not
attaining the standard.
The May 1995 Seitz memorandum was clear about the consequences of
the policy for redesignations. First, it made plain that a
determination of attainment is not tantamount to a redesignation of an
area to attainment. Attainment is only one of the criteria set forth in
section 107(d)(3)(E). To be redesignated, the State must satisfy all of
the criteria of section 107(d)(3)(E), including the requirement of a
demonstration that the improvement in the area's air quality is due to
permanent and enforceable reductions, and the requirements that the
area have a fully-approved SIP which meets all of the applicable
section 110 and part D requirements, and a fully approved maintenance
plan.
Upon a determination of attainment, however, the section
182(b)(1)(A)(I) requirements of RFP and attainment plans, and the
section 172(c)(9) requirement of contingency plans are no longer
considered applicable requirements under section 107(d)(3)(E). They
would no longer be included among those measures whose approval is part
of the requirement of having a fully approved SIP.
EPA is not diluting the redesignation requirements of section
107(d). What EPA has done is make a determination that since the area
is attaining the standard, which is a factual determination, certain
provisions of the
[[Page 31833]]
Act, whose express purpose is to achieve attainment of the standard, do
not require SIP revisions to be made by the State for so long as the
area continues to attain the standard. This has long been EPA's policy
with respect to the section 172(c)(9) contingency measures and section
172(c)(2) RFP requirement. See general preamble at 57 FR 13498. EPA has
also made determinations regarding section 182(f) NOX waivers at
or before the redesignation of an area and therefore not required
NOX RACT submissions to approve such redesignations. See the Bay
Area redesignation at 59 FR 49361 and Detroit-Ann Arbor redesignation
at 60 FR 12459.
EPA's statutory analysis was explained in detail in the July 20,
1995 final rulemaking and in the May 1995 Seitz memorandum. To the
extent here pertinent, such portions of that notice, including the
responses to comments, are incorporated herein by reference.
Thus, EPA disagrees with the commentors' view that EPA is not
complying with all the redesignation requirements of section
107(d)(3)(E). EPA has interpreted SIP submission requirements of
section 182(b)(1) regarding reasonable further progress and attainment
demonstration plans, and of section 172(c)(9) regarding contingency
measures to be implemented in the event an area fails to make
reasonable further progress or attain the standard by the attainment
date, not to apply for so long as the area continues to attain the
standard. Since they are not applicable, fulfillment of these
requirements is not necessary to meet the redesignation criteria of
section 107(d)(3)(E).
The commentor challenges EPA's authority to determine certain SIP
requirements inapplicable, and then bootstraps that argument to
complain that since Grand Rapids has not met these requirements, the
redesignation request only partially fulfills section 107(d)(E)(v). The
commentor argues that this is because the State has not met all
``applicable'' requirements under section 110 and part D; but the
requirements it points to are the very ones that EPA has determined are
inapplicable.
EPA rejects this kind of circular argument. Since EPA has
determined that the statute does not require certain submissions so
long as the area is in attainment, those inapplicable requirements
cannot serve as the basis for concluding that the redesignation request
is defective. Under the criteria of section 107(d)(E)(3) itself, a
State need only meet all applicable requirements, and have a fully
approved plan that contains all required elements. Thus EPA's
interpretation is fully consistent with the criteria of section
107(d)(3). Since EPA has determined that the 15 percent, attainment
demonstration, and section 172(c)(9) contingency plan requirements are
not applicable to Grand Rapids, and has found the SIP to be fully
approvable without them, the Grand Rapids area has fairly met the
criteria of section 107(d)(3). Certainly EPA, after determining that
these requirements are inapplicable, could not in good faith conclude
that the redesignation request is defective because it fails to meet
them.
Thus EPA concludes that, where it has made a determination of
attainment that results in the suspension of requirements, it may rely
on that determination and its consequences in considering the
approvability of a redesignation request.
For the reasons stated above and elsewhere in this document, in the
July 20, 1995 Federal Register notice (60 FR 37366) pertaining to the
Grand Rapids area, in the May 1995 Seitz memorandum, in the Utah notice
(60 FR 36723, July 18, 1995) and in the Cleveland-Akron-Lorain notice
(May 7, 1996, 61 FR 20468), EPA does not believe that the rulemaking
violates any section of the Act, nor does it dilute the redesignation
requirements under section 107(d)(3)(E).
With respect to the full adoption of VOC RACT rules, it should
first be noted that Michigan has submitted and EPA has approved all of
the sections 182(b)(2)(B) and 182(b)(2)(C) VOC RACT requirements
applicable to the Grand Rapids area on September 7, 1994 (59 FR 46182)
and October 23, 1995 (60 FR 54308). Therefore, the EPA assumes that the
commentor is concerned about the section 182(b)(2)(A) requirement of
the Act which requires States to develop VOC RACT rules for sources
``covered by a CTG document issued by the Administrator between
November 15, 1990, and the date of attainment'' for moderate and above
ozone nonattainment areas. The EPA has not granted the Grand Rapids
area a ``waiver'' or ``exemption'' from this requirement either. In
fact, EPA's proposed rulemaking action acknowledges the applicability
of these rules in light of current EPA guidance (See ``Procedures for
Processing Requests to Redesignate Areas to Attainment,'' from John
Calcagni, Director, Air Quality Management Division, dated September 4,
1992),3 since the due date for the CTG RACT rules at issue
preceded the submission of the redesignation request, and consequently,
generally require full adoption, submission and approval of these rules
prior to approval of the redesignation request.4
---------------------------------------------------------------------------
\3\ Hereinafter referred to as ``September 1992 Calcagni
memorandum.''
\4\ The EPA also notes that the Synthetic Organic Chemical
Manufacturing (SOCMI) Distillation and Reactor CTG was issued on
November 15, 1993, prior to the submission of the Grand Rapids
redesignation request. That CTG, however, established a due date for
State submittal of the SOCMI Distillation and Reactor rules of March
23, 1995 (See March 23, 1994, 59 FR 13717), a date after submission
of a request to redesignation Grand Rapids to attainment. Thus,
those rules are not applicable for purposes of this redesignation.
---------------------------------------------------------------------------
The EPA does, however, believe that in the context of the
particular circumstances of this redesignation, that it is reasonable
and permissible to depart from that policy and instead accept a
commitment to implement these RACT rules as contingency measures in the
maintenance plan rather than require full adoption and approval of the
rules prior to approval of the redesignation. The reasons justifying
this departure from EPA's general policy were explained in the proposed
action and are presented below.
EPA believes that several factors in combination justify allowing
this exception to current EPA policy with respect to the Grand Rapids
redesignation. First, the RACT rules at issue came due after the end of
the ozone season in which Grand Rapids attained the standard and were
not needed to bring about attainment of the ozone standard in Grand
Rapids. Second, the State has demonstrated continued maintenance of the
ozone standard through 2007 without the implementation of these
measures. Third, the State has placed other contingency measures in the
maintenance plan that would bring about far greater emission reductions
than the VOC RACT rules and would therefore be substantially more
effective in terms of correcting violations attributable to local
emissions from the Grand Rapids area that may occur after
redesignation. EPA's analysis of the emission reductions shows that the
implementation of enhanced inspection and maintenance (I/M), Stage II
or low Reid Vapor Pressure (RVP) (to 7.8 psi) programs would bring
about greater reductions than VOC RACT rules for wood furniture
coating, plastic parts coating and industrial clean-up solvents in
aggregate, and substantially greater reductions than any of these RACT
rules individually. Consequently, EPA believes that the other, more
effective contingency measures, should and
[[Page 31834]]
would be implemented first even if the RACT rules were to be fully
adopted prior to redesignation. The detailed analysis of these emission
reduction estimates is contained in the TSD for the proposed rulemaking
action dated March 20, 1996 entitled ``TSD for the Request to
Redesignate the Grand Rapids, Michigan Moderate Nonattainment Area to
Attainment for Ozone and Proposed Revision to the Michigan Ozone SIP
for a Section 175A Maintenance Plan'' and TSD for this action dated XX,
1996, entitled ``Response to Comments on the April 2, 1996 Proposal to
Approve the Redesignation to Attainment for Ozone and Section 175A
Maintenance Plan for the Grand Rapids Area.''
EPA emphasizes that even under this departure from its policy
regarding this action, the requirement for these RACT rules remains an
applicable requirement for purposes of evaluating the redesignation
request since it predated the submission of the request. The
requirement, however, is met in the form of the submission and full
approval of a commitment to adopt and implement these rules as
contingency measures in the maintenance plan. (Under EPA's existing
policy, contingency measures in maintenance plans may consist of
commitments to adopt and implement measures upon a violation of the
standard. See September 1992 Calcagni Memorandum.)
EPA further notes that even without this exception to its general
policy, the State would have been able to have the RACT rules become a
part of the contingency measures in the maintenance plan upon approval
of the redesignation. That could have occurred only after or upon EPA's
full approval of the adopted RACT rules, however. Thus, the only
difference between EPA's general policy and the exception to that
policy described in this action is that a commitment to adopt and
implement the RACT rules in an expeditious manner, rather than fully-
adopted RACT rules, would be among the contingency measures in the
maintenance plan. In light of the combination of factors discussed
above, including in particular the inclusion of other, significantly
more effective, contingency measures in the maintenance plan, EPA
believes that this difference has no significant environmental
consequence and that it is permissible to approve the Grand Rapids
redesignation on this basis. The EPA believes that this exception to
its general policy is legally permissible under the statutory
provisions governing redesignations. As noted above, the VOC RACT
requirements remain applicable requirements under section 107 and EPA
believes that their treatment in the contingency plan as commitments is
consistent with the manner in which EPA has accepted other commitments
to adopt and implement contingency measures in maintenance plans under
section 175A.
The EPA believes that the Grand Rapids area may be redesignated to
attainment notwithstanding the lack of a fully-approved part D NSR
program meeting the requirements of the 1990 Act amendments and the
absence of such a part D NSR program from the contingency plan. This
view has been set forth by the EPA as its policy in the 1994 Nichols
memorandum.
The EPA believes that its decision not to insist on a fully-
approved part D NSR program as a pre-requisite to redesignation is
justifiable as an exercise of the Agency's general authority to
establish de minimis exceptions to statutory requirements. See Alabama
Power Co. v. Costle, 636 F.2d 323, 360-61 (D.C. Cir. 1979). Under
Alabama Power, Co. v. Costle, the EPA has the authority to establish de
minimis exceptions to statutory requirements where the application of
the statutory requirements would be of trivial or no environmental
value. See also EDF v. EPA, Nos. 94-1044 and 94-1062, Slip Op. at 28-29
(D.C. Cir. April 19, 1996).
Plainly, the part D NSR provisions of section 110 and part D are
requirements that were applicable to the Grand Rapids area at the time
of the submission of the request for redesignation. Thus, on its face,
section 107(d)(3)(E) would seem to require that the State have
submitted and the EPA have fully-approved a part D NSR program meeting
the requirements of the Act before the areas could be redesignated to
attainment.
Under the EPA's de minimis authority, however, it may establish an
exception to an otherwise plain statutory requirement if its
fulfillment would be of little or no environmental value. In this
context, it is necessary to determine what would be achieved by
insisting that there be a fully-approved part D NSR program in place
prior to the redesignation of the Grand Rapids area. For the following
reasons, the EPA believes that requiring the adoption and full-approval
of a part D NSR program prior to redesignation would not be of
significant environmental value in this case.
The Grand Rapids area has demonstrated that maintenance of the
ozone NAAQS will occur even if the emission reductions expected to
result from the part D NSR program do not occur. The emission
projections to demonstrate maintenance of the NAAQS considered growth
in point source emissions (along with growth for other source
categories) and were premised on the assumption that the Prevention of
Significant Deterioration (PSD) program, rather than the part D NSR,
would be in effect, during the maintenance period. Under part D NSR,
significant point source emissions growth would not occur. Michigan
assumed that part D NSR would not apply after redesignation to
attainment and instead assumed source growth factors based on projected
growth in the economy and in the area's population. (It should be noted
that the growth factors assumed may be overestimates under PSD, which
would restrain source growth through the application of best available
control techniques.) Thus, Michigan has demonstrated that there is no
need to retain the part D NSR as an operative program in the SIP during
the maintenance period to provide for continued maintenance of the
ozone NAAQS.
The other purpose that requiring the full-approval of a part D NSR
program might serve would be to ensure that part D NSR would become a
contingency provision in the maintenance plan required for these areas
by sections 107(d)(3)(E)(iv) and 175A(d). These provisions require
that, for an area to be redesignated to attainment, it must receive
full approval of a maintenance plan containing ``such contingency
provisions as the Administrator deems necessary to assure that the
State will promptly correct any violation of the standard which occurs
after the redesignation of the area as an attainment area. Such
provisions shall include a requirement that the State will implement
all measures with respect to the control of the air pollutant concerned
which were contained in the SIP for the area before redesignation of
the area as an attainment area.'' Based on this language, it is
apparent that whether an approved part D NSR program must be included
as a contingency provision depends on whether it is a ``measure'' for
the control of the pertinent air pollutants.
The term ``measure'' is not defined in section 175A(d) and Congress
utilized that term differently in different provisions of the Act with
respect to the part C PSD and part D NSR permitting programs. For
example, in section 110(a)(2)(A), Congress required that SIPs include
``enforceable emission limitations and other control measures, means,
or techniques * * * as may be necessary or appropriate to meet the
applicable requirements of the Act.'' In section 110(a)(2)(C), Congress
required
[[Page 31835]]
that SIPs include ``a program to provide for the enforcement of the
measures described in subparagraph (A), and regulation of the
modification and construction of any stationary source within the areas
covered by the plan as necessary to assure that NAAQS are achieved,
including a permit program as required in parts C and D.'' (Emphasis
added.) If the term measures as used in sections 110(a)(2) (A) and (C)
had been intended to include part C PSD and part D NSR there would have
been no point to requiring that SIPs include both measures and
preconstruction review under parts C and D (PSD or NSR). Unless
``measures'' referred to something other than preconstruction review
under parts C and D, the reference to preconstruction review programs
in section 110(a)(2)(C) would be rendered mere surplusage. Thus, in
sections 110(a)(2) (A) and (C), it is apparent that Congress
distinguished ``measures'' from preconstruction review. On the other
hand, in other provisions of the Act, such as section 161, Congress
appeared to include PSD within the scope of the term ``measures.''
The EPA believes that the fact that Congress used the undefined
term ``measure'' differently in different sections of the Act is
germane. This indicates that the term is susceptible to more than one
interpretation and that the EPA has the discretion to interpret it in a
reasonable manner in the context of section 175A. Inasmuch as Congress
itself has used the term in a manner that excluded part C PSD and part
D NSR from its scope, the EPA believes it is reasonable to interpret
``measure,'' as used in section 175A(d), not to include part D NSR.
That this is a reasonable interpretation is further supported by the
fact that PSD, a program that is the corollary of part D NSR for
attainment areas, goes into effect in lieu of part D NSR.5 This
distinguishes part D NSR from other required programs under the Act,
such as inspection and maintenance and RACT programs, which have no
corollary for attainment areas. Moreover, the EPA believes that those
other required programs are clearly within the scope of the term
``measure.'' 6
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\5\ The EPA is not suggesting that part D NSR and prevention of
significant (PSD) are equivalent, but merely that they are the same
type of program. The PSD program is a requirement in attainment
areas and designed to allow new source permitting, yet contains
adequate provisions to protect the NAAQS. If any information
including preconstruction monitoring, indicates that an area is not
continuing to meet the NAAQS after redesignation to attainment, 40
CFR 51 appendix S (Interpretive Offset Rule) or a 40 CFR 51.165(b)
program would apply. The EPA believes that in any area that is
designated or redesignated as attainment under section 107, but
experiences violations of the NAAQS, these provisions should be
interpreted as requiring major new or modified sources to obtain VOC
emission offsets of at least a 1:1 ratio, and as presuming that 1:1
oxides of nitrogen (NOX) offsets are necessary. See October
1994 Nichols memorandum.
\6\ The EPA also notes that in the case of the Michigan area,
all permits to install for major offset sources and major offset
modifications issued by the State in the moderate nonattainment
areas since November 15, 1992 have complied with the 1.15 to 1.0
offset ratio. In addition, permits to install cannot be issued under
the PSD program unless the applicant can demonstrate that the
increased emissions from the new or modified source will not result
in a violation of the NAAQS. Michigan's Rule 702, which is part of
the SIP, requires the installation of Best Available Control
Technology regardless of size or location of all new and modified
sources in the State. In addition, Michigan's Rule 207, also
approved in the SIP, requires denial of any permit to install if
operation of the equipment will interfere with attainment or
maintenance of the NAAQS.
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The EPA's logic in treating part D NSR in this manner does not mean
that other applicable part D requirements, including those that have
been previously met and previously relied upon in demonstrating
attainment, could be eliminated without an analysis demonstrating that
maintenance would be protected. As noted above, Michigan has
demonstrated that maintenance would be protected with PSD in effect,
rather than part D NSR. Thus, the EPA is not permitting part D NSR to
be removed without a demonstration that maintenance of the standard
will be achieved. Moreover, the EPA has not amended its policy with
respect to the conversion of other SIP elements to contingency
provisions, which is that they may be converted to contingency
provisions only upon a showing that maintenance will be achieved
without them being in effect. Finally, as noted above, the EPA believes
that the part D NSR requirement differs from other requirements, and
does not believe that the rationale for the part D NSR exception
extends to other required programs.
As noted above, this change in policy was detailed in the October
1994 Nichols memorandum 7. The position taken in this action is
consistent with the EPA's current national policy detailed in the
October 1994 Nichols memorandum. That policy permits redesignation to
proceed without otherwise required part D NSR programs having been
fully approved and converted to contingency provisions provided that
the area demonstrates, as has been done in this case, that maintenance
will be achieved with the application of PSD rather than part D NSR.
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\7\ Which has been applied in other areas such as Detroit,
Michigan, Preble, Columbiana, Clinton, Youngstown, Columbus, Canton,
Cleveland, Toledo and Dayton, Ohio.
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The EPA has not ``waived'' the requirement for adoption and
implementation of conformity regulations. Rather, EPA has determined
that those requirements will continue to apply after the area is
redesignated, and therefore need not be fulfilled as a condition of
redesignation. The State of Michigan, in fact, has submitted
transportation and general conformity SIP revisions on November 24,
1994 and November 29, 1994, respectively. The issue is full approval of
these rules prior to redesignation. As presented in the April 2, 1996
(61 FR 14522) proposal, the EPA believes that it is reasonable to
interpret the conformity requirement as not being applicable for
purpose of redesignation under section 107(d). The rationale for this
is based on a combination of two factors. First, the requirement to
submit SIP revisions to comply with the conformity provisions of the
Act continue to apply to areas after redesignation to attainment, since
such areas would be subject to a section 175A maintenance plan.
Therefore, the State remains obligated to adopt the transportation and
general conformity rules even after redesignation and would risk
sanctions for failure to do so. While a redesignation of an area to
attainment enables the area to avoid further compliance with most
requirements of section 110 and part D, since those requirements are
linked to the nonattainment status of an area, the conformity
requirements apply to both nonattainment and maintenance areas. Second,
EPA's federal conformity rules require the performance of conformity
analyses in the absence of state-adopted rules. Therefore, a delay in
adopting State rules does not relieve an area from the obligation to
implement conformity requirements.
Because areas are subject to the conformity requirements regardless
of whether they are redesignated to attainment and must implement
conformity under Federal rules if State rules are not yet adopted, the
EPA believes it is reasonable to view these requirements as not being
applicable requirements for purposes of evaluating a redesignation
request.
For the reasons just discussed, the EPA believes that the ozone
redesignation request for the Grand Rapids area may be approved
notwithstanding the lack of fully approved State transportation and
general conformity rules. This policy was also exercised in the Tampa,
Florida and Cleveland-Akron-Lorain ozone redesignations finalized on
[[Page 31836]]
December 7, 1995 (60 FR 52748) and May 7, 1996 (61 FR 20458),
respectively.
According to the Federal transportation and general conformity
rules, conformity applies to nonattainment areas as well as maintenance
areas. Once redesignated, the Grand Rapids area will be a maintenance
area and will be required to conduct emission analyses to determine
that the VOC and NOX emissions remain below the motor vehicle
emission budget established in the maintenance plan. The Conformity
General Preamble to the conformity regulations further clarifies this
issue, particularly as it pertains to areas requesting and obtaining a
section 182(f) NOX exemption. Michigan has established a motor
vehicle emission budget for NOX in the area's maintenance plan.
Comment: The commentor notes that between December 1, 1990 and June
1, 1995, EPA has redesignated 54 areas from nonattainment to
attainment. Several of these redesignated areas, such as Kansas City,
Kansas/Missouri, Detroit, Michigan, San Francisco, California,
Charlotte, North Carolina; Huntington-Ashland, West Virginia/Kentucky
violated the ozone standard after redesignation. The commentor states
that the EPA's ``permissive'' SIP revision requirements for these areas
made future violations inevitable and ensure that inadequate
contingency measures are adopted. The commentor also notes that the
Grand Rapids and Muskegon areas observed 5 exceedances each after
receiving a determination of attainment.
Response: To date the EPA has redesignated a total of 41 areas
8 to attainment for ozone. Of these areas, only 4, Detroit,
Michigan, Memphis, Tennessee, San Francisco, California, and Kansas
City, Kansas-Missouri, subsequently violated monitored violations of
the ozone standard. EPA believes that this, in fact, demonstrates that
for the vast majority of instances the redesignation policy is
appropriate since most of the redesignated areas have not violated the
ozone NAAQS to date. Furthermore, the Act and Congress contemplated
that such events may occur and therefore, required that the
Administrator fully approve a maintenance plan for the area consistent
with the requirements of section 175A before the area can be
redesignated to attainment. Section 107(d)(3)(E)(iv). Section 175A(d)
requires that a maintenance plan contain contingency provisions deemed
necessary by the Administrator to assure that the State will promptly
correct a violation of the standard which occurs after the
redesignation of the area to attainment. Clearly, the Act and Congress
anticipated that areas redesignated to attainment may violate the NAAQS
in the future and ensured that control measures to remedy the violation
are available. Areas redesignated to attainment have approved
maintenance plans with contingency measures that are and will be
implemented in order to address the violations monitored in the area
after redesignation. The maintenance plans for these areas were deemed
appropriate and adequate for purposes of addressing a future violation
as they were fully approved into the area's SIPs. Furthermore, if the
contingency measures implemented by the State do not address future
violations of the NAAQS, EPA has the authority to call for a plan
revision requiring the adoption of additional control measures and/or
redesignate the area to nonattainment which in turn would require the
area to adopt and implement additional control measures appropriate for
its classification. See sections 110(k)(5) and 107(d)(3).
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\8\ This includes 28 classified and 13 nonclassified areas. The
28 classified areas include the Ohio portion of the Youngstown-
Warren-Sharon area.
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With respect to the adequacy of the maintenance plan for Grand
Rapids, the EPA would like to note that all aspects of the maintenance
plan were reviewed and deemed appropriate. The commentor does not
provide any specific arguments to support the comment.
For clarification purposes, the number of exceedances cited by the
commentor is the total number of exceedances monitored in the Grand
Rapids area and Muskegon area. The Grand Rapids area monitored one
exceedance at each of the three monitors located within the two-county
area in 1995. Taken into account with the previous two years, 1994 and
1993, the Grand Rapids area continues to demonstrate attainment of the
ozone NAAQS with a number of expected exceedances less than or equal to
1.0.
Comment: The commentor states that the April 2, 1996 proposal
jeopardizes the efforts currently being undertaken by the Ozone
Transport Assessment Group (OTAG).
Response: The commentor's statement is unsupported. In the April 2,
1996 proposal, the EPA specifically stated that the redesignation of
the Grand Rapids area to attainment in no way removes the State's
obligation to get further reductions in emissions to address the
broader transport phenomenon currently being investigated as part of
the OTAG process. The issue of transported ozone and ozone precursors
is being addressed by the OTAG which is composed of industry,
environmental groups and Federal, State and local governments from the
eastern part of the United States. The Lake Michigan States of
Illinois, Indiana, Wisconsin and Michigan are all participating, at
some level, in the OTAG process (Phase I/Phase II attainment
demonstrations as provided for in the March 2, 1995 memorandum from
Mary Nichols, Assistant Administrator for Air and Radiation, entitled
``Ozone Attainment Demonstrations''). Phase II of this analysis will
assess the need for regional control strategies and refine local
control strategies. Phase II will also provide the States and EPA the
opportunity to determine appropriate regional strategies to resolve
transport issues including any impacts the Grand Rapids area may have
on ozone concentrations in its downwind areas. The EPA has the
authority under sections 110(a)(2)(A) and 110(a)(2)(D) of the Act to
require emission reductions where appropriate based on the results of
this effort or any other relevant information.
Comment: The commentor stated that exempting ozone nonattainment
areas from compliance with part D NSR regulations presents special
problems since PSD and preconstruction review rules ``do not fully
address how emissions of ozone precursors should be treated to assure
that major new or modified sources do not cause or contribute to a
NAAQS violation.'' In addition, the commentor contends that the Alabama
Power Co. v. Costle 9 court cautioned that ``to exempt de minimis
situations from a statutory command is not an ability to depart from
the statute, but rather a tool to be used in implementing the
legislative design.''
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\9\ EPA's policy to redesignate areas notwithstanding the
absence of fully adopted and approved part D NSR SIP is based, in
part, on EPA's authority to establish de minimis exceptions to
statutory requirements when the requirement would be of trivial or
no value environmentally under the Alabama Power Co. v. Costle court
decision.
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Response: EPA emphasizes that contrary to the commentor's
contention, ozone nonattainment areas are not exempt from compliance
with part D NSR regulations. The October 1994 Nichols memorandum
suggests that areas that are otherwise eligible for redesignation need
not have a fully approved part D NSR program as a prerequisite to
redesignation since the part C PSD program would apply once the area
has been redesignated to attainment. The part D NSR program
[[Page 31837]]
requirements apply to the area until the area is redesignated to
attainment.
The October 1994 Nichols memorandum's statement that EPA
regulations (40 CFR 51.165(b)(3) and appendix S) ``do not fully address
how ozone precursor emissions should be treated to ensure that major
new or modified sources do not cause or contribute to an ozone NAAQS
violation'' is based on the difficulty in modeling the impact of
emissions from specific sources on ozone formation. The policy,
however, also states that for areas with preconstruction monitoring or
other information that indicate that the area is not meeting the ozone
standard after redesignation to attainment, Appendix S or 40 CFR
51.165(b) apply. These areas should then require major new or modified
sources to obtain VOC emission offsets of at least 1:1 ratio. In
addition, the PSD program allows BACT in place of LAER if the less
stringent control technology can be justified based on an economic,
energy and environmental impacts analysis. Consequently, the State may
impose a more stringent level of control other than what may be
selected as BACT in an area redesignated to attainment but not meeting
the NAAQS. With these elements, the preconstruction review programs can
assure that major new or modified sources achieve the statutory goals
of part D NSR.
With respect to the cautions of the Costle court of the Alabama
Power decision, EPA believes that the exercise of its de minimis
authority in this instance is fully consistent with them. EPA is using
its authority to facilitate the implementation of the statute and the
legislative design behind it. EPA also notes that the D.C. Circuit, the
court that decided the Alabama Power case, recently decided another
case upholding EPA's exercise of its de minimis authority under the
Act. Referring to EPA's authority to create de minimis exceptions as
being inherent in the statutory scheme, the court stated that ``the
same deference due to an agency's reasonable interpretation of an
ambiguous statute may also be due to an agency's creation of a de
minimis exception.'' EDF v. EPA, Nos. 94-1044 and 94-1062, Slip Op. at
28-29 (D.C. Cir. April 19, 1996).
Comment: The commentor contends that the EPA cannot use the May
1995 Seitz memorandum to substitute its own criteria for redesignation
over congressional instruction. The commentor rationalizes that the
part D requirements are defined by the nonattainment or attainment
designation of an area. The EPA, therefore, does not have the
``authority to modify the operation of the Act, and substitute its own
judgement for that of Congress.'' Furthermore, SIP requirements are
joined to the classification of a nonattainment area (see sections 182
and 181).
Response: The May 1995 Seitz memorandum does not substitute EPA's
criteria for congressional instruction. Instead, the May 1995 Seitz
memorandum presents EPA's interpretation of the statutory language of
the Act regarding RFP and related provisions as they relate to areas
demonstrating attainment of the ozone NAAQS.
With respect to the commentor's statement that SIP requirements are
joined to the classification of a nonattainment area, the EPA would
note that the commentor is equating the designation of an area as
attainment or nonattainment with the fact finding of whether an area is
attaining the standard, regardless of its designation. EPA believes
that these are two distinct issues. Title I of the Act, including part
D, contains provisions that distinguish between the concept of
attainment of a NAAQS shown through monitoring data, and an area's
designation as attainment or nonattainment.
The fact that only one of the five criteria for redesignation of a
nonattainment area to attainment is the determination that the area
``has attained the national ambient air quality standard,''
demonstrates that section 107(d)(3)(E)(I) itself recognizes this
distinction. Clearly, the Act anticipates there will be areas
designated nonattainment that are attaining the standard, that there
could be a nonattainment area that meets the air quality criterion for
redesignation to attainment without satisfying the other criteria. Such
an area would need to remain designated nonattainment even though it
was attaining the standard.
In addition, the distinction between attaining the standard and the
designation of an area as attainment or nonattainment is again
demonstrated in the part D provision of section 182(f), which
authorizes EPA to waive the NOX reduction requirements that apply
to ozone nonattainment areas if EPA determines that the NOX
reductions would ``not contribute to attainment of the'' ozone NAAQS.
This provision has been applied on numerous occasions to waive NOX
emission reduction requirements for areas that have attained the
standard, since such reductions in areas that have already attained the
standard would not contribute to attainment. Thus, this provision
clearly contemplates that areas designated nonattainment that have
attained the standard may have certain specified requirements waived.
In conclusion, the Act does not equate the factual issue of whether
an area is attaining the standard with the area's designation status as
attainment or nonattainment. It explicitly expects situations in which
areas designated nonattainment may be attaining the standard. Thus, the
definition of ``nonattainment area'' in section 171(2), which provides
that, for purposes of part D, a nonattainment area means an area that
``is designated ``nonattainment'' with respect to [a particular]
pollutant within the meaning of section 107(d)'' does not contradict
EPA's interpretation of the language of section 171(1) defining ``RFP''
requirements in terms of reductions for the purpose of ``ensuring
attainment.''
EPA believes that, in general, the classification of an area
designated nonattainment for ozone determines the set of requirements
of subpart 2 to which the area is subject.
The issue becomes the substance of some of those requirements. In
general, section 182(b)(1) and section 172(c)(9) apply to moderate
ozone nonattainment areas. EPA, however, has interpreted section
182(b)(1) and 172(c)(9) such that additional SIP submission
requirements are not necessary for an area classified as a moderate
ozone nonattainment area that is attaining the ozone standard, for so
long as the area continues to attain the standard. This is not a waiver
of the requirement that by their terms clearly apply; it is a
determination that certain requirements are written so as to be
applicable only if the area is not attaining the standard. If prior to
the redesignation of such an area to attainment, the area violated the
ozone NAAQS, that determination would no longer apply. That area will
once again be faced with an obligation to submit SIP revisions pursuant
to sections 172(c)(9) and 182(b)(1).
Finally, other requirements of part D that are not written in such
a way continue to apply solely by virtue of the area's classification
and designation as a moderate ozone nonattainment area. For example,
the VOC RACT requirement of section 182(a)(2) applies regardless of
whether an area is attaining the standard. Similarly, the requirements
of part D new source review continue to apply to areas designated
nonattainment solely by virtue of their continuing nonattainment
designation.
Comment: The Administrative Procedures Act (APA) requires that
``substantive rules of general applicability'' be subjected to public
comment before promulgation. EPA's
[[Page 31838]]
guidance interpreting section 107(d)(3)(E) requirements constitutes
substantive rules of general applicability and thus, required to be
subjected to public comment.
Response: EPA's reference to and reliance on guidance documents
interpreting section 107(d)(3)(E),10 all of which are either
published or publicly available and a part of the record of the July
20, 1995 rulemaking and this rulemaking, is in no way illegal under
provisions of either the Act or the APA. The commentor cites the APA's
requirement that ``substantive rules of general applicability'' be
published in the Federal Register and subject to public comment before
promulgation. These documents do not purport to be anything but
guidance. That is precisely why EPA performed the July 20, 1995
rulemaking, and this rulemaking action, a notice and comment rulemaking
to take comment on its statutory interpretations and factual
determinations in order to make a binding and enforceable determination
regarding the Grand Rapids area. The April 2, 1996 notice referred to
EPA's policy memorandum not as binding the Agency to adopt the
interpretations being proposed therein, but rather as useful
descriptions of rationale underlying those proposed interpretations.
EPA has explained the legal and factual basis for its rulemaking in the
April 2, 1996 rulemaking and afforded the public a full opportunity to
comment on EPA's proposed interpretation and determination fully
consistent with the applicable procedural requirements of the APA.
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\10\ It is presumed that the commentor is referring to such
documents as the October 1994 Nichols, May 1995 Seitz, and September
1992 Calcagni memoranda as well as the General Preamable (April 16,
1992, 57 FR 13498).
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Comment: The 1993 Nichols and 1995 Seitz memoranda are inconsistent
with earlier redesignation guidance (General Preamble, Calcagni and
Shapiro memoranda) pertaining to required SIP revisions for
redesignations.
Response: The October 1994 Nichols memorandum and the May 1995
Seitz memorandum represented modifications of earlier policies. That
does not necessarily mean these memoranda were by any means completely
inconsistent with prior policies. For example, the May 1995 Seitz
memorandum interpreted the more specific RFP requirements of section
182(b)(1) in a manner consistent with EPA's previous interpretation of
the more general section 171 and 172 requirements. Furthermore, EPA
notes that it is permissible to revise its policies provided that the
revised policies, as is the case with these, are legally justified and
reasonable.
Comment: The commentor contends that ozone remains a significant
public health threat in Grand Rapids since it fails to demonstrate
attainment of the ozone NAAQS. The commentor proceeds to discuss an
analysis of eight hour ozone concentration averages in the Grand Rapids
Consolidated Metropolitan Statistical Area for 1995. The commentor
states that on 26 days at least one monitor recorded ozone
concentrations at or above 80 parts per billion (ppb) and represent
days when at-risk populations were exposed to unhealthy levels of air
pollution. The commentor states that by examining ground level wind
directions and speeds and comparing results of monitors upwind (Jenison
or Parnell) from Grand Rapids to downwind observations (Parnell or
Jenison), the commentor has determined that 18 of these episodes
indicate that local emissions significantly exacerbate the formation of
unhealthy levels of ozone.
Response: The EPA determines attainment and nonattainment based on
the current NAAQS of 0.12 parts per million (ppm) not 80 ppb.
Therefore, the EPA must evaluate the eligibility for redesignation on
the basis of the current, health based standard. The EPA agrees with
the commentor's contention that ozone and ozone precursor emissions
from the Grand Rapids urbanized area may contribute to ozone
concentrations in downwind areas (downwind areas are relative to wind
directions) by virtue of the fact that the area is an urbanized area.
Nonetheless, the Grand Rapids area has demonstrated attainment of the
current ozone NAAQS in the three year period 1992-1994, and continues
to demonstrate attainment for the period 1993-1995.
The EPA evaluated the winds on July 13, 1995, where exceedances of
the ozone NAAQS were recorded at all 3 monitors in the Grand Rapids
area: Jenison at 0.133 ppm; Grand Rapids at 0.163 ppm; and Parnell at
0.134 ppm. Given that the winds were predominantly from the southwest
and west/southwest, one would deduce that the exceedances were a result
of ozone transport into the area. This is especially likely in view of
the fact that the Jenison monitor, which is the Grand Rapids upwind
monitor,11 recorded an ozone concentration of 0.133 ppm.
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\11\ An upwind monitor would indicate background levels of ozone
entering an area.
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Comment: The commentor acknowledges that emissions from the
Milwaukee-Chicago-Gary corridor were transported north out of the basin
on June 16, 1994, under high south/south-southeasterly winds. However,
the commentor attributes an exceedance recorded in Grand Rapids on June
17, 1994, at a level of 149 ppb, to emissions from the Grand Rapids
area since winds were still to light.
Response: The EPA acknowledges that local emissions, those from the
Grand Rapids urbanized area, may affect ozone concentrations in the
area and any downwind area. However, the extent of any contribution to
ozone levels from the Grand Rapids area cannot be determined with any
degree of certainty based on the information provided by the commentor,
particularly in light of indications that the Grand Rapids area is the
recipient of significant levels of transported ozone. Regardless of its
origin, this exceedance does not constitute a violation of the ozone
NAAQS. Thus, the area continues to be eligible for redesignation based
on monitoring data showing no violations of the ozone NAAQS for the
periods 1992-1994 and 1993-1995.
Comment: The commentor suggests that the 1992-1994 period cannot be
used to demonstrate improvements in air quality due to permanent and
enforceable emission reductions. Otherwise, the Chicago-Milwaukee-Gary
severe-17 ozone nonattainment area could be downgraded to moderate
ozone nonattainment. The commentor also alludes to the Detroit's
assessment of contingency measures necessary to reduce domain-wide
peaks in Tiverton, Ontario (Canada) below 200 ppb.
Response: The November 6, 1991 (56 FR 56694) classifications served
to determine a control strategy adequate to achieve emissions
reductions that would improve the air quality in an area to a level
that would demonstrate attainment of the NAAQS. Consequently as an area
implemented its control strategy it is anticipated that the air quality
would continually improve until the area demonstrated attainment of the
NAAQS. Upon demonstration of attainment, an area could request
redesignation pursuant to section 107(d)(3) of the Act. The EPA has not
allowed any area to reclassify based on 1992-1994 monitoring data or
any other data sets outside of the data sets used in the November 1991
designations and classifications. Furthermore, pursuant to the General
Preamble (April 16, 1992, 57 FR 13498), it is appropriate to
redesignate any area to attainment based on the most recent consecutive
3 years of air quality data demonstrating attainment of the ozone NAAQS
if the area satisfies the other redesignation criteria of section
107(d)(3)(E) including a demonstration that the improvement
[[Page 31839]]
in air quality was due to permanent and enforceable emission
reductions. Since the Grand Rapids area demonstrated attainment of the
ozone NAAQS in the period 1992-1994, it is an appropriate period to be
used as the basis for redesignation of the area to attainment
particularly since the area has also satisfied the other section
107(d)(3) redesignation criteria including a reasonable demonstration
that of permanent and enforceable emission reductions were the cause of
the improvement in air quality in the area. The Grand Rapids area
achieved 0.6 and 2.4 tons per day of VOC and NOX emission
reductions between 1991 and 1994. In addition, since the Grand Rapids
area is the recipient of significant levels of transported ozone,
Michigan also attributes the improvement in air quality, in part, to
emission reductions achieved throughout the Lake Michigan region.
The comment regarding Detroit, Michigan is unclear and irrelevant
to this rulemaking action.
Comment: Based on a table comparing number of days with
temperatures above 90 degrees and number of monitored exceedances in
Chicago, the commentor states that the years for which the Grand Rapids
area demonstrated attainment, 1992-1994, fail the requirement that
attainment can not be due to ``unusually favorable meteorology'' since
that time period represents ``a statistically significant (Chi
square=14.6, Alpha=0.005) negative deviation'' from the number of days
conducive to formation of ozone or days with temperatures above 90
degrees.
Response: Section 107(d)(3)(E)(iii) requires that, for the EPA to
approve a redesignation, it must determine that the improvement in air
quality is due to permanent and enforceable reductions in emissions.
The September 1992 Calcagni memorandum, at page 4, clarifies this
requirement by stating that ``[attainment resulting from temporary
reductions in emission rates (e.g., reduced production or shutdown due
to temporary adverse economic conditions) or unusually favorable
meteorology would not qualify as an air quality improvement due to
permanent and enforceable emission reductions.'' As discussed in the
April 2, 1996 Federal Register notice, the Grand Rapids area has
reasonably demonstrated that permanent and enforceable emission
reductions are responsible for the recent improvement in air quality.
This demonstration was accomplished through an estimate of the
reductions (from a nonattainment year, 1991 to an attainment year,
1994) of VOC and NOX achieved primarily through implementation of
the Federal Motor Vehicle Control Program (FMVCP) from 1991-1994, in
line with the September 1992 Calcagni memorandum. The total reductions
achieved from 1991 to 1994 were 0.6 tons of VOC and 2.4 tons of
NOX per day. The State claimed credit only for emission reductions
achieved as a result of implementation of this federally enforceable
control measure. The emission reductions claimed are conservative since
they do not include the emission reductions resulting from other
control measures and programs implemented during this time period, such
as the VOC RACT fix-ups and catch-ups. The State, therefore, adequately
demonstrated that the improvement in air quality is due to permanent
and enforceable emission reductions. Furthermore, the State has always
maintained that the Grand Rapids area is significantly affected by
ozone transported from the Chicago-Milwaukee-Gary severe-17 ozone
nonattainment area. Consequently, emission reductions occurring in
these areas are also attributable to the improvement in air quality in
the Grand Rapids area.
With respect to the commentor's contention that meteorological
conditions were not conducive to ozone production during the 1992-1994
period, the commentor provided an analysis of the number of days with
temperatures equal to or greater than 90 degrees Fahrenheit at
Chicago's O'Hare airport and the total number of monitored exceedance
days from 1981-1995 throughout the Lake Michigan area. Since, the data
is not limited to the Grand Rapids area, i.e. the number of 90 degree
days in Chicago not Grand Rapids and the number of monitored exceedance
days throughout the Lake Michigan area not only Grand Rapids, it would
not be accurate to conduct a statistical analysis or draw conclusions
pertaining to the Grand Rapids area based on this data, particularly in
light of the transport phenomena affecting Grand Rapids. EPA, however,
conducted a general statistical analysis of the meteorological
parameters in the Grand Rapids area of maximum monthly temperatures and
days with temperatures greater than 90 degrees Fahrenheit for the
periods of April through September, 1992 through 1994, with the 10-year
(1982-1991) averages for these parameters. The 1992-1994 averages for
these parameters agreed with those for the 10-year averages with only
minor differences. Based on averaged parameters, it can be concluded
that the 1992-1994 period was typically conducive to ozone formation.
Finally, the EPA notes that the Grand Rapids area has been in
attainment for the two 3-year periods (1992-1994, and 1993-1995), and
that this, along with the fact that real emission reductions have
occurred, indicates that attainment is not due to unusually favorable,
temporary meteorological conditions.
Comment: The commentor contends that the Ottawa County ozone
monitoring network is inadequate to permit redesignation. The commentor
notes that every monitor located on the eastern shoreline of Lake
Michigan recorded a violation of the NAAQS in 1995, and finds it
inconceivable that residents of southeastern Ottawa County were not
exposed to ozone at levels above the NAAQS. This, the commentor
concludes, should compel the EPA to require the State to site a monitor
along the lakeshore in Ottawa County. The commentor is particularly
concerned that EPA refuses to acknowledge that violations recorded at
the Holland monitor, in Allegan County, which it contends, indicates
violations of the NAAQS in Ottawa County. The commentor further states
that it agrees with Michigan's contention that the Holland monitor ``*
* * is representative of the conditions in Ottawa County.''
Response: As discussed in detail in the April 2, 1996, EPA believes
that the monitoring network for the Grand Rapids area satisfies the
requirements of 40 CFR part 58, appendix D. Michigan established a
number of monitors on the west side of the State for purposes of
gathering field data for the Lake Michigan Ozone Study (LMOS) during
1989-1991. Based on the field study data, the State decided to locate
an ozone monitor in Holland, an urbanized area in Allegan County (just
south of Ottawa County). However, at the encouragement of EPA, the
State reestablished a monitor in Ottawa County, i.e. the Jenison site,
in 1994. This in addition to the two monitors that already exist in
Kent County. Thus, an ozone monitor is established in Ottawa County,
however, the monitor is not at the lakeshore but inland and represents
background ozone concentrations for the Grand Rapids urban area. The
EPA has not taken any action to disapprove the network, but continually
works with the State to improve the quality of the ambient monitoring
network throughout the State. The fact that EPA and the State undertake
actions that may result in improvements to the network, does not mean
that EPA views the monitoring
[[Page 31840]]
data which shows attainment of the standard in the Grand Rapids area as
being inadequate or unreliable. EPA continually reviews monitoring
networks to determine how they can be improved. However, the fact that
a monitoring network is susceptible to improvement does not mean that
the existing network does not meet EPA's regulations, nor does it mean
that the data collected from the existing network should be ignored or
discounted. EPA believes that the monitoring data fully supports a
determination that the Grand Rapids area has attained the standard and
is, therefore, eligible for redesignation to attainment. EPA does not
believe that there is a basis for discounting the data which shows
attainment of the standard.
EPA further notes that the additional monitor established in Ottawa
County as part of the ongoing network improvements did not monitor an
exceedance in 1992 when it operated for part of the ozone season, and
has monitored only one exceedance since the monitor was reestablished
in 1994. While that monitor has yet to be in operation for three full
years, those initial results support the finding that the area has
attained the standard. As a violation does not occur unless four
exceedances occur at a single monitor over a three-year period, the
data from the Grand Rapids area support the determination that the area
has attained the standard and is, therefore, eligible for
redesignation.
Michigan contends that the Holland monitor ``* * * data is included
in this request as representative of levels of transported ozone coming
into the area.'' This can be interpreted to mean that the Holland
monitor is representative of ozone that is being transported into
Ottawa County. However, as explained in the proposal, the Allegan
monitor cannot be considered part of the Grand Rapids area since it is
outside the two county nonattainment area and the State of Michigan has
never formally requested that it be made part of the Grand Rapids
area's monitoring network. Furthermore, the Holland monitor is not
representative of ozone concentrations resulting from ozone precursor
emissions from the Grand Rapids area. The EPA is making its conclusion
about the air quality data that has been collected from the valid
network that currently exists in the Grand Rapids area.
Comment: The commentor is concerned about the validity of
monitoring data collected at the Jenison monitor, specifically, the
commentor alleges that of the years 1992-1994 only the 1994 data set is
usable and is supplemented with 1995. In addition, the commentor
questions the interpretation of the missing daily ozone value for July
14, 1995, from the Ottawa County ozone monitor. The commentor suggests
that the missing daily ozone value for July 14, 1995 cannot be assumed
to be less than the level of the standard since the maximum ozone
concentration on the preceding day exceeded the standard.
Response: The Jenison monitor is one of three monitors in the Grand
Rapids area. The other two monitors have operated in Kent County since
1980 and recorded a complete data set for 1992-1994 that demonstrate
attainment of the ozone NAAQS consistent with EPA guidance including
the September 1992 Calcagni memorandum and January 1979 document
entitled ``Guideline for the Interpretation of Ozone Air Quality
Standards''. The April 2, 1996 proposal noted that the Jenison monitor
operated for 63 percent of the 1992 ozone season with no exceedances of
the ozone NAAQS. The monitor was relocated to Holland, as discussed
previously, based on the LMOS. However, at the encouragement of EPA,
the State reestablished a monitor in Ottawa County, i.e. at Jenison, in
1994. Thus, the Jenison monitor has partial 1992 data and complete data
for 1994 and 1995. No exceedances of the ozone NAAQS were recorded in
1992 and 1994 and one was recorded in 1995 at 0.133 ppm. As noted in
the April 2, 1996 proposal, the ``Guideline for the Interpretation of
Ozone Air Quality Standards'' suggests that evaluation ozone data
requires the use of all ozone data collected at a site during the past
3 calendar years. If no data are available for a particular year then
the remaining years are used. Since 1992 data is incomplete and 1993
data is unavailable for this monitor, it would suffice to use ozone
monitoring data for the remaining most recent calendar years, 1992-
1995. The Ottawa County monitor demonstrates attainment of the ozone
NAAQS with the average number of expected exceedances of 0.5, a value
less than 1.0.
It is unclear to EPA why the commentor believes that the missing
daily ozone value for July 14, 1995 has been assumed to be less than
the level of the standard. AIRS reports consistently show that there
were no missing days assumed to be less than the standard for the
Ottawa County monitor for 1995. The monitor captured 179 of a potential
183 days of monitoring data (98 percent data completeness). The 4
missing days (183-179=4) were not assumed to be less than the standard,
but rather were accounted for in the calculation of the number of
expected exceedances consistent with 40 CFR 51 (appendix H). The four
missing days of data included July 14, 1995.
Comment: The commentor states that Michigan fails to comply with
the section 176 conformity requirements and provides discussion to
support the comment.
Response: This specific comment was submitted by the commentor to
EPA in response to the EPA's February 2, 1996 (61 FR 3815-3817) direct
final rulemaking to approve Michigan's general conformity SIP. As a
result the EPA withdrew the direct final rulemaking in an action
published on March 25, 1996 (61 FR 12030). This comment is not relevant
to redesignation and therefore, will be addressed in the final
rulemaking action on Michigan's general conformity SIP. See also the
discussion above in the response on conformity requirements as they
pertain to redesignation.
Comment: The commentor states that the Michigan City, Indiana ozone
monitor (18-091-0005) in LaPorte County in northeastern Indiana
recorded six exceedances during 1995, including daily ozone values of
0.154 ppm and 0.149 ppm. The commentor argues that several of the
exceedances recorded in the Michigan City area are attributable, in
part, to ozone and precursors originating in west Michigan.
The commentor notes that in response to EPA's June 2, 1995 proposed
rulemaking pertaining to the determination of attainment for the Grand
Rapids area, they submitted a comment regarding LMOS modeling for June
20-21 (Episode 4) which confirms that emissions from western Michigan
contribute to exceedances of the ozone NAAQS. The commentor further
notes that Episode 4 conditions are ``associated with a lesser, yet
significant, number of historical ozone episodes.''
The commentor suggests that EPA stated that it has an ``affirmative
responsibility'' to address transported emissions from upwind areas
that significantly contribute to air quality problems in downwind
areas. See 60 FR 37368.
The commentor notes that Michigan only cites LMOS modeling which
shows that ozone and ozone precursors are transported into the Grand
Rapids area. The commentor is concerned that Michigan refuses to
acknowledge LMOS modeling that indicates that ozone and precursor
emissions originating from Grand Rapids under certain meteorological
conditions which occur with regular frequency, contribute to
[[Page 31841]]
exceedances in downwind areas, including Michigan City, Indiana.
Response: The EPA has reviewed wind speeds and wind directions in
Grand Rapids and Michigan City, Indiana for the 6 days on which
exceedances were recorded in Michigan City, Indiana in 1995. The winds
on the days at issue in Grand Rapids were predominantly from the south/
southwest, i.e. into the Grand Rapids area with the exception of June
15, 1995, when the winds in Grand Rapids were predominantly from the
easterly. The winds in Michigan City on the same days were also
predominately from the south/southwest. Since Michigan City, Indiana is
south-southwest of the Grand Rapids area, the exceedances on th
FR Doc. 96-15881 Approval and Promulgation of Implementation Plans and Designation of Areas for Air Quality Planning Purposes; State of Michigan
ese days
in 1995 were clearly not attributable to emissions from the Grand
Rapids area but likely from the Chicago-Gary severe-17 nonattainment
area.
The commentor has not clearly indicated what version of the
modeling is used as the basis of their comment. It must be emphasized
that the version of the LMOS modeling approved for regulatory purposes
by EPA on December 15, 1994, for Episode 4 (June 20-21), does not
clearly indicate the extent of the contribution of emissions from the
Grand Rapids area to exceedances in the Michigan City, Indiana or any
other downwind area. Since the extent of Grand Rapids' contribution to
exceedances downwind cannot be determined with any degree of certainty
given the information currently available, it would be premature for
EPA to issue a finding pursuant to section 110(a)(2)(D). The commentor
does not provide any additional information that would cause the EPA to
determine that the imposition of additional control requirements in the
area is warranted at this time. As further information becomes
available, however, such a finding may be warranted.
In light of the preliminary information currently available, EPA
does not believe that it would be justifiable to disapprove the
redesignation request on the basis of concerns regarding transported
emissions. The redesignation does not mean, however, that the Grand
Rapids area might not have to achieve additional reductions pursuant to
other provisions of the Act if it is determined in the future that such
reductions are necessary to deal with transport from the Grand Rapids
area to downwind areas. Finally, EPA would note that the issue of
transported ozone and ozone precursors is being addressed by EPA
through the OTAG which is composed of industry, environmental groups,
Federal, State and Local governments from the eastern half of the
United States. The Lake Michigan States of Illinois, Indiana,
Wisconsin, and Michigan are all participating, at some level, in the
OTAG process (Phase I/Phase II attainment demonstrations as provided
for in the March 2, 1995 memorandum from Mary Nichols, Assistant
Administrator for Air and Radiation, entitled ``Ozone Attainment
Demonstrations''). In addition, Phase II of this analysis will assess
the need for regional control strategies and refine local control
strategies. Phase II will also provide the States and EPA the
opportunity to determine appropriate regional strategies to resolve
transport issues including any impacts the Grand Rapids area may have
on ozone concentrations in its downwind areas.
The commentor references the July 20, 1995 final rule regarding the
determination of applicability of certain RFP and attainment
demonstration requirements to the Grand Rapids area, and claims that
EPA stated that it has an ``affirmative responsibility'' to address
transported emissions from upwind areas that significantly contribute
to air quality problems in downwind areas. EPA was, in fact, responding
to a comment from the same commentor regarding the impacts of Grand
Rapids on downwind areas. The EPA stated that it has the authority
under sections 110(a)(2)(A) and 110(a)(2)(D) of the Act to ensure that
the required and necessary reductions are achieved in Grand Rapids,
should subsequent modeling become available, such as the modeling that
will be available through completion of the Phase II analysis, or any
other subsequent modeling data. The EPA acknowledged in that final rule
and in the April 2, 1996 proposal to redesignate Grand Rapids that
preliminary modeling indicates that western Michigan is the recipient
of transported ozone and that the area may also contribute to ozone
concentrations in downwind areas. However, the LMOS modeling is being
refined and is intertwined with the OTAG Phase I/Phase II process.
Indeed, should the Phase II or any other modeling become available that
demonstrates that reductions in ozone precursor emissions from the
Grand Rapids area are necessary, the EPA has the authority to ensure
that these emission reductions are achieved. In summary, currently no
technically supportable basis exists for EPA to exercise its
responsibility to take appropriate action to seek additional emission
reductions in the Grand Rapids area.
Finally, Michigan submitted LMOS modeling which illustrated ozone
and ozone precursor transport into the Grand Rapids area in the context
of an overwhelming transport petition. Since Episode 4 models
northeasterly wind patterns, it would not be relevant in demonstrating
overwhelming transport into the area.
Comment: The commentor states that the maintenance plan submitted
by Michigan is inadequate because Michigan's attainment emission
inventory does not comply with EPA requirements and implies that there
are insufficient enforceable pollution control measures available to
ensure attainment and promptly correct any violations. The commentor
appears to be saying that the SIP revision requirements of section 110
and part D should initially reduce ozone pollution, and subsequently
maintain the improvement in air quality. The commentor also suggest
that the emission inventory projections in the maintenance plan
underestimate emissions growth in Grand Rapids.
Response: The commentor does not provide support for the contention
that the attainment emission inventory does not comply with EPA
requirements. EPA has reviewed Michigan's attainment emission inventory
and believes that the inventory, in fact, is sufficient and meets EPA's
requirements and guidance regarding emission inventories. With respect
to the sufficiency of control measures necessary to ensure attainment
and promptly correct a violation, the EPA would note first that
Michigan has included inspection and maintenance, Stage II, low Reid
Vapor Pressure fuel at 7.8 psi, and VOC RACT for major plastic parts
coating, wood furniture coating and industrial clean-up solvents as
control measures to be implemented to address a violation not
attributable to transport. EPA believes that these control measures are
adequate for purposes of contingency measures. The control measures
already implemented in the area were obviously sufficient to allow the
area to attain the ozone standard. Furthermore, the State has
demonstrated that VOC and NOX emissions will continue to decrease
from the 1991 atttainment year levels through the 10 year maintenance
period.
EPA agrees with the commentor that emission controls under section
110 and part D should reduce ozone pollution and subsequently maintain
improvements in air quality. Although Michigan did not claim permanent
and enforceable emission reductions credit for emission reductions
achieved as a result of implementing section 110 and part D
requirements, the State must continue to implement these programs even
after redesignation.
[[Page 31842]]
It should be recognized that approval of the redesignation is not
expected to result in an increase in ozone precursor emissions. In
fact, a decrease in both VOC and NOX emissions from the Grand
Rapids area is expected over the 10-year maintenance period. See 61 FR
14522, April 2, 1996. It should be noted that redesignation does not
allow States to automatically remove control programs which have
contributed to an area's attainment of a NAAQS for any pollutant. The
EPA's general policy is that a State may not relax the adopted and
implemented SIP for an area upon the area's redesignation to
attainment, unless an appropriate demonstration, based on modeling
12 or adequate justification 13, is approved by the EPA. In
this case no previously implemented control strategies are being
relaxed as part of this redesignation.
---------------------------------------------------------------------------
\12\ Such a demonstration must show that removal of a control
program will not interfere with maintenance of the ozone NAAQS and
would entail submittal of an attainment modeling demonstration with
the EPA's current Guideline on Air Quality Models.
\13\ See September 1992 Calcagni memorandum.
---------------------------------------------------------------------------
Further, apart from Title I requirements related to the cessation
of the Grand Rapids area's status as an ozone nonattainment area, the
area is and will continue to be, required to satisfy all Act
requirements. Other control programs required by the Act will be
implemented in the area, regardless of the ozone designation, such as
Title IV NOX controls, section 112 toxic controls and FMVCP
requirements.
The commentor does not provide any support for its contention that
the emissions growth projections in the maintenance plan are
underestimated for the Grand Rapids area. The emissions projections in
the maintenance plan are based on the 1991 emission inventory developed
for the LMOS modeling effort. The projections are based on growth
factors extracted from the EPA's Economic Growth Analysis System and
supplemental information used in the development of emission
projections. Point source growth factors for utilities are based on
source specific data provided by the utility companies. Area source
growth factors were supplemented with population and gasoline sales/
marketing data. The stationary source emission estimates (point and
area) were developed using the geocoded emissions modeling and
projections system (GEMAP) which employs projection methodologies
equivalent to those in the EPA's Emissions Projections System. EPA's
MOBILE5a model was used to develop the mobile source emission
estimates. Therefore, the emission projections methods are consistent
with EPA's guidance.
Comment: The commentor cites two separate provisions of the Act,
sections 182(c)(9) and 175A(d) that demand that maintenance plans
include ``specific measures to be undertaken if the area fails to meet
any applicable milestone. Such measures shall be included in the plan
revision as contingency measures to take effect without further action
by the State or Administrator upon a failure by the State to meet the
applicable milestone.'' Section 182(c)(9). The commentor argues that
Michigan's triggering mechanism is patently illegal and unacceptable
under the Act.
The commentor states that the triggering mechanism defeats the
meaning and purpose of the ozone standard (40 CFR 50.9) in that the
ozone standard does not account for transport, i.e. an area is either
in attainment or nonattainment due to observed ozone violations and
that the designation and classification are purely a function of
observed ozone values and not a function of the origin of ozone.
The commentor also questions the evaluation criteria utilized by
Michigan, calling it ``extremely suspect.''
Response: Section 182(c)(9) contains the requirements for serious
and above areas to adopt contingency measures pertaining to RFP, and is
not relevant to this redesignation. Section 175A(d), however, is
relevant and states that `` * * * plan revision submitted under this
section shall contain such contingency provisions as the Administrator
deems necessary to assure that the State will promptly correct any
violation of the standard which occurs after the redesignation of the
area as an attainment area.'' The mechanism that would trigger the
implementation of contingency measures in the Grand Rapids area is ``an
actual monitored ozone violation of the NAAQS, as defined in 40 CFR
50.9, determined not to be attributable to transport from upwind
areas.'' The EPA believes that this triggering mechanism is appropriate
for the Grand Rapids area, given the overwhelming evidence
demonstrating that the area is the recipient of transported ozone and
ozone precursors from the Milwaukee-Chicago-Gary severe-17
nonattainment areas. EPA believes that this triggering mechanism
satisfies the requirement of section 175A(d), because if a violation is
due to transport, then control measures implemented in the Grand Rapids
area will not likely correct the violation. Thus, when violations are
occurring as a result of transport, an attempt to impose control
measures in the Grand Rapids area would be futile. EPA believes that it
is implicit in the Act that the purpose of control measures is to
achieve attainment.
Because violations due to transport are not accounted for in the
ozone NAAQS at 40 CFR 50.9 does not mean that transport cannot be taken
into account for purposes of implementing a control strategy to correct
a violation. Although areas are designated and classified based on
monitored violations, regardless of their origin, areas redesignated to
attainment will be provided an opportunity to implement contingency
measures to correct the violation before EPA would exercise its
authority to redesignate the area back to nonattainment.
As part of the contingency plan for the Grand Rapids area, Michigan
will conduct a technical analysis of meteorological conditions leading
up to and during the exceedances contributing to a violation in order
to determine local culpability. The commentor is concerned about the
criteria to be used to evaluate transport, although the commentor does
not provide any specifics about what criteria they are concerned.
Furthermore, EPA notes that any analysis conducted by Michigan to
determine local culpability will be subject to a public process. As
part of the contingency plan, Michigan has incorporated procedures to
involve EPA and afford the public the opportunity to review and
participate in the determination of whether transport or local sources
are reasonable for a violation.
Comment: The commentor contends that the only contingency measure
actually adopted by Michigan is low RVP to 7.8 psi during the ozone
season. The commentor notes that implementation of the I/M program was
stayed by the Governor of Michigan on December 29, 1994, and that the
Michigan legislature rescinded implementation of the Stage II vapor
recovery program once the EPA promulgated its on board canister rule.
Response: The Grand Rapids moderate ozone nonattainment area was
required to adopt and implement a basic I/M program. An enhanced I/M
program was adopted by Michigan and fully approved by EPA into the SIP
on October 11, 1994 (59 FR 51379), and was to have commenced operation
on January 1, 1995. By the end of 1994, the Grand Rapids area had
attained the ozone standard and was therefore, eligible for
redesignation. The January 5, 1995 (60 FR 1735) revisions to the
national I/M rule stipulate that areas
[[Page 31843]]
otherwise eligible for redesignation may submit the following in order
to satisfy the I/M component of the SIP: legislative authority for
basic I/M; a provision in the SIP providing that I/M be placed in the
contingency measure portion of the maintenance plan; and an enforceable
schedule and commitment by the Governor or his designee for adoption
and implementation of a basic I/M program upon a triggering event.
Also, see September 17, 1993 memorandum from Michael H. Shapiro, Acting
Assistant Administrator for Air and Radiation, entitled, ``SIP
Requirements for Areas Submitting Requests for Redesignation to
Attainment of the Ozone, Carbon Monoxide NAAQS on or after November 15,
1992,'' 14 memorandum. With this, the Governor stayed the
implementation of the I/M program in the Grand Rapids area. The Grand
Rapids area, therefore, only needs to satisfy the items noted above.
The legislative authority to implement an I/M program is contained in
Michigan's Enrolled House Bill No. 4165, which provides that I/M may be
implemented as a contingency measure consistent with an area's
maintenance plan if it is not necessary for maintenance. The section
175A maintenance plan provides for the implementation of I/M as a
contingency measure and also provides an enforceable schedule for the
implementation of I/M as a contingency measure.
---------------------------------------------------------------------------
\14\ Hereinafter referred to as the ``September 1993 Shapiro
memorandum.''
---------------------------------------------------------------------------
With respect to the commentor's concern regarding the rescission of
Stage II, section 10c(3) of Michigan's Enrolled Senate Bill No. 726 for
Stage II suspends implementation of the Stage II program once EPA has
promulgated the final onboard rule. However, section 10c(3) also
retains the authority to implement Stage II as a contingency measure in
a maintenance plan for an area redesignated to attainment. Thus, once
Grand Rapids is redesignated to attainment, Stage II may be implemented
by the State as a contingency measure pursuant to the maintenance plan.
In conclusion, the State has adopted legislative authority to
implement I/M, Stage II and low RVP to 7.8 psi as contingency measures.
Comment: The commentor notes that the January 24, 1996 letter from
Dennis Drake, Chief of the Air Quality Division, Michigan Department of
Environmental Quality to Valdas Adamkus, Regional Administrator, Region
5, and the State's April 11, 1996 contingency plan SIP revision imply
that the VOC non-CTG RACT rules were at least adopted when in fact they
were not.
Response: The January 24, 1996 letter merely notified EPA of the
State's intention to revise the Grand Rapids area's maintenance plan to
include a commitment to adopt and implement non-CTG VOC RACT rules for
major sources of plastic parts coating, wood furniture coating and
industrial clean-up solvents as contingency measures for the Grand
Rapids area. The actual revision to the maintenance plan SIP, dated
April 11, 1996, states that rules to apply non-CTG RACT to major
sources of plastic parts coating, wood furniture coating and industrial
clean up solvents have been ``drafted.'' The State specifically notes
that the promulgation process requires additional steps including
``approval of the proposed rules by the Office of Regulatory Reform,
the Legislative Services Bureau, and the Joint Legislative Committee on
Administrative Rules.'' The State clearly indicated that the rules are
draft and additional steps are necessary for promulgation. Furthermore,
EPA explained in the April 2, 1996 proposal that the contingency
measure for this element is that the State would commit to adopt and
implement non-CTG VOC RACT rules for the three source categories noted
previously.
Comment: The commentor suggests that the State's failure to adopt
and implement the VOC non-CTG RACT rules in accordance with section
182(b)(2)(A) of the Act violates the sections 110 and 107(d)(3)(E)(v)
requirements. Section 107(d)(3)(E) requires the State to adopt a
complete part D nonattainment plan, which these non-CTG VOC RACT rules
are part of, prior to redesignation.
Response: In the April 2, 1996 proposal, the EPA acknowledges that
the section 182(b)(2)(A) requirement for non-CTG VOC RACT rules is an
applicable requirement and that current EPA redesignation policy
requires that these rules be fully adopted, and if not necessary for
maintenance of the NAAQS, be moved to the contingency plan portion of
the maintenance plan. However, the EPA, in this instance, proposed an
exception to this policy based on a combination of three factors as
previously discussed. The commentor, however, has not provided comments
specific to the rationale used as the basis of the exception.
EPA emphasizes that, even without this exception to its general
policy, the State would have been able to have the RACT rules become a
part of the contingency measures in the maintenance plan upon approval
of the redesignation. However, that could have occurred only after or
upon EPA's full approval of the adopted RACT rules. Therefore, the only
difference between EPA's general policy and the exception to that
policy proposed for Grand Rapids is that a commitment to adopt and
implement the RACT rules in an expeditious manner, rather than fully-
adopted RACT rules, would be among the contingency measures in the
maintenance plan. As previously discussed, the EPA believes that this
exception to its general policy is legally permissible under the
statutory provisions governing redesignation. The VOC RACT requirements
remain applicable requirements under section 107 and EPA believes that
their treatment in the contingency plan as commitments is consistent
with the manner in which EPA has accepted other commitments to adopt
and implement contingency measures in maintenance plans under section
175A.
Comment: The commentor states that the contingency measures
provided for in the maintenance plan are inadequate and illusory. The
commentor further elaborates that none of the contingency measures are
adopted with the necessary legislative authority or described with
sufficient specificity, nor do they include milestones to insure prompt
implementation as required by section 175A(d) or EPA guidance.
Response: Contrary to the commentor's statement, legislative
authority is adopted for three of the contingency measures, I/M, Stage
II and low RVP to 7.8 psi. Further, the State has submitted an
enforceable commitment to implement the three non-CTG VOC RACT rules.
Neither the Act nor redesignation guidance require milestones to track
the State's compliance with adoption and implementation of contingency
measures. The September 1992 Calcagni memorandum suggests that the
contingency plan identify the contingency measure to be adopted,
provide a schedule and procedure for adoption and implementation, and
provide a specific time limit for action by the State. The Grand Rapids
area's contingency plan identifies the measure to be adopted, provides
a procedure for adoption of the non-CTG VOC RACT rules (``promulgation
involves * * * additional steps * * * approval of the proposed rules by
the Office of Regulatory Reform, the Legislative Services Bureau * * *
'' See April 11, 1996, SIP revision) and provides a schedule for
implementation (e.g. 20 months from the Governor's decision to employ
these rules as contingency measures). It is noted that the critical
component of this schedule is not the
[[Page 31844]]
State's internal schedule for adoption of the rule(s) but the schedule
for full implementation.
It is further noted that the contingency measure implementation
schedules for the Grand Rapids area were derived from the Act, and
applicable State and Federal regulations. The schedule established for
the implementation of contingency measures provides for the
implementation of such measures as soon as within 1 year of a violation
15. The EPA believes that this schedule satisfies the criterion of
section 175A regarding the need for contingency measures to promptly
correct violations of the standard occurring during the maintenance
period.
---------------------------------------------------------------------------
\15\ Phased in implementation of Stage II commences within 6
months of the Governor's decision to employ Stage II or one year of
a monitored violation.
---------------------------------------------------------------------------
Comment: The commentor states that EPA guidance requires that a
maintenance plan ``ensure prompt correction of any violation of the
NAAQS.'' Yet the Grand Rapids maintenance plan SIP revision of April
11, 1996 allows implementation of the non-CTG RACT rules within 26
months of an ozone violation. The commentor is concerned that 26 months
for implementation of the non-CTG VOC RACT rules does not ensure prompt
correction of a violation. In addition, the maintenance plan lacks
adequate milestones to track the State's compliance.
Response: The 26-month schedule to implement the non-CTG VOC RACT
rules takes into account 6 months to quality assure the monitoring data
indicating a violation of the ozone NAAQS, conduct an analysis to
determine local culpability with respect to a violation, and to afford
the public an opportunity to participate in the determination of local
culpability, 8 months for full adoption of any of the non-CTG RACT
rule(s) chosen as a contingency measure, and 12 months for full
implementation.16 The EPA believes that this is an expeditious
schedule for adoption and implementation of these rules.
---------------------------------------------------------------------------
\16\ See March 16, 1989 memorandum from John Calcagni, Director,
Air Quality Management Division and John Seitz, Director, Stationary
Source Compliance Division entitled ``Compliance Schedules for
Volatile Organic Compounds.'' This memorandum clarifies that the
``presumptive norm'' for source compliance with a new or revised
rule is recommended to be 1 year or less.
---------------------------------------------------------------------------
Furthermore, neither the Act nor redesignation guidance requires
milestones to track the State's compliance with adoption and
implementation of contingency measures. The September 1992 Calcagni
memorandum suggests that the contingency plan identify the contingency
measure to be adopted, provide a schedule and procedure for adoption
and implementation, and provide a specific time limit for action by the
State. The Grand Rapids area's contingency plan identifies the measure
to be adopted, provides a procedure for adoption of the non-CTG VOC
RACT rules (``promulgation involves * * * additional steps * * *
approval of the proposed rules by the Office of Regulatory Reform, the
Legislative Services Bureau * * * '' See April 11, 1996, SIP revision)
and provides a schedule for implementation (e.g. 20 months from the
Governor's decision to employ these rules as contingency measures). The
critical component of this schedule is not the State's internal
schedule for adoption of the rule(s) but the schedule for full
implementation.
Finally, there are other more effective contingency measures than
the non-CTG VOC RACT rules that could be implemented more expeditiously
such as Stage II and low RVP gasoline (to 7.8 psi).
Comment: The commentor states that allowing the State to commit to
subsequent adoption of the three required VOC non-CTG RACT rules as
contingency measures is ``extraordinary and prohibited * * *
preferential treatment'' for Michigan and is inconsistent with EPA
guidance and recent actions on other moderate area redesignation
requests. The commentor believes that such preferential treatment
rewards the State for its failure to satisfy Act requirements. This is
particularly so, since the EPA penalized adjacent States that did not
adopt and implement these non-CTG VOC RACT rules and other control
measures. Preferential treatment is ``illegal'' and undermines the
cooperation of other States implementing future control measures to
reduce ozone and ozone precursor emissions and other efforts such as
LMOS and OTAG. The commentor further states that the EPA's preferential
treatment is especially evident in its allowing Michigan to determine
the need for implementation of contingency measures based on parameters
developed by Michigan.
Response: EPA again notes that, even without the exception to its
general policy proposed in the April 2, 1996 rulemaking, the State
would have been able to have the RACT rules become a part of the
contingency measures in the maintenance plan upon approval of the
redesignation. However, that could have occurred only after or upon
EPA's full approval of the adopted RACT rules. Consequently, the only
difference between EPA's general policy and the exception to that
policy described in the proposal is that a commitment to adopt and
implement the RACT rules in an expeditious manner, rather than fully-
adopted RACT rules, would be among the contingency measures in the
maintenance plan. EPA would also note that, in general, contingency
measures need not be fully adopted. See September 1992 Calcagni
memorandum. Thus, EPA is acknowledging that allowing Michigan to
incorporate these non-CTG VOC RACT measures into the contingency plan
without fully adopted rule is an exception to policy. The commentor,
however, has not provided any basis to dispute the rationale for this
exception and factors presented in the April 2, 1996 proposal.
The EPA disagrees with the commentor's contention that EPA is
affording Michigan ``preferential treatment.'' EPA guidance and
policies have been, or can be, applied to all areas, including Grand
Rapids, in an equitable manner. EPA periodically will make an exception
to policy where an exception is warranted and appropriate. Allowing an
exception to policy for a particular area does not constitute
preferential treatment for that area but instead is a neutral
determination that is available to other areas that could also
demonstrate circumstances that would warrant the same exception. This
is the first instance that the issue of full adoption of these
particular non-CTG VOC RACT rules has arisen in the context of
redesignation. As such, it is in this action that the exception to
policy is being exercised.
The commentor does not cite any instances, nor is EPA aware of any
instances, where EPA penalized an adjacent State that did not adopt and
implement these non-CTG VOC RACT rules. The commentor does not specify
the ``other control measures'' referred to.
In addition, with respect to the Grand Rapids maintenance plan,
Michigan has incorporated a process not only to involve the EPA but to
afford the public an opportunity to participate in the process to
determine the necessity to select and implement contingency measures
based on a technical analysis to determine local culpability. Thus,
although Michigan will be conducting the analysis an opportunity for
the public review and participate will be provided.
Comment: The commentor states that the non-CTG VOC RACT rules
should have been adopted and implemented by November 15, 1994. The
commentor also notes that neither Michigan nor EPA acknowledges this.
The commentor adds that EPA has failed to enforce
[[Page 31845]]
sections 182(b)(2)(A) at that time and is failing to enforce section
175A of the Act, now.
Response: Although EPA's general redesignation policy requires that
rules and programs for requirements that come due prior to submittal of
a complete redesignation request be adopted and fully approved into the
area's SIP, it also allows for these measures to be moved into the
area's maintenance plan as contingency measures if they are not yet
implemented and not necessary for maintenance of the standard.
September 1993 Shapiro memorandum. Thus, the non-CTG VOC RACT rules
should have been adopted but not necessarily implemented. The rules
would have been moved over into the area's maintenance plan since they
were not needed for maintenance.
The April 2, 1996 proposal to approve the Grand Rapids
redesignation does, in fact, acknowledge that the non-CTG VOC RACT
rules were required to be submitted to EPA by November 15, 1994 and
implemented by November 15, 1995. See 61 FR 14526. The State's April
11, 1996 submittal also acknowledges that these rules were due on
November 15, 1994.
For the reasons explained above, however, EPA believes that its
treatment of these rules in this redesignation is justifiable and
appropriate.
Comment: The commentor is concerned that Michigan's contingency
plan lacks milestones and is inconsistent with the specificity that the
EPA required of contingency plans in other areas such as the Toledo,
Ohio contingency plan, which included a number of milestones to gauge
the State's progress.
Response: Neither the Act nor redesignation guidance require
milestones to track the State's compliance with adoption and
implementation of contingency measures. The September 1992 Calcagni
memorandum suggests that the contingency plan identify the contingency
measure to be adopted, provide a schedule and procedure for adoption
and implementation, and provide a specific time limit for action by the
State. The Grand Rapids area's contingency plan identifies the measure
to be adopted, provides a procedure for adoption of the non-CTG VOC
RACT rules (``promulgation involves * * * additional steps * * *
approval of the proposed rules by the Office of Regulatory Reform, the
Legislative Services Bureau * * * '' See April 11, 1996, SIP revision)
and provides a schedule for implementation (e.g. 20 months from the
Governor's decision to employ these rules as contingency measures). The
critical component of this schedule is not the State's internal
schedule for adoption of the rule(s), but the schedule for full
implementation.
Comment: The commentor is concerned that the schedule for
implementation of the non-CTG VOC RACT rules for the three source
categories identified would not ``promptly correct any violation of the
standard'' since it allows over 2 years after an ozone violation before
adopting and implementing a selected contingency measure.
Response: As noted previously, the 26-month schedule to implement
the non-CTG VOC RACT rules takes into account: 6 months to quality
assure the monitoring data indicating a violation of the ozone NAAQS,
conduct an analysis to determine local culpability with respect to the
violation, and afford the public an opportunity to participate in the
determination of local culpability; 8 months for full adoption of any
of the non-CTG RACT rule(s) chosen as a contingency measure; and 12
months for full implementation. The EPA believes that this is an
adequate and expeditious schedule for adoption and implementation of
these rules. In addition, the contingency plan contains other measures
that provide for implementation of a measure as soon as within 1 year
of a violation.17
---------------------------------------------------------------------------
\17\ See footnote 15.
---------------------------------------------------------------------------
Comment: The commentor suggests that the September 1992 Calcagni
memorandum requires States to implement all the control measures prior
to redesignation but that a revision to the SIP to remove measures may
be submitted. The commentor interprets this to mean that the State must
have adopted and implemented the ``applicable control measures'' in the
area. The commentor notes that Michigan did not adopt and implement the
non-CTG VOC RACT rules for plastic parts coating, wood furniture
coating and clean-up solvents as required by section 182(b)(2)(A). In
addition, Michigan did not adopt rules for non-CTG source categories
which it deemed unnecessary due to the absence of existing sources.
Response: The September 1992 Calcagni memorandum interprets section
175A(d) as requiring the continued implementation of all measures
contained in the area's part D nonattainment plan and that removal of
these implemented measures would require a demonstration that the
measures are not necessary for attainment or maintenance. In addition,
once removed those measures are required to be incorporated into the
area's contingency plan as contingency measures. The non-CTG VOC RACT
rules, however, were not adopted by the State or approved by EPA into
the area's part D nonattainment SIP. As such, the non-CTG VOC RACT
rules were not required to be implemented as a prerequisite for
redesignation since they were not incorporated into the part D
nonattainment SIP. Furthermore, EPA's general redesignation policy does
not require the implementation of all measures that were applicable to
the area instead, it allows unimplemented measures to be moved into an
area's maintenance plan as contingency measures if they are not
necessary for maintenance. See Detroit redesignation with respect to
Stage I (March 7, 1995, 60 FR 12459).
It is unclear to EPA why the commentor would be concerned that the
State did not adopt rules applicable to sources which do not exist in
the State. Appendix E of the supplement to the General Preamble (April
28, 1992, 57 FR 18070) stipulated that the States submit a list of
major stationary sources that are expected to be subject to one of the
11 source categories for which EPA was to issue a CTG. Michigan
submitted such a list on November 15, 1992. States have not been
required to adopt rules for non-CTG source categories for which no
sources exist in the State.
Comment: The commentor states that EPA noted to Michigan, in its
preliminary review of the Grand Rapids area's redesignation request,
that adopted rules for the applicable source categories in Appendix E
should be submitted. In response, the State committed to adopt these
non-CTG VOC RACT rules as contingency measures should they be chosen as
contingency measures. The commentor believes this is an ``inadequate
and unacceptable substitute'' for adoption and implementation of these
rules.
Response: EPA's comments merely represented a preliminary review of
the State's redesignation request. As discussed in the April 2, 1996
proposal, current EPA policy, in fact, would require the State to have
submitted adopted non-CTG VOC RACT rules for the 3 source categories at
issue before the area could be redesignated to attainment. As discussed
previously, however, EPA proposed to make an exception to policy in
this instance for several reasons, including the fact that the RACT
rules at issue came due after the end of the ozone season in which
Grand Rapids attained the standard and were not needed to bring about
attainment of the ozone standard in Grand Rapids. In addition, the
State has
[[Page 31846]]
demonstrated continued maintenance of the ozone standard through 2007
without the implementation of these measures and other contingency
measures are included in the maintenance plan that would bring about
far greater emission reductions than the VOC RACT rules, and would
therefore be substantially more effective in terms of correcting
violations attributable to local emissions from the Grand Rapids area
that may occur after redesignation. Again, the commentor does not
challenge the rational used to make the exception to policy pertaining
to the non-CTG RACT rules.
EPA's general redesignation policy requires that rules and programs
for requirements that come due prior to submittal of a complete
redesignation request be adopted and fully approved into the area's
SIP. The policy also allows for these measures to be moved into the
area's maintenance plan as contingency measures if they are not
necessary for maintenance of the standard. September 1993 Shapiro
memorandum. Thus, the non-CTG VOC RACT rules should have been adopted
but may have been moved over into the area's maintenance plan, if the
area demonstrated that the measure(s) was not necessary for
maintenance.
Comment: The commentor submits that the EPA is prohibited from
accepting commitments by a State to adopt and implement contingency
measures in place of fully adopted and implemented rules as required
for SIP revisions pursuant to section 110(k)(4). Natural Resources
Defense Counsel (NRDC) v. U.S. EPA.
Response: EPA does not believe that the D.C. Circuit's decision in
NRDC v. U.S. EPA, 22 F.3d 1125 (D.C. Cir. 1994) concerning the use of
commitments under section 110(k)(4) prohibits EPA from fully approving
commitments by a State to adopt and implement contingency measures in a
section 175A maintenance plan. The NRDC decision concerned the use of
the section 110(k)(4) conditional approval mechanism, which
contemplates the conversion of a conditional approval to a disapproval
if a State fails to comply with a commitment to adopt specific
enforceable measures by a date certain, which may be no later than one
year after the conditional approval. In contrast, the commitments
regarding contingency measures in a section 175A maintenance plan
become enforceable commitments once they are fully-approved into the
maintenance plan. As these commitments are fully approved into the SIP,
they, like other provisions of a fully-approved plan, are enforceable
pursuant to the provisions of the Act. See September 1992 Calcagni
memorandum at p. 12 (stating that ``the contingency plan is considered
to be an enforceable part of the SIP''). EPA notes that it has not
relied on the section 110(k)(4) conditional approval mechanism for
dealing with commitments regarding maintenance plan contingency
measures either before or after the NRDC decision, but has consistently
fully-approved such commitments, thereby making them an enforceable
part of the SIP. In sum, EPA does not believe that its authority to
accept such commitments was affected by the NRDC decision.
Comment: The commentor cites the September 1992 Calcagni memorandum
which provides that, ``for purposes of section 175A, a State is not
required to have fully adopted contingency measures that will take
effect without further action by the State in order for the maintenance
plan to be approved,'' and interprets this language to imply that
contingency measures need not be self-executing and provides the State
discretion in selection of a contingency measure from a host of
``adopted contingency measures.''
Response: The September 1992 Calcagni memorandum citation noted by
the commentor is valid. However, the September 1992 Calcagni memorandum
goes on to say in the next sentences that ``the contingency plan * * *
should ensure that the contingency measures are adopted expediently
once they are triggered.'' Clearly, this indicates that contingency
measures need not be fully adopted since the contingency plan should
ensure expeditious adoption of contingency measures.
Comment: The commentor is concerned that the State did not
implement an enhanced I/M program as scheduled in December 1994 and
that the State has partially rescinded the legal authority for the I/M
program.
Response:The Grand Rapids moderate ozone nonattainment area was
required to adopt and implement a basic I/M program. An enhanced I/M
program was adopted by Michigan and fully approved by EPA into the SIP
on October 11, 1994 (59 FR 51379) and was to have commenced
implementation on January 1, 1995. By the end of 1994, the Grand Rapids
area had attained the ozone standard and therefore, was eligible for
redesignation. The January 5, 1995 (60 FR 1735) revisions to the
national I/M rule stipulate that areas otherwise eligible for
redesignation, may submit the following in order to satisfy the I/M
component of the SIP: legislative authority for basic I/M; a provision
in the SIP providing that I/M be placed in the contingency measure
portion of the maintenance plan; and an enforceable schedule and
commitment by the Governor or his designee for adoption and
implementation of a basic I/M program upon a triggering event. Also,
see September 1993 Shapiro memorandum. With this, the Governor stayed
the implementation of the I/M program in the Grand Rapids area. In
order to satisfy the I/M component of the SIP, therefore, the State
needs to satisfy only the items noted above. The legislative authority
to implement an I/M program is contained in Michigan's Enrolled House
Bill No. 4165 which provides that I/M may be implemented as a
contingency measure consistent with an area's maintenance plan if it is
not necessary for maintenance. The 175A maintenance plan provides for
the implementation of I/M as a contingency measure, and also provides
an enforceable schedule for the implementation of I/M as a contingency
measure.
Finally, EPA is not aware of any revocation of the legal authority
of the I/M program. In fact, discussions with the State verified that
Michigan's Enrolled House Bill No. 4165 has not been revoked or
repealed but is still valid.
Comment:The commentor conducted an analysis of 1995 ambient
monitoring data and concluded that the emissions from the Grand Rapids
area produces tropospheric ozone. Adoption and implementation of the
non-CTG VOC RACT rules for plastic parts coating, wood furniture
coating and industrial clean-up solvents would have achieved
considerable, cost-effective reduction in local VOC emissions as well
as lessened the exposure of the community to toxic air pollutants. The
commentor states that, if EPA had enforced part D nonattainment plan
requirements for the Grand Rapids area, significant VOC emission
reductions would have occurred.
Response: The EPA does not dispute the commentor's contention that
ozone and ozone precursor emissions from the Grand Rapids urbanized
area contribute to the formation of ozone nor that implementation of
the non-CTG VOC RACT rules for the three source categories would have
achieved reductions in local VOC emissions. Based on the current ozone
standard, 0.12 ppm, however, the Grand Rapids area has demonstrated
attainment of the current ozone NAAQS in the three year period 1992-
1994 and continues to demonstrate attainment for the period 1993-1995
even without the implementation of these rules.
With respect to the EPA's enforcement of part D nonattainment
[[Page 31847]]
plan requirements, EPA's general redesignation policy provides that
part D nonattainment plan requirements that have been adopted but
unimplemented may be moved into the area's maintenance plan as
contingency measures if the area demonstrates that these rules are not
necessary for maintenance of the ozone NAAQS. Even if EPA had made a
finding of failure to submit after the State of Michigan's failure to
submit the non-CTG VOC RACT rules at issue, there is no assurance that
those rules would have been adopted and implemented prior to
redesignation of the Grand Rapids area. Assuming that the State of
Michigan would have adopted and submitted such rules to EPA after a
finding of failure to submit, such rules would not have had to have
been implemented prior to this redesignation. Indeed, as explained
above, since maintenance of the standard has been demonstrated in the
Grand Rapids area without such rules, the State would probably have
simply included such rules on the list of contingency measures in the
maintenance plan and not implemented them prior to the redesignation.
In sum, no environmental benefit, and no reduction of emissions would
have been realized by EPA's enforcement of section 182(b)(2)(A) in this
case.
The commentor's calculations of emission reductions resulting from
the implementation of non-CTG VOC RACT in the plastic parts, wood
furniture and industrial clean up solvents are somewhat unclear and
inaccurate. However, the EPA agrees with the commentor's assumption
that in the calculations to determine the emissions on a tons per day
basis from a tons per year basis, the tons per year figure should be
divided by 365 days. Since the tons per year figures were based on a
theoretical emission value, assuming the facilities are operating 365
days per year, dividing by 365 is more accurate and appropriate than
dividing by 250. In its original calculations, the EPA erroneously
divided by 250 days assuming that the tons per year figure was based on
actual emissions and the facilities only operated on weekdays and not
on weekends or holidays.
The commentor references two documents as the basis of its
calculations, the ``Lake Michigan Ozone Control Program Evaluation of
Possible Control Measures: Control of Surface Coating of Plastic Parts;
Control of Emissions from Wood Furniture Coating [VOC], Evaluation of
Possible Control Measures for Solvent Metal Cleaning,'' developed
through the Lake Michigan Air Directors Consortium, April 16,
1993 \18\ and ``Meeting the 15-Percent Rate-of-Progress Requirement
Under the Clean Air Act: A Menu of Options,'' from STAPPA/ALAPCO,
September 1993.\19\
---------------------------------------------------------------------------
\18\ Hereinafter referred to as ``LADCO document.''
\19\ Hereinafter referred to as ``STAPPA/ALAPCO document.''
---------------------------------------------------------------------------
In calculating potential emission reductions for the plastic parts
coating source category, EPA believes that the commentor assumed a 95
percent reduction in emissions. This value appears to be based on the
LADCO document, which estimates a potential 40-95 percent emission
reduction depending on the level of control applied to the source
category. The 95 percent reduction assumes that these sources are
uncontrolled and that the State's rule would require the most stringent
of three control options that represent RACT. Since Michigan has a rule
applicable to plastic parts coating sources, the emission reductions
would be far less than the 95 percent assumed by the commentor. In
fact, according to Michigan's calculations, a non-CTG VOC RACT rule
would achieve, approximately, an additional 7 percent reduction to the
reductions already achieved by Michigan's Rule 632. The 7 percent
reduction represents the additional reductions that would be achieved
from the level of controls required by Michigan's current Rule 632 and
a level of RACT between the first and second control options available
in the draft CTG for this source category.
With respect to the wood furniture source category, the commentor
assumed a 70 percent emission reduction. It appears that this value,
again, was based on the LADCO document, which estimates a 50-70 percent
emission reduction in the wood furniture coating source category. In
its calculation of the emission reductions for this source category,
EPA assumed a 30 percent emission reduction. This was based on an
emission reduction estimate from the non-CTG document ``Control of
Volatile Organic Compound Emissions from Wood Furniture Manufacturing
Operations,'' September 7, 1995. Furthermore, the STAPPA/ALAPCO
document referred to by the commentor also estimates an emission
reduction of approximately 36 percent. While EPA's assumption is not as
optimistic as that assumed by the commentor, EPA believes that the 30
percent emission reduction is a reasonable assumption based on EPA
guidance and documentation, which estimates a range of reductions
between 20 and 47 percent depending on the process being controlled.
Furthermore, even if the optimistic 70 percent emission reduction is
assumed, emission reductions from the implementation of I/M or low RVP
(to 7.8 psi), at various time intervals, would achieve greater
reductions than the plastic parts coating, wood furniture coating and
industrial clean-up solvents in aggregate. In addition, emission
reductions from the implementation of I/M, low RVP or Stage II would
bring about far greater reductions than any of these non-CTG VOC RACT
rules individually, even with the 70 percent emission reduction assumed
by the commentor.
The commentor appears to be assuming a 15 percent emission
reduction for the industrial clean-up solvents source category. The EPA
based its calculations on an assumption of 25 percent reduction. Since
the basis of the 15 percent assumption is unclear and EPA assumed a
higher percentage emission reduction than did the commentor, this does
not appear to be an issue of contention.
Consequently, EPA's conclusion that the other, more effective
contingency measures, should and would be implemented first even if
these RACT rules were to be fully adopted prior to redesignation, is
not affected.
III. Final Rulemaking Action
The EPA approves the redesignation of the Grand Rapids, Michigan
ozone area to attainment and the section 175A maintenance plan as a
revision to the Michigan SIP. The State of Michigan has satisfied all
of the necessary requirements of the Act.
EPA finds that there is good cause for this redesignation to
attainment, and SIP revision to become effective immediately upon
publication because a delayed effective date is unnecessary due to the
nature of a redesignation to attainment which relieves the area from
certain Clean Air Act requirements that would other wise apply to it.
The immediate effective date for this redesignation is authorized under
both 5 U.S.C. 553(d)(1), which provides that rulemaking actions may
become effective less than 30 days after publication if the rule
``grants or recognizes an exemption or relieves a restriction'' and
section 553(d)(3), which allows an effective date less than 30 days
after publication ``as otherwise provided by the agency for good cause
found and published with the rule.''
Nothing in this action should be construed as permitting or
allowing or establishing a precedent for any future request for
revision to any SIP. Each request for revision to any SIP shall be
considered separately in light of specific
[[Page 31848]]
technical, economic, and environmental factors and in relation to
relevant statutory and regulatory requirements.
Ozone SIPs are designed to satisfy the requirements of part D of
the Act and to provide for attainment and maintenance of the ozone
NAAQS. This final redesignation should not be interpreted as
authorizing the State to delete, alter, or rescind any of the VOC or
NOX emission limitations and restrictions contained in the
approved ozone SIP. Changes to ozone SIP VOC regulations rendering them
less stringent than those contained in the EPA approved plan cannot be
made unless a revised plan for attainment and maintenance is submitted
to and approved by EPA. Unauthorized relaxations, deletions, and
changes could result in both a finding of nonimplementation [section
173(b) of the Act] and in a SIP deficiency call made pursuant to
section 110(a)(2)(H) of the Act.
This action has been classified as a Table 3 action by the Regional
Administrator under the procedures published in the Federal Register on
January 19, 1989 (54 FR 2214-2225), as revised by a July 10, 1995,
memorandum from Mary Nichols, Assistant Administrator for Air and
Radiation. The Office of Management and Budget has exempted this
regulatory action from Executive Order 12866 review.
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA
must prepare a regulatory flexibility analysis assessing the impact of
any proposed or final rule on small entities. 5 U.S.C. 603 and 604.
Alternatively, EPA may certify that the rule will not have a
significant economic impact on a substantial number of small entities.
Small entities include small businesses, small not-for-profit
enterprises, and government entities with jurisdiction over populations
of less than 50,000. This determination does not create any new
requirements, but suspends the indicated requirements. Therefore,
because this action does not impose any new requirements, I certify
that it does not have a significant impact on small entities affected.
The EPA has determined that today's final action does not include a
Federal mandate that may result in estimated costs of $100 million or
more to either State, local or tribal governments in the aggregate, or
to the private sector. This Federal action imposes no new Federal
requirements. Accordingly, no additional costs to State, local, or
tribal governments, or to the private sector, result from this action.
The SIP approvals under section 110 and subchapter I, part D of the
Act do not create any new requirements, but simply approve requirements
that the State is already imposing. Therefore, because the Federal SIP
approval does not impose any new requirements, I certify that it does
not have a significant impact on any small entities affected. Moreover,
due to the nature of the Federal-State relationship under the Act,
preparation of a regulatory flexibility analysis would constitute
Federal inquiry into the economic reasonableness of State action. The
Act forbids EPA to base its actions on such grounds. Union Electric Co.
v. U.S.E.P.A., 427 U.S. 246, 256-66 (S.Ct. 1976); 42 U.S.C. section
7401(a)(2).
Under section 801(a)(1)(A) of the APA as amended by the Small
Business Regulatory Enforcement Fairness Act of 1996, EPA submitted a
report constraining this rule and other required information to the
U.S. Senate, the U.S. House of Representative and the Comptroller
General of the General Accounting Office prior to publication of the
rule in today's Federal Register. This rule is not a ``major rule'' as
defined by section 804(2) of the APA as amended.
Under section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, the EPA
must prepare a budgetary impact statement to accompany any proposed or
final rulemaking that includes a Federal mandate that may result in
estimated costs to State, local, or tribal governments in the
aggregate; or to the private sector, of $100 million or more. Section
203 requires the EPA to establish a plan for informing and advising any
small governments that may be significantly or uniquely impacted by the
rule. Under section 205, the EPA must select the most cost-effective
and least burdensome alternative that achieves the objectives of the
rule and is consistent with statutory requirements.
Redesignation of an area to attainment under section 107(d)(3)(E)
of the Act does not impose any new requirements on small entities.
Redesignation is an action that affects the status of a geographical
area and does not impose any regulatory requirements on sources. The
Administrator certifies that the approval of the redesignation request
will not affect a substantial number of small entities.
Under section 307(b)(1) of the Act, petitions for judicial review
of this final action must be filed in the United States Court of
Appeals for the appropriate circuit by August 20, 1996. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule for the purposes of judicial
review nor does it extend the time within which a petition for judicial
review may be filed, and shall not postpone the effectiveness of such
rule or action. This action may not be challenged later in proceedings
to enforce its requirements. (See section 307(b)(2)).
List of Subjects
40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Hydrocarbons, Incorporation by reference, Nitrogen oxides, Ozone,
Volatile organic compounds, Motor vehicle pollution, and reporting and
record keeping requirements.
40 CFR Part 81
Environmental protection, Air pollution control, Carbon monoxide,
National parks, Wilderness areas, Hydrocarbons, Nitrogen oxides, Ozone,
and Volatile organic compounds.
Authority: 42 U.S.C. 7401-7671q.
Dated: June 17, 1996.
David A. Ullrich,
Acting Regional Administrator.
Part 52, chapter I, title 40 of the Code of Federal Regulations is
amended as follows:
PART 52--[AMENDED]
Subpart X--Michigan
1. The authority citation for Part 52 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
2. Section 52.1170 is amended by adding paragraph (c)(106) to read
as follows:
Sec. 52.1170 Identification of plan.
* * * * *
(c) * * *
(106) On March 9, 1995, the State of Michigan submitted as a
revision to the Michigan State Implementation Plan for ozone a State
Implementation Plan for a section 175A maintenance plan for the Grand
Rapids area as part of Michigan's request to redesignate the area from
moderate nonattainment to attainment for ozone. Elements of the section
175A maintenance plan include an attainment emission inventory for
NOX and VOC, a demonstration of maintenance of the ozone NAAQS
with projected emission inventories to the year 2007 for NOX and
VOC, a plan to verify continued attainment, a contingency plan, and a
commitment to submit a subsequent maintenance plan revision in 8 years
as required by the Clean Air Act. If a violation of the ozone NAAQS,
[[Page 31849]]
determined not to be attributable to transport from upwind areas, is
monitored, Michigan will implement one or more appropriate contingency
measure(s) contained in the contingency plan. Once a violation of the
ozone NAAQS is recorded, the State will notify EPA, review the data for
quality assurance, and conduct a technical analysis, including an
analysis of meteorological conditions leading up to and during the
exceedances contributing to the violation, to determine local
culpability. This preliminary analysis will be submitted to EPA and
subjected to public review and comment. The State will solicit and
consider EPA's technical advice and analysis before making a final
determination on the cause of the violation. The Governor or his
designee will select the contingency measure(s) to be implemented
within six months of a monitored violation attributable to ozone and
ozone precursors from the Grand Rapids area. The menu of contingency
measures includes a motor vehicle inspection and maintenance program,
Stage II vapor recovery, gasoline RVP reduction to 7.8 psi, RACT on
major non-CTG VOC sources in the categories of coating of plastics,
coating of wood furniture, and industrial cleaning solvents. Michigan
submitted legislation or rules for I/M in House Bill No 4165, signed by
Governor John Engler on November 13, 1993; Stage II in Senate Bill 726
signed by Governor John Engler on November 13, 1993; and RVP reduction
to 7.8 psi in House Bill 4898 signed by Governor John Engler on
November 13, 1993.
(i) Incorporation by reference.
(A) State of Michigan House Bill No. 4165 signed by the Governor
and effective on November 13, 1993.
(B) State of Michigan Senate Bill 726 signed by the Governor and
effective on November 13, 1993.
(C) State of Michigan House Bill No. 4898 signed by the Governor
and effective on November 13, 1993.
2. Section 52.1174 is amended by adding paragraph (o) to read as
follows:
Sec. 52.1174 Control strategy: Ozone.
* * * * *
(o) Approval--On March 9, 1996, the Michigan Department of
Environmental Quality submitted a request to redesignate the Grand
Rapids ozone nonattainment area (consisting of Kent and Ottawa
Counties) to attainment for ozone. As part of the redesignation
request, the State submitted a maintenance plan as required by 175A of
the Clean Air Act, as amended in 1990. Elements of the section 175A
maintenance plan include an attainment emission inventory for NOX
and VOC, a demonstration of maintenance of the ozone NAAQS with
projected emission inventories to the year 2007 for NOX and VOC, a
plan to verify continued attainment, a contingency plan, and a
commitment to submit a subsequent maintenance plan revision in 8 years
as required by the Clean Air Act. If a violation of the ozone NAAQS,
determined not to be attributable to transport from upwind areas, is
monitored, Michigan will implement one or more appropriate contingency
measure(s) contained in the contingency plan. Once a violation of the
ozone NAAQS is recorded, the State will notify EPA, review the data for
quality assurance, and conduct a technical analysis, including an
analysis of meteorological conditions leading up to and during the
exceedances contributing to the violation, to determine local
culpability. This preliminary analysis will be submitted to EPA and
subjected to public review and comment. The State will solicit and
consider EPA's technical advice and analysis before making a final
determination on the cause of the violation. The Governor or his
designee will select the contingency measure(s) to be implemented
within 6 months of a monitored violation attributable to ozone and
ozone precursors from the Grand Rapids area. The menu of contingency
measures includes a motor vehicle inspection and maintenance program,
Stage II vapor recovery, RVP reduction to 7.8 psi, RACT on major non-
CTG VOC sources in the categories of coating of plastics, coating of
wood furniture, and industrial cleaning solvents. The redesignation
request and maintenance plan meet the redesignation requirements in
section 107(d)(3)(E) and 175A of the Act as amended in 1990,
respectively. The redesignation meets the Federal requirements of
section 182(a)(1) of the Clean Air Act as a revision to the Michigan
Ozone State Implementation Plan for the above mentioned counties.
Part 81, chapter I, title 40 of the Code of Federal Regulations is
amended as follows:
PART 81--[AMENDED]
1. The authority citation for part 81 continues to read as follows:
Authority: 42 U.S.C. 7401-7871q.
2. Section 81.323 is amended by revising the attainment status
designation table entry for the Grand Rapids area for ozone to read as
follows:
Sec. 81.323 Michigan.
* * * * *
Michigan--Ozone
--------------------------------------------------------------------------------------------------------------------------------------------------------
Designation Classification
Designated areas ----------------------------------------------------------------------------------------------------------------------
Date \1\ Type Date Type
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
Grand Rapids Area:
Kent County.................. June 21, 1996.................. Attainment...................
Ottawa County................ June 21, 1996.................. Attainment...................
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\This date is November 15, 1990, unless otherwise noted.
[[Page 31850]]
[FR Doc. 96-15881 Filed 6-20-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-15854 Viruses, Serums, Toxins, and Analogous Products; Rabies Vaccine, Killed Virus and Rabies Vaccine, Live Virus
[Federal Register Volume 61, Number 121 (Friday, June 21, 1996)]
[Rules and Regulations]
[Pages 31822-31823]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15854]
-----------------------------------------------------------------------
DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection Service
9 CFR Part 113
[Docket No. 95-012-2]
Viruses, Serums, Toxins, and Analogous Products; Rabies Vaccine,
Killed Virus and Rabies Vaccine, Live Virus
AGENCY: Animal and Plant Health Inspection Service, USDA.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: We are amending the standard requirements for establishing the
immunogenicity of Rabies Vaccine, Killed Virus and Rabies Vaccine, Live
Virus. The amendment changes and clarifies alternate test procedures
which may be used in animals other than carnivores. Under the rule,
when a reduced number of challenge animals is used in a rabies
immunogenicity test, all vaccinates must survive challenge. If one or
more of the challenged vaccinates die of rabies, all of the remainder
of the vaccinates will have to be challenged or the test will be deemed
unsatisfactory and terminated.
This action corrects a problem associated with rabies
immunogenicity tests in the regulations and makes other changes deemed
necessary for clarity and consistency.
EFFECTIVE DATE: July 22, 1996.
FOR FURTHER INFORMATION CONTACT:
Dr. David A. Espeseth, Deputy Director, Veterinary Biologics, BBEP,
APHIS, USDA, 4700 River Road Unit 148, Riverdale, MD 20737-1237, (301)
734-8245.
SUPPLEMENTARY INFORMATION:
Background
The regulations in 9 CFR part 113 pertain to standard requirements
for the preparation of veterinary biological products. A standard
requirement consists of test methods, procedures, and criteria
established by the Animal and Plant Health Inspection Service (APHIS)
to determine that a veterinary biological product is pure, safe,
potent, and efficacious and not worthless, dangerous, contaminated, or
harmful.
The standard requirements for Rabies Vaccine, Killed Virus, and for
Rabies Vaccine, Live Virus, appear in Secs. 113.209 and 113.312,
respectively. Sections 113.209(b)(4) and 113.312(b)(4) provide for an
alternative immunogenicity test, for domestic species other than dogs
and cats, that reduces the number of animals that must be challenged.
On November 16, 1995, we published in the Federal Register (60 FR
57549-57550, Docket No. 95-012-1) a proposed rule to amend the standard
requirements for Rabies Vaccine, Killed Virus and Rabies Vaccine, Live
Virus. The amendments specify: (1) that for an immunogenicity study in
non-carnivores to be satisfactory, all animals must survive challenge
when less than 25 vaccinates are challenged, and (2) that a reduced
number of challenge animals may only be used for non-carnivores. The
rule more clearly
[[Page 31823]]
defines which animals must be challenged when a reduced number of
vaccinates is used.
We solicited comments for a 60-day comment period ending January
16, 1996. One comment was received by that date. The comment was from a
licensed manufacturer of veterinary biological products. The comment
addressed which animals should be challenged and the percent survival
required for a reduced challenge. The commenter recommended that less
than 100 percent survival be acceptable for a reduced challenge. The
commenter requested that this be accomplished through a wording change
to the rule.
In response to the commenter, APHIS believes that when the number
of challenged animals is reduced, survival of less than 100 percent of
the animals of the lowest titer would not provide adequate assurance
that animals of higher titer would be protected against challenge.
Because of this, no change to the regulations is made in response to
this comment.
Therefore, based on the rationale set forth in the proposed rule
and in this document, we are adopting the provisions of the proposal as
a final rule without change.
Executive Order 12866 and Regulatory Flexibility Act
This rule has been reviewed under Executive Order 12866. The rule
has been determined to be not significant for the purposes of Executive
Order 12866 and, therefore, has not been reviewed by the Office of
Management and Budget.
This rule amending Secs. 113.209 and 113.312 is necessary to
clarify the regulations regarding the rabies immunogenicity test. The
amendment clarifies which animals are to be challenged in a reduced
immunogenicity study and the procedures to follow when one or more of
the vaccinates die of rabies. The amendment requires that additional
vaccinates be challenged if one of the low titer vaccinates succumbs to
rabies. In 7 of the last 10 rabies challenge tests of non-carnivores,
firms elected to challenge 25 or more animals. In the remaining three
cases in which a reduced number of animals were challenged in
accordance with current Sec. 113.209 or Sec. 113.312, paragraph (b)(4),
no additional animals were challenged and no additional animals would
have been challenged under the amendment. The amendment, therefore,
will have minimal economic effect.
Under these circumstances, the Administrator of the Animal and
Plant Health Inspection Service has determined that this action will
not have a significant economic impact on a substantial number of small
entities.
Executive Order 12372
This program/activity is listed in the Catalog of Federal Domestic
Assistance under No. 10.025 and is subject to Executive Order 12372,
which requires intergovernmental consultation with State and local
officials. (See 7 CFR part 3015, subpart V.)
Executive Order 12778
This rule has been reviewed under Executive Order 12778, Civil
Justice Reform. It is not intended to have retroactive effect. This
rule would not preempt any State or local laws, regulations, or
policies, unless they present an irreconcilable conflict with this
rule. There are no administrative procedures which must be exhausted
prior to a judicial challenge to the provisions of this rule.
Paperwork Reduction Act
This rule contains no new information collection or record keeping
requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
et seq.).
List of Subjects in 9 CFR Part 113
Animal biologics, Exports, Imports, Reporting and recordkeeping
requirements.
Accordingly, 9 CFR part 113 is amended as follows:
PART 113--STANDARD REQUIREMENTS
1. The authority citation for part 113 continues to read as
follows:
Authority: 21 U.S.C. 151-159; 7 CFR 2.22, 2.80, and 371.2(d).
2. Section 113.209 is amended by revising paragraph (b)(4) to read
as follows:
Sec. 113.209 Rabies Vaccine, Killed Virus.
* * * * *
(b) * * *
(4) An alternative to challenging all surviving test animals in
accordance with paragraph (b)(3)(iv) of this section may be used when
the test animals are of species other than carnivores. Vaccinates shall
be challenged at 1 year postvaccination. These shall include five
vaccinates with the lowest SN titers at the 270th-day bleeding, five
vaccinates with the lowest SN titers at the 365th-day bleeding, and all
vaccinates with SN titers below 1:10 by the mouse SN test or below 1:16
by the rapid-fluorescent-focus-inhibition test at any bleeding. At
least five SN-negative controls of each species shall be challenged at
the same time as the vaccinates. All SN titers shall be titrated to an
endpoint. All of the challenged vaccinates must remain well for a
period of 90 days, and at least 80 percent of the controls must die of
rabies for a satisfactory test without further challenge. If one or
more of the vaccinates die from rabies, all the remaining vaccines,
regardless of titer, along with the five controls shall be challenged.
The cumulative results from the two challenges shall be evaluated for
acceptance as specified in paragraph (b)(3)(v) of this section.
* * * * *
3. Section 113.312 is amended by revising the section heading and
paragraph (b)(4) to read as follows:
Sec. 113.312 Rabies Vaccine, Live Virus.
* * * * *
(b) * * *
(4) an alternative to challenging all surviving test animals in
accordance with paragraph (b)(3)(iv) of this section may be used when
the test animals are of species other than carnivores. Vaccinates shall
be challenged at 1 year postvaccination. These shall include five
vaccinates with the lowest SN titers at the 270th-day bleeding, five
vaccinates with the lowest SN titers at the 365th-day bleeding, and all
vaccinates with SN titers below 1:10 by the mouse SN test or below 1:16
by the rapid-fluorescent-focus-inhibition test at any bleeding. At
least five SN-negative controls of each species shall be challenged at
the same time as the vaccinates. All SN titers shall be iterated to an
endpoint. All of the challenged vaccinates must remain well for a
period of 90 days, and at least 80 percent of the controls must die of
rabies for a satisfactory test without further challenge. If one or
more of the vaccinates die from rabies, all the remaining vaccinates,
regardless of titer, along with the five controls shall be challenged.
The cumulative results from the two challenges shall be evaluated for
acceptance as specified in paragraph (b)(3)(v) of this section.
* * * * *
Done in Washington, DC, this 17th day of June 1996.
Lonnie J. King,
Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 96-15854 Filed 6-20-96; 8:45 am]
BILLING CODE 3410-34-M
Complete official Federal Register PDF
FR Doc. 96-15792 Candidate Debates and News Stories
[Federal Register Volume 61, Number 121 (Friday, June 21, 1996)]
[Rules and Regulations]
[Pages 31823-31824]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15792]
=======================================================================
-----------------------------------------------------------------------
[[Page 31824]]
FEDERAL ELECTION COMMISSION
11 CFR Parts 100, 110 and 114
[Notice 1996-12]
Candidate Debates and News Stories
AGENCY: Federal Election Commission.
ACTION: Final rule: Announcement of effective date.
-----------------------------------------------------------------------
SUMMARY: On April 24, 1996, the Commission published the text of
revised regulations governing candidate debates and news stories
produced by cable television organizations. 61 FR 18049. These
regulations implement portions of the Federal Election Campaign Act of
1971, as amended. The Commission announces that these rules are
effective as of June 21, 1996.
EFFECTIVE DATE: June 21, 1996.
FOR FURTHER INFORMATION CONTACT: Ms. Susan E. Propper, Assistant
General Counsel, or Ms. Rosemary C. Smith, Senior Attorney, 999 E
Street, NW., Washington, DC 20463, (202) 219-3690 or toll free (800)
424-9530.
SUPPLEMENTARY INFORMATION: Today, the Commission is announcing the
effective date of new regulations governing candidate debates and news
stories produced by cable television organizations. The new rules are
being incorporated into parts 100, 110 and 114 of the existing
regulations.
Section 438(d) of Title 2, United States Code, requires that any
rule or regulation prescribed by the Commission to implement Title 2 of
the United States Code be transmitted to the Speaker of the House of
Representatives and the President of the Senate thirty legislative days
prior to final promulgation. The revisions to 11 CFR 100.7(b)(2),
100.8(b)(2), 110.13 and 114.4(f) were transmitted to Congress on April
18, 1996. Thirty legislative days expired in the Senate on June 7, 1996
and in the House of Representatives on June 10, 1996.
Announcement of Effective Date
11 CFR 100.7(b)(2), 100.8(b)(2), 110.13 and 114.4(f), as published
at 61 FR 18049 on April 24, 1996 are effective as of June 21, 1996.
Dated: June 17, 1996.
Lee Ann Elliott,
Chairman, Federal Election Commission.
[FR Doc. 96-15792 Filed 6-20-96; 8:45 am]
BILLING CODE 6715-01-M
Complete official Federal Register PDF
FR Doc. 96-15736 Office of the Assistant Secretary for Community Planning and Development, Community Development Block Grant (CDBG) Program: Small Cities and Insular Areas
[Federal Register Volume 61, Number 121 (Friday, June 21, 1996)]
[Rules and Regulations]
[Pages 32268-32269]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15736]
[[Page 32267]]
_______________________________________________________________________
Part VI
Department of Housing and Urban Development
_______________________________________________________________________
24 CFR Part 570
Community Development Block Grant (CDBG) Program: Small Cities and
Insular Areas; Final Rule
Federal Register / Vol. 61, No. 121 / Friday, June 21, 1996 / Rules
and Regulations
[[Page 32268]]
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
24 CFR Part 570
[Docket No. FR-4048-F-01]
RIN 2506-AB81
Office of the Assistant Secretary for Community Planning and
Development, Community Development Block Grant (CDBG) Program: Small
Cities and Insular Areas
AGENCY: Office of the Assistant Secretary for Community Planning and
Development, HUD.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This final rule amends the Department's regulations for the
Community Development Block Grant (CDBG) Program for Small Cities and
Insular Areas. This rule will streamline the reporting requirements for
Insular Area grant recipients and will clarify the requirements for
Small Cities grantees in Hawaii to amend their programs with regard to
grants received prior to Fiscal Year 1995.
EFFECTIVE DATE: These regulations take effect on July 22, 1996.
However, the information collection requirements in Sec. 570.405(e)(4)
of this rule will not be effective until the Office of Management and
Budget (OMB) has approved them under the Paperwork Reduction Act of
1995 and assigned them a control number. Publication of the control
numbers notifies the public that OMB has approved these information
collection requirements.
FOR FURTHER INFORMATION CONTACT: Stephen M. Rhodeside, State and Small
Cities Division, Office of Community Planning and Development,
Department of Housing and Urban Development, Room 7184, 451 Seventh
Street, SW, Washington, DC 20410; telephone (202) 708-1322. (This is
not a toll-free number.) Hearing- or speech-impaired persons may access
this number via TTY by calling the Federal Information Relay Service at
1-800-877-8339.
SUPPLEMENTARY INFORMATION:
I. Paperwork Reduction Act
The information collection requirements in Sec. 570.430(f) of this
rule have been approved by the Office of Management and Budget (OMB) in
accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-
3520), and assigned OMB control number 2506-0020. The Department has
begun the process of seeking OMB approval for the information
collection requirements referred to in Sec. 570.405(e)(4) of this rule;
the Department published a notice requesting comments on these
requirements on June 3, 1996 (61 FR 27926). These requirements will not
be effective until OMB has approved them and assigned them a control
number. An agency may not conduct or sponsor, and a person is not
required to respond to, a collection of information unless the
collection displays a valid control number.
II. Background
A. Insular Areas Program--Annual Performance Reports
This final rule amends the Department's regulations on performance
reports for grant recipients under the Insular Areas program. The
purpose of the Insular Areas program is to provide funds according to
HUD-established criteria to Guam, the Virgin Islands, American Samoa,
the Trust Territory of the Pacific Islands, and the Commonwealth of the
Northern Mariana Islands. The reporting requirement that was effective
prior to this final rule has been in effect for the Insular Areas
program since 1985, and it is extremely prescriptive. In order to
increase reporting flexibility and to reduce unnecessary paperwork,
this final rule eliminates the specific reporting requirements from the
regulations. However, to ensure that citizens are involved in the
process, Sec. 570.405(e)(4) will provide that Sec. 570.405(h)(1)(iv)
continues to apply to performance reports submitted by Insular Area
grant recipients.
The modification to the reporting requirement in this final rule
will permit the Department to eliminate the unnecessary environmental
status report, and will enable the Department to streamline reporting
requirements as necessary without amending the regulations. This will
help make the Department more responsive to the Insular Area grantees.
B. Small Cities Program
1. Program Amendments (Hawaii)
On December 27, 1994 (59 FR 66594), the Department published a
final rule revising its regulations in 24 CFR part 570, subpart F for
the Community Development Block Grant (CDBG) Small Cities Program. The
purpose of the program is to provide discretionary CDBG funds to units
of general local government in those States that have not elected to
assume administration of the CDBG formula allocations. The December 27,
1994 final rule amended the regulations to recognize several statutory
amendments and to reflect more accurately the nature of the program.
Specifically, the rule addressed the Department's administration of the
Small Cities Program in Hawaii and New York.
On January 5, 1995 (60 FR 1878), the Department published a final
rule for the Consolidated Submission for Community Planning and
Development Programs (the Consolidated Plan rule). The Consolidated
Plan rule replaced the Comprehensive Housing Affordability Strategies
(CHAS) provisions with a consolidated submission of the planning and
application aspects of several of the Department's Community Planning
and Development programs, including the CDBG program. This rule
provided that Hawaii grantees must submit consolidated plans for grants
beginning in Fiscal Year (FY) 1995 (see Sec. 570.429(f)). However, the
Department inadvertently failed to provide requirements for program
amendments with regard to grants received prior to FY 1995. Therefore,
this final rule amends Sec. 570.430 by adding a new paragraph (f),
which provides that Hawaii grantees must follow the consolidated plan
requirements in Sec. 91.505 when amending their programs for pre-FY
1995 grants, as well as for grants beginning in FY 1995.
Since HUD did not require grantees to submit consolidated plans
prior to FY 1995, they would be unable to apply criteria for
substantial amendment and citizen participation requirements from their
consolidated plans for the pre-1995 funding. Therefore, the new
paragraph (f) provides that the grantees must use their current citizen
participation plan for these purposes.
2. Technical Amendment
This final rule also makes a technical amendment to the reporting
regulations for the Small Cities program. Section 570.507(a)(2)
provides the requirements for performance and evaluation reports for
HUD-administered Small Cities recipients in New York. In the December
27, 1994 final rule (59 FR 66594), HUD decided to treat the Hawaii
recipients under the Small Cities program very much like entitlement
recipients, starting in FY 1995. However, Hawaii recipients must submit
a performance and evaluation report for pre-FY 1995 grants, as required
by Sec. 570.507(a)(2)(ii)(B). Therefore, this document amends the
heading of paragraph (a)(2) to reflect that its requirements apply both
to New York recipients and to Hawaii recipients in certain
circumstances.
[[Page 32269]]
III. Justification for Final Rulemaking
The Department generally publishes a rule for public comment before
issuing a rule for effect, in accordance with its own regulations on
rulemaking in 24 CFR part 10. However, part 10 provides for exceptions
to the general rule if the agency finds good cause to omit advance
notice and public participation. The good cause requirement is
satisfied when prior public procedure is ``impracticable, unnecessary,
or contrary to the public interest'' (24 CFR 10.1). The Department
finds that good cause exists to publish this rule for effect without
first soliciting public comment. This rule merely clarifies the
amendment procedures for Hawaii grantees and streamlines the reporting
requirements for Insular Area grantees. Therefore, prior public comment
is unnecessary.
IV. Other Matters
Environmental Impact
A Finding of No Significant Impact with respect to the environment
was made in accordance with HUD regulations in 24 CFR part 50
implementing section 102(2)(C) of the National Environmental Policy Act
of 1969 (42 U.S.C. 4332). The finding 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 General Counsel, Room 10276,
Department of Housing and Urban Development, 451 Seventh Street, SW,
Washington, DC.
Regulatory Flexibility Act
The Secretary, in accordance with the Regulatory Flexibility Act (5
U.S.C. 605(b)), has reviewed and approved this final rule, and in doing
so certifies that this rule will not have a significant economic impact
on a substantial number of small entities. This rule merely clarifies
the program amendment procedures for Hawaii grantees and streamlines
the reporting requirements for Insular Area grantees. The rule will
have no adverse or disproportionate economic impact on small
businesses.
Executive Order 12612, Federalism
The General Counsel, as the Designated Official under section 6(a)
of Executive Order 12612, Federalism, has determined that this rule
will not have substantial direct effects on States or their political
subdivisions, or the relationship between the Federal Government and
the States, or on the distribution of power and responsibilities among
the various levels of Government. No programmatic or policy changes
will result from this rule that would substantially affect the
relationship between the Federal Government and State and local
governments.
Executive Order 12606, The Family
The General Counsel, as the Designated Official under Executive
Order 12606, The Family, has determined that this rule will not have
the potential for significant impact on family formation, maintenance,
or general well-being, and thus is not subject to review under the
Order. No significant change in existing HUD policies or programs will
result from promulgation of this rule.
List of Subjects in 24 CFR Part 570
Administrative practice and procedure, American Samoa, Community
development block grants, Grant programs--education, Grant programs--
housing and community development, Guam, Indians, Lead poisoning, Loan
programs--housing and community development, Low and moderate income
housing, New communities, Northern Mariana Islands, Pacific Islands
Trust Territory, Pockets of poverty, Puerto Rico, Reporting and
recordkeeping requirements, Small cities, Student aid, Virgin Islands.
Accordingly, for the reasons stated in the preamble, 24 CFR part
570 is amended as follows:
PART 570--COMMUNITY DEVELOPMENT BLOCK GRANTS
1. The authority citation for 24 CFR part 570 continues to read as
follows:
Authority: 42 U.S.C. 3535(d) and 5300-5320.
2. In subpart E, Sec. 570.405 is amended by revising paragraph
(e)(4), to read as follows:
Sec. 570.405 The insular areas.
* * * * *
(e) * * *
(4) Grant recipients must submit to HUD an annual performance
report on progress achieved on previously funded grants. Grant
recipients must submit the report at a time and in a format determined
by HUD. The report should be made available to citizens in accordance
with the requirements of paragraph (h)(1)(iv) of this section.
* * * * *
3. In subpart F, Sec. 570.430 is amended by adding a new paragraph
(f), to read as follows:
Sec. 570.430 Hawaii program operation requirements.
* * * * *
(f) Program amendments for grants received prior to FY 1995.
Grantees must follow the requirements of Sec. 91.505 of this title when
amending their program with regard to grants received prior to FY 1995.
For purposes of this paragraph (f), the term ``consolidated plan'' as
used in Sec. 91.505 of this title means an application submitted under
the Hawaii program for pre-FY 1995 funds. Also for purposes of this
paragraph (f), to comply with the requirements of Sec. 91.505 of this
title, grantees must refer to their current citizen participation plans
(adopted in accordance with Sec. 91.505 of this title) to determine the
criteria for substantial amendment and the citizen participation
process to be followed.
(Approved by the Office of Management and Budget under control
number 2506-0020.)
4. Section 570.507 is amended by revising the heading of paragraph
(a)(2), to read as follows:
Sec. 570.507 Reports.
(a) * * *
(2) HUD-administered Small Cities recipients in New York, and
Hawaii recipients for pre-FY 1995 grants.
* * * * *
Dated: May 10, 1996.
Andrew Cuomo,
Assistant Secretary for Community Planning and Development.
[FR Doc. 96-15736 Filed 6-20-96; 8:45 am]
BILLING CODE 4210-29-P
Complete official Federal Register PDF
FR Doc. 96-15735 Office of the Assistant Secretary for Housing-Federal Housing Commissioner; Sale of HUD-Held Multifamily Mortgages
[Federal Register Volume 61, Number 121 (Friday, June 21, 1996)]
[Rules and Regulations]
[Pages 32264-32265]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15735]
[[Page 32263]]
_______________________________________________________________________
Part V
Department of Housing and Urban Development
_______________________________________________________________________
24 CFR Part 290
Sale of HUD-Held Multifamily Mortgages; Final Rule
Federal Register / Vol. 61, No. 121 / Friday, June 21, 1996 / Rules
and Regulations
[[Page 32264]]
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
24 CFR Part 290
[Docket No. FR-3970-F-02]
RIN 2502-AG59
Office of the Assistant Secretary for Housing-Federal Housing
Commissioner; Sale of HUD-Held Multifamily Mortgages
AGENCY: Office of the Assistant Secretary for Housing-Federal Housing
Commissioner, HUD.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This rule amends the Department's regulations governing the
sale of multifamily mortgages. It adds a provision protecting leases of
residential tenants in the event of foreclosure of certain mortgages
after they have been sold by HUD. This rule continues the protections
already provided to tenants that are receiving project-based federal
rental assistance or Section 8 tenant-based rental assistance. This
rule also clarifies a requirement added by the earlier interim rule
which continued, after the mortgage was sold by HUD, the prohibition on
project owners against discrimination in admitting tenants based on
their holding Section 8 certificates or vouchers. This rule clarifies
that this requirement continues until the mortgage debt is satisfied.
These amendments are intended to further the Department's efforts to
return its inventory of HUD-held multifamily mortgages to the private
sector in a manner that is beneficial to HUD and the residents of these
projects.
EFFECTIVE DATE: July 22, 1996.
FOR FURTHER INFORMATION CONTACT: Audrey Hinton, Associate Director for
Program Operations, Office of Multifamily Asset Management and
Disposition, Office of Housing, Room 6160, Department of Housing and
Urban Development, 451 Seventh Street, S.W., Washington, D.C. 20410,
telephone (202) 708-3730, Ext. 2691. (This is not a toll-free number.)
Hearing or speech-impaired individuals may call 1-800-877-8399 (Federal
Information Relay Service TTY).
SUPPLEMENTARY INFORMATION:
Background
On February 6, 1996, the Department published an interim rule (61
FR 4850) which added two sections to 24 CFR part 290 that provided
certain tenant protections when HUD sold multifamily mortgages. On
March 21, 1996, as part of its effort to reinvent and streamline all of
its regulations, the Department published a final rule that contained a
complete revision of 24 CFR part 290. That final rule contained the
pertinent sections and indicated that HUD would republish the sections
in a final rule after considering public comment.
Section 290.112 of the interim rule (now Sec. 290.37) provided
that, in the sale of delinquent mortgages on subsidized projects and
partially-assisted unsubsidized, HUD will require project purchasers,
including foreclosure purchasers, to assume federal rental subsidy
contracts. In addition, mortgage purchasers may not foreclose in a
manner that would terminate such assisted tenants' leases.
The interim rule preamble discussion of the then Sec. 290.112 also
sought comment on adding a requirement that existing leases of
unassisted tenants in such projects must be maintained after
foreclosure for a period equal to the remaining term of the lease or
one year, whichever period is shorter, if the leases could otherwise be
extinguished under state foreclosure law. The Department did not
actually effectuate this provision in the interim rule because it did
not believe it had a basis to forego prior public comment.
Section 290.114 of the interim rule (now Sec. 290.39) provided that
owners of subsidized projects and partially-assisted unsubsidized
projects will continue to be subject to a prohibition against
discriminating against certificate and voucher holders after a mortgage
sale without insurance. In addition, for all mortgages that are
delinquent when sold by HUD, owners both of subsidized projects and
unsubsidized projects must agree to record a covenant running with the
land to continue this obligation through the maturity date of the
mortgage as part of the consideration of a loan restructuring or
compromise of the mortgage indebtedness with the mortgage purchaser.
Alternatively, if the mortgage purchaser forecloses, this
nondiscrimination obligation would apply to the project purchaser at
foreclosure.
The preamble to the interim rule (61 FR 4581) also provided
additional guidance on how HUD intends to implement the then
Sec. 290.110(b) (now Sec. 290.35(b)).
The Department received one public comment on the interim rule,
which supported the changes made by the interim rule. The commenter did
not directly respond to the issue, raised in the preamble, of
safeguarding the possessory rights of unassisted tenants after
foreclosure.
Changes Effected by This Final Rule
This final rule amends Sec. 290.37(b) to adopt the change proposed
in the preamble to the interim rule. Namely, it requires a mortgagee
(and its successors and assigns) that purchases from HUD a delinquent
mortgage on a subsidized project or a partially-assisted unsubsidized
project and subsequently forecloses the mortgage to ensure that the
purchaser at foreclosure takes possession subject to the rights of
residential tenants who are not receiving federal project-based or
Section 8 tenant-based rental assistance. This tenant protection lasts
for the remaining term of the lease or for one year, whichever period
is shorter.
The scope and duration of this tenant protection is similar to that
which would apply under section 369E of the Multifamily Mortgage
Foreclosure Act of 1981, as amended, (12 U.S.C. 3713(c), see also 24
CFR 27.45(b)) when HUD forecloses on a mortgage that it holds.
The amendment does not affect residential tenants who receive
rental assistance. They are protected by existing requirements now in
Sec. 290.37(b)(1) (Sec. 290.112(b) in the interim rule). Under that
section, the mortgage purchaser and its successors and assigns, if they
foreclose, must foreclose in a manner that does not interfere with any
lease related to federal project-based assistance or any lease related
to tenant-based, Section 8 housing assistance payments.
This final rule makes one additional change to clarify the duration
of the nondiscrimination against certificate and voucher holders
requirement in current Sec. 290.39. Section 290.39 (Sec. 290.114 of the
interim rule) prohibits a project owner from unreasonably refusing to
lease a unit because the tenant is a certificate or voucher holder. The
prohibition applies to owners of subsidized projects or partially-
assisted unsubsidized projects. Section 290.39(c)(2) of the current
rule provides that ``This requirement shall continue until the mortgage
is paid in full, including by a mortgage prepayment, except as provided
in paragraph (d) of this section.'' The intent of this provision was to
continue the nondiscrimination requirement for as long as the project
was subject to the mortgage debt. (See the preamble discussion of
Sec. 290.114 in the interim rule at 61 FR 4583.) The above-quoted rule
text, however, is unclear as to the effect of a satisfaction of the
mortgage with less than a full payment. This rule amends Sec. 290.39 to
state explicitly that the nondiscrimination requirement
[[Page 32265]]
continues in effect until the mortgage debt is satisfied.
Other Matters
Environmental Impact
In accordance with 40 CFR 1508.4 of the regulations of the Council
on Environmental Quality and 24 CFR 50.20(k) of the HUD regulations,
the policies and procedures contained in this rule relate only to HUD
administrative procedures and, therefore, are categorically excluded
from the requirements of the National Environmental Policy Act.
Executive Order 12612, Federalism
The General Counsel, as the Designated Official under section 6(a)
of Executive Order 12612, Federalism, has determined that the policies
contained in this rule will not have substantial direct effects on
States or their political subdivisions, or on the relationship between
the federal government and the States, or on the distribution of power
and responsibilities among the various levels of government. As a
result, the rule is not subject to review under the Order.
Specifically, the requirements of this rule are directed to HUD
administrative procedures, and do not impinge upon the relationship
between Federal government and State and local governments.
Executive Order 12606, the Family
The General Counsel, as the Designated Official under Executive
order 12606, The Family, has determined that this rule does not have
potential for significant impact on family formation, maintenance, and
general well-being, and, thus, is not subject to review under the
order. No significant change in existing HUD policies or programs will
result from promulgation of this rule, as those policies and programs
relate to family concerns.
Regulatory Flexibility Act
The Secretary, in accordance with the Regulatory Flexibility Act (5
U.S.C. 605(b)), has reviewed this rule before publication and by
approving it certifies that this rule does not have a significant
economic impact on a substantial number of small entities. This rule
will not affect the ability of small entities, relative to larger
entities, to bid for and acquire HUD-held mortgages that HUD decides to
sell.
List of Subjects in 24 CFR Part 290
Low and moderate income housing, Mortgage insurance.
Accordingly part 290 of Title 24 of the Code of Federal Regulations
is amended as follows:
PART 290--MANAGEMENT AND DISPOSITION OF HUD-OWNED MULTIFAMILY
PROJECTS AND CERTAIN MULTIFAMILY PROJECTS SUBJECT TO HUD-HELD
MORTGAGES
1. The part heading for part 290 is revised as set forth above.
2. The authority citation for part 290 is revised to read as
follows:
Authority: 12 U.S.C. 1701z-11, 1701z-12, 1713, 1715b, 1715z-1b;
42 U.S.C. 3535(d) and 3535(i).
Sec. 290.30 [Amended]
3. In Sec. 290.30, paragraph (a) is amended by removing the
reference to ``Sec. 290.32(a)(2)'' and adding in its place
``Sec. 290.31(a)(2)''.
4. In Sec. 290.37, paragraph (b) is revised to read as follows:
Sec. 290.37 Requirements for continuing federal rental subsidy
contracts.
* * * * *
(b) In the event of foreclosure of the mortgage sold by HUD, the
mortgage purchaser and its successors and assigns:
(1) Shall foreclose in a manner that does not interfere with any
lease related to federal project-based assistance or any lease related
to tenant-based, Section 8 housing assistance payments; and
(2) Shall foreclose in manner that ensures that the right of
possession of the purchaser at a foreclosure sale shall be subject to
the terms of any residential lease not subject to paragraph (b)(1) of
this section for the remaining term of the lease or for one year,
whichever period is shorter.
* * * * *
3. In Sec. 290.39, paragraph (c)(2) is revised to read as follows:
Sec. 290.39 Nondiscrimination in admitting certificate and voucher
holders.
* * * * *
(c) * * *
(2) This requirement shall continue in effect until the mortgage
debt is satisfied.
* * * * *
Dated: June 11, 1996.
Nicolas P. Retsinas,
Assistant Secretary for Housing-Federal Housing Commissioner.
[FR Doc. 96-15735 Filed 6-20-96; 8:45 am]
BILLING CODE 4210-27-P
Complete official Federal Register PDF
FR Doc. 96-15712 Office of the Assistant Secretary for Public and Indian Housing; Indian HOME Program Streamlining
[Federal Register Volume 61, Number 121 (Friday, June 21, 1996)]
[Rules and Regulations]
[Pages 32292-32309]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15712]
[[Page 32291]]
_______________________________________________________________________
Part IX
Department of Housing and Urban Development
_______________________________________________________________________
24 CFR Parts 92 and 954
Indian HOME Program Streamlining; Final Rule
Federal Register / Vol. 61, No. 121 / Friday, June 21, 1996 / Rules
and Regulations
[[Page 32292]]
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
24 CFR Parts 92 and 954
[Docket No. FR-3567-I-01]
RIN 2577-AB35
Office of the Assistant Secretary for Public and Indian Housing;
Indian HOME Program Streamlining
AGENCY: Office of the Assistant Secretary for Public and Indian
Housing, (HUD).
ACTION: Interim rule.
-----------------------------------------------------------------------
SUMMARY: This interim rule moves the Indian HOME Program from 24 CFR
part 92 to 24 CFR part 954, and includes clarifications and
simplifications intended to facilitate the use of the rule by
interested parties, increase similarity with the Indian Community
Development Block Grant (ICDBG) program, and simplify administration of
Native American Tribal Programs.
DATES: Effective date: July 22, 1996.
Comments due date: August 20, 1996.
ADDRESSES: Interested persons are invited to submit comments regarding
this interim rule to the Rules Docket Clerk, Office of General Counsel,
Room 10276, Department of Housing and Urban Development, 451 Seventh
Street, SW, Washington, DC 20410-0500. Communications should refer to
the above docket number and title. Facsimile (FAX) comments are not
acceptable. A copy of each communication 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: David Pass, Housing & Community
Development Division, Office of Native American Programs, Public and
Indian Housing, Room B-133, Department of Housing and Urban
Development, 451 Seventh Street, S.W., Washington, D.C. 20410,
telephone (202) 755-0102, ext. 119; Email: David__P[email protected] Hearing-
or speech-impaired persons may use a Telecommunications Device for the
Deaf (TTY) by contacting the Federal Information Relay Service on 1-
800-877-TDDY (1-800-877-8339)(a toll-free number).
SUPPLEMENTARY INFORMATION:
I. Paperwork Burden
The information collection requirements contained in Secs. 954.106,
954.505, 954.506, 954.507 of this interim rule have been approved by
the Office of Management and Budget in accordance with the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501-3520), and assigned OMB control
number 2577-0191. An agency may not conduct or sponsor, and a person is
not required to respond to, a collection of information unless the
collection displays a valid control number.
II. Background
The HOME Investment Partnerships Act (the HOME Act)(Title II of the
Cranston-Gonzalez National Affordable Housing Act) was signed into law
on November 28, 1990 (Pub. L. 101-625), and created the HOME Investment
Partnerships (or HOME) Program that provides funds to the Indian HOME
program to expand the supply of affordable housing for very low-income
and low-income persons. Interim regulations for the HOME Investment
Partnerships Program were published on December 16, 1991 (56 FR 65313)
and are codified at 24 CFR part 92. The requirements of 24 CFR part 92,
subpart A and subpart M (Secs. 92.600-92.652) apply specifically to the
Indian HOME program.
The HOME Act was amended October 28, 1992 by title II of the
Housing and Community Development Act of 1992 (HCDA 1992) (P.L. 102-
550, approved October 28, 1992). The Multifamily Housing Property
Disposition Reform Act of 1994 (MHPDRA) (Pub. L. 103-233, approved
April 11, 1994) included an additional number of amendments to the HOME
Act. Amendments to the HOME rule at 24 CFR part 92 were published on
December 11, 1992 (57 FR 58862); December 22, 1992 (57 FR 60960); June
23, 1993 (58 FR 34130); April 19, 1994 (59 FR 18626); August 26, 1994
(59 FR 44258); March 10, 1995 (60 FR 13348); July 12, 1995 (60 FR
36020); January 23, 1996 (61 FR 1824); and March 6, 1996 (61 FR 9036).
In accordance with section 217(a)(2) of the HOME Act, each Fiscal
Year (FY) HUD shall provide funds for the Indian HOME program totaling
one percent (or such other percentage or amount as authorized by
Congress) of the amount appropriated for the HOME program to expand the
supply of affordable housing.
The initial regulatory requirements for the Indian HOME program
were similar to the rule for the HOME program for State and local
governments. During the years since the publication of the December 16,
1991, interim rule in the Federal Register, there have been four
complete funding cycles (FY 92, FY 93, FY 94 and FY 95) of the Indian
HOME program. The Indian HOME program has gradually developed its own
particular characteristics to serve its constituency, and the Office of
Indian Housing has become the Office of Native American Programs
(ONAP), receiving Community Planning and Development field office staff
and administering both the Indian Community Development Block Grant
(ICDBG) program and the Indian HOME program.
This interim rule includes clarifications and simplifications
intended to eliminate confusion and facilitate the use of the rule by
interested parties, increases similarity with the Indian Community
Development Block Grant (ICDBG) program, and simplifies administration
of Native American Tribal Programs. In addition, the regulation is
relocated from part 92 to part 954 of title 24. The Department is
consolidating all of its Native American programs in the 950 series of
title 24.
III. Regulatory Reinvention
Consistent with Executive Order 12866 and President Clinton's
memorandum of March 4, 1995 to all Federal Departments and Agencies on
regulatory reinvention, HUD has reviewed all its regulations to
determine whether certain regulations can be eliminated, streamlined,
or consolidated with other regulations. The changes in the Indian HOME
Program are a part of this regulatory reinvention effort. The
Department is inviting comments on these changes and any other
provision in part 954. HUD intends to issue a final rule taking into
account comments on this interim rule and comments received by HUD on
part 92--the HOME program for State and local governments. The
following discussion of sections in the new 24 CFR part 954 describes
the changes made to the part 92 provisions as part of the move to part
954:
Subpart A--General Provisions
Section 954.1 Overview and Purpose
Section 954.1, based upon Sec. 92.1, is edited so that it applies
to only the Indian HOME program. References to participants in the HOME
program for State and local governments are deleted.
Section 954.2 Definitions
Section 954.2, based upon Sec. 92.2, is edited so that it applies
to only the Indian HOME program. Definitions for and references to
participants in the HOME program for State and local governments are
deleted.
Section 954.4 Other Federal Requirements
Indian preference
To increase similarity between tribal assistance programs,
Sec. 92.631 (now Sec. 954.4) is revised to conform with the
[[Page 32293]]
Indian preference as described in 24 CFR part 953. The language of this
section has been revised to: correct inaccuracies in certain referenced
definitions; include a definition of ``Indian'' as this word is defined
in the Indian Self-Determination and Education Assistance Act (25
U.S.C. 450e(b)); delete subsection (e), Additional Indian preference
requirements (this subsection is being deleted since its provisions
have never been used and, upon analysis, did not appear to be
meaningful); and, to add a subsection, Complaint procedures, in which
the specific process to be followed is clarified and in which the
grantee is identified as the final arbiter.
Environmental Review
Section 92.633 is relocated to Sec. 954.4. Displacement,
relocation, and acquisition.
Section 92.634, now included in Sec. 954.4, is revised to conform
to 24 CFR 953.602 for the ICDBG program.
Labor
Section 92.635, now in Sec. 954.4, is revised to conform to
Sec. 92.354, the regulation for the HOME program for State and local
governments which was revised in the April 19, 1994 and August 26, 1994
rules. Also, the regulation includes information about force account
and Davis-Bacon; the grantee is responsible for compliance rather than
requiring prior HUD approval.
Lead-based paint
ONAP considered replacing the text at Sec. 92.636 (now Sec. 954.4)
with the text from the CDBG program at Sec. 570.608. However, HUD is in
the process of revising the lead-based paint requirements for all HUD
programs in accordance with recent statutory amendments to the lead-
based paint statute, and no change is made here.
Debarment and Suspension
ONAP considered similar sections on debarment and suspension (HOME
Sec. 92.638; CDBG Sec. 570.609) for both the Indian HOME and ICDBG
programs. The HOME regulation refers to part 24, which prohibits awards
to ineligible entities. ICDBG, too, prohibits awards to ineligible
entities. Section 92.638 has not been revised in its move to
Sec. 954.4.
Subpart B--Applying for Assistance
Section 954.100 General
Section 92.600, now Sec. 954.100, is edited to reflect the
Department's change in nomenclature from Field Offices to Area Offices
of Native American Programs.
Section 954.101 Allocation of Funds
Section 92.601 (now Sec. 954.101), Regional allocation of funds,
was changed to Allocation of funds and amended in the process. No
formula for the distribution of funds to the regions is included. The
decision whether to hold a regional competition or a national
competition will be announced in NOFAs for the Indian HOME Program.
Section 954.102 Eligible Applicants
This section reflects Sec. 92.602, except that paragraph (e), which
dealt with administrative capacity, has been deleted because it is
already covered in Sec. 954.104(b) as a factor for selection.
Section 954.106 Announcement of Competition
Section 92.605 (now Sec. 954.106), Deadline and other information,
is changed to Announcement of competition. Section 92.606,
Certifications, is eliminated. This requirement will be in the NOFA.
Section 954.107 Project Amendment
Section 954.107 is added to provide for an amendment to a project.
Subpart C--Eligible Activities and Affordability
Section 954.300 Eligible Activities
Section 92.611, Eligible activities, is now Sec. 954.300, except
Sec. 92.611(c), Termination before completion, which is placed in
Sec. 954.500, Repayment of investment, and revised to clarify the
account to which repaid HOME funds are to be deposited. Sections
92.614(e), and 92.615(c), which both dealt with manufactured housing,
have also been moved to Sec. 954.300.
Section 954.303 Eligible Project Costs
Section 92.612 (now Sec. 954.303) is revised to expand eligible
costs to include the cost to provide a security deposit in tenant-based
rental assistance. The meaning of site improvements is clarified, as is
the pro-rata development cost of facilities.
Impact fees on housing are eligible under the HOME program for
State and local governments. See Sec. 92.206(c)(7). There is no reason
to treat grantees in the Native American program differently.
Therefore, the payment of reasonable impact fees that are charged to
all housing, not just HOME-assisted housing, is now eligible.
The clarification in Sec. 954.303(a)(4) states unexpended funds in
reserve must be reprogrammed or returned to HUD; previously,
Sec. 92.612(a)(4) only stated that the funds should be returned to the
grantee's local HOME account.
The clarification in Sec. 954.303(b) Acquisition costs expands the
previous Sec. 92.612(b) coverage from ``Costs of acquiring improved or
unimproved real property'' to ``Costs of acquiring improved or
unimproved real property, including acquisition by homebuyers.''
Section 954.304 Eligible Administrative Costs
A new Sec. 954.304 is added to clarify program administrative
costs, with reference to OMB Circular A-87.
Section 954.305 Tenant-based Rental Assistance
In Sec. 954.305 (formerly Sec. 92.613), the explanation of what a
community-wide exception rent is has been relocated from paragraph
(f)(3) (where it appeared in Sec. 92.613) to the definitions section
(Sec. 954.2). To facilitate flexibility, an alternative rent standard
has been added in paragraph (f)(3), which permits the grantee's rent
standard for a unit size to be based on local market conditions.
The provision in Sec. 92.613(g), Housing Quality Standards, that
allowed for variations has been dropped as not necessary. Grantees may
always propose and request HUD approval of justifiable variations
through waivers.
Section 954.307 Homeownership: Qualification as Affordable Housing
Section 954.307discusses affordability restrictions, recapture of
the HOME investment, and use of recaptured HOME funds.
Section 954.308 Prohibited Activities
Section 954.308 (formerly Sec. 92.616) includes a prohibition
related to the provision of assistance in connection with programs
authorized under part 950 (Indian Housing Programs) of title 24. The
HOME statute does not specifically prohibit the use of HOME funds for
Indian housing, mutual help housing, new construction of public housing
or related costs. However, the statutory affordability requirements of
HOME present problems of compatibility with these programs. The HOME
rent restrictions apply for the period of affordability specified in
the regulation. The HOME affordability period for new construction is
20 years. The Indian Housing Programs under part 950 are large and
separately funded; ONAP does not contemplate accepting applications for
assistance which combine HOME with these other programs.
Subpart E--Program Administration
This subpart has been reorganized. Previously in part 92, it
followed the Other Federal requirements section.
[[Page 32294]]
Section 954.500 Repayment of Investment
Section 954.500 (formerly Sec. 92.643) has been changed to clarify
existing terms.
Section 954.502 Applicability of Uniform Administrative Requirements
A new paragraph (c) has been added to Sec. 954.502 (formerly
Sec. 92.645) to provide for alternatives to bond requirements.
Section 954.504 Closeout
Section 954.504 has revised Sec. 92.647 to provide that--except for
the special case of closeouts subject to audit--grant closeout may not
occur until all the funds to be closed out have been audited, and, if
the U.S. Department of Interior (DOI) review results in significant
delays, the Area ONAP may request a signed copy of the audit prior to
DOI review.
Section 954.505 Recordkeeping
To streamline the rule, the detailed list of records is deleted. It
will appear in a program guide.
Section 954.506 Performance Reports
Section 954.506 (formerly Sec. 92.649) has been amended to add a
financial status report to the annual performance report requirement.
Section 954.507 Submission of Project Completion Reports
This new section provides for the submission of project completion
reports.
Subpart F--Performance Reviews and Sanctions
Section 954.601 Corrective and Remedial Actions
Section 954.601 (formerly Sec. 92.651) has been expanded to include
immediate temporary lockout of the grantee from the grant funds.
In addition, the treatment of the following sections in part 92 has
changed as discussed below:
Section 92.625 Elder cottage housing opportunity (ECHO) units--
This subject need not be dealt with separately in the regulation.
Section 92.632 Methods of procurement--This subject is generic
(see 24 CFR Part 85) and need not be repeated in this program
regulation.
Section 92.640 HOME account--Reference to a grantee local HOME
account has been dropped.
Section 92.641 HOME Investment Partnership--There is no discussion
of this concept in the regulation.
Section 92.642 Cash Management Information System: disbursement of
HOME funds--This system is no longer used.
IV. Other Matters
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 does not have a
significant economic impact on a substantial number of small entities.
The interim rule provides revisions to the existing Indian HOME program
under which Indian tribes receive grant assistance from HUD to increase
the number of housing opportunities for low-income and very low-income
people. HUD does not anticipate a significant economic impact on small
entities since Indian tribes will continue to carry out their Indian
HOME program activities as they now do.
Executive Order 12606--Impact on the Family
The General Counsel, as the Designated Official under Executive
Order 12606, The Family, has determined that this interim rule does not
have potential for significant impact on family formation, maintenance,
and general well-being, and, thus, is not subject to review under the
order. No significant change in existing HUD policies or programs will
result from promulgation of this interim rule, as those policies and
programs relate to family concerns. To the extent there is an impact on
families, it will be beneficial in that additional affordable housing
will be available. The interim rule does not have the potential for
significant impact on family formation, maintenance, or general well-
being, since its effect is limited to revising program procedures for
Indian tribes applying for Indian HOME program grants.
Executive Order 12612--Federalism
The General Counsel, as the Designated Official under section 6(a)
of Executive Order 12612, Federalism, has determined that the policies
contained in this interim rule will not have substantial direct effects
on states or their political subdivisions, or the relationship between
the federal government and the states, or on the distribution of power
and responsibilities among the various levels of government. As a
result, the rule is not subject to review under the order. The rule is
limited to providing funds to Indian tribes in accordance with a
program to expand the supply of affordable housing.
Environmental Review
A Finding of No Significant Impact with respect to the environment
has been made in accordance with HUD regulations at 24 CFR part 50 that
implement section 102(2)(C) of the National Environmental Policy Act of
1969 (NEPA). The Finding of No Significant Impact is available for
public inspection between 7:30 a.m. and 5:30 p.m. weekdays in the
Office of the Rules Docket Clerk at the above address.
Justification for Interim Rulemaking
HUD generally publishes a rule for public comment before issuing a
rule for effect, in accordance with its own regulations on rulemaking
in 24 CFR part 10. However, part 10 provides for exceptions to the
general rule if the agency finds good cause to omit advance notice and
public participation. The good cause requirement is satisfied when
prior public procedure is ``impracticable, unnecessary, or contrary to
the public interest'' (24 CFR 10.1). HUD finds that good cause exists
to publish this interim rule for effect without first soliciting public
comment. This interim rule merely moves the Indian HOME rule to a new
part 954 in title 24, and removes unnecessary regulatory provisions but
does not establish or affect substantive policy. Therefore, prior
public comment is unnecessary.
The Catalog of Federal Domestic Assistance Number for the HOME
Program is 14.239.
List of Subjects
24 CFR Part 92
Administrative practice and procedure, Grant programs--housing and
community development, Grant programs--Indians, Indians, Low and
moderate income housing, Manufactured homes, Rent subsidies, Reporting
and recordkeeping requirements.
24 CFR Part 954
Administrative practice and procedure, Grant programs--housing and
community development, Grant programs--Indians, Indians, Low and
moderate income housing, Manufactured homes, Rent subsidies, Reporting
and recordkeeping requirements.
Accordingly, in title 24 of the Code of Federal Regulations, part
92 is amended and a new part 954 is added, as follows:
PART 92--HOME INVESTMENT PARTNERSHIPS PROGRAM
1. The authority citation for part 92 continues to read as follows:
[[Page 32295]]
Authority: 42 U.S.C. 3535(d) and 12701-12839.
Subpart M--[Removed and Reserved]
2. Subpart M, consisting of Secs. 92.600 through 92.652, is removed
and reserved.
3. A new part 954 is added to title 24, to read as follows:
PART 954--INDIAN HOME PROGRAM
Subpart A--General Provisions
Sec.
954.1 Overview.
954.2 Definitions.
954.3 Waivers.
954.4 Other Federal Requirements.
Subpart B--Applying for Assistance
954.100 General.
954.101 Allocation of funds.
954.102 Eligible applicants.
954.103 Housing strategy.
954.104 Performance thresholds.
954.105 Criteria for selection.
954.106 Announcement of competition.
954.107 Grant conditions.
954.108 Project amendment.
Subpart C--Eligible Activities and Affordability
954.300 Eligible activities.
954.301 Religious organizations.
954.302 Income determinations.
954.303 Eligible project costs.
954.304 Eligible administrative costs.
954.305 Tenant-based rental assistance.
954.306 Rental housing: qualification as affordable housing and
income targeting.
954.307 Homeownership: qualification as affordable housing.
954.308 Prohibited activities.
Subpart D--Project Requirements
954.400 Maximum per-unit subsidy amount.
954.401 Property standards.
954.402 Tenant and participant protections.
Subpart E--Program Administration
954.500 Repayment of investment.
954.501 Grantee responsibilities; written agreements; monitoring.
954.502 Applicability of uniform administrative requirements.
954.503 Audit.
954.504 Closeout.
954.505 Recordkeeping.
954.506 Performance reports.
954.507 Submission of project completion reports.
Subpart F--Performance Reviews and Sanctions
954.600 Performance reviews.
954.601 Corrective and remedial actions.
954.602 Notice and opportunity for hearing; sanctions.
Authority: 42 U.S.C. 3535(d) and 12701-12839.
Subpart A--General Provisions
Sec. 954.1 Overview.
This part implements the Indian HOME Investment Partnerships
Program. In general, under the Indian HOME Investment Partnerships
Program, HUD awards funds competitively to eligible applicants to
provide more affordable housing. Grantees may use HOME funds to carry
out projects through acquisition, rehabilitation, and new construction
of housing, and tenant-based rental assistance. Grantees are able to
provide assistance in a number of eligible forms, including loans,
advances, equity investments, interest subsidies and other forms of
investment that HUD approves.
Sec. 954.2 Definitions.
Adjusted income. See 24 CFR part 950.
Annual income. See 24 CFR part 950.
Area Office of Native American Programs (ONAP). See 24 CFR part
950.
Certification means a written assertion, based on supporting
evidence, which must be kept available for inspection by HUD, the
Inspector General and the public, which assertion is deemed to be
accurate for purposes of this part, unless HUD determines otherwise
after inspecting the evidence and providing due notice and opportunity
for comment.
Community-wide exception rents are maximum gross rents approved by
HUD for the Rental Certificate program under Sec. 882.106(a)(3) of this
title for a designated municipality, county, or similar locality, which
apply to the whole IHA jurisdiction.
Family. See 24 CFR part 950.
HOME funds means funds made available under this part through
grants, plus all repayments and interest or other return on the
investment of these funds.
Homeownership means ownership in fee simple title or a leasehold
interest of not less than 50 years (including 25 years, automatically
renewable for an additional term of 25 years) in a one-to-four unit
dwelling or in a condominium unit, ownership or membership in a
cooperative, or equivalent form of ownership approved by HUD. The
ownership interest may be subject only to the restrictions on resale
required under Sec. 954.307(a); mortgages, deeds of trust, or other
liens or instruments securing debt on the property as approved by the
tribe; or any other restrictions or encumbrances that do not impair the
good and marketable nature of title to the ownership interest.
Household means one or more persons occupying a housing unit.
Housing includes site constructed, modular, manufactured housing
and housing lots.
HUD. See 24 CFR part 950.
Indian housing authority (IHA). See 24 CFR part 950.
Low-income family See 24 CFR part 950.
Monthly adjusted income. See 24 CFR part 950.
Monthly income. See 24 CFR part 950.
NOFA means notice of funding availability.
Project means housing developed, acquired, or assisted with HOME
funds, and the improvement of this housing. It includes the site on
which the housing is located and all of the HOME-assisted activities
associated with the building and the site.
Project completion means that all necessary title transfer
requirements and construction work have been performed and the project
complies with the requirements of this part (including the property
standards adopted under Sec. 954.401); the final drawdown has been
disbursed for the project; a Project Completion Report has been
submitted and a final accounting of project expenses is provided by the
grantee as prescribed by HUD. For tenant-based rental assistance, it
also means the final drawdown has been disbursed for the project and
the final payment certification has been submitted and processed as
prescribed by HUD.
Secretary means the Secretary of Housing and Urban Development.
Single room occupancy (SRO) housing means housing consisting of
single room dwelling units that is the primary residence of its
occupant or occupants. The unit may contain either food preparation
facilities or sanitary facilities, or both. Alternatively, sanitary
facilities may be located outside the unit and be shared by tenants in
the project. SRO does not include facilities for students.
Subgrantee means a public agency or nonprofit organization retained
by the grantee under a written agreement to administer all or a portion
of the grantee's program for its HOME grant. A public agency or
nonprofit organization that receives HOME funds solely as a developer
or owner of housing is not a subgrantee. The grantee's selection of a
subgrantee is not subject to the procurement procedures and
requirements.
Tenant-based rental assistance is a form of rental assistance in
which the assisted tenant may move from a dwelling unit with a right to
continued assistance.
Transitional housing means housing that--
[[Page 32296]]
(1) Is designed to provide housing and supportive services to
persons, including (but not limited to) deinstitutionalized individuals
with disabilities, homeless individuals with disabilities, and homeless
families with children; and
(2) Has as its purpose facilitating the movement of individuals and
families to independent living within a time period that is set by the
grantee before occupancy.
Very low-income family. See 24 CFR part 950.
Sec. 954.3 Waivers.
Upon determination of good cause, HUD may waive any provision of
this part not required by statute. Each waiver must be in writing and
must be supported by documentation of the pertinent facts and grounds.
Sec. 954.4 Other Federal Requirements.
(a) Equal opportunity. (1) Section 282. Pursuant to the
requirements of Section 282 of the Cranston-Gonzales National
Affordable Housing Act (42 U.S.C. 12832), no person in the United
States shall on the grounds of race, color, national origin, religion,
or sex be excluded from participation in, be denied the benefits of, or
be subjected to discrimination under any program or activity funded in
whole or in part with HOME funds. In addition, HOME funds must be made
available in accordance with the prohibitions against discrimination on
the basis of age under the Age Discrimination Act of 1975 (42 U.S.C.
6101-6107) and implementing regulations at 24 CFR part 146, and the
prohibitions against discrimination against handicapped individuals
under section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794) and
implementing regulations at 24 CFR part 8.
(2) Civil Rights Act. Title VI of the Civil Rights Act of 1964 (42
U.S.C. 2000d-2000d-4), which prohibits discrimination on the basis of
race, color or national origin in federally assisted programs, the Fair
Housing Act (42 U.S.C. 3601-3620), which prohibits discrimination based
on race, color, religion, sex, or national origin in the sale or rental
of housing, and Executive Order 11063 (27 FR 11527, 3 CFR 1959-1963
Comp., p. 652), which provides for equal opportunity in housing, do not
apply to grantees exercising recognized powers of self-government.
Indian tribes and tribal organizations applying on behalf of Indian
tribes that do not exercise recognized powers of self-government must
make HOME funds available in accordance with Title VI of the Civil
Rights Act of 1964, the Fair Housing Act, and Executive Order 11063.
(b) Indian Civil Rights Act. The Indian Civil Rights Act (title II
of the Civil Rights Act of 1968, 25 U.S.C. 1301-1303) provides, among
other things, that ``no Indian tribe in exercising powers of self-
government shall. . . deny to any person within its jurisdiction the
equal protection of its laws or deprive any person of liberty or
property without due process of law.'' The Indian Civil Rights Act
(ICRA) applies to any tribe, band, or other group of Indians subject to
the jurisdiction of the United States in the exercise of recognized
powers of self-government.
(c) Indian preference requirements. (1) Applicability. HUD has
determined that grants under this part are subject to Section 7(b) of
the Indian Self-Determination and Education Assistance Act (25 U.S.C.
450e(b)). Section 7(b) provides that any contract, subcontract, grant
or subgrant pursuant to an act authorizing grants to Indian
organizations or for the benefit of Indians shall require that, to the
greatest extent feasible:
(i) Preference and opportunities for training and employment shall
be given to Indians; and
(ii) Preference in the award of contracts and subcontracts shall be
given to Indian organizations and Indian-owned economic enterprises as
defined in section 3 of the Indian Financing Act of 1974 (25 U.S.C.
1452).
(2) Definitions. (i) The Indian Self-Determination and Education
Assistance Act (25 U.S.C. 450e(b)) defines ``Indian'' to mean a person
who is a member of an Indian tribe and defines ``Indian tribe'' to mean
any Indian tribe, band, nation, or other organized group or community
including any Alaska native village or regional or village corporation
as defined or established pursuant to the Alaska Native Claims
Settlement Act, which is recognized as eligible for the special
programs and services provided by the United States to Indians because
of their status as Indians.
(ii) In section 3 of the Indian Financing Act of 1974 (25 U.S.C.
1452) ``economic enterprise'' is defined as any Indian-owned
commercial, industrial, or business activity established or organized
for the purpose of profit, except that Indian ownership must constitute
not less than 51 percent of the enterprise. This act defines ``Indian
organization'' to mean the governing body of any Indian tribe or entity
established or recognized by such governing body.
(3) Preference in administration of grant. To the greatest extent
feasible, preference and opportunities for training and employment in
connection with the administration of grants awarded under this part
shall be given to Indians.
(4) Preference in contracting. To the greatest extent feasible,
grantees shall give preference in the award of contracts for projects
funded under this part to Indian organizations and Indian-owned
economic enterprises.
(i) Each grantee shall:
(A) Advertise for bids or proposals limited to qualified Indian
organizations and Indian-owned enterprises; or
(B) Use a two-stage preference procedure, as follows:
(1) Stage 1. Invite or otherwise solicit Indian-owned economic
enterprises to submit a statement of intent to respond to a bid or
proposal announcement limited to Indian-owned firms.
(2) Stage 2. If responses are received from more than one Indian
enterprise found to be qualified, advertise for bids or proposals
limited to Indian organizations and Indian-owned economic enterprises;
or
(C) Develop, subject to area ONAP one-time approval, the grantee's
own method of providing preference.
(ii) If the grantee selects a method of providing preference that
results in fewer than two responsible qualified organizations or
enterprises submitting a statement of intent, a bid or a proposal to
perform the contract at a reasonable cost, then the grantee shall:
(A) Re-bid the contract, using any of the methods described in
paragraph (d)(1) of this section; or
(B) Re-bid the contract without limiting the advertisement for bids
or proposals to Indian organizations and Indian-owned economic
enterprises; or
(C) If one approvable bid is received, request area ONAP review and
approval of the proposed contract and related procurement documents, in
accordance with 24 CFR 85.36, in order to award the contract to the
single bidder.
(iii) Procurements that are within the dollar limitations
established for small purchases under 24 CFR 85.36 need not follow the
formal bid procedures of paragraph (d) of this section, since these
procurements are governed by the small purchase procedures of 24 CFR
85.36. However, a grantee's small purchase procurement shall, to the
greatest extent feasible, provide Indian preference in the award of
contracts.
(iv) All preferences shall be publicly announced in the
advertisement and bidding or proposal solicitation and the bidding or
proposal documents.
(v) A grantee, at its discretion, may require information of
prospective contractors seeking to qualify as Indian
[[Page 32297]]
organizations or Indian-owned economic enterprises. Grantees may
require prospective contractors to include the following information
prior to submitting a bid or proposal, or at the time of submission:
(A) Evidence showing fully the extent of Indian ownership and
interest;
(B) Evidence of structure, management and financing affecting the
Indian character of the enterprise, including major subcontracts and
purchase agreements; materials or equipment supply arrangements; and
management salary or profit-sharing arrangements; and evidence showing
the effect of these on the extent of Indian ownership and interest; and
(C) Evidence sufficient to demonstrate to the satisfaction of the
grantee that the prospective contractor has the technical,
administrative, and financial capability to perform contract work of
the size and type involved.
(vi) The grantee shall incorporate the following clause (referred
to as the Section 7(b) clause) in each contract awarded in connection
with a project funded under this part:
(A) The work to be performed under this contract is on a project
subject to Section 7(b) of the Indian Self-Determination and Education
Assistance Act (25 U.S.C. 450e(b)) (Indian Act). Section 7(b) requires
that to the greatest extent feasible preferences and opportunities for
training and employment shall be given to Indians, and preferences in
the award of contracts and subcontracts shall be given to Indian
organizations and Indian-owned economic enterprises.
(B) The parties to this contract shall comply with the provisions
of Section 7(b) of the Indian Act.
(C) In connection with this contract, the contractor shall, to the
greatest extent feasible, give preference in the award of any
subcontracts to Indian organizations and Indian-owned economic
enterprises, and preferences and opportunities for training and
employment to Indians.
(D) The contractor shall include this Section 7(b) clause in every
subcontract in connection with the project, and shall, at the direction
of the grantee, take appropriate action pursuant to the subcontract
upon a finding by the grantee or HUD that the subcontractor has
violated the Section 7(b) clause of the Indian Act.
(5) Complaint procedures. The following complaint procedures are
applicable to complaints arising out of any of the methods of providing
for Indian preference contained in this part, including alternate
methods enacted and approved in a manner described in this section.
(i) Each complaint shall be in writing, signed, and filed with the
grantee.
(ii) A complaint must be filed with the grantee no later than 20
calendar days from the date of the action (or omission) upon which the
complaint is based.
(iii) Upon receipt of a complaint, the grantee shall promptly stamp
the date and time of receipt upon the complaint, and immediately
acknowledge its receipt.
(iv) Within 20 calendar days of receipt of a complaint, the grantee
shall either meet, or communicate by mail or telephone, with the
complainant in an effort to resolve the matter. The grantee shall make
a determination on a complaint and notify the complainant, in writing,
within 30 calendar days of the submittal of the complaint to the
grantee. The decision of the grantee shall constitute final
administrative action on the complaint.
(d) Environmental review. The Indian tribe must assume
responsibility for environmental review, decisionmaking, and action for
each activity that it carries out with HOME funds, in accordance with
the requirements imposed on a recipient under 24 CFR part 58. The
grantee shall also be responsible for compliance with flood insurance,
coastal barrier resource and airport clear zone requirements under 24
CFR 58.6.
(e) Displacement, relocation, and acquisition. (1) Minimizing
displacement. Consistent with the other goals and objectives of this
part, the grantee must ensure that it has taken all reasonable steps to
minimize the displacement of persons (families, individuals,
businesses, nonprofit organizations, and farms) as a result of a
project assisted with HOME funds. To the extent feasible, residential
tenants must be provided a reasonable opportunity to lease and occupy a
suitable, decent, safe, sanitary, and affordable dwelling unit in the
building/complex upon completion of the project.
(2) Temporary relocation. The following policies cover residential
tenants who will not be required to move permanently but who must
relocate temporarily for the project. Such tenants must be provided:
(i) Reimbursement for all reasonable out-of-pocket expenses
incurred in connection with the temporary relocation, including the
cost of moving to and from the temporarily occupied housing and any
increase in monthly rent/utility costs.
(ii) Appropriate advisory services, including reasonable advance
written notice of--
(A) The date and approximate duration of the temporary relocation;
(B) The location of the suitable, decent, safe, and sanitary
dwelling to be made available for the temporary period;
(C) The terms and conditions under which the tenant may lease and
occupy a suitable, decent, safe, and sanitary dwelling in the building/
complex upon completion of the project; and
(D) The provisions of paragraph (e)(2)(i) of this section.
(3) Relocation assistance for displaced persons. (i) General. A
displaced person (defined in paragraph (e)(3)(ii) of this section) must
be provided relocation assistance at the levels described in, and in
accordance with the requirements of, the Uniform Relocation Assistance
and Real Property Acquisition Policies Act of 1970 (URA) (42 U.S.C.
4201-4655) and 49 CFR part 24.
(ii) Displaced Person. (A) For purposes of paragraph (c) of this
section, the term displaced person means a person (family individual,
business, private nonprofit organization, or farm, including any
corporation, partnership or association) that moves from real property
or moves personal property from real property, permanently, as a direct
result of acquisition, rehabilitation, or demolition for a project
assisted with HOME funds. This includes any permanent, involuntary move
for an assisted project, including any permanent move from the real
property that is made:
(1) After notice by the owner to move permanently from the
property, if the move occurs on or after:
(i) The date of the submission of an application to the grantee or
HUD, if the applicant has site control and the application is later
approved; or
(ii) The date the grantee approves the applicable site, if the
applicant does not have site control at the time of the application; or
(2) Before the date described in paragraph (e)(3)(ii)(A)(1) of this
section, if the grantee or HUD determines that the displacement
resulted directly from acquisition, rehabilitation, or demolition for
the project; or
(3) By a tenant-occupant of a dwelling unit, if any one of the
following three situations occurs:
(i) The tenant moves after execution of the agreement covering the
acquisition, rehabilitation, or demolition and the move occurs before
the tenant is provided written notice offering the tenant the
opportunity to lease and occupy a suitable, decent,
[[Page 32298]]
safe, and sanitary dwelling in the same building/complex upon
completion of the project under reasonable terms and conditions. Such
reasonable terms and conditions must include a term of at least one
year at a monthly rent and estimated average monthly utility costs that
do not exceed the greater of: the tenant's monthly rent before such
agreement and estimated average monthly utility costs; or the total
tenant payment, as determined under 24 CFR part 5, if the tenant is
low-income, or 30 percent of gross household income, if the tenant is
not low-income; or
(ii) The tenant is required to relocate temporarily, does not
return to the building/complex, and either: the tenant is not offered
payment for all reasonable out-of-pocket expenses incurred in
connection with the temporary relocation; or other conditions of the
temporary relocation are not reasonable; or
(iii) The tenant is required to move to another dwelling unit in
the same building/complex but is not offered reimbursement for all
reasonable out-of-pocket expenses incurred in connection with the move,
or other conditions of the move are not reasonable.
(B) Notwithstanding paragraph (e)(3)(ii)(A) of this section, a
person does not qualify as a displaced person if:
(1) The person has been evicted for cause based upon a serious or
repeated violation of the terms and conditions of the lease or
occupancy agreement, violation of applicable Federal or tribal law (or
state law, which may apply if the grantee is not exercising recognized
powers of self-government), or other good cause, and the grantee
determines that the eviction was not undertaken for the purpose of
evading the obligation to provide relocation assistance. The effective
date of any termination or refusal to renew must be preceded by at
least 30 days advance written notice to the tenant specifying the
grounds for the action.
(2) The person moved into the property after the submission of the
application but, before signing a lease and commencing occupancy, was
provided written notice of the project, its possible impact on the
person (e.g., the person may be displaced, temporarily relocated, incur
a rent increase), and the fact that the person would not qualify as a
``displaced person'' (or for any assistance under this section) as a
result of the project;
(3) The person is ineligible under 49 CFR 24.2(g)(2); or
(4) HUD determines that the person was not displaced as a direct
result of acquisition, rehabilitation, or demolition for the project.
(C) The grantee may, at any time, ask HUD to determine whether a
displacement is or would be covered by this part.
(iii) Initiation of negotiations. For purposes of determining the
formula for computing replacement housing assistance to be provided
under paragraph (e)(3) of this section to a tenant displaced from a
dwelling as a direct result of private-owner rehabilitation, demolition
or acquisition of the real property, the term initiation of
negotiations means the execution of the agreement covering the
acquisition, rehabilitation, or demolition.
(4) Optional relocation assistance. The grantee may provide
relocation payments and other relocation assistance to families,
individuals, businesses, nonprofit organizations, and farms displaced
by a project assisted with HOME funds where the displacement is not
subject to paragraph (e)(3) of this section. The grantee may also
provide relocation assistance to persons covered under paragraph (e)(3)
of this section beyond that required. For any such assistance that is
not required by tribal law (or state law, which may apply if the
grantee is not exercising recognized powers of self-government), the
grantee must adopt a written policy available to the public that
describes the optional relocation assistance that it has elected to
furnish and provides for equal relocation assistance within each class
of displaced persons.
(5) Real property acquisition requirements. The acquisition of real
property for a project is subject to the URA and the requirements of 49
CFR part 24, subpart B.
(6) Appeals. A person who disagrees with the grantee's
determination concerning whether the person qualifies as a displaced
person, or the amount of relocation assistance for which the person may
be eligible, may file a written appeal of that determination with the
grantee.
(7) Responsibility of grantee. (i) The grantee must certify that it
will comply with the URA, the regulations at 49 CFR part 24, and the
requirements of this section, and must ensure such compliance
notwithstanding any third party's contractual obligation to the grantee
to comply.
(ii) The cost of required relocation assistance is an eligible
project cost. This cost also may be paid from tribal funds, or funds
available from other sources.
(f) Labor. (1) General. (i) Every contract for the construction
(rehabilitation or new construction) of housing that includes 12 or
more units assisted with HOME funds must contain a provision requiring
the payment of not less than the wages prevailing in the locality, as
predetermined by the Secretary of Labor pursuant to the Davis-Bacon Act
(40 U.S.C. 276a-276a-5), to all laborers and mechanics employed in the
development of any part of the housing. Such contracts must also be
subject to the overtime provisions, as applicable, of the Contract Work
Hours and Safety Standards Act (42 CFR 327-332).
(ii) The contract for construction must contain these wage
provisions if HOME funds are used for any project costs (as defined in
subpart C of this part), including construction or non-construction
costs, of housing with 12 or more HOME-assisted units. When HOME funds
are only used to assist homebuyers to acquire single-family housing,
and not for any other project costs, the wage provisions apply to the
construction of the housing if there is a written agreement with the
owner or developer of the housing that HOME funds will be used to
assist homebuyers to buy the housing and the construction contract
covers 12 or more housing units to be purchased with HOME assistance.
The wage provisions apply to any construction contract that includes a
total of 12 or more HOME-assisted units, whether one or more than one
project phase is covered by the construction contract. Once they are
determined to be applicable, the wage provisions must be contained in
the construction contract so as to cover all laborers and mechanics
employed in the development of the entire project, including portions
other than the assisted units. Arranging multiple construction
contracts within a single project for the purpose of avoiding the wage
provisions is not permitted.
(iii) Grantees, contractors, subcontractors, and other participants
must comply with regulations issued under these Acts and with other
Federal laws and regulations pertaining to labor standards and HUD
Handbook 1344.1 (Federal Labor Standards Compliance in Housing and
Community Development programs), as applicable. Grantees must require
certification as to compliance with the provisions of this section
before making any payment under such contract.
(2) Volunteers. The prevailing wage provisions of paragraph (f)(1)
of this section do not apply to an individual who receives no
compensation or is paid expenses, reasonable benefits, or a nominal fee
to perform the services for which the individual volunteered and who is
not otherwise employed at any
[[Page 32299]]
time in the construction work. See 24 CFR part 70.
(3) Sweat equity. The prevailing wage provisions of paragraph
(f)(1) of this section do not apply to members of an eligible family
who provide labor in exchange for acquisition of a property for
homeownership or provide labor in lieu of, or as a supplement to, rent
payments.
(4) Force account. (i) The grantee is responsible for compliance
with regulatory requirements in the use of grantee work forces for
construction or renovation activities performed as part of the
activities funded under this part. The grantee must provide for its
files the following:
(A) Documentation to indicate that it has carried out or can carry
out successfully a project of the size and scope of the proposal;
(B) Documentation to indicate that it has obtained or can obtain
adequate supervision for the workers to be used;
(C) Information showing that the workers to be used are, or will
be, listed on the grantee payroll and are employed directly by the
grantee.
(ii) Any and all excess funds derived from the force account
construction or renovation activities shall accrue to the grantee and
shall be reprogrammed for other activities eligible under this part or
returned to HUD promptly.
(iii) Insurance coverage for force account workers and activities
shall, where applicable, include worker's compensation, public
liability, property damage, builder's risk, and vehicular liability.
(iv) The grantee shall specify and apply reasonable labor
performance, construction, or renovation standards to work performed
under the force account.
(v) The contracting and procurement standards set forth in 24 CFR
85.36 apply to material, equipment, and supply procurement from outside
vendors under this section.
(vi) In force account there is no contract. If the grantee which
has received the HOME grant to construct the housing units performs the
construction work using force account, i.e., with its own employees,
the work is not covered by Davis-Bacon and related Acts. If the grantee
contracts out the work or part of the work, that work is covered.
(g) Lead-based paint. Housing assisted with HOME funds constitutes
HUD-associated housing for the purpose of the Lead-Based Paint
Poisoning Prevention Act (42 U.S.C. 4821, et seq.) and is, therefore,
subject to 24 CFR part 35. Grantees are responsible for testing and
abatement activities.
(h) Conflict of interest. (1) Applicability. (i) The conflict of
interest provisions in 24 CFR part 84 and 24 CFR 85.36 apply to the
procurement of supplies, equipment, construction, and services by
grantees and their subgrantees.
(ii) The provisions of this section apply to all cases not governed
by 24 CFR part 84 and 24 CFR 85.36. These cases include the acquisition
and disposition of real property and the provision of assistance by the
grantee, by subgrantees, or to individuals, housing developers, and
other private entities under eligible activities which authorize such
assistance (e.g., rehabilitation of housing).
(2) Conflicts prohibited. The general rule is that no persons
described in paragraph (h)(3) of this section who have or had any
functions or responsibilities with respect to activities assisted under
this part, or who are in a position to participate in a decision, or
gain inside information about such activities, may obtain a financial
interest or benefit from these activities. Further, these persons may
not have an interest in any contract, subcontract, or agreement
concerning such activities; and these persons may not, during their
employment or tenure in office and for one year thereafter, have an
interest in the proceeds from these activities, either for themselves
or for those with whom they have family or business ties. This
paragraph does not apply to approved eligible administrative or
personnel costs.
(3) Persons covered. The conflict of interest provisions of
paragraph (h)(2) of this section apply to any person who is an
employee, agent, consultant, officer, or elected or appointed official
of the grantee or subgrantee receiving HOME funds.
(4) Exceptions requiring HUD approval. (i) Threshold requirements.
Upon the written request of a grantee, HUD may grant an exception to
the provisions of paragraph (h)(2) of this section on a case-by-case
basis, when it determines that such an exception will serve to further
the purposes of the HOME program and the effective and efficient
administration of the grantee's project. An exception may be considered
only after the grantee has provided the following:
(A) A disclosure of the nature of the possible conflict,
accompanied by an assurance that there has been public disclosure of
the conflict and a description of how the public disclosure was made;
and
(B) An opinion of the grantee's attorney that the interest for
which the exception is sought would not violate tribal laws on conflict
of interest (or State law on conflict of interest, which may apply if
the grantee is not exercising recognized powers of self-government).
(ii) Factors to be considered for exceptions. In determining
whether to grant a requested exception after the grantee has
satisfactorily met the requirements of paragraph (h)(4)(i) of this
section, HUD shall consider the cumulative effect of the following
factors, where applicable:
(A) Whether the exception would provide a significant cost benefit
or essential expert knowledge to the project which would otherwise not
be available;
(B) Whether the affected person has withdrawn from his or her
functions or responsibilities, or from the decision-making process,
with reference to the specific assisted activity in question;
(C) Whether the interest or benefit was present before the affected
person was in a position as described in paragraph (h)(2) of this
section;
(D) Whether undue hardship will result, either to the grantee or to
the person affected, when weighed against the public interest served by
avoiding the prohibited conflict; and
(E) Any other relevant considerations.
(5) Circumstances under which the conflict prohibition does not
apply. (i) In instances where a person who might otherwise be deemed to
be included under the conflict prohibition is a member of a group or
class of beneficiaries of the assisted activity and receives generally
the same interest or benefits as are being made available or provided
to the group or class, the prohibition does not apply, except that if,
by not applying the prohibition against conflict of interest, a
violation of tribal (or State) laws on conflict of interest would
result, the prohibition does apply.
(ii) A public disclosure of the nature of the grant assistance to
be provided and the specific basis for the selection of the proposed
beneficiaries must be made prior to the submission of an application to
HUD. Evidence of this disclosure must be provided as a component of the
application.
(i) Debarment and suspension. As required by 24 CFR part 24, each
grantee must require participants in lower tier covered transactions
(e.g., sub-contractors) to include the certification in appendix B of
24 CFR part 24 (that neither it nor its principals is presently
debarred, suspended, proposed for debarment, declared ineligible, or
voluntarily excluded from participation from the covered transaction)
in any proposal submitted in connection with
[[Page 32300]]
the lower tier transactions. A grantee may rely on the certification,
unless it knows the certification is erroneous.
Subpart B--Applying for Assistance
Sec. 954.100 General.
For each fiscal year, HUD will provide funds for the Indian HOME
program, totaling one percent (or such other percentage or amount as
authorized by Congress) of the amount appropriated for the HOME program
to expand the supply of affordable housing. The funds will be awarded
competitively and will be made available pursuant to a NOFA published
in the Federal Register, in accordance with the requirements of this
part.
Sec. 954.101 Allocation of funds.
Unless HUD determines for administrative convenience based on the
amount of HOME funds available to hold a nationwide competition, HOME
funds will be allocated to the HUD Area ONAPs responsible for the
Indian HOME program competition based upon relative need for housing as
measured by the most recent and reliable data available.
Sec. 954.102 Eligible applicants.
(a) Eligible applicants for HOME funds for Indian tribes are any
Indian Tribe, band, group, or nation, including Alaskan Indians,
Aleuts, and Eskimos, and any Alaska native village of the United States
which is considered an eligible recipient under Title I of the Indian
Self-Determination and Education Assistance Act (25 U.S.C. 450).
Eligible recipients under the Indian Self-Determination and Education
Assistance Act are determined by the Bureau of Indian Affairs.
(b) Tribal organizations which are eligible under Title I of the
Indian Self-Determination and Education Assistance Act may apply for
funds on behalf of any Indian Tribe, band, group, nation, or Alaska
native village eligible under that Act when one or more of these
entities have authorized the tribal organization to do so through
concurring resolutions. Such resolutions must accompany the application
for funding. Eligible tribal organizations under Title I of the Indian
Self-Determination and Education Assistance Act will be determined by
the Bureau of Indian Affairs or Indian Health Service, as appropriate.
(c) Only eligible applicants shall receive grants. However,
eligible applicants may contract or otherwise agree with non-eligible
entities such as States, cities, counties, or other organizations to
assist in the preparation of applications and to help implement
assisted activities.
(d) To apply for funding in a given fiscal year, an applicant must
be eligible as an Indian Tribe or Alaska native village, as provided in
paragraph (a) of this section, or as a tribal organization, as provided
in paragraph (b) of this section, by the application submission date.
Sec. 954.103 Housing strategy.
Grantees are not required to submit a housing strategy to receive
HOME funds. However, the application must demonstrate how the proposed
project(s) will contribute to a comprehensive approach for expanding
the supply of affordable housing for members of the Indian tribe.
Sec. 954.104 Performance thresholds.
Applicants must have the administrative capacity to undertake the
project proposed, including systems of internal control necessary to
administer these projects effectively. In addition, an applicant that
has participated in the HOME program must have performed adequately. In
cases of previously documented deficient performance, the applicant
must have taken appropriate corrective action to improve its
performance prior to submitting a HOME application to HUD. The Area
ONAP will determine whether or not a grantee is eligible to participate
in a particular funding round. Examples of deficient performance may
include unresolved serious audit findings and failure to initiate a
previous grant.
Sec. 954.105 Criteria for selection.
There are four categories of projects that may be funded under the
HOME Indian program: housing rehabilitation; acquisition of housing;
new housing construction; and tenant-based rental assistance. Each
project must be evaluated using the following three criteria:
(a) Project need and design. The degree to which the proposed
project addresses the housing need(s) of the grantee as identified in
the application, and the degree to which the proposed project is
feasible while maximizing benefits to low-income families.
(b) Planning and implementation. The degree to which the financial,
administrative, and legal actions necessary to undertake the proposed
project have been considered and addressed in the application, and the
degree to which the grantee has the administrative staff to carry out
the project successfully.
(c) Leveraging. The degree to which other sources of assistance,
including mortgage insurance, State funds, other Federal grants, and
private contributions, are used in conjunction with HOME funds to carry
out the proposed project.
Sec. 954.106 Announcement of competition.
A NOFA will describe the maximum points for each of the selection
criteria and any special factors to be evaluated in awarding points
under the selection factors. The NOFA will also state the deadline for
the submission of applications, the total funding available for the
competition and any maximum amount of individual awards.
[Approved by the Office of Management and Budget under OMB control
number 2577-0191]
Sec. 954.107 Grant conditions.
HUD may impose reasonable conditions on grant awards.
Sec. 954.108 Project amendment.
(a) Grantees shall request prior HUD approval for all project
amendments.
(b) HUD can approve an amendment to a project if:
(1) The amendment is due to factors beyond the control of the
grantee; and
(2) The request for approval for a project amendment which involves
$100,000 or more includes all application components required by the
NOFA published for the last application cycle (not necessarily the year
in which the project was rated and ranked) and the modified project
scores high enough to have been funded in the competition for the last
application cycle. A rating equal to or greater than the lowest rating
received by a funded project during the last rating cycle must be
attained by the modified project. The request for approval of an
amendment for a project which involves less than $100,000 does not have
to include the components which address the selection criteria. It does
require a description of and the reason for the modification.
(c) Approval of an amendment request is subject to the following:
(1) Demonstration by the grantee of the capacity to promptly
complete the modified or new project.
(2) The preparation of an amended or new environmental review in
accordance with Part 58 of this title, if there is a significant change
in the scope or location of approved project.
(d) If a project amendment fails to be approved and the original
project is no longer feasible, the grant funds proposed for amendment
shall be deobligated by HUD and recaptured.
[[Page 32301]]
Subpart C--Eligible Activities and Affordability
Sec. 954.300 Eligible activities.
(a) Eligible activities. (1) General. HOME funds may be used by a
grantee to provide incentives to develop and support affordable rental
housing and homeownership affordability and to provide payment of
reasonable administrative and planning costs. The housing must be
permanent or transitional housing, and includes permanent housing for
disabled homeless persons, and single-room occupancy housing. The
specific eligible costs for these activities are set forth in
Sec. 954.303 and Sec. 954.304.
(2) Acquisition of vacant land or demolition must be undertaken
only as an integral part of a particular HOME new construction project.
(3) Manufactured housing. Purchase and/or rehabilitation of a
manufactured housing unit qualifies as affordable housing only if, at
the time of project completion, the unit:
(i) Is situated on a permanent foundation (except--for
rehabilitation not involving purchase--when assisting existing unit
owners who rent the lot on which their unit sits);
(ii) Is connected to permanent utility hook-ups;
(iii) Is located on land that is held in fee-simple title, land-
trust, or long-term ground lease with a term at least equal to that of
the appropriate affordability period;
(iv) Meets the construction standards established under 24 CFR part
3280 if produced after June 15, 1976. If the unit was produced prior to
June 16, 1976, it must comply with applicable tribal, State or local
codes; and
(v) In cases where the owner of a manufactured housing unit does
not hold fee-simple title to the land on which the unit is located, the
owner may be assisted in purchasing the land under provisions governing
rehabilitation not involving purchase.
(b) Forms of assistance. A grantee may invest HOME funds as equity
investments, interest-bearing loans or advances, noninterest-bearing
loans or advances, interest subsidies consistent with the purposes of
this part, deferred payment loans, grants, or other forms of assistance
that HUD determines to be consistent with the purposes of this part.
Each grantee has the right to establish the terms of assistance,
subject to the requirements of this part.
Sec. 954.301 Religious organizations.
HOME funds may not be provided to primarily religious
organizations, such as churches, for any activity including secular
activities. In addition, HOME funds may not be used to rehabilitate or
construct housing owned by primarily religious organizations or to
assist primarily religious organizations in acquiring housing. However,
HOME funds may be used by a secular entity to acquire housing from a
primarily religious organization, and a primarily religious entity may
transfer title to property to a wholly secular entity and the entity
may participate in the HOME program in accordance with the requirements
of this part. The entity may be an existing or newly established entity
(which may be an entity established, but not controlled, by the
religious organization). The completed housing project must be used
exclusively by the owner entity for secular purposes, available to all
persons regardless of religion. In particular, there must be no
religious or membership criteria for tenants of the property.
Sec. 954.302 Income determinations.
Whenever a grantee makes a determination under this part based on
family income or adjusted family income, it must use the definitions of
annual income, adjusted income, monthly income, and monthly adjusted
income, as those terms are defined in 24 CFR part 950, except when
determining the income of a homeowner for an owner-occupied
rehabilitation project, the equity in the homeowner's principal
residence is excluded from ``Net Family Assets.''
Sec. 954.303 Eligible project costs.
HOME funds may be used to pay the following eligible costs:
(a) Development hard costs. The actual cost of constructing or
rehabilitating housing. These costs include the following:
(1) For new construction, costs to meet the applicable new
construction standards of the grantee and the Model Energy Code
referred to in Sec. 954.401;
(2) For rehabilitation, costs:
(i) To meet the applicable rehabilitation standards of the grantee
or correcting substandard conditions (minimally, the housing quality
standards at Sec. 882.109 of this title), to make essential
improvements including energy-related repairs or improvements,
improvements necessary to permit the use by handicapped persons, and
the abatement of lead-based paint hazards, as required by Sec. 954.4,
and to repair or replace major housing systems in danger of failure;
and
(ii) To refinance existing debt secured by a single-family owner-
occupied unit when loaning HOME funds to rehabilitate the unit, if the
overall housing costs of the borrower will be reduced and made more
affordable.
(3) For both new construction and rehabilitation, costs to demolish
existing structures and for improvements to the project site that are
in keeping with improvements of surrounding, standard projects, and
costs to make utility connections. The ``site'' of the improvements may
include property adjacent to or near the immediate site of the housing
if this property and the housing are owned by the same entity (e.g.,
the housing is owned--at least until sold to homebuyers--by the grantee
and the housing and the improvements are located on a reservation). If
the site improvements will benefit other housing (existing or future)
in addition to housing assisted with the particular Indian HOME grant,
only a pro-rated share of the site improvements may be charged against
the HOME grant. Site improvements include roads, streets, sidewalks,
curbs, gutters, and connections to utilities, such as storm and
sanitary sewers, water supply, gas, and electricity, and the pro rata
development cost of facilities for water supply and sewerage collection
utilities.
(4) For new construction or substantial rehabilitation (an
expenditure of $25,000 or more per home) the cost of funding an initial
operating deficit reserve, which is a reserve to meet any shortfall in
project income during the period of project rent-up (not to exceed 18
months) and which may only be used to pay operating expenses, reserve
for replacement payments, and debt service. Any HOME funds placed in an
operating deficit reserve that remain unexpended when the reserve
terminates must be returned to the grantee's account and shall be
reprogrammed for other activities eligible under this part or returned
to HUD promptly.
(b) Acquisition costs. Costs of acquiring improved or unimproved
real property, including acquisition by homebuyers.
(c) Related soft costs. Other reasonable and necessary costs
incurred by the owner and associated with the financing, or development
(or both) of new construction, rehabilitation or acquisition of housing
assisted with HOME funds. These costs include, but are not limited to:
(1) Architectural, engineering or related professional services
required to prepare plans, drawings, specifications, or work write-ups;
(2) Costs to process and settle the financing for a project, such
as private
[[Page 32302]]
lender origination fees, credit reports, fees for title evidence, fees
for recordation and filing of legal documents, building permits,
attorneys' fees, private appraisal fees and fees for an independent
cost estimate, builder and developer fees;
(3) Costs of a project audit that the grantee may require with
respect to the development of a specific project; and
(4) Costs to pay impact fees that are charged to all housing.
(d) Relocation costs. Costs of relocation payments and other
relocation assistance for permanently and temporarily relocated
individuals, families, businesses, private nonprofit organizations, and
farm operations where assistance is required under Sec. 954.4 or
determined by the grantee to be appropriate under Sec. 954.4.
(e) Costs related to tenant-based rental assistance. Eligible costs
are the rental assistance and security deposit payments made to provide
tenant-based rental assistance for a family.
Sec. 954.304 Eligible administrative costs.
Eligible administrative costs means reasonable and necessary costs,
as described in OMB Circular A-87, (available from the Executive Office
of the President, Publication Service, 725 17th Street, N.W., Suite G-
2200, Washington, DC 20503; Telephone, (202) 395-7332)) incurred by the
grantee and related to the planning and execution of HOME activities
assisted in whole or in part with funds provided under this part. The
grantee may use up to 15 percent of the HOME funds for the payment of
eligible administrative costs.
Sec. 954.305 Tenant-based rental assistance.
(a) General. A grantee may use HOME funds for tenant-based rental
assistance only if the grantee selects families in accordance with
written tenant selection policies and criteria that are consistent with
the purpose of providing housing to very low- and low-income families
and are reasonably related to preference rules established under
section 6(c)(4)(A) of the U.S. Housing Act of 1937 (42 U.S.C. 1437d).
The grantee may select eligible families currently residing in units
that are designated for rehabilitation or acquisition under the
grantee's HOME program without requiring that the family meet the
written tenant selection policies and written criteria. Families so
selected may use the tenant-based assistance in the rehabilitated or
acquired unit or in other qualified housing.
(b) Program operation. The grantee may operate the program, or may
contract with another entity with the capacity to operate a rental
assistance program. The tenant-based rental assistance may be provided
through an assistance contract to an owner that leases a unit to an
assisted family or directly to the family.
(c) Term of rental assistance contract. The term of the rental
assistance contract providing assistance with HOME funds may not exceed
24 months, but may be renewed, subject to the availability of HOME
funds. The term of the rental assistance contract must begi
FR Doc. 96-15712 Office of the Assistant Secretary for Public and Indian Housing; Indian HOME Program Streamlining
n on the
first day of the term of the lease. For a rental assistance contract
between a grantee and an owner, the term of the contract must terminate
on termination of the lease. For a rental assistance contract between a
grantee and a family, the term of the contract need not end on
termination of the lease, but no payments may be made after termination
of the lease until a family enters into a new lease.
(d) Rent reasonableness. The grantee must disapprove a lease if the
rent is not reasonable, based on rents that are charged for comparable
unassisted rental units.
(e) Lease requirements. The lease must comply with the requirements
in Sec. 954.402 of this part.
(f) Maximum subsidy. (1) The amount of the monthly assistance that
a grantee may pay to, or on behalf of, a family may not exceed the
difference between a rent standard for the unit size established by the
grantee and 30 percent of the family's monthly adjusted income.
(2) The grantee must establish a minimum dollar amount tenant
contribution to rent.
(3) The grantee's rent standard for a unit size may not be less
than 80 percent of the published section 8 existing housing fair market
rent (in effect when the payment standard amount is adopted) for the
unit size, nor more than the section 8 fair market rent or HUD-approved
community-wide exception rent (in effect when the grantee adopts its
rent standard amount) for the unit size. Alternatively, the grantee's
rent standard for a unit size may be based on local market conditions.
Further, a grantee may approve on a unit-by-unit basis a subsidy based
on a rent standard that exceeds the applicable section 8 fair market
rent by up to 10 percent for 20 percent of units assisted.
(g) Housing quality standards. Housing occupied by a family
receiving tenant-based assistance under this section must meet the
performance requirements and acceptability criteria set forth in
Sec. 882.109 of this title.
(h) Use of section 8 assistance. In any case where assistance under
section 8 of the United States Housing Act of 1937 becomes available to
a grantee, recipients of tenant-based rental assistance under this part
will qualify for tenant selection preferences to the same extent as
when they received the tenant-based rental assistance under this part.
(i) Security deposits. (1) A grantee may use HOME funds provided
for tenant-based rental assistance to provide loans or grants to very
low- and low-income families for security deposits for rental of
dwelling units whether or not the grantee provides any other tenant-
based rental assistance under this section.
(2) The relevant tribe, State or local definition of ``security
deposit'' in the jurisdiction where the unit is located is applicable
for the purposes of this part, except that the amount of HOME funds
that may be provided for a security deposit may not exceed the
equivalent of two month's rent for the unit.
(3) Only the prospective tenant may apply for HOME security deposit
assistance, although the grantee may pay the funds directly to the
tenant or to the landlord.
(4) The lease between a tenant and an owner of rental housing for
which HOME security deposit assistance is provided must comply with the
requirements of Sec. 954.402.
(5) HOME funds for security deposits may be provided as a grant or
a loan. If they are provided as a loan, the provisions at Sec. 954.501
for repayment of HOME investments apply.
Sec. 954.306 Rental housing: qualification as affordable housing and
income targeting.
(a) Rent limitation. A rental housing project (including the non-
owner-occupied units in housing purchased with HOME funds in accordance
with Sec. 954.306) qualifies as affordable housing under this part only
if the project:
(1) Bears rents not greater than the lesser of--
(i) The section 8 fair market rent for existing housing for
comparable units in the area as established by HUD under Sec. 888.111
of this title, less the monthly allowance for the utilities and
services (excluding telephone and cable TV) to be paid by the tenant;
or
(ii) A rent that does not exceed 30 percent of the adjusted income
of a family whose gross income equals 65 percent of the median income
for the area, as determined by HUD, with adjustment for number of
bedrooms in the unit, except that HUD may establish income ceilings
higher or lower than 65
[[Page 32303]]
percent of the median for the area on the basis of HUD's findings that
such variations are necessary because of prevailing levels of
construction costs or section 8 fair market rents, or unusually high or
low family incomes. In determining the maximum monthly rent that may be
charged for a unit that is subject to this limitation, the owner or
grantee must subtract a monthly allowance for any utilities and
services (excluding telephone and cable TV) to be paid by the tenant.
HUD will provide average occupancy costs per unit and adjusted income
assumptions to be used in calculating the maximum rent allowed under
this paragraph (a)(1)(ii) of this section;
(2) Has, in the case of projects with three or more rental units,
not less than 20 percent of the units--
(i) Occupied by very low-income families who pay as a contribution
toward rent (excluding any Federal, State, or tribal rental subsidy
provided on behalf of the family) not more than 30 percent of the
family's monthly adjusted income as determined by HUD. To obtain the
maximum monthly rent that may be charged for a unit that is subject to
this limitation, the owner or grantee multiplies the annual adjusted
income of the tenant family by 30 percent and divides by 12 and, if
applicable, subtracts a monthly allowance for the utilities and
services (excluding telephone and cable TV) to be paid by the tenant;
or
(ii) Occupied by very low-income families and bearing rents not
greater than 30 percent of the gross income of a family whose income
equals 50 percent of the median income for the area, as determined by
HUD, with adjustment for smaller and larger families, except that HUD
may establish income ceilings higher or lower than 50 percent of the
median for the area on the basis of HUD's findings that such variations
are necessary because of prevailing levels of construction costs or
section 8 fair market rents, or unusually high or low family incomes.
In determining the maximum monthly rent that may be charged for a unit
that is subject to this limitation, the owner or grantee must subtract
a monthly allowance for any utilities and services (excluding telephone
and cable TV) to be paid by the tenant. HUD will provide average
occupancy per unit assumptions to be used in calculating the maximum
rent allowed under paragraph (a)(2)(ii) of this section;
(3) Is occupied only by households that qualify as low-income
families;
(4) Is not refused for leasing to a holder of a certificate of
family participation under 24 CFR part 882 (rental certificate program)
or a rental voucher under 24 CFR part 887 (rental voucher program) or
to the holder of a comparable document evidencing participation in a
HOME tenant-based assistance program because of the status of the
prospective tenant as a holder of such certificate of family
participation, rental voucher, or comparable HOME tenant-based
assistance document; and
(5) Will remain affordable without regard to the term of any
mortgage or the transfer of ownership, pursuant to deed restrictions,
covenants running with the land, or other mechanisms approved by HUD,
for not less than the appropriate period, beginning after project
completion, as specified in the following table, except that the
affordability restrictions may terminate upon foreclosure or transfer
in lieu of foreclosure. The tribe may use purchase options, rights of
first refusal or other preemptive rights to purchase the housing before
foreclosure or deed in lieu of foreclosure to preserve affordability.
The affordability restrictions shall be revived according to the
original terms if, during the affordability period, the owner of record
before the foreclosure, or deed in lieu of foreclosure, or any entity
that includes the former owner or those with whom the former owner has
or had family of business ties, obtains an ownership interest in the
project or property.
------------------------------------------------------------------------
Minimum
period of
Activity affordability
in years
------------------------------------------------------------------------
Rehabilitation or acquisition of existing housing per
unit amount of HOME funds: Under $15,000................ 5
$15,000 to $40,000....................................... 10
Over $40,000............................................. 15
New construction or acquisition of newly constructed
housing................................................. 20
------------------------------------------------------------------------
(b) Rent schedule and utility allowances. The grantee must review
and approve rents proposed by the owner for units with ``flat rents,''
i.e., units subject to the maximum rent limitations in paragraphs
(a)(1)(i), (a)(1)(ii), or (a)(2)(ii) of this section, and, if
applicable, must review and approve, for all units subject to the
maximum rent limitations paragraph (a) of this section, the monthly
allowances, proposed by the owner, for utilities and services to be
paid by the tenant. The owner must reexamine the income of each tenant
household living in lower income units at least annually. The maximum
monthly rent must be recalculated by the owner and reviewed and
approved by the grantee annually, and may change as changes in the
applicable gross rent amounts, the income adjustments, or the monthly
allowance for utilities and services warrant. Any increase in rents for
low-income units is subject to the provisions of outstanding leases; in
any event, the owner must provide tenants of those units not less than
30 days prior written notice before implementing any increase in rents.
(c) Increases in tenant income. Rental housing qualifies as
affordable housing despite a temporary noncompliance with paragraphs
(a)(2) or (a)(3) of this section, if the noncompliance is caused by
increases in the incomes of existing tenants and if actions
satisfactory to HUD are being taken to ensure that all vacancies are
filled in accordance with this section until the noncompliance is
corrected. Tenants who no longer qualify as low-income families must
pay as rent the lesser of the amount payable by the tenant under
tribal, State or local law or 30 percent of the family's adjusted
monthly income, as recertified annually. The preceding sentence shall
not apply with respect to funds made available under this part for
units that have been allocated a low-income housing tax credit by a
housing credit agency pursuant to section 42 of the Internal Revenue
Code 1986 (26 U.S.C. 7805).
(d) Adjustment of qualifying rent. HUD may adjust the qualifying
rent established for a project under paragraph (a)(1) of this section,
only if HUD finds that an adjustment is necessary to support the
continued financial viability of the project and only by an amount that
HUD determines is necessary to maintain continued financial viability
of the project. HUD expects that this authority will be used sparingly.
Adjustments in section 8 fair
[[Page 32304]]
market rents and in median income over time should help maintain the
financial viability of a project within the qualifying rent standard in
paragraph (a)(1) of this section. Regardless of changes in fair market
rents and in median income over time, the qualifying rents are not
required to be lower than the HOME rent for the project in effect at
the time of project commitment.
Sec. 954.307 Homeownership: qualification as affordable housing.
(a) Purchase with or without rehabilitation. Housing that is for
purchase by a family qualifies as affordable housing only if the
housing: (1)(i) Has an initial purchase price that does not exceed 95%
of the median purchase price for the type of single family housing (1-
to 4-family residence, condominium unit, cooperative unit, combination
manufactured home and lot, or manufactured home lot) for the area as
determined by HUD, and which may be appealed in accordance with 24 CFR
203.18b; and
(ii) Has an estimated appraised value at acquisition, if standard,
or after any repair needed to meet property standards in Sec. 954.401,
that does not exceed the limit described in paragraph (a)(1)(i) of this
section.
(2) Is the principal residence of an owner whose family qualifies
as a low-income family at the time of purchase; and
(3) Is subject--for minimum periods of: 5 years where the per unit
amount of HOME funds provided is less than $15,000; 10 years where the
per unit amount of HOME funds provided is $15,000 to $40,000; and 15
years where the per unit amount of HOME funds provided is greater than
$40,000--to resale restrictions, as described in paragraph (a)(3)(i) of
this section, or recapture provisions, as described in paragraph
(a)(3)(ii) of this section, that are established by the grantee and
determined by HUD to be appropriate.
(i) Resale restrictions must make the housing available for
subsequent purchase only to a low income family that will use the
property as its principal residence; and
(A) Provide the owner with a fair return on investment, including
any improvements; and
(B) Ensure that the housing will remain affordable, pursuant to
deed restrictions, covenants running with the land, or other similar
mechanisms to ensure affordability, to a reasonable range of low-income
homebuyers. The affordability restrictions must terminate upon
occurrence of any of the following termination events: foreclosure,
transfer in lieu of foreclosure or assignment of an FHA insured
mortgage to HUD. The grantee may use purchase options, rights of first
refusal or other preemptive rights to purchase the housing before
foreclosure to preserve affordability. The affordability restrictions
shall be revived according to the original terms if, during the
original affordability period, the owner of record before the
termination event reacquires title to the property.
(ii) A grantee's recapture provisions must provide for the
recapture of the full HOME investment out of net proceeds, except as
provided in paragraph (a)(3)(ii)(B) of this section.
(A) Net proceeds means the sales price minus loan repayment and
closing costs.
(B) If the net proceeds are not sufficient to recapture the full
HOME investment plus enable the homeowner to recover the amount of the
homeowner's downpayment, principal payments, and any capital
improvement investment, the grantee's recapture provisions may allow
the HOME investment amount that must be recaptured to be reduced. The
HOME investment amount may be reduced pro rata based on the time the
homeowner has owned and occupied the unit measured against the required
affordability period; except that the grantee's recapture provisions
may not allow the homeowner to recover more than the amount of the
homeowner's downpayment, principal payments, and any capital
improvement investment.
(C) The HOME investment that is subject to recapture is the HOME
assistance that enabled the first homebuyer to buy the dwelling unit.
This includes any HOME assistance, whether a direct subsidy to the
homebuyer or a construction or development subsidy, that reduced the
purchase price from fair market value to an affordable price. The
recaptured funds must be used to carry out HOME-eligible activities. If
no HOME funds will be subject to recapture, the provisions at
Sec. 954.306(a)(3)(i) apply.
(D) Upon recapture of the HOME funds used in a single-family,
homebuyer project with two to four units, the affordability period on
rental units may be terminated at the discretion of the tribe.
(b) Rehabilitation not involving purchase. Housing that is
currently owned by a family qualifies as affordable housing only if--
(1) The value of the property, after rehabilitation, does not
exceed 95% of the median purchase price for the type of single family
housing (1- to 4-family residence, condominium unit, combination
manufactured home and lot, or manufactured home lot) for the area as
determined by HUD, and which may be appealed in accordance with 24 CFR
203.18b; and
(2) The housing is the principal residence of an owner whose family
qualifies as a low-income family at the time HOME funds are committed
to the housing.
Sec. 954.308 Prohibited activities.
(a) HOME funds may not be used to--
(1) Provide a project reserve account for replacements, a project
reserve account for unanticipated increases in operating costs, or
operating subsidies; except as authorized under Sec. 954.302; (2)
Provide nonfederal matching contributions required under any other
Federal program;
(3) Provide assistance in connection with programs authorized under
part 950 (Indian Housing Programs) of this title;
(4) Provide assistance to eligible low-income housing under part
248 (Prepayment of Low Income Housing Mortgages) of this title; or
(5) Provide assistance (other than tenant-based rental assistance
or assistance to a homebuyer to acquire housing previously assisted
with HOME funds) to a project previously assisted with HOME funds
during the period of affordability established by the grantee under
Sec. 954.306 or Sec. 954.307. However, additional HOME funds may be
committed to a project up to one year after project completion (see
Sec. 954.500), but the amount of HOME funds in the project may not
exceed the maximum per-unit subsidy amount established under
Sec. 954.400.
(b) Grantees may not charge monitoring, servicing and origination
fees in HOME-assisted projects. However, grantees may charge nominal
application fees (although these fees are not an eligible HOME cost) to
project owners to discourage frivolous applications.
Subpart D--Project Requirements
Sec. 954.400 Maximum per-unit subsidy amount.
The amount of HOME funds that a grantee may invest on a per-unit
basis in affordable housing may not exceed the total development cost
standard for the area, as issued by HUD under 24 CFR 950.220. These
total development cost standards are available from HUD Area ONAPs.
Sec. 954.401 Property standards.
(a) Housing that is assisted with HOME funds, at a minimum, must
meet the housing quality standards in Sec. 882.109 of this title. In
addition,
[[Page 32305]]
housing that is newly constructed or substantially rehabilitated with
HOME funds must meet all applicable local codes, rehabilitation
standards, ordinances, and zoning ordinances. The grantee must have
written standards for rehabilitation. Newly constructed housing must
meet the current edition of the Model Energy Code published by the
Council of American Building Officials.
(b) The following requirements apply to housing for homeownership
that is to be rehabilitated after transfer of the ownership interest:
(1) Before the transfer of the ownership interest, the grantee
must:
(i) Inspect the housing for any defects that pose a danger to
health; and
(ii) Notify the prospective purchaser of the work needed to cure
the defects and the time by which defects must be cured and applicable
property standards met.
(2) The housing must be free from all noted health and safety
defects before occupancy and not later than 6 months after the transfer
for completion of the transitional housing tenancy period.
(3) The housing must meet the applicable property standards (at a
minimum, the housing quality standards in Sec. 882.109 of this title)
not later than 2 years after transfer of the ownership interest.
Sec. 954.402 Tenant and participant protections.
(a) Lease. The lease between a tenant and an owner of rental
housing assisted with HOME funds must be for not less than one year,
unless by mutual agreement between the tenant and the owner.
(b) Prohibited lease terms. The lease may not contain any of the
following provisions:
(1) Agreement to be sued. Agreement by the tenant to be sued, to
admit guilt, or to a judgment in favor of the owner in a lawsuit
brought in connection with the lease;
(2) Treatment of property. Agreement by the tenant that the owner
may take, hold, or sell personal property of household members without
notice to the tenant and a court decision on the rights of the parties.
This prohibition, however, does not apply to an agreement by the tenant
concerning disposition of personal property remaining in the housing
unit after the tenant has moved out of the unit. The owner may dispose
of this personal property in accordance with tribal law (or State law,
which may apply if the Indian tribe is not exercising recognized powers
of self-government);
(3) Excusing owner from responsibility. Agreement by the tenant not
to hold the owner or the owner's agents legally responsible for any
action or failure to act, whether intentional or negligent;
(4) Waiver of notice. Agreement of the tenant that the owner may
institute a lawsuit without notice to the tenant;
(5) Waiver of legal proceedings. Agreement by the tenant that the
owner may evict the tenant or household members without instituting a
civil court proceeding in which the tenant has the opportunity to
present a defense, or before a court decision on the rights of the
parties;
(6) Waiver of a jury trial. Agreement by the tenant to waive any
right to a trial by jury;
(7) Waiver of right to appeal court decision. Agreement by the
tenant to waive the tenant's right to appeal, or to otherwise challenge
in court, a court decision in connection with the lease; and
(8) Tenant chargeable with cost of legal actions regardless of
outcome. Agreement by the tenant to pay attorney's fees or other legal
costs even if the tenant wins in a court proceeding by the owner
against the tenant. The tenant, however, may be obligated to pay costs
if the tenant loses.
(c) Termination of tenancy. An owner may not terminate the tenancy
or refuse to renew the lease of a tenant of rental housing assisted
with HOME funds except for serious or repeated violation of the terms
and conditions of the lease; for violation of applicable Federal, or
tribal law (or State law, which may apply if the grantee is not
exercising recognized powers of self-government); or for other good
cause. Any termination or refusal to renew must be preceded by not less
than 30 days by the owner's service upon the tenant of a written notice
specifying the grounds for the action.
(d) Maintenance and replacement. An owner of rental housing
assisted with HOME funds must maintain the premises in compliance with
all applicable housing quality standards and local code requirements.
(e) Tenant selection. An owner of rental housing assisted with HOME
funds must adopt written tenant selection policies and criteria that--
(1) Are consistent with the purpose of providing housing for very
low-income and low-income families;
(2) Are reasonably related to program eligibility and the
applicant's ability to perform the obligations of the lease;
(3) Give reasonable consideration to the housing needs of families
that would have a preference under section 6(c)(4)(A) of the U.S.
Housing Act of 1937 (Federal selection preferences for admission to
public housing); and
(4) Provide for--
(i) The selection of tenants from a written waiting list in the
chronological order of their application, insofar as is practicable;
and
(ii) The prompt written notification to any rejected applicant of
the grounds for any rejection.
Subpart E--Program Administration
Sec. 954.500 Repayment of investment.
(a) HOME funds will be made available pursuant to a HOME Investment
Partnership Agreement. The agreement ensures that HOME funds invested
in affordable housing are repayable if the housing ceases to qualify as
affordable housing before the period of affordability expires. The
amount of HOME funds expended on housing assisted with HOME funds that
does not meet the affordability requirements for the period specified
in Sec. 954.306 or Sec. 954.307, as applicable, must be repaid in
accordance with paragraph (b) of this section.
(b) Any repayment of HOME funds (including repayment required if
the housing no longer qualifies as affordable housing), and any payment
of interest or other return on the investment of HOME funds, that is
made before grant close out must be deposited in the grantee's account
and used in accordance with the requirements of this part. A grantee
may retain repayments, interest, and other return on investment of HOME
funds that are made after grant closeout if the grantee agrees to use
the funds for eligible activities.
(c) HUD will recapture HOME funds that are not expended within five
years after the last day of the month in which it obligated the funds.
(d) Termination before completion. If a project is terminated
before its completion, whether voluntarily by the grantee or otherwise,
an amount equal to the HOME funds disbursed for the project must be
paid by the grantee to its HOME account. If the HOME funds were
disbursed by HUD, the amount must be paid to HUD; if the HOME funds
were disbursed from the grantee's account, the amount must be paid to
the grantee's account. If the amount is not repaid, the grantee will be
subject to actions under Sec. 954.600 Performance reviews, Sec. 954.601
Corrective and remedial actions, and Sec. 954.602 Notice and
opportunity for hearing; sanctions.
Sec. 954.501 Grantee responsibilities; written agreements; monitoring.
(a) Responsibilities. The grantee is responsible for ensuring that
HOME
[[Page 32306]]
funds are used in accordance with all program requirements. The use of
subgrantees and contractors does not relieve the grantee of this
responsibility.
(b) Executing a written agreement. Before disbursing any HOME funds
to any entity (e.g., for-profit housing developer, nonprofit
organization, homeowner, or IHA) the grantee must enter into a written
agreement with the entity ensuring compliance with the requirements of
this part. A subgrantee and a contractor must also enter into a written
agreement before it disburses funds to any entity. The agreement
remains in effect during the period for affordability under
Sec. 954.306 or Sec. 954.307, as applicable, or if the entity is a
subgrantee, during any period that the entity has control over HOME
funds.
(c) Provisions in written agreement. At a minimum, the written
agreement must include applicable provisions concerning the following
items:
(1) Use of the HOME funds. The agreement must describe the use of
the HOME funds, including the tasks to be performed, a schedule for
completing the tasks, and a budget. These items must be in sufficient
detail to provide a sound basis for the grantee effectively to monitor
performance under the agreement.
(2) Affordability. The agreement must require housing assisted with
HOME funds to meet the affordability requirements of Sec. 954.306 or
Sec. 954.307, as applicable, and must require repayment of the funds if
the housing does not meet the affordability requirements for the
specified time period.
(3) Repayments. If the entity is a subgrantee, the agreement must
state if repayment, interest, and other return on the investment of
HOME funds are to be remitted to the grantee or are to be retained for
additional eligible activities by the entity.
(4) Uniform administrative requirements. If the entity is a
subgrantee, the agreement must require the entity to comply with
applicable uniform administrative requirements, as described in
Sec. 954.502.
(5) Project requirements. The agreement must require compliance
with project requirements in Sec. 954.400 through Sec. 954.402 of this
part, as applicable in accordance with the type of project assisted.
(6) Housing quality standard. The agreement must require owners of
rental housing assisted with HOME funds to maintain the housing in
compliance with applicable Housing Quality Standards and local housing
code requirements for the duration of the agreement.
(7) Other program requirements. The agreement must require the
entity to carry out each activity in compliance with all Federal laws
and regulations described in Sec. 954.4.
(8) Conditions for religious organizations. Where applicable, the
agreement must include the conditions prescribed in Sec. 954.301 for
the use of HOME funds by religious organizations.
(9) Requests for disbursements of funds. The agreement must specify
that the entity may not request disbursement of funds under the
agreement until the funds are needed for payment of eligible costs. The
amount of each request must be limited to the amount needed.
(10) Reversion of assets. If the entity is a subgrantee, the
agreement must specify that upon expiration of the agreement, the
entity must transfer to the grantee any HOME funds on hand at the time
of expiration and any accounts receivable attributable to the use of
HOME funds.
(11) Records and reports. The agreement must specify the particular
records that must be maintained and any information or reports that
must be submitted in order to assist the grantee in meeting its
recordkeeping and reporting requirements.
(12) Enforcement of the agreement. The agreement must provide for a
means of enforcement by the grantee or the intended beneficiaries. In
addition, the agreement must specify remedies for breach of the
provisions of the agreement. If the entity is a subgrantee, the
agreement must specify that, in accordance with 24 CFR 85.43,
suspension or termination may occur if the entity materially fails to
comply with any term of the agreement, and that the agreement may be
terminated for convenience in accordance with 24 CFR 85.44.
(13) Duration of the agreement. The agreement must specify that the
agreement is in effect for the period of affordability required by the
grantee under Sec. 954.306 or Sec. 954.307.
(d) Monitoring. The grantee is responsible for managing the day-to-
day operations of its HOME program, for monitoring the performance of
all entities receiving HOME funds from the grantee to assure compliance
with the requirements of this part, and for taking appropriate action
when performance problems arise.
(1) Not less than annually, the grantee must review the activities
of owners of rental housing assisted with HOME funds to assess
compliance with the requirement of this part, as set forth in the
written agreement under paragraphs (b) and (c) of this section. For
multifamily housing, each review must include on-site inspection to
determine compliance with housing codes and the requirements of this
part. For rental housing containing one- to four-dwelling units, an on-
site review must be made once within each two-year period. The results
of each review must be included in the grantee's performance report.
(2) Not less than annually, the grantee must review the performance
of each contractor and subgrantee.
Sec. 954.502 Applicability of uniform administrative requirements.
(a) Governmental entities. The requirements of OMB Circular No. A-
87 and the following requirements of 24 CFR part 85 apply to the
grantee and any governmental subgrantee receiving HOME funds:
Secs. 85.6, 85.12, 85.20, 85.21, 85.22, 85.26, 85.32, 85.33, 85.35,
85.36, 85.43, 85.44, 85.51, and 85.52.
(b) Non-profit organizations. The requirements of OMB Circular No.
A-122 (available from the Executive Office of the President,
Publication Service, 725 17th Street, N.W., Suite G-2200, Washington,
DC 20503; Telephone, (202) 395-7332)) and the following requirements of
24 CFR part 84 apply to subgrantees receiving HOME funds that are
private nonprofit organizations: Secs. 84.12, 84.22, 84.23, 84.25,
84.51, 84.52, and 84.71.
(c) Alternatives to bonding. For construction contracts that exceed
the amount for small purchase under 24 CFR 85.36, each contractor shall
be required to provide bid guarantees and adequate assurance of
performance and payment acceptable to HUD in accordance with 24 CFR
85.36(h). Performance and payment bonds for 100 percent of the total
contract price are acceptable to HUD. There may be circumstances under
which the bonding requirements of Sec. 85.36(h) are inconsistent with
other responsibilities and obligations of the grantee. Alternative
methods to provide performance and payment assurance may include:
(1) Deposit with the grantee of a cash escrow of not less than 20
percent of the total contract price, subject to reduction during the
warranty period, commensurate with potential risk;
(2) Letter of credit for 25 percent of the total contract price,
unconditionally payable upon demand of the grantee, subject to
reduction during the warranty period commensurate with potential risk.
Sec. 954.503 Audit.
Audits of the grantee and subgrantees must be conducted in
accordance with 24 CFR parts 44 and 45, as applicable.
[[Page 32307]]
Sec. 954.504 Closeout.
(a) A grant will be closed out when all the following criteria have
been met:
(1) All funds to be closed out have been drawn down and expended
for completed project costs, or funds not drawn down and expended have
been deobligated by HUD;
(2) Project Completion Reports for all projects using funds to be
closed out have been submitted. HUD will use data contained in the
project completion reports in the preparation of the Closeout Reports;
(3) The grantee has been reviewed and audited and HUD has
determined that all requirements, including affordability (for which
also see paragraph (b)(2) of this section), are met or all monitoring
and audit findings have been resolved.
(i) A signed copy of the grantee's most recent audit report--
covering all funds to be closed out--must be received by HUD. If the
audit review by the Department of Interior (DOI) results in significant
delays, the Area ONAP may request a signed copy of the audit prior to
DOI review and use it as the document needed prior to closeout. If the
audit does not cover all funds to be closed out, the closeout may
proceed, provided the grantee agrees in the Closeout Report that any
costs paid with the funds that were not audited must be subject to the
grantee's next single audit and that the grantee may be required to
repay to HUD any disallowed costs based on the results of the audit.
(ii) The on-site monitoring of the grantee by the Area ONAP must
include verification of data reflected in the Closeout Report and
reconciliation of any discrepancies which may exist between HUD data
and grantee records.
(b) The Closeout Report contains the final data on the funds and
must be signed by the grantee and HUD. In addition, the report must
contain:
(1) A provision regarding unaudited funds (``closeout subject to
audit''), required by paragraph (a)(3)(i) of this section; and
(2) A provision requiring the grantee to continue to meet the
requirements applicable to housing projects for the period of
affordability specified in Sec. 954.306 or Sec. 954.307, to keep
records demonstrating that the requirements have been met and to repay
the HOME funds, as required by Sec. 954.500, if the housing fails to
remain affordable for the required period.
Sec. 954.505 Recordkeeping.
(a) General. Each grantee must establish and maintain sufficient
records to enable HUD to determine whether the grantee has met the
requirements of this part. Records must be kept in a manner that
identifies the source and use of funds for each project.
(b) Period of record retention. (1) Except as provided in
paragraphs (b)(2), (b)(3), or (b)(4) of this section, records must be
retained for three years after closeout of the funds.
(2) If any litigation, claim, negotiation, audit, or other action
has been started before the expiration of the regular period specified
in paragraph (b)(1) of this section, the records must be retained until
completion of the action and resolution of all issues which arise from
it, or until the end of the regular period, whichever is later.
(3) Records regarding project requirements (Sec. 954.400 to
Sec. 954.402) and other federal requirements (Sec. 954.4) that apply
for the duration of the period of affordability, as well as the written
agreement and inspection and monitoring reports must be retained for
three years after the required period of affordability specified in
Sec. 954.306 or Sec. 954.307, as applicable.
(4) Records covering displacements and acquisition must be retained
for at least three years after the date by which all persons displaced
from the property and all persons whose property is acquired for the
project have received the final payment to which they are entitled in
accordance with Sec. 954.4(e).
(c) Access to records. (1) The grantee must provide citizens,
public agencies, and other interested parties with reasonable access to
records, consistent with applicable tribal laws (or State law, which
may apply if the Indian tribe is not exercising recognized powers of
self-government) regarding privacy and obligations of confidentiality.
(2) HUD and the Comptroller General of the United States, or any of
their representatives, have the right of access to any pertinent books,
documents, papers or other records of the grantees and subgrantees, in
order to make audits, examinations, excerpts, and transcripts.
[Approved by the Office of Management and Budget under OMB control
number 2577-0191]
Sec. 954.506 Performance reports.
(a) Management reports. Each grantee must submit management reports
on its HOME program in such format and at such time as HUD may
prescribe. Each grantee must submit a ``Financial Status Report,'' SF-
269A, short form, at the same time it submits the Semi-Annual
Performance Report, described below. A separate ``Financial Status
Report'' is to be submitted for each Indian HOME program grant that the
grantee has received.
(b) Semi-Annual performance report. (1) Submission. A grantee must
submit a semi-annual performance report on its HOME activities to the
responsible Area ONAP at such time as HUD may prescribe. Single copies
of the report must be provided to the public upon request at no charge.
(2) Elements of the semi-annual performance report. The report must
contain such information and be in such form as HUD may prescribe, and
must include at least the following:
(i) A report on the proposed use of HOME funds from the grant
application, consisting of the number of additional housing
opportunities to be created for low-income and very low-income
families, by project category (housing rehabilitation, acquisition of
housing, new housing construction, and tenant-based rental assistance);
(ii) A report on the actual use of HOME funds, consisting of the
number of additional housing opportunities created for low-income and
very low-income families, by project category (housing rehabilitation,
acquisition of housing, new housing construction, and tenant-based
rental assistance). This includes a report on project income and
includes data on the amount of repayments, interest, and other return
on investment of HOME funds and the use of the funds for projects,
including number of projects assisted, and characteristics of tenants
and owners;
(iii) An assessment of the effectiveness of the efforts in
providing the preferences and opportunities under section 7(b) of the
Indian Self-Determination and Education Assistance Act (25 U.S.C.
450e(b)); and
(iv) Data on the total number of households (families and
individuals) and business and nonprofit organizations displaced as a
result of investments of HOME funds, including the cost of relocation
payments (moving expenses and replacement housing), and the number and
cost of real property acquisitions.
[Approved by the Office of Management and Budget under OMB control
number 2577-0191]
Sec. 954.507 Submission of project completion reports.
A Project Completion Report must be submitted to HUD within 120
days of the final drawdown request for the project. If a satisfactory
Project Completion Report is not submitted by the due date, HUD will
suspend further HOME disbursements and grant approvals for the grantee.
Disbursements and grant approvals will remain suspended until a
satisfactory Project Completion Report is received.
[[Page 32308]]
[Approved by the Office of Management and Budget under OMB control
number 2577-0191]
Subpart F--Performance Reviews and Sanctions
Sec. 954.600 Performance reviews.
(a) General. HUD will review the performance of each grantee in
carrying out its responsibilities under this part whenever determined
necessary by HUD, but at least annually. In conducting performance
reviews, HUD will rely primarily on information obtained from the
grantee's records and reports, findings from on-site monitoring, audit
reports, and information generated from fund requisition systems. Where
applicable, HUD may also consider relevant information pertaining to a
grantee's performance gained from other sources, including citizen
comments, complaint determinations, and litigation. Reviews to
determine compliance with specific requirements of this part will be
conducted as necessary, with or without prior notice to the grantee.
Comprehensive performance reviews under the standards in paragraph (b)
of this section will be conducted after prior notice to the grantee.
(b) Standards for comprehensive performance review. A grantee's
performance will be comprehensively reviewed periodically, as
prescribed by HUD, to determine whether the grantee:
(1) Has committed the HOME funds in the HUD account as required and
expended the funds as required; and
(2) Has met the requirements of the grant agreement and this part,
particularly eligible activities and affordability.
Sec. 954.601 Corrective and remedial actions.
(a) General. HUD will use the procedures in this section in
conducting the performance review as provided in Sec. 954.600 and in
taking corrective and remedial actions. However, HUD may temporarily
suspend payments based upon HUD's preliminary determination that the
grantee has failed to comply with the requirements of the Act,
regulations, or grant agreement if suspension is necessary to preclude
the further expenditure of funds for activities affected by the failure
to comply.
(b) Performance review. (1) If HUD determines preliminarily that
the grantee has not met a requirement of this part, the grantee will be
given notice of this determination and an opportunity to demonstrate,
within the time prescribed by HUD (not to exceed 30 days) and on the
basis of substantial facts and data, that it has done so.
(2) If the grantee fails to demonstrate to HUD's satisfaction that
it has met the requirement, HUD will take corrective or remedial action
in accordance with this section or Sec. 954.602.
(c) Corrective and remedial actions. Corrective or remedial actions
for a performance deficiency (failure to meet a provision of this part)
will be designed to prevent a continuation of the deficiency; mitigate,
to the extent possible, its adverse effects or consequences; and
prevent its recurrence.
(1) HUD may request the grantee to submit and comply with proposals
for action to correct, mitigate and prevent a performance deficiency,
including:
(i) Preparing and following a schedule of actions for carrying out
the affected activities, consisting of schedules, timetables, and
milestones necessary to implement the affected activities;
(ii) Establishing and following a management plan that assigns
responsibilities for carrying out the remedial actions;
(iii) Cancelling or revising activities likely to be affected by
the performance deficiency, before expending HOME funds for the
activities;
(iv) Reprogramming HOME funds in the HUD account that have not yet
been expended from affected activities to other eligible activities;
(v) Reimbursing the HUD account in any amount not used in
accordance with the requirements of this part; and
(vi) Suspending disbursement of funds in the HUD account for
affected activities.
(2) HUD may also--
(i) Change the method of payment from an advance to reimbursement
basis; and
(ii) Take other remedies that may be legally available.
Sec. 954.602 Notice and opportunity for hearing; sanctions.
(a) If HUD finds after reasonable notice and opportunity for
hearing that a grantee has failed to comply with any provision of this
part and until HUD is satisfied that there is no longer any such
failure to comply:
(1) HUD shall reduce the funds in the HUD account by the amount of
any expenditures that were not in accordance with the requirements of
this part; and
(2) HUD may--
(i) Prevent withdrawals from the HUD account for activities
affected by the failure to comply; or
(ii) Prohibit the grantee from competing for HOME funds under
Sec. 954.104; Provided, however, that HUD may on due notice suspend
payments from the HUD account at any time after the issuance of a
notice of opportunity for hearing pursuant to paragraph (b)(1) of this
section, pending such hearing and a final decision, to the extent HUD
determines such action necessary to preclude the further expenditure of
funds for activities affected by the failure to comply.
(b) Proceedings. When HUD proposes to take action pursuant to this
section, the respondent in the proceedings will be the grantee.
(1) Notice of opportunity for hearing. HUD shall notify the
respondent in writing of the proposed action and of the opportunity for
a hearing. The notice shall be sent by first class mail. The notice
shall specify:
(i) In a manner which is adequate to allow the respondent to
prepare its response, the basis upon which HUD determined that the
respondent failed to comply with a provision of this part;
(ii) That the hearing procedures are governed by these rules;
(iii) That the respondent has 14 days from receipt of the notice
within which to provide a written request for a hearing to the Chief
Docket Clerk, Office of Administrative Law Judges, and the address and
telephone number of the Chief Docket Clerk;
(iv) The action HUD proposes to take and that the authority for
this action is Sec. 954.602; and
(v) That if the respondent fails to request a hearing within the
time specified, HUD's determination that the respondent failed to
comply with a provision of this part shall be final and HUD may proceed
to take the proposed action.
(2) Initiation of hearing. The respondent shall be allowed 14 days
from receipt of the notice within which to notify the Chief Docket
Clerk, Office of Administrative Law Judges, of its request for a
hearing. If no request is received within the time specified, HUD's
determination that the respondent failed to comply with a provision of
this part shall be final and HUD may proceed to take the proposed
action.
(3) Administrative Law Judge. Proceedings conducted under these
rules shall be presided over by an Administrative Law Judge (ALJ),
appointed as provided by section 11 of the Administrative Procedures
Act (5 U.S.C. 3105). The case shall be referred to the ALJ at the time
a hearing is requested. The ALJ shall promptly notify the parties of
the time and place at which the hearing will be held. The ALJ shall
conduct a fair and impartial hearing and take all action necessary to
avoid delay in the disposition of
[[Page 32309]]
proceedings and to maintain order. The ALJ shall have all powers
necessary to those ends, including but not limited to the power to:
(i) Administer oaths and affirmations;
(ii) Issue subpoenas as authorized by law;
(iii) Rule upon offers of proof and receive relevant evidence;
(iv) Order or limit discovery before the hearing as the interests
of justice may require;
(v) Regulate the course of the hearing and the conduct of the
parties and their counsel;
(vi) Hold conferences for the settlement or simplification of the
issues by consent of the parties;
(vii) Consider and rule upon all procedural and other motions
appropriate in adjudicative proceedings; and
(viii) Make and file initial determinations.
(4) Ex parte communications. An ex parte communication is any
communication with an ALJ, direct or indirect, oral or written,
concerning the merits or procedures of any pending proceeding which is
made by a party in the absence of any other party. Ex parte
communications are prohibited except where the purpose and content of
the communication have been disclosed in advance or simultaneously to
all parties, or the communication is a request for information
concerning the status of the case. Any ALJ who receives an ex parte
communication which the ALJ knows or has reason to believe is
unauthorized shall promptly place the communication, or its substance,
in all files and shall furnish copies to all parties. Unauthorized ex
parte communications shall not be taken into consideration in deciding
any matter in issue.
(5) The hearing. All parties shall have the right to be represented
at the hearing by counsel. The ALJ shall conduct the proceedings in an
expeditious manner while allowing the parties to present all oral and
written evidence which tends to support their respective positions, but
the ALJ shall exclude irrelevant, immaterial or unduly repetitious
evidence. HUD has the burden of proof in showing by a preponderance of
the evidence that the respondent failed to comply with a provision of
this part. Each party shall be allowed to cross-examine adverse
witnesses and to rebut and comment upon evidence presented by the other
party. Hearings shall be open to the public. So far as the orderly
conduct of the hearing permits, interested persons other than the
parties may appear and participate in the hearing.
(6) Transcripts. Hearings shall be recorded and transcribed only by
a reporter under the supervision of the ALJ. The original transcript
shall be a part of the record and shall constitute the sole official
transcript. Respondents and the public, at their own expense, may
obtain copies of the transcript.
(7) The ALJ's decision. At the conclusion of the hearing, the ALJ
shall give the parties a reasonable opportunity to submit proposed
findings and conclusions and supporting reasons therefor. Generally
within 60 days after the conclusion of the hearing, the ALJ shall
prepare a written decision which includes a statement of findings and
conclusions, and the reasons or basis therefor, on all the material
issues of fact, law or discretion presented on the record and the
appropriate sanction or denial thereof. The decision shall be based on
consideration of the whole record or those parts thereof cited by a
party and supported by and in accordance with the reliable, probative,
and substantial evidence. A copy of the decision shall be furnished to
the parties immediately by first class mail and shall include a notice
that any requests for review by the Secretary must be made in writing
to the Secretary within 30 days of the receipt of the decision.
(8) The record. The transcript of testimony and exhibits, together
with the decision of the ALJ and all papers and requests filed in the
proceeding, constitutes the exclusive record for decision and, on
payment of its reasonable cost, shall be made available to the parties.
After reaching the initial decision, the ALJ shall certify to the
complete record and forward the record to the Secretary.
(9) Review by the Secretary. The decision by the ALJ shall
constitute the final decision of the Secretary unless, within 30 days
after the receipt of the decision, either the respondent or the
Assistant Secretary files an exception and request for review by the
Secretary. The excepting party must transmit simultaneously to the
Secretary and the other party the request for review and the basis of
the party's exceptions to the findings of the ALJ. The other party
shall be allowed 30 days from receipt of the exception to provide the
Secretary and the excepting party with a written reply. The Secretary
shall then review the record of the case, including the exceptions and
the reply. On the basis of such review, the Secretary shall issue a
written determination, including a statement of the rationale therefor,
affirming, modifying or revoking the decision of the ALJ. The
Secretary's decision shall be made and transmitted to the parties
within 60 days after the decision of the ALJ was furnished to the
parties.
Dated: May 10, 1996.
Michael B. Janis,
General Deputy Assistant Secretary for Public and Indian Housing.
[FR Doc. 96-15712 Filed 6-20-96; 8:45 am]
BILLING CODE 4210-33-P
Complete official Federal Register PDF
FR Doc. 96-15662 1996 Amendment to Cotton Board Rules and Regulations Adjusting Supplemental Assessment on Imports
[Federal Register Volume 61, Number 121 (Friday, June 21, 1996)]
[Rules and Regulations]
[Pages 31817-31822]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15662]
========================================================================
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
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========================================================================
Federal Register / Vol. 61, No. 121 / Friday, June 21, 1996 / Rules
and Regulations
[[Page 31817]]
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 1205
[CN-96-002]
1996 Amendment to Cotton Board Rules and Regulations Adjusting
Supplemental Assessment on Imports
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Agricultural Marketing Service (AMS) is amending the
Cotton Board Rules and Regulations by raising the value assigned to
imported cotton for the purpose of calculating supplemental assessments
collected for use by the Cotton Research and Promotion Program. This
action is required by this regulation on an annual basis to ensure that
the assessments collected on imported cotton and the cotton content of
imported products remain similar to that paid on domestically produced
cotton. The amended value reflects the 12-month average price received
by U.S. farmers for Upland cotton for calendar year 1995.
EFFECTIVE DATE: July 22, 1996.
FOR FURTHER INFORMATION CONTACT: Craig Shackelford, (202) 720-2259.
SUPPLEMENTARY INFORMATION:
Executive Order 12866
This rule has been determined to be ``not significant'' for
purposes of Executive Order 12866, and, therefore, has not been
reviewed by the Office of Management and Budget.
Executive Order 12778
This rule has been reviewed under Executive Order 12778, Civil
Justice Reform. It is not intended to have retroactive effect. This
rule would not preempt any state or local laws, regulations, or
policies, unless they present an irreconcilable conflict with this
rule.
The Act provides that administrative proceedings must be exhausted
before parties may file suit in court. Under Section 12 of the Act, any
person subject to an order may file with the Secretary a petition
stating that the order, any provision of the plan, or any obligation
imposed in connection with the order is not in accordance with law and
requesting a modification of the order or to be exempted therefrom.
Such person is afforded the opportunity for a hearing on the petition.
After the hearing, the Secretary would rule on the petition. The Act
provides that the District Court of the United States in any district
in which the person is an inhabitant, or has his principal place of
business, has jurisdiction to review the Secretary's ruling, provided a
complaint is filed within 20 days from the date of the entry of the
ruling.
Regulatory Flexibility Act
Pursuant to requirements set forth in the Regulatory Flexibility
Act (RFA) (5 U.S.C. 601 et seq.) the Agricultural Marketing Service
(AMS) has considered the economic impact of this action on small
entities and has determined that its implementation will not have a
significant economic impact on a substantial number of small
businesses.
There are an estimated 10,000 importers who are presently subject
to rules and regulations issued pursuant to the Cotton Research and
Promotion Order. This rule will affect importers of cotton and cotton-
containing products. The majority of these importers are small
businesses under the criteria established by the Small Business
Administration (13 CFR Sec. 121.601). This rule will raise the
assessments paid by the importers under the Cotton Research and
Promotion Order. Even though the assessment will be raised, the
increase is small and will not significantly affect small businesses.
The current assessment on imported cotton is $0.011938 per kilogram
of imported cotton. The amended assessment is $0.012874, an increase of
$0.000936 per kilogram or approximately seven percent. From January
through December of 1995 approximately $15,208,000 in assessments were
collected at the $0.011938 per kilogram of cotton rate. Should cotton
products be imported at the same level in 1996, one could expect the
increase in the assessment on imported cotton to generate $16,272,560
or a seven percent increase over 1995. Historical data on importation
of cotton products suggest that some increase in the amount of cotton
products imported into the U.S. may be expected in 1996; however, this
amount is undetermined.
In 1995 the largest 50 importers subject to assessments under this
section paid a total of approximately $4,589,000 in assessments. During
the same period the smallest 50 importers paid approximately $204 in
assessments. The largest 50 importers paid an average of $91,779 in
assessments during 1995 within a range from $374,004 to $38,728. The
smallest 50 importers paid average total assessments for 1995 of $3.84
within a range from $10.20 to $2.10. While larger businesses paid
substantially larger total assessments than smaller businesses, the
rate of assessment per kilogram of imported cotton was the same for
both larger and smaller sized businesses. In addition both larger and
smaller importers are able to take advantage of the U.S. Customs
Service Automated Collection System to pay assessments. In this way
administrative burdens are not disproportionate for smaller businesses
compared to larger businesses.
Paperwork Reduction
In compliance with Office of Management and Budget (OMB)
regulations (5 CFR Part 1320) which implement the Paperwork Reduction
Act (PRA) of 1980 (44 U.S.C. 3501 et seq.) the information collection
requirements contained in the regulation to be amended have been
previously approved by OMB and were assigned control number 0581-0093.
Background
The Cotton Research and Promotion Act Amendments of 1990 enacted by
Congress under Subtitle G of Title XIX of the Food, Agriculture,
Conservation and Trade Act of 1990 on November 28, 1990, contained two
provisions that authorized changes in the funding procedures for the
Cotton Research and Promotion Program.
These provisions are: (1) The assessment of imported cotton and
cotton products; and (2) termination of
[[Page 31818]]
the right of cotton producers to demand a refund of assessments.
An amended Cotton Research and Promotion Order was approved by
producers and importers voting in a referendum held July 17-26, 1991.
Proposed rules implementing the amended Order were published in the
Federal Register on December 17, 1991, (56 FR 65450). The final
implementing rules were published on July 1 and 2, 1992, (57 FR 29181)
and (57 FR 29431), respectively.
A proposed rule seeking comments regarding the adjustments of the
value of imported cotton was published in the Federal Register on March
22, 1996 (61 FR 11764-11776). No comments were received during the
comment period (March 22, 1996-April 22, 1996).
This final rule will increase the value assigned to imported cotton
in the Cotton Board Rules and Regulations 7 CFR 1205.510(b)(2). This
value is used to calculate supplemental assessments on imported cotton
and the cotton content of imported products. Supplemental assessments
are the second part of a two-part assessment. The first part of the
assessment is levied on the weight of cotton produced or imported at a
rate of $1 per bale of cotton which is equivalent to 500 pounds or $1
per 226.8 kilograms of cotton.
Supplemental assessments are levied at a rate of five-tenths of one
percent of the value of domestically produced cotton, imported cotton,
and the cotton content of imported products. The agency adopted the use
of the calendar year average price received by U.S. farmers for Upland
cotton as a benchmark for the value of domestically produced cotton.
The source for this statistic is ``Agricultural Prices'', a publication
of the National Agricultural Statistics Service (NASS) of the
Department of Agriculture. Use of the average price figure in the
calculation of supplemental assessments on imported cotton and the
cotton content of imported products yields an assessment that
approximates assessments paid on domestically produced cotton.
The current value of imported cotton as published in the Federal
Register (60 FR 36033) on July 13, 1995 for the purpose of calculating
supplemental assessments on imported cotton is $1.5057 per kilogram.
This number was calculated using the annual average price received by
farmers for Upland cotton during the calendar year 1994 which was
$0.683 per pound. Using the Average Price Received by U.S. farmers for
Upland cotton for the calendar year 1995, which is $0.768 per pound,
the new value of imported cotton will be $1.6931 per kilogram. The
amended value is $0.1874 per kilogram greater than the previous value.
An example of the assessment formula and how the various figures
are obtained is as follows:
One bale is equal to 500 pounds.
One kilogram equals 2.2046 pounds.
One pound equals 0.453597 kilograms.
One dollar per bale assessment converted to kilograms A 500
pound bale equals 226.8 kg. (500 x .453597) $1 per bale assessment
equals Sec. 0.002000 per pound (1500) or $0.004409 per kg.
(1226.8)
Supplemental assessment of \5/10\ of one percent of the value of
the cotton converted to kilograms. Average price received $0.768 per
pound or $1.6931 per kg. (0.768 x 2.2046) = 1.6931.
\5/10\ of one percent of the average price in kg. equals
$0.008465 per kg. (1.6931 x .005)
The total assessment per kilogram of raw cotton is obtained by
adding the $1 per bale equivalent assessment of $0.004409 per kg.
and the supplemental assessment Sec. 0.008465 per kg. which equals
$0.012874 per kg.
The current assessment on imported cotton is $0.011938 per kilogram
of imported cotton. The amended assessment is $0.012874, an increase of
$0.000936 per kilogram. This increase reflects the increase in the
Average Price of Upland Cotton Received by U.S. Farmers during the
period January through December 1995.
Since the value of cotton is the basis of the supplemental
assessment calculation and the figures shown in the right hand column
of the Import Assessment Table 1205.510(b)(3) are a result of such a
calculation, these figures have been revised. These figures indicate
the total assessment per kilogram due for each Harmonized Tariff
Schedule (HTS) number subject to assessment.
As a result of changes in the Harmonized Tariff Schedule, numbering
revisions to the Import Assessment Table used in the Cotton Research
and Promotion program were necessary. These changes are as follows:
Numbers Deleted
5205250000
5205450000
6203492010
Numbers Changed
------------------------------------------------------------------------
Old number New number Comment
------------------------------------------------------------------------
5209430020. 5209430030 Use same conversion factor.
5209430040. 5209430050 Use same conversion factor.
5311004000. 5311004020 Use same conversion factor.
5806200000. 5806200010
5806200090 Use same conversion factor.
6115199010. 6115198010 Use same conversion factor.
6115922000. 6115929000 Use same conversion factor.
6115932020. 6115936020 Use same conversion factor.
------------------------------------------------------------------------
Two other changes have been made to lessen the administrative
burden for importers. The first simplifies the process to determine if
the minimum value of cotton has been imported to warrant payment of the
assessment. The second lengthens the amount of time that an exemption
certificate remains valid.
The Cotton Research and Promotion Act Amendments of 1990 provided
for the establishment of a de minimis (a minimum)volume or value of
imported cotton under which no assessment would be paid. Section
1205.510(b)(3)(I) provides that any cotton imported in which the value
of the cotton is less than $220.99 shall not be subject to the
assessment. When the de minimis value was first implemented in 1992,
the 220.99 equaled $2.00 in cotton assessment. The U.S. Customs Service
does not collect assessments of $2.00 or less. Each subsequent year,
with the adjustment of the assessment on imported cotton, the amount of
assessment due on cotton has increased or decreased in relation to the
change in the minimum import assessment fee of $2.00.
The agency amends the de minimis value of cotton to a fluctuating
value that will always yield an assessment of $2.00. Section
1205.510(b)(6)(I) provides for an importer to claim an exemption from
the assessment under specific conditions. The exemption is valid for
120 days. This amendment will lengthen that period so that exemption
certificates issued by the Cotton Board will be valid for 1 year from
the date of issue.
List of Subjects in 7 CFR Part 1205
Advertising, Agricultural research, Cotton, Marketing agreements,
Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, 7 CFR Part 1205 is
amended as follows:
PART 1205--COTTON RESEARCH AND PROMOTION
1. The authority citation for Part 1205 continues to read as
follows:
Authority: 7 U.S.C. 2101-2118.
2. In Sec. 1205.510 paragraphs (b) (2) and (3) are revised to read
as follows:
[[Page 31819]]
Sec. 1205.510 Levy of assessments.
* * * * *
(b) * * *
(2) The 12-month average of monthly average prices received by U.S.
farmers will be calculated annually. Such average will be used as the
value of imported cotton for the purpose of levying the supplemental
assessment on imported cotton and will be expressed in kilograms. The
value of imported cotton for the purpose of levying this supplemental
assessment is $1.6931 per kilogram.
(3) The following table contains Harmonized Tariff Schedule (HTS)
classification numbers and corresponding conversion factors and
assessments. The left column of the following table indicates the HTS
classifications of imported cotton and cotton-containing products
subject to assessment. The center column indicates the conversion
factor for determining the raw fiber content for each kilogram of the
HTS. HTS numbers for raw cotton have no conversion factor in the table.
The right column indicates the total assessment per kilogram of the
article assessed.
(i) Any line item entry of cotton appearing on Customs entry
documentation in which the value of the cotton contained therein
results in the calculation of an assessment of two dollars ($2.00) or
less will not be subject to assessments as described in this section.
(ii) In the event that any HTS number subject to assessment is
changed and such change is merely a replacement of a previous number
and has no impact on the physical properties, description, or cotton
content of the product involved, assessments will continue to be
collected based on the new number.
Import Assessment Table
[Raw cotton fiber]
------------------------------------------------------------------------
HTS No. Conversion factor Cents per kg
------------------------------------------------------------------------
5201001200............ 0 1.2874
5201001400............ 0 1.2874
5201001800............ 0 1.2874
5201002200............ 0 1.2874
5201002400............ 0 1.2874
5201002800............ 0 1.2874
5201003400............ 0 1.2874
5201003800............ 0 1.2874
5204110000............ 1.1111 1.4304
5204200000............ 1.1111 1.4304
5205111000............ 1.1111 1.4304
5205112000............ 1.1111 1.4304
5205121000............ 1.1111 1.4304
5205122000............ 1.1111 1.4304
5205131000............ 1.1111 1.4304
5205132000............ 1.1111 1.4304
5205141000............ 1.1111 1.4304
5205210000............ 1.1111 1.4304
5205220000............ 1.1111 1.4304
5205230000............ 1.1111 1.4304
5205240000............ 1.1111 1.4304
5205310000............ 1.1111 1.4304
5205320000............ 1.1111 1.4304
5205330000............ 1.1111 1.4304
5205340000............ 1.1111 1.4304
5205410000............ 1.1111 1.4304
5205420000............ 1.1111 1.4304
5205440000............ 1.1111 1.4304
5206120000............ 0.5556 0.7153
5206130000............ 0.5556 0.7153
5206140000............ 0.5556 0.7153
5206220000............ 0.5556 0.7153
5206230000............ 0.5556 0.7153
5206240000............ 0.5556 0.7153
5206310000............ 0.5556 0.7153
5207100000............ 1.1111 1.4304
5207900000............ 0.5556 0.7153
5208112020............ 1.1455 1.4747
5208112040............ 1.1455 1.4747
5208112090............ 1.1455 1.4747
5208114020............ 1.1455 1.4747
5208114060............ 1.1455 1.4747
5208114090............ 1.1455 1.4747
5208118090............ 1.1455 1.4747
5208124020............ 1.1455 1.4747
5208124040............ 1.1455 1.4747
5208124090............ 1.1455 1.4747
5208126020............ 1.1455 1.4747
5208126040............ 1.1455 1.4747
5208126060............ 1.1455 1.4747
5208126090............ 1.1455 1.4747
5208128020............ 1.1455 1.4747
5208128090............ 1.1455 1.4747
5208130000............ 1.1455 1.4747
5208192020............ 1.1455 1.4747
5208192090............ 1.1455 1.4747
5208194020............ 1.1455 1.4747
5208194090............ 1.1455 1.4747
5208196020............ 1.1455 1.4747
5208196090............ 1.1455 1.4747
5208224040............ 1.1455 1.4747
5208224090............ 1.1455 1.4747
5208226020............ 1.1455 1.4747
5208226060............ 1.1455 1.4747
5208228020............ 1.1455 1.4747
5208230000............ 1.1455 1.4747
5208292020............ 1.1455 1.4747
5208292090............ 1.1455 1.4747
5208294090............ 1.1455 1.4747
5208296090............ 1.1455 1.4747
5208298020............ 1.1455 1.4747
5208312000............ 1.1455 1.4747
5208321000............ 1.1455 1.4747
5208323020............ 1.1455 1.4747
5208323040............ 1.1455 1.4747
5208323090............ 1.1455 1.4747
5208324020............ 1.1455 1.4747
5208324040............ 1.1455 1.4747
5208325020............ 1.1455 1.4747
5208330000............ 1.1455 1.4747
5208392020............ 1.1455 1.4747
5208392090............ 1.1455 1.4747
5208394090............ 1.1455 1.4747
5208396090............ 1.1455 1.4747
5208398020............ 1.1455 1.4747
5208412000............ 1.1455 1.4747
5208416000............ 1.1455 1.4747
5208418000............ 1.1455 1.4747
5208421000............ 1.1455 1.4747
5208423000............ 1.1455 1.4747
5208424000............ 1.1455 1.4747
5208425000............ 1.1455 1.4747
5208430000............ 1.1455 1.4747
5208492000............ 1.1455 1.4747
5208494020............ 1.1455 1.4747
5208494090............ 1.1455 1.4747
5208496010............ 1.1455 1.4747
5208496090............ 1.1455 1.4747
5208498090............ 1.1455 1.4747
5208512000............ 1.1455 1.4747
5208516060............ 1.1455 1.4747
5208518090............ 1.1455 1.4747
5208523020............ 1.1455 1.4747
5208523040............ 1.1455 1.4747
5208523090............ 1.1455 1.4747
5208524020............ 1.1455 1.4747
5208524040............ 1.1455 1.4747
5208524060............ 1.1455 1.4747
5208525020............ 1.1455 1.4747
5208530000............ 1.1455 1.4747
5208592020............ 1.1455 1.4747
5208592090............ 1.1455 1.4747
5208594090............ 1.1455 1.4747
5208596090............ 1.1455 1.4747
5209110020............ 1.1455 1.4747
5209110030............ 1.1455 1.4747
5209110090............ 1.1455 1.4747
5209120020............ 1.1455 1.4747
5209120040............ 1.1455 1.4747
5209190020............ 1.1455 1.4747
5209190040............ 1.1455 1.4747
5209190060............ 1.1455 1.4747
5209190090............ 1.1455 1.4747
5209210090............ 1.1455 1.4747
5209220020............ 1.1455 1.4747
5209220040............ 1.1455 1.4747
5209290040............ 1.1455 1.4747
5209290090............ 1.1455 1.4747
5209313000............ 1.1455 1.4747
5209316020............ 1.1455 1.4747
5209316030............ 1.1455 1.4747
5209316050............ 1.1455 1.4747
5209316090............ 1.1455 1.4747
5209320020............ 1.1455 1.4747
5209320040............ 1.1455 1.4747
5209390020............ 1.1455 1.4747
5209390040............ 1.1455 1.4747
5209390060............ 1.1455 1.4747
5209390080............ 1.1455 1.4747
5209390090............ 1.1455 1.4747
5209413000............ 1.1455 1.4747
5209416020............ 1.1455 1.4747
5209416040............ 1.1455 1.4747
5209420020............ 1.0309 1.3272
5209420040............ 1.0309 1.3272
5209430030............ 1.1455 1.4747
5209430050............ 1.1455 1.4747
5209490020............ 1.1455 1.4747
5209490090............ 1.1455 1.4747
5209516030............ 1.1455 1.4747
5209516050............ 1.1455 1.4747
5209520020............ 1.1455 1.4747
5209590020............ 1.1455 1.4747
5209590040............ 1.1455 1.4747
5209590090............ 1.6873 1.8848
5210114020............ 0.6873 0.8848
[[Page 31820]]
5210114040............ 0.6873 0.8848
5210116020............ 0.6873 0.8848
5210116040............ 0.6873 0.8848
5210116060............ 0.6873 0.8848
5210118020............ 0.6873 0.8848
5210120000............ 0.6873 0.8848
5210192090............ 0.6873 0.8848
5210214040............ 0.6873 0.8848
5210216020............ 0.6873 0.8848
5210216060............ 0.6873 0.8848
5210218020............ 0.6873 0.8848
5210314020............ 0.6873 0.8848
5210314040............ 0.6873 0.8848
5210316020............ 0.6873 0.8848
5210318020............ 0.6873 0.8848
5210414000............ 0.6873 0.8848
5210416000............ 0.6873 0.8848
5210418000............ 0.6873 0.8848
5210498090............ 0.6873 0.8848
5210514040............ 0.6873 0.8848
5210516020............ 0.6873 0.8848
5210516040............ 0.6873 0.8848
5210516060............ 0.6873 0.8848
5211110090............ 0.6873 0.8848
5211120020............ 0.6873 0.8848
5211190020............ 0.6873 0.8848
5211190060............ 0.6873 0.8848
5211210030............ 0.4165 0.5362
5211210050............ 0.6873 0.8848
5211290090............ 0.6873 0.8848
5211320020............ 0.6873 0.8848
5211390040............ 0.6873 0.8848
5211390060............ 0.6873 0.8848
5211490020............ 0.6873 0.8848
5211490090............ 0.6873 0.8848
5211590020............ 0.6873 0.8848
5212146090............ 0.9164 0.1798
5212156020............ 0.9164 0.1798
5212216090............ 0.9164 0.1798
5309214010............ 0.2864 0.3687
5309214090............ 0.2864 0.3687
5309294010............ 0.2864 0.3687
5311004020............ 0.9164 1.1798
5407810010............ 0.5727 0.7373
5407810030............ 0.5727 0.7373
5407912020............ 0.4009 0.5161
5408312020............ 0.4009 0.5161
5408329020............ 0.4009 0.5161
5408349020............ 0.4009 0.5161
5408349090............ 0.4009 0.5161
5509530030............ 0.5556 0.7153
5509530060............ 0.5556 0.7153
5513110020............ 0.4009 0.5161
5513110040............ 0.4009 0.5161
5513110060............ 0.4009 0.5161
5513110090............ 0.4009 0.5161
5513120000............ 0.4009 0.5161
5513130020............ 0.4009 0.5161
5513210020............ 0.4009 0.5161
5513310000............ 0.4009 0.5161
5514120020............ 0.4009 0.5161
5516420060............ 0.4009 0.5161
5516910060............ 0.4009 0.5161
5516930090............ 0.4009 0.5161
5601210010............ 1.1455 1.4747
5601210090............ 1.1455 1.4747
5601300000............ 1.1455 1.4747
5602109090............ 0.5727 0.7373
5602290000............ 1.1455 1.4747
5602906000............ 0.526 0.6772
5604900000............ 0.5556 0.7153
5607902000............ 0.8889 1.1444
5608901000............ 1.1111 1.4304
5608902300............ 1.1111 1.4304
5609001000............ 1.1111 1.4304
5609004000............ 0.5556 0.7153
5701104000............ 0.0556 0.0716
5701109000............ 0.1111 0.143
5701901010............ 1.0444 1.3446
5702109020............ 1.1 1.4161
5702312000............ 0.0778 0.1002
5702411000............ 0.0722 0.093
5702412000............ 0.0778 0.1002
5702421000............ 0.0778 0.1002
5702913000............ 0.0889 0.1144
5702991010............ 1.1111 1.4304
5702991090............ 1.1111 1.4304
5703900000............ 0.4489 0.5779
5801210000............ 1.1455 1.4747
5801230000............ 1.1455 1.4747
5801250010............ 1.1455 1.4747
5801250020............ 1.1455 1.4747
5801260020............ 1.1455 1.4747
5802190000............ 1.1455 1.4747
5802300030............ 0.5727 0.7373
5804291000............ 1.1455 1.4747
5806200010............ 0.3534 0.455
5806200090............ 0.3534 0.455
5806310000............ 1.1455 1.4747
5806400000............ 0.4296 0.5531
5808107000............ 0.5727 0.7373
5808900010............ 0.5727 0.7373
5811002000............ 1.1455 1.4747
6001106000............ 1.1455 1.4747
6001210000............ 0.8591 1.106
6001220000............ 0.2864 0.3687
6001910010............ 0.8591 1.106
6001910020............ 0.8591 1.106
6001920020............ 0.2864 0.3687
6001920030............ 0.2864 0.3687
6001920040............ 0.2864 0.3687
6002203000............ 0.8681 1.1176
6002206000............ 0.2894 0.3726
6002420000............ 0.8681 1.1176
6002430010............ 0.2894 0.3726
6002430080............ 0.2894 0.3726
6002921000............ 1.1574 1.49
6002930040............ 0.1157 0.149
6002930080............ 0.1157 0.149
6101200010............ 1.0094 1.2995
6101200020............ 1.0094 1.2995
6102200010............ 1.0094 1.2995
6102200020............ 1.0094 1.2995
6103421020............ 0.8806 1.1337
6103421040............ 0.8806 1.1337
6103421050............ 0.8806 1.1337
6103421070............ 0.8806 1.1337
6103431520............ 0.2516 0.3239
6103431540............ 0.2516 0.3239
6103431550............ 0.2516 0.3239
6103431570............ 0.2516 0.3239
6104220040............ 0.9002 1.1589
6104220060............ 0.9002 1.1589
6104320000............ 0.9207 1.1853
6104420010............ 0.9002 1.1589
6104420020............ 0.9002 1.1589
6104520010............ 0.9312 1.1988
6104520020............ 0.9312 1.1988
6104622010............ 0.8806 1.1337
6104622015............ 0.8806 1.1337
6104622025............ 0.8806 1.1337
6104622030............ 0.8806 1.1337
6104622060............ 0.8806 1.1337
6104632010............ 0.3774 0.4859
6104632025............ 0.3774 0.4859
6104632030............ 0.3774 0.4859
6104632060............ 0.3774 0.4859
6104692030............ 0.3858 0.4967
6105100010............ 0.985 1.2681
6105100020............ 0.985 1.2681
6105100030............ 0.985 1.2681
6105202010............ 0.3078 0.3963
6105202030............ 0.3078 0.3963
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6106100020............ 0.985 1.2681
6106100030............ 0.985 1.2681
6106202010............ 0.3078 0.3963
6106202030............ 0.3078 0.3963
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6107110020............ 1.1322 1.4576
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6107220015............ 0.3774 0.4859
6107220025............ 0.3774 0.4859
6107910040............ 1.2581 1.6197
6108210010............ 1.2445 1.6022
6108210020............ 1.2445 1.6022
6108310010............ 1.1201 1.442
6108310020............ 1.1201 1.442
6108320010............ 0.2489 0.3204
6108320015............ 0.2489 0.3204
6108320025............ 0.2489 0.3204
6108910005............ 1.2445 1.6022
6108910015............ 1.2445 1.6022
6108910025............ 1.2445 1.6022
6108910030............ 1.2445 1.6022
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6109100005............ 0.9956 1.2817
6109100007............ 0.9956 1.2817
6109100009............ 0.9956 1.2817
6109100012............ 0.9956 1.2817
6109100014............ 0.9956 1.2817
6109100018............ 0.9956 1.2817
6109100023............ 0.9956 1.2817
6109100027............ 0.9956 1.2817
6109100037............ 0.9956 1.2817
6109100040............ 0.9956 1.2817
6109100045............ 0.9956 1.2817
6109100060............ 0.9956 1.2817
6109100065............ 0.9956 1.2817
6109100070............ 0.9956 1.2817
6109901007............ 0.3111 0.4005
6109901009............ 0.3111 0.4005
6109901049............ 0.3111 0.4005
6109901050............ 0.3111 0.4005
6109901060............ 0.3111 0.4005
6109901065............ 0.3111 0.4005
6109901090............ 0.3111 0.4005
6110202005............ 1.1837 1.5239
6110202010............ 1.1837 1.5239
6110202015............ 1.1837 1.5239
6110202020............ 1.1837 1.5239
6110202025............ 1.1837 1.5239
6110202030............ 1.1837 1.5239
6110202035............ 1.1837 1.5239
6110202040............ 1.1574 1.49
6110202045............ 1.1574 1.49
[[Page 31821]]
6110202065............ 1.1574 1.49
6110202075............ 1.1574 1.49
6110909022............ 0.263 0.3386
6110909024............ 0.263 0.3386
6110909030............ 0.3946 0.508
6110909040............ 0.263 0.3386
6110909042............ 0.263 0.3386
6111201000............ 1.2581 1.6197
6111202000............ 1.2581 1.6197
6111203000............ 1.0064 1.2956
6111205000............ 1.0064 1.2956
6111206010............ 1.0064 1.2956
6111206020............ 1.0064 1.2956
6111206030............ 1.0064 1.2956
6111206040............ 1.0064 1.2956
6111305020............ 0.2516 0.3239
6111305040............ 0.2516 0.3239
6112110050............ 0.7548 0.9717
6112120010............ 0.2516 0.3239
6112120030............ 0.2516 0.3239
6112120040............ 0.2516 0.3239
6112120050............ 0.2516 0.3239
6112120060............ 0.2516 0.3239
6112390010............ 1.1322 1.4576
6112490010............ 0.9435 1.2147
6114200005............ 0.9002 1.1589
6114200010............ 0.9002 1.1589
6114200015............ 0.9002 1.1589
6114200020............ 1.286 1.6556
6114200040............ 0.9002 1.1589
6114200046............ 0.9002 1.1589
6114200052............ 0.9002 1.1589
6114200060............ 0.9002 1.1589
6114301010............ 0.2572 0.3311
6114301020............ 0.2572 0.3311
6114303030............ 0.2572 0.3311
6115198010............ 1.0417 1.3411
6115929000............ 1.0417 1.3411
6115936020............ 0.2315 0.298
6116101300............ 0.3655 0.4705
6116101720............ 0.8528 1.0979
6116926420............ 1.0965 1.4116
6116926430............ 1.2183 1.5684
6116926440............ 1.0965 1.4116
6116928800............ 1.0965 1.4116
6117809010............ 0.9747 1.2548
6117809040............ 0.3655 0.4705
6201121000............ 0.948 1.2205
6201122010............ 0.8953 1.1526
6201122050............ 0.6847 0.8815
6201122060............ 0.6847 0.8815
6201134030............ 0.2633 0.339
6201921000............ 0.9267 1.193
6201921500............ 1.1583 1.4912
6201922010............ 1.0296 1.3255
6201922021............ 1.2871 1.657
6201922031............ 1.2871 1.657
6201922041............ 1.2871 1.657
6201922051............ 1.0296 1.3255
6201922061............ 1.0296 1.3255
6201931000............ 0.3089 0.3977
6201933511............ 0.2574 0.3314
6201933521............ 0.2574 0.3314
6201999060............ 0.2574 0.3314
6202121000............ 0.9372 1.2066
6202122010............ 1.1064 1.4244
6202122025............ 1.3017 1.6758
6202122050............ 0.8461 1.0893
6202122060............ 0.8461 1.0893
6202134005............ 0.2664 0.343
6202134020............ 0.333 0.4287
6202921000............ 1.0413 1.3406
6202921500............ 1.0413 1.3406
6202922026............ 1.3017 1.6758
6202922061............ 1.0413 1.3406
6202922071............ 1.0413 1.3406
6202931000............ 0.3124 0.4022
6202935011............ 0.2603 0.3351
6202935021............ 0.2603 0.3351
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6203221000............ 1.3017 1.6758
6203322010............ 1.2366 1.592
6203322040............ 1.2366 1.592
6203332010............ 0.1302 0.1676
6203392010............ 1.1715 1.5082
6203399060............ 0.2603 0.3351
6203422010............ 0.9961 1.2824
6203422025............ 0.9961 1.2824
6203422050............ 0.9961 1.2824
6203422090............ 0.9961 1.2824
6203424005............ 1.2451 1.6029
6203424010............ 1.2451 1.6029
6203424015............ 0.9961 1.2824
6203424020............ 1.2451 1.6029
6203424025............ 1.2451 1.6029
6203424030............ 1.2451 1.6029
6203424035............ 1.2451 1.6029
6203424040............ 0.9961 1.2824
6203424045............ 0.9961 1.2824
6203424050............ 0.9238 1.1893
6203424055............ 0.9238 1.1893
6203424060............ 0.9238 1.1893
6203431500............ 0.1245 0.1603
6203434010............ 0.1232 0.1586
6203434020............ 0.1232 0.1586
6203434030............ 0.1232 0.1586
6203434040............ 0.1232 0.1586
6203498045............ 0.249 0.3206
6204132010............ 0.1302 0.1676
6204192000............ 0.1302 0.1676
6204198090............ 0.2603 0.3351
6204221000............ 1.3017 1.6758
6204223030............ 1.0413 1.3406
6204223040............ 1.0413 1.3406
6204223050............ 1.0413 1.3406
6204223060............ 1.0413 1.3406
6204223065............ 1.0413 1.3406
6204292040............ 0.3254 0.4189
6204322010............ 1.2366 1.592
6204322030............ 1.0413 1.3406
6204322040............ 1.0413 1.3406
6204423010............ 1.2728 1.6386
6204423030............ 0.9546 1.229
6204423040............ 0.9546 1.229
6204423050............ 0.9546 1.229
6204423060............ 0.9546 1.229
6204522010............ 1.2654 1.6291
6204522030............ 1.2654 1.6291
6204522040............ 1.2654 1.6291
6204522070............ 1.0656 1.3719
6204522080............ 1.0656 1.3719
6204533010............ 0.2664 0.343
6204594060............ 0.2664 0.343
6204622010............ 0.9961 1.2824
6204622025............ 0.9961 1.2824
6204622050............ 0.9961 1.2824
6204624005............ 1.2451 1.6029
6204624010............ 1.2451 1.6029
6204624020............ 0.9961 1.2824
6204624025............ 1.2451 1.6029
6204624030............ 1.2451 1.6029
6204624035............ 1.2451 1.6029
6204624040............ 1.2451 1.6029
6204624045............ 0.9961 1.2824
6204624050............ 0.9961 1.2824
6204624055............ 0.9854 1.2686
6204624060............ 0.9854 1.2686
6204624065............ 0.9854 1.2686
6204633510............ 0.2546 0.3278
6204633530............ 0.2546 0.3278
6204633532............ 0.2437 0.3137
6204633540............ 0.2437 0.3137
6204692510............ 0.249 0.3206
6204692540............ 0.2437 0.3137
6204699044............ 0.249 0.3206
6204699046............ 0.249 0.3206
6204699050............ 0.249 0.3206
6205202015............ 0.9961 1.2824
6205202020............ 0.9961 1.2824
6205202025............ 0.9961 1.2824
6205202030............ 0.9961 1.2824
6205202035............ 1.1206 1.4427
6205202046............ 0.9961 1.2824
6205202050............ 0.9961 1.2824
6205202060............ 0.9961 1.2824
6205202065............ 0.9961 1.2824
6205202070............ 0.9961 1.2824
6205202075............ 0.9961 1.2824
6205302010............ 0.3113 0.4008
6205302030............ 0.3113 0.4008
6205302040............ 0.3113 0.4008
6205302050............ 0.3113 0.4008
6205302070............ 0.3113 0.4008
6205302080............ 0.3113 0.4008
6206100040............ 0.1245 0.1603
6206303010............ 0.9961 1.2824
6206303020............ 0.9961 1.2824
6206303030............ 0.9961 1.2824
6206303040............ 0.9961 1.2824
6206303050............ 0.9961 1.2824
6206303060............ 0.9961 0.2824
6206403010............ 0.3113 0.4008
6206403030............ 0.3113 0.4008
6206900040............ 0.249 0.3206
6207110000............ 1.0852 1.3971
6207199010............ 0.3617 0.4657
6207210010............ 1.1085 1.4271
6297210030............ 1.1085 1.4271
6207220000............ 0.3695 0.4757
6207911000............ 1.1455 1.4747
6207913010............ 1.1455 1.4747
6207913020............ 1.1455 1.4747
6208210010............ 1.0583 1.3625
6208210020............ 1.0583 1.3625
6208220000............ 0.1245 0.1603
6208911010............ 1.1455 1.4747
6208911020............ 1.1455 1.4747
6208913010............ 1.1455 1.4747
6209201000............ 1.1577 1.4904
6209203000............ 0.9749 1.2551
6209205030............ 0.9749 1.2551
6209205035............ 0.9749 1.2551
6209205040............ 1.2186 1.5688
6209205045............ 0.9749 1.2551
6209205050............ 0.9749 1.2551
6209303020............ 0.2463 0.3171
6209303040............ 0.2463 0.3171
[[Page 31822]]
6210109010............ 0.2291 0.2949
6210403000............ 0.0391 0.0503
6210405020............ 0.4556 0.5865
6211111010............ 0.1273 0.1639
6211111020............ 0.1273 0.1639
6211118010............ 1.1455 1.4747
6211118020............ 1.1455 1.4747
6211320007............ 0.8461 1.0893
6211320010............ 1.0413 1.3406
6211320015............ 1.0413 1.3406
6211320030............ 0.9763 1.2569
6211320060............ 0.9763 1.2569
6211320070............ 0.9763 1.2569
6211330010............ 0.3254 0.4189
6211330030............ 0.3905 0.5027
6211330035............ 0.3905 0.5027
6211330040............ 0.3905 0.5027
6211420010............ 1.0413 1.3406
6211420020............ 1.0413 1.3406
6211420025............ 1.1715 1.5082
6211420060............ 1.0413 1.3406
6211420070............ 1.1715 1.5082
6211430010............ 0.2603 0.3351
6211430030............ 0.2603 0.3351
6211430040............ 0.2603 0.3351
6211430050............ 0.2603 0.3351
6211430060............ 0.2603 0.3351
6211430066............ 0.2603 0.3351
6212105020............ 0.2412 0.3105
6212109010............ 0.9646 1.2418
6212109020............ 0.2412 0.3105
6212200020............ 0.3014 0.388
6212900030............ 0.1929 0.2483
6213201000............ 1.1809 1.5203
6213202000............ 1.0628 1.3682
6213901000............ 0.4724 0.6082
6214900010............ 0.9043 1.1642
6216000800............ 0.2351 0.3027
6216001720............ 0.6752 0.8693
6216003800............ 1.2058 1.5523
6216004100............ 1.2058 1.5523
6217109010............ 1.0182 1.3108
6217109030............ 0.2546 0.3278
6301300010............ 0.8766 1.1285
6301300020............ 0.8766 1.1285
6302100010............ 1.1689 1.5048
6302215010............ 0.8182 1.0534
6302215020............ 0.8182 1.0534
6302217010............ 1.1689 1.5048
6302219010............ 0.8182 1.0534
6302217020............ 1.1689 1.5048
6302219020............ 0.8182 1.0534
6302217050............ 1.1689 1.5048
6302219050............ 0.8182 1.0534
6302222010............ 0.4091 0.5267
6302222020............ 0.4091 0.5267
6302313010............ 0.8182 1.0534
6302313050............ 1.1689 1.5048
6302315050............ 0.8182 1.0534
6302317010............ 1.1689 1.5048
6302317020............ 1.1689 1.5048
6302317040............ 1.1689 1.5048
6302317050............ 1.1689 1.5048
6302319010............ 0.8182 1.0534
6302319020............ 0.8182 1.0534
6302319040............ 0.8182 1.0534
6302319050............ 0.8182 1.0534
6302322020............ 0.4091 0.5267
6302322040............ 0.4091 0.5267
6302402010............ 0.9935 1.279
6302511000............ 0.5844 0.7524
6302512000............ 0.8766 1.1285
6302513000............ 0.5844 0.7524
6302514000............ 0.8182 1.0534
6302600010............ 1.1689 1.5048
6302600020............ 1.052 1.3543
6302600030............ 1.052 1.3543
6302910005............ 1.052 1.3543
6302910015............ 1.1689 1.5048
6302910025............ 1.052 1.3543
6302910035............ 1.052 1.3543
6302910045............ 1.052 1.3543
6302910050............ 1.052 1.3543
6302910060............ 1.052 1.3543
6303110000............ 0.9448 1.2163
6303910000............ 0.6429 0.8277
6304111000............ 1.0629 1.3684
6304190500............ 1.052 1.3543
6304191000............ 1.1689 1.5048
6304191500............ 0.4091 0.5267
6304192000............ 0.4091 0.5267
6304910020............ 0.9351 1.2038
6304920000............ 0.9351 1.2038
6505901540............ 1.181 1.5204
6505902060............ 0.9935 1.279
6505902545............ 0.5844 0.7524
------------------------------------------------------------------------
* * * * *
3. In Sec. 1205.510, paragraph (b)(6)(i) is revised to read as
follows:
(6) * * *
(i) A request for such exemption must be submitted to the Cotton
Board by the importer, prior to the importation of the cotton product.
The Cotton Board will then issue, if deemed appropriate, a numbered
exemption certificate valid for 1 year from the date of issue. The
exemption number should be entered by the importer on the Customs entry
documentation in the appropriate location as determined by the U.S.
Customs Service.
* * * * *
Dated: June 14, 1996.
Lon Hatamiya,
Administrator.
[FR Doc. 96-15662 Filed 6-20-96; 8:45 am]
BILLING CODE 3410-02-P
Complete official Federal Register PDF
FR Doc. 96-15603 Airworthiness Directives; Fokker Model F28 Series Airplanes (Excluding Model F28 Mark 0100 Series Airplanes)
[Federal Register Volume 61, Number 121 (Friday, June 21, 1996)]
[Rules and Regulations]
[Pages 31824-31825]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15603]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 39
[Docket No. 95-NM-170-AD; Amendment 39-9673; AD 96-13-05]
RIN 2120-AA64
Airworthiness Directives; Fokker Model F28 Series Airplanes
(Excluding Model F28 Mark 0100 Series Airplanes)
AGENCY: Federal Aviation Administration, DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This amendment adopts a new airworthiness directive (AD),
applicable to certain Fokker Model F28 series airplanes, that requires
a one-time detailed visual inspection to detect cracking of the
elevator gust lock housing and the gust lock support structure, and
repair or replacement of cracked parts. This amendment is prompted by a
report of failure of an elevator gust lock housing due to fatigue
cracking. The actions specified by this AD are intended to prevent
fatigue cracking of the elevator gust lock housing and the gust lock
support structure, which could result in loss of the elevator and the
support structure, and possible consequent loss of primary pitch
control.
DATES: Effective July 26, 1996.
The incorporation by reference of certain publications listed in
the regulations is approved by the Director of the Federal Register as
of July 26, 1996.
ADDRESSES: The service information referenced in this AD may be
obtained from Fokker Aircraft USA, Inc., 1199 North Fairfax Street,
Alexandria, Virginia 22314. This information may be examined at the
Federal Aviation Administration (FAA), Transport Airplane Directorate,
Rules Docket, 1601 Lind Avenue, SW., Renton, Washington; or at the
Office of the Federal Register, 800 North Capitol Street, NW., suite
700, Washington, DC.
FOR FURTHER INFORMATION CONTACT: Connie Beane, Aerospace Engineer,
Standardization Branch, ANM-113, FAA, Transport Airplane Directorate,
1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone (206)
227-2796; fax (206) 227-1149.
SUPPLEMENTARY INFORMATION: A proposal to amend part 39 of the Federal
Aviation Regulations (14 CFR part 39) to include an airworthiness
directive (AD) that is applicable to certain Fokker Model F28 series
airplanes was published in the Federal Register on April 1, 1996 (61 FR
14275). That action proposed to require a one-time detailed visual
inspection to detect cracking of the elevator gust lock housing and the
gust lock support structure, and repair or replacement of cracked parts
with new or serviceable parts. For airplanes on which cracking is
found, that action also prohibited use of the gust lock system until
cracked parts were replaced.
Interested persons have been afforded an opportunity to participate
in the making of this amendment. Due consideration has been given to
the two comments received.
Support for the Proposal
Both commenters support the proposed rule.
Conclusion
After careful review of the available data, including the comments
noted above, the FAA has determined that air safety and the public
interest require the adoption of the rule as proposed.
Cost Impact
The FAA estimates that 43 airplanes of U.S. registry will be
affected by this AD, that it will take approximately 2 work hours per
airplane to accomplish the required actions, and that the average labor
rate is $60 per work hour. Based on these figures, the cost impact of
the AD on U.S. operators is estimated to be $5,160, or $120 per
airplane.
The cost impact figure discussed above is based on assumptions that
no operator has yet accomplished any of the requirements of this AD
action, and that no operator would accomplish those actions in the
future if this AD were not adopted.
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
[[Page 31825]]
under the criteria of the Regulatory Flexibility Act. A final
evaluation has been prepared for this action and it is contained in the
Rules Docket. A copy of it may be obtained from the Rules Docket at the
location provided under the caption ADDRESSES.
List of Subjects in 14 CFR Part 39
Air transportation, Aircraft, Aviation safety, Incorporation by
reference, Safety.
Adoption of the Amendment
Accordingly, pursuant to the authority delegated to me by the
Administrator, the Federal Aviation Administration amends part 39 of
the Federal Aviation Regulations (14 CFR part 39) as follows:
PART 39--AIRWORTHINESS DIRECTIVES
1. The authority citation for part 39 continues to read as follows:
Authority: 49 U.S.C. 106(g), 40113, 44701.
Sec. 39.13 [Amended]
2. Section 39.13 is amended by adding the following new
airworthiness directive:
96-13-05 Fokker: Amendment 39-9673. Docket 95-NM-170-AD.
Applicability: Model F28 series airplanes; serial numbers 11003
through 11241 inclusive, 11991, and 11992; certificated in any
category.
Note 1: Fokker Model F28 Mark 0100 series airplanes are not
subject to the requirements of this AD.
Note 2: 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 as indicated, unless accomplished
previously.
To prevent fatigue cracking of the elevator gust lock housing
and the gust lock support structure, which could result in loss of
the elevator and the support structure, and subsequent possible loss
of primary pitch control, accomplish the following:
(a) Within 30 days after the effective date of this AD, perform
a one-time detailed visual inspection to detect cracking of the
elevator gust lock housing and the gust lock support structure, in
accordance with Fokker Service Bulletin F28/55-30, Revision 1, dated
January 4, 1993.
(b) If any cracking is found, prior to further flight, repair or
replace the cracked elevator gust lock housing or gust lock support
structure with a new or serviceable part in accordance with Fokker
Service Bulletin F28/55-30, Revision 1, dated January 4, 1993. Use
of the elevator gust lock system is prohibited until cracked parts
are replaced with new or serviceable parts.
(c) An alternative method of compliance or adjustment of the
compliance time that provides an acceptable level of safety may be
used if approved by the Manager, Standardization Branch, ANM-113,
FAA, Transport Airplane Directorate. Operators shall submit their
requests through an appropriate FAA Principal Maintenance Inspector,
who may add comments and then send it to the Manager,
Standardization Branch, ANM-113.
Note 3: Information concerning the existence of approved
alternative methods of compliance with this AD, if any, may be
obtained from the Standardization Branch, ANM-113.
(d) Special flight permits may be issued in accordance with
sections 21.197 and 21.199 of the Federal Aviation Regulations (14
CFR 21.197 and 21.199) to operate the airplane to a location where
the requirements of this AD can be accomplished.
(e) The inspection, repair, and replacement shall be done in
accordance with Fokker Service Bulletin F28/55-30, Revision 1, dated
January 4, 1993, which contains the following list of effective
pages:
------------------------------------------------------------------------
Revision level
Page No. shown on page- Date shown on page
------------------------------------------------------------------------
1-2-........................... 1-............. Jan. 4, 1993.
3-5-........................... Original-...... Aug. 24, 1992.
------------------------------------------------------------------------
This incorporation by reference was approved by the Director of the
Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part
51. Copies may be obtained from Fokker Aircraft USA, Inc., 1199
North Fairfax Street, Alexandria, Virginia 22314. Copies may be
inspected at the FAA, Transport Airplane Directorate, 1601 Lind
Avenue, SW., Renton, Washington; or at the Office of the Federal
Register, 800 North Capitol Street, NW., suite 700, Washington, DC.
(f) This amendment becomes effective on July 26, 1996.
Issued in Renton, Washington, on June 13, 1996.
James V. Devany,
Acting Manager, Transport Airplane Directorate, Aircraft Certification
Service.
[FR Doc. 96-15603 Filed 6-20-96; 8:45 am]
BILLING CODE 4910-13-U
Complete official Federal Register PDF
FR Doc. 96-15602 Airworthiness Directives; Fokker Model F28 Series Airplanes (Excluding Fokker Model F28 Mark 0100 Series Airplanes)
[Federal Register Volume 61, Number 121 (Friday, June 21, 1996)]
[Rules and Regulations]
[Pages 31825-31827]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15602]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
14 CFR Part 39
[Docket No. 95-NM-151-AD; Amendment 39-9674; AD 96-13-06]
RIN 2120-AA64
Airworthiness Directives; Fokker Model F28 Series Airplanes
(Excluding Fokker Model F28 Mark 0100 Series Airplanes)
AGENCY: Federal Aviation Administration, DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This amendment adopts a new airworthiness directive (AD),
applicable to certain Fokker Model F28 series airplanes, that requires
replacement of junction fittings of the horizontal stabilizer with
improved fittings. For certain airplanes, this amendment also requires
replacement of the drive-fitting bushings and bolts of the horizontal
stabilizer with improved bushings and bolts. This amendment is prompted
by reports of stress corrosion cracking in a junction fitting lug of
the horizontal stabilizer. The actions specified by this AD are
intended to prevent such cracking, which could result in failure of a
lug and uncommanded movement of the horizontal stabilizer. This
condition, if not corrected, could result in reduced controllability of
the airplane.
DATES: Effective July 26, 1996.
The incorporation by reference of certain publications listed in
the regulations is approved by the Director of the Federal Register as
of July 26, 1996.
ADDRESSES: The service information referenced in this AD may be
obtained from Fokker Aircraft USA, Inc., 1199 North Fairfax Street,
Alexandria, Virginia 22314. This information may be examined at the
Federal Aviation Administration (FAA), Transport Airplane Directorate,
Rules Docket, 1601 Lind Avenue, SW., Renton, Washington; or at the
Office of the Federal Register, 800 North Capitol Street, NW., suite
700, Washington, DC.
FOR FURTHER INFORMATION CONTACT: Tim Dulin, Aerospace Engineer,
Standardization Branch, ANM-113, FAA, Transport Airplane Directorate,
1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone (206)
227-2141; fax (206) 227-1149.
SUPPLEMENTARY INFORMATION: A proposal to amend part 39 of the Federal
Aviation Regulations (14 CFR part 39) to include an airworthiness
directive (AD) that is applicable to certain Fokker Model F28 series
airplanes was published in the Federal Register on
[[Page 31826]]
April 1, 1996 (61 FR 14273). That action proposed to require
replacement of aluminum 7079 junction fittings (left and right) of the
horizontal stabilizer with improved fittings made from aluminum 7075.
For certain airplanes, that action also proposed to require replacement
of the drive-fitting bushings and bolts of the horizontal stabilizer
with new bushings and bolts made from a different material having
improved resistance to corrosion.
Interested persons have been afforded an opportunity to participate
in the making of this amendment. Due consideration has been given to
the two comments received.
Support for the Proposal
Both commenters support the proposed rule.
Conclusion
After careful review of the available data, including the comments
noted above, the FAA has determined that air safety and the public
interest require the adoption of the rule as proposed.
Cost Impact
The FAA estimates that 14 airplanes of U.S. registry will be
affected by this AD.
For airplanes on which the replacement of aluminum 7079 junction
fittings with improved fittings is required, the FAA estimates that it
will take approximately 430 work hours per airplane to accomplish the
replacement, at an average labor rate of $60 per work hour. Required
parts will cost approximately $40,000 per airplane. Based on these
figures, the cost impact of the AD on U.S. operators for replacement of
aluminum 7079 fittings is estimated to be $65,800 per airplane.
For airplanes on which replacement of the drive-fitting bushings
and bolts on the horizontal stabilizer with new bushings and bolts is
required, the FAA estimates that it will take approximately 10 work
hours per airplane to accomplish the replacement, at an average labor
rate of $60 per work hour. Required parts will cost approximately
$2,100 per airplane. Based on these figures, the cost impact of the AD
on U.S. operators for replacement of the drive-fitting bushings and
bolts is estimated to be $2,700 per airplane.
The cost impact figures discussed above are based on assumptions
that no operator has yet accomplished any of the requirements of this
AD action, and that no operator would accomplish those actions in the
future if this AD were not adopted.
Regulatory Impact
The regulations adopted herein will not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this final
rule does not have sufficient federalism implications to warrant the
preparation of a Federalism Assessment.
For the reasons discussed above, I certify that this action (1) is
not a ``significant regulatory action'' under Executive Order 12866;
(2) is not a ``significant rule'' under DOT Regulatory Policies and
Procedures (44 FR 11034, February 26, 1979); and (3) will not have a
significant economic impact, positive or negative, on a substantial
number of small entities under the criteria of the Regulatory
Flexibility Act. A final evaluation has been prepared for this action
and it is contained in the Rules Docket. A copy of it may be obtained
from the Rules Docket at the location provided under the caption
ADDRESSES.
List of Subjects in 14 CFR Part 39
Air transportation, Aircraft, Aviation safety, Incorporation by
reference, Safety.
Adoption of the Amendment
Accordingly, pursuant to the authority delegated to me by the
Administrator, the Federal Aviation Administration amends part 39 of
the Federal Aviation Regulations (14 CFR part 39) as follows:
PART 39--AIRWORTHINESS DIRECTIVES
1. The authority citation for part 39 continues to read as follows:
Authority: 49 U.S.C. 106(g), 40113, 44701.
Sec. 39.13 [Amended]
2. Section 39.13 is amended by adding the following new
airworthiness directive:
96-13-06 Fokker: Amendment 39-9674. Docket 95-NM-151-AD.
Applicability: Model F28 series airplanes; serial numbers 11003
through 11151 inclusive, 11991, and 11992; certificated in any
category.
Note 1: Fokker Model F28 Mark 0100 series airplanes are not
subject to the requirements of this AD.
Note 2: This AD applies to each airplane identified in the
preceding applicability provision, regardless of whether it has been
modified, altered, or repaired in the area subject to the
requirements of this AD. For airplanes that have been modified,
altered, or repaired so that the performance of the requirements of
this AD is affected, the owner/operator must request approval for an
alternative method of compliance in accordance with paragraph (d) of
this AD. The request should include an assessment of the effect of
the modification, alteration, or repair on the unsafe condition
addressed by this AD; and, if the unsafe condition has not been
eliminated, the request should include specific proposed actions to
address it.
Compliance: Required as indicated, unless accomplished
previously.
To prevent stress corrosion cracking of the junction fitting lug
of the horizontal stabilizer, which could result in failure of the
lug and uncommanded movement of the horizontal stabilizer, and
subsequent reduced controllability of the airplane, accomplish the
following:
(a) Within 18 months after the effective date of this AD,
replace the aluminum 7079 junction fittings (left and right) of the
horizontal stabilizer with improved fittings made from aluminum
7075, in accordance with Part 1 of the Accomplishment Instructions
of Fokker Service Bulletin F28/55-029, Revision 1, dated January 23,
1993.
(b) For airplanes on which the drive-fitting bushings and bolts
of the horizontal stabilizer have not been replaced in accordance
with Fokker Service Bulletin F28/55-24: Within 18 months after the
effective date of this AD, replace the drive-fitting bushings and
bolts of the horizontal stabilizer with new bushings and bolts, in
accordance with Part 2 of the Accomplishment Instructions of Fokker
Service Bulletin F28/55-029, Revision 1, dated January 23, 1993.
(c) Accomplishment of the replacements required by paragraphs
(a) and (b) of this AD constitute terminating action for the
inspections identified as item 55-50-05 in the Fokker Structural
Integrity Program (SIP) Document 28438, Part 1, revised up through
October 15, 1992, which are required by AD 93-13-04, amendment 39-
8617 (58 FR 38513, July 19, 1993). Once these replacements are
accomplished, the life limits of the fitting lugs (identified as
items 55-50-01 and 55-50-02 in the SIP Document) no longer apply.
(d) An alternative method of compliance or adjustment of the
compliance time that provides an acceptable level of safety may be
used if approved by the Manager, Standardization Branch, ANM-113,
FAA, Transport Airplane Directorate. Operators shall submit their
requests through an appropriate FAA Principal Maintenance Inspector,
who may add comments and then send it to the Manager,
Standardization Branch, ANM-113.
Note 3: Information concerning the existence of approved
alternative methods of
[[Page 31827]]
compliance with this AD, if any, may be obtained from the
Standardization Branch, ANM-113.
(e) Special flight permits may be issued in accordance with
sections 21.197 and 21.199 of the Federal Aviation Regulations (14
CFR 21.197 and 21.199) to operate the airplane to a location where
the requirements of this AD can be accomplished.
(f) The replacements shall be done in accordance with Fokker
Service Bulletin F28/55-029, Revision 1, dated January 23, 1993,
which contains the following list of effective pages:
------------------------------------------------------------------------
Revision level
Page No. shown on page Date shown on page
------------------------------------------------------------------------
1-3............................ 1.............. Jan. 23, 1993.
4-45........................... Original....... Sep. 20, 1992.
------------------------------------------------------------------------
This incorporation by reference was approved by the Director of the
Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part
51. Copies may be obtained from Fokker Aircraft USA, Inc., 1199
North Fairfax Street, Alexandria, Virginia 22314. Copies may be
inspected at the FAA, Transport Airplane Directorate, 1601 Lind
Avenue, SW., Renton, Washington; or at the Office of the Federal
Register, 800 North Capitol Street, NW., suite 700, Washington, DC.
(g) This amendment becomes effective on July 26, 1996.
Issued in Renton, Washington, on June 13, 1996.
James V. Devany,
Acting Manager, Transport Airplane Directorate, Aircraft Certification
Service.
[FR Doc. 96-15602 Filed 6-20-96; 8:45 am]
BILLING CODE 4910-13-U
Complete official Federal Register PDF
FR Doc. 96-15511 Indian Child Protection and Family Violence Prevention
[Federal Register Volume 61, Number 121 (Friday, June 21, 1996)]
[Rules and Regulations]
[Pages 32272-32279]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15511]
[[Page 32271]]
_______________________________________________________________________
Part VII
Department of the Interior
_______________________________________________________________________
Bureau of Indian Affairs
_______________________________________________________________________
25 CFR Part 63
Indian Child Protection and Family Violence Prevention; Final Rule
Federal Register / Vol. 61, No. 121 / Friday, June 21, 1996 / Rules
and Regulations
[[Page 32272]]
DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
25 CFR Part 63
RIN 1076-AC 97
Indian Child Protection and Family Violence Prevention
AGENCY: Bureau of Indian Affairs, Interior.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Bureau of Indian Affairs (BIA) is establishing regulations
as mandated by the Indian Child Protection and Family Violence
Prevention Act that prescribe minimum standards of character and
suitability of employment for individuals whose duties and
responsibilities allow them regular contact with or control over Indian
children, and establish the method for distribution of funds
appropriated for Indian child protection and family violence prevention
programs, including appropriate caseload standards and staffing
requirements for these tribally operated programs.
Effective Date: These regulations take effect on July 22, 1996.
However, affected parties do not have to comply with the information
collection requirements in Secs. 63.15, 63.33 and 63.34 until the
Bureau of Indian Affairs publishes in the Federal Register the control
numbers assigned by the Office of Management and Budget to these
information collection requirements. Publication of the control number
notifies the public that OMB has approved these information
requirements under the Paper work Reduction Act of 1995.
SUPPLEMENTARY INFORMATION: The authority to issue rules and regulations
is vested in the Secretary of the Interior by 5 U.S.C. 301 and sections
463 and 465 of the Revised Statutes, 25 U.S.C. 2 and 9.
Background
In enacting the Indian Child Protection and Family Violence
Prevention Act (Act), Pub. L. 101-630, 104 Stat. 4544, 25 U.S.C. 3201-
3211, the Congress recognized there is no resource more vital to the
continued existence and integrity of Indian tribes than their children
and that the United States has a direct interest, as trustee, in
protecting Indian children who are members of, or are eligible for
membership in, an Indian tribe.
The purpose of this rule is:
To establish minimum standards of character and
suitability for employment for individuals whose duties and
responsibilities allow them regular contact with or control over Indian
children as required by Title IV, Section 408 of the Act, 25 U.S.C.
3207.
To establish the method for distribution of funds to
support tribally operated programs to protect Indian children and
reduce the incidents of family violence in Indian country as authorized
by Title IV, Section 411 of the Act, 25 U.S.C. 3210(f)(3).
To establish appropriate caseload standards and staffing
requirements for Indian child protection and family violence prevention
programs as required by Title IV, Section 411 of the Act, 25 U.S.C.
3210(f)(2).
This rule was developed in consultation with tribes. A working
group of tribal and BIA representatives developed a draft of each
section which was then presented to participants at a national tribal
consultation meeting in Oklahoma City, Oklahoma, August 31 through
September 1, 1994. Participants accepted a two part formula in which
49% of appropriated funds are distributed equally to all tribes and 49%
is distributed on a per capita basis according to the population of
children residing in the service area (25 U.S.C. 3210(f)(3) (A)-(B)),
with a two percent set aside for special circumstances (25 U.S.C.
3210(f)(3)(D)). In any year appropriations do not exceed fifty percent
of the authorization, funds will be equitably distributed (25 U.S.C.
3210(f)(5)), with a two percent set aside for special circumstances (25
U.S.C. 3210(f)(3)(D)).
The formula does not include projected number of cases per month
because many tribes have not developed statistics. The formula serves
as an interim formula until baseline data using the standard assessment
methodology developed for the Indian Child Welfare Act (ICWA) program
has been developed. Indian Child Protection and Family Violence
Prevention Program grants may be combined with ICWA grants to avoid
duplication of effort and paperwork. The caseload standards included in
this rule do not reflect the variety of activities contemplated by the
Act, e.g., prevention and public education. These are merely benchmarks
that may indicate whether funding is sufficient to support a child
protection and family violence prevention program, and are not intended
to dictate program design and staffing requirements at the local level.
It is with appreciation to the many tribal representatives who gave
of their time and experience that this rule is published.
Review of Public Comments
Section 63.3 Definitions
Pursuant to comments received, the definition of Family violence
has been amended to include persons with whom such person has, or had,
intimate or continuous social contact and household access.
Several comments requested a clarification of the term crimes
against persons as it is used in Secs. 63.12, 63.15 and 63.19. Section
63.3, Definitions, has been amended to include Crimes against persons.
25 U.S.C. 3207(b) requires that the minimum standards of character
prescribed under this rule ensure that no individual appointed to a
position which involves regular contact with or control over Indian
children has been found guilty of, or entered a plea of nolo contendere
or guilty to, any offense under Federal, State, or tribal law involving
crimes of violence; sexual assault, molestation, exploitation, contact,
or prostitution; or crimes against persons.
Section 63.17 How does an employer determine suitability for
employment and efficiency of service?
Section 63.17(e) was corrected to read ``adjudicating official''
rather than background investigation.
Section 63.17(f)(7), the degree of public trust and the possibility
the public would be placed at risk if the individual is appointed to
the position, has been deleted to conform with proposed changes to
United States Office of Personnel Management (OPM) rules on personnel
suitability and investigations, 5 CFR 731.202.
Section 63.18 Are the requirements for Bureau of Indian Affairs
adjudication different from the requirements for Indian tribes and
tribal organizations?
Pursuant to comments, Sec. 63.18 has been amended to clarify that
the BIA background investigation must include the OPM National Agency
Check and Inquiries which includes a search of the OPM Security/
Suitability Investigations Index (SII) and the Defense Clearance and
Investigations Index (DCII), and any additional standards which may be
established by the BIA.
Both credit checks and searches by state human services agencies
have been deleted because these are BIA, not OPM, requirements and do
not constitute minimum standards for this rule. Subsection (c) has been
added to clarify that the requirements for BIA are not mandatory for
the tribes. Tribes and tribal organizations are only required to
certify minimum standards of character (Sec. 63.12) and this is
accomplished through the adjudication process
[[Page 32273]]
described in Sec. 63.17. In addition, the BIA requires that all
employees who have regular contact with or control over Indian children
be reinvestigated every five years.
Section 63.19 When should an employer deny employment or dismiss
an employee?
One comment correctly indicated that subsections (a) and (b) are
similar.
Section 63.19(a) reflects the requirements of Indian Child
Protection and Family Violence Prevention Act, 25 U.S.C. 3207(b).
Section 63.19(b) has been amended to more clearly reflect the
requirements of the Crime Control Act of 1990, Pub. L. 101-647, as
amended, 42 U.S.C. 13041. Subtitle E, Child Care Worker Employee
Background Checks, requires that Federal agencies and facilities
operated under contract with the Federal Government which employ
individuals to provide child care services to children under the age of
18 must assure that all existing and newly-hired employees undergo
criminal history background checks. Any conviction for a sex crime, an
offense involving a child victim, or a drug felony, may be a reason for
denying employment or for dismissal of an employee. Conviction of a
crime other than a sex crime may be considered if it bears on an
individual's fitness to have responsibility for the safety and well-
being of children. 42 U.S.C. 13041(c).
The Indian Child Protection and Family Violence Prevention Act
applies specifically to Indian tribes and tribal organizations and
requires that they conduct background investigations for all persons
employed in positions which involve regular contact with or control
over Indian children. The Crime Control Act of 1990 applies to Federal
contractors, including Indian tribes and tribal organizations. The
Crime Control Act includes conviction for a drug felony as a reason to
deny employment and only requires a fingerprint check, rather than the
full background investigation. Because both laws may apply to an Indian
tribe or tribal organization, they are included in this section.
Section 63.21 Are there other factors that may disqualify an
applicant, volunteer or employee from placement in a position which
involves regular contact with or control over Indian children?
One comment requested a definition of public trust, sensitive and
non-sensitive positions. Public trust positions are designated by the
employer. ``Sensitive'' and ``non-sensitive'' positions are terms used
by the OPM and refer to the national security positions. The Bureau of
Indian Affairs no longer uses sensitive and non-sensitive designations
for positions involving regular contact with or control over Indian
children; therefore Sec. 63.21(c) has been deleted.
Pursuant to this comment, Sec. 63.21 has been amended. The term
``non-sensitive position'' has been deleted and the terms ``public
trust position'' and ``sensitive position'' have been replaced in the
final rule by ``positions which involve regular contact with or control
over Indian children''.
Section 63.22 Can an employer certify an individual with a prior
conviction or substantiated misconduct as suitable for employment?
Comments also requested a section be added that addresses the
suitability of individuals in alcohol or drug recovery for employment
in positions which involve regular contact with or control over Indian
children.
Individuals convicted for a drug felony. The Crime Control Act of
1990 addresses convictions for a drug felony. Subtitle E, Child Care
Worker Employee Background Checks, provides that conviction of a crime
other than a sex crime may be considered in denying employment to an
individual or dismissing an employee, if it bears on the individual's
fitness to have responsibility for the safety and well-being of
children, 42 U.S.C. 13041(c). Note that any conviction for a sex crime,
an offense involving a child victim, or a drug felony, may be a reason
for denying employment or for dismissal of an employee, 42 U.S.C.
13041(c). Section 63.19(b) has been amended to include drug felonies.
The Indian Child Protection and Family Violence Prevention Act does
not enumerate drug felonies among the offenses which would preclude the
BIA from hiring or continuing the employment of an individual in a
position which involves regular contact with or control over Indian
children. We note that the Crime Control Act of 1990 is applicable to
any Federal agency, every facility operated by the Federal Government,
and every facility operated under contract with the Federal Government
that hires individuals involved with the provision of child care
services, 42 U.S.C. 12041(a)(1). The Crime Control Act of 1990 defines
child care services as child protective services (including the
investigation of child abuse and neglect reports), social services,
health and mental health care, child (day) care, education (whether or
not directly involved in teaching), foster care, residential care,
recreational or rehabilitative programs, and detention, correctional,
or treatment services, 42 U.S.C. 13041(a)(2).
Individuals convicted for an alcohol-related offense. The Indian
Child Protection and Family Violence Prevention Act, 25 U.S.C. 3207(b),
mandates that the BIA cannot hire or continue the employment of an
individual who has been found guilty of, or entered a plea of nolo
contendere or guilty to any offense under Federal, State, or tribal law
involving crimes of violence; sexual assault, sexual molestation,
sexual exploitation, sexual contact or prostitution; or crimes against
persons. The purpose of the minimum standards of character is to ensure
that individuals who have been found guilty of, or entered a plea of
nolo contendere or guilty of these offenses are not hired or retained
in positions which involve regular contact with or control over Indian
children. It is not the abuse of alcohol, but the criminal behavior
that is addressed by the Act.
The Bureau of Indian Affairs may hire or continue the employment of
an individual who has been found guilty of, or entered a plea of nolo
contendere or guilty to these offenses in a position that does not
involve regular contact with or control over Indian children. The
adjudicating officer must determine that the individual's prior conduct
will not interfere with the performance of duties and will not create a
potential for risk to the safety and well-being of Indian children.
Section 63.22(a) has been modified to reflect this standard.
Indian tribes and tribal organizations must identify those
positions which permit contact with or control over Indian children and
establish standards to determine suitability for employment. Section
63.17(f) addresses the relevance of prior conduct, including an
individual's commitment to rehabilitation and a change in behavior. An
adjudicating officer may determine prior conduct such as alcohol abuse
is not relevant if the applicant or employee demonstrates a change in
behavior. Section 63.22 has been amended to clarify that although a
person may be found unsuitable for employment in a position which
involves regular contact with or control over Indian children, that
person may be employed in a position that does not involve contact with
or control over Indian children. The proposed Sec. 63.22 is now
Sec. 63.23, and the proposed Sec. 63.23 is now Sec. 63.24.
Section 63.34 How are Indian child protection and family violence
prevention program funds distributed?
Section 63.34(a)(3)(ii) has been amended to clarify that when the
BIA redistributes the unallocated special
[[Page 32274]]
circumstances funds the BIA will not retain a second 2% percent set
aside; all unallocated special circumstances funds will be distributed
in the fourth quarter of each fiscal year.
Evaluation and Certification
Executive Order 12778
The Department has certified to the Office of Management and Budget
(OMB) that this final rule meets the applicable standards provided in
sections 2(a) and 2(b)(2) of Executive Order 12778.
Executive Order 12866
The Office of Management and Budget has determined this final rule
is a significant regulatory action under Executive Order 12866.
Regulatory Flexibility Act
Depending upon the number of positions for which determinations of
suitability for employment are required, the cost of background
investigations (including the cost of each Federal Bureau of
Investigation fingerprint check) may have an economic effect on each
tribal government and tribal organization under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.) and require additional outlays
by tribal governments, tribal organizations, and the Federal
Government. However, these costs are not projected to exceed $100,000
and are minimal when compared to the long-term societal and economic
impact on families and communities when children are the victims of
crimes of violence, sexual assault, sexual molestation, sexual
exploitation, sexual contact or prostitution.
Executive Order 12630
In accordance with Executive Order 12630, the Department has
determined that this final rule does not have significant ``takings''
implications. The final rule does not pertain to ``taking'' of private
property interests, nor does it impact private property.
Executive Order 12612
The Department has determined that this final rule does not have
significant federalism effects under Executive Order 12612 and will not
interfere with the roles, rights and responsibilities of states.
National Environmental Policy Act
The Department has determined that this final rule does not
constitute a major Federal action significantly affecting the quality
of the human environment and that no detailed statement is required
pursuant to the National Environmental Policy Act of 1969.
Unfunded Mandates Act of 1995
This rule imposes no unfunded mandates on any governmental or
private entity and is in compliance with the provisions of the Unfunded
Mandates Act of 1995.
Paperwork Reduction Act of 1995
Under the Paperwork Reduction Act of 1995, no persons are required
to respond to a collection of information contained in Sec. Sec. 63.15,
63.33 and 63.34 until the Office of Management and Budget has approved
the information requirements and issued control numbers. The
information collection requirements contained in this final rule will
be approved by the Office of Management and Budget as required by 44
U.S.C. 1320 et seq.
Drafting Information
The primary authors of this document are Judy A. Baggett, Janice
Ruffin, and Bettie Rushing, Office of Tribal Services, Bureau of Indian
Affairs.
List of Subjects in 25 CFR Part 63
Child welfare, Employment, Indians, Maternal and child health.
For the reasons given in the preamble, part 63 is added to chapter
I of title 25 of the Code of Federal Regulations to read as follows.
PART 63--INDIAN CHILD PROTECTION AND FAMILY VIOLENCE PREVENTION
Subpart A--Purpose, Policy, and Definitions
Sec.
63.1 Purpose.
63.2 Policy.
63.3 Definitions.
63.4 Information Collection.
63.5-63.9 [Reserved]
Subpart B--Minimum Standards of Character and Suitability for
Employment
63.10 Purpose.
63.11 What is a determination of suitability for employment and
efficiency of service?
63.12 What are minimum standards of character?
63.13 What does the Indian Child Protection and Family Violence
Prevention Act require of the Bureau of Indian Affairs and Indian
tribes or tribal organizations receiving funds under the Indian
Self-Determination and Education Assistance Act or the Tribally
Controlled Schools Act?
63.14 What positions require a background investigation and
determination of suitability for employment or retention?
63.15 What questions should an employer ask?
63.16 Who conducts the background investigation and prepares the
determination of suitability for employment?
63.17 How does an employer determine suitability for employment and
efficiency of service?
63.18 Are the requirements for Bureau of Indian Affairs
adjudication different from the requirements for Indian tribes and
tribal organizations?
63.19 When should an employer deny employment or dismiss an
employee?
63.20 What should an employer do if an individual has been charged
with an offense but the charge is pending or no disposition has been
made by a court?
63.21 Are there other factors that may disqualify an applicant,
volunteer or employee from placement in a position which involves
regular contact with or control over Indian children?
63.22 Can an employer certify an individual with a prior conviction
or substantial misconduct as suitable for employment?
63.23 What rights does an applicant, volunteer or employee have
during this process?
63.24 What protections must employers provide to applicants,
volunteers and employees?
63.25-63.29 [Reserved]
Subpart C--Indian Child Protection and Family Violence Prevention
Program
63.30 What is the purpose of the Indian child protection and family
violence prevention program?
63.31 Can both the Bureau of Indian Affairs and tribes operate
Indian child protection and family violence prevention programs?
63.32 Under what authority are Indian child protection and family
violence prevention program funds awarded?
63.33 What must an application for Indian child protection and
family violence prevention program funds include?
63.34 How are Indian child protection and family violence
prevention program funds distributed?
63.35 How may Indian child protection and family violence
prevention program funds be used?
63.36 What are the special requirements for Indian child protection
and family violence prevention programs?
63.37-63.50 [Reserved]
Authority: 5 U.S.C. 301; 25 U.S.C. 2, 9, 13, 200, 3201 et seq.;
42 U.S.C. 13041.
Subpart A--Purpose, Policy, and Definitions
Sec. 63.1 Purpose.
The purpose of these regulations is to prescribe minimum standards
of character and suitability for employment for individuals whose
duties and responsibilities allow them regular contact with or control
over Indian children, and to establish the method for distribution of
funds to support tribally operated programs to protect Indian children
and reduce the
[[Page 32275]]
incidents of family violence in Indian country as authorized by the
Indian Child Protection and Family Violence Prevention Act of 1990,
Pub. L. 101-630, 104 Stat. 4544, 25 U.S.C. 3201 3211.
Sec. 63.2 Policy.
In enacting the Indian Child Protection and Family Violence
Prevention Act, the Congress recognized there is no resource more vital
to the continued existence and integrity of Indian tribes than their
children and that the United States has a direct interest, as trustee,
in protecting Indian children who are members of, or are eligible for
membership in, an Indian tribe. The minimum standards of character and
suitability of employment for individuals ensure that Indian children
are protected, and the Indian child protection and family violence
prevention programs will emphasize the unique values of Indian culture
and community involvement in the prevention and treatment of child
abuse, child neglect and family violence.
Sec. 63.3 Definitions.
Bureau means the Bureau of Indian Affairs of the Department of the
Interior;
Child means an individual who is not married, and has not attained
18 years of age.
Child abuse includes but is not limited to any case in which a
child is dead, or exhibits evidence of skin bruising, bleeding,
malnutrition, failure to thrive, burns, fracture of any bone, subdural
hematoma, or soft tissue swelling, and this condition is not
justifiably explained or may not be the product of an accidental
occurrence; and any case in which a child is subjected to sexual
assault, sexual molestation, sexual exploitation, sexual contact, or
prostitution.
Child neglect includes but is not limited to, negligent treatment
or maltreatment of a child by a person, including a person responsible
for the child's welfare, under circumstances which indicate that the
child's health or welfare is harmed or threatened.
Crimes against persons are defined by local law. Adjudicating
officers must contact local law enforcement agencies to determine if
the crime for which an applicant or employee was found guilty (or
entered a plea of nolo contendere or guilty) is defined as a crime
against persons.
Family violence means any act, or threatened act, of violence,
including any forceful detention of an individual, which results, or
threatens to result, in physical or mental injury, and is committed by
an individual against another individual to whom such person is, or
was, related by blood or marriage or otherwise legally related, or with
whom such person is, or was, residing, or with whom such person has, or
had, intimate or continuous social contact and household access.
Indian means any individual who is a member of an Indian tribe.
Indian child means any unmarried person who is under age eighteen
and is either a member of an Indian tribe or eligible for membership in
an Indian tribe and is the biological child of a member of an Indian
tribe.
Indian country means:
(1) All land within the limits of any Indian reservation under the
jurisdiction of the United States Government, notwithstanding the
issuance of any patent, and, including rights-of-way running through
the reservation;
(2) All dependent Indian communities within the borders of the
United States whether within the original or subsequently acquired
territory thereof; and,
(3) All Indian allotments, the Indian titles to which have not been
extinguished, including rights-of-way running through the same. Unless
otherwise indicated, the term ``Indian country'' is used instead of
``Indian reservation'' for consistency.
Indian reservation means any Indian reservation, public domain
Indian allotment, former Indian reservation in Oklahoma, or lands held
by incorporated Native groups, regional corporations, or village
corporations under the provisions of the Alaska Native Claims
Settlement Act (43 U.S.C. 1601 et seq.).
Indian tribe means any Indian tribe, band, nation, or other
organized group or community, including any Alaska Native village or
regional or village corporation as defined in or established pursuant
to the Alaska Native Claims Settlement Act (43 U.S.C. 1601 et seq.)
which is recognized as eligible for the special programs and services
provided by the United States to Indians because of their status as
Indians.
Inter-tribal consortium means a partnership between an Indian tribe
or tribal organization of an Indian tribe, and one or more Indian
tribes or tribal organizations of one or more Indian tribes.
Must is used in place of shall and indicates a mandatory or
imperative act or requirement.
Local child protective services agency is an agency of the Federal
Government, state, or Indian tribe that has the primary responsibility
for child protection on any Indian reservation, or within any community
in Indian country.
Local law enforcement agency is that Federal, tribal, or state law
enforcement agency that has primary responsibility for the
investigation of an instance of alleged child abuse within the involved
Indian jurisdiction.
Person responsible for a child's welfare is any person who has
legal or other recognized duty for the care and safety of a child, and
may include any employee or volunteer of a children's residential
facility, and any person providing out-of-home care, education, or
services to children.
Related assistance means the counseling and self-help services for
abusers, victims, and dependents in family violence situations;
referrals for appropriate health-care services (including alcohol and
drug abuse treatment); and may include food, clothing, child care,
transportation, and emergency services for victims of family violence
and their dependents.
Secretary means the Secretary of the Interior.
Service means the Indian Health Service of the Department of Health
and Human Services.
Shelter means the temporary refuge and related assistance in
compliance with applicable Federal and tribal laws and regulations
governing the provision, on a regular basis, of shelter, safe homes,
meals, and related assistance to victims of family violence or their
dependents.
Tribal organization means the recognized governing body of any
Indian tribe; any legally established organization of Indians which is
controlled, sanctioned, or chartered by such governing body or which is
democratically elected by the adult members of the Indian community to
be served by such organization and which includes the maximum
participation of Indians in all phases of its activities: Provided,
That in any case where a contract is let, a grant is awarded, or
funding agreement is made to an organization to perform services
benefitting more than one Indian tribe, the approval of each such
Indian tribe must be a prerequisite to the letting or making of such
contract, grant, or funding agreement.
Sec. 63.4 Information Collection.
The information collection requirement contained in Sec. 63.15,
Sec. 63.33 and Sec. 63.34 will be approved by the Office of Management
and Budget under the Paperwork Reduction Act of 1995, 44 U.S.C.
3507(d), and assigned clearance number __________.
[[Page 32276]]
Secs. 63.5-63.9 [Reserved]
Subpart B--Minimum Standards of Character and Suitability for
Employment
Sec. 63.10 Purpose.
The purpose of this part is to establish:
(a) Procedures for determining suitability for employment and
efficiency of service as mandated by the Indian Child Protection and
Family Violence Prevention Act; and
(b) Minimum standards of character to ensure that individuals
having regular contact with or control over Indian children have not
been convicted of certain types of crimes or acted in a manner that
placed others at risk or raised questions about their trustworthiness.
Sec. 63.11 What is a determination of suitability for employment and
efficiency of service?
(a) Determinations of suitability measure the fitness or
eligibility of an applicant, volunteer, or employee for a particular
position. Suitability for employment does not evaluate an applicant's
education, skills, knowledge, experience, etc. Rather, it requires that
the employer investigate the background of each applicant, volunteer,
and employee to:
(1) Determine the degree of risk the applicant, volunteer, or
employee brings to the position; and
(2) Certify that the applicant's, volunteer's, or employee's past
conduct would not interfere with his/her performance of duties, nor
would it create an immediate or long-term risk for any Indian child.
(b) Efficiency of service is the employer's verification that the
applicant or employee is able to perform the duties and
responsibilities of the position, and his/her presence on the job will
not inhibit other employees or the agency from performing their
functions.
Sec. 63.12 What are minimum standards of character?
Minimum standards of character are established by an employer and
refer to identifiable character traits and past conduct. An employer
may use character traits and past conduct to determine whether an
applicant, volunteer, or employee can effectively perform the duties of
a particular position without risk of harm to others. Minimum standards
of character ensure that no applicant, volunteer, or employee will be
placed in a position with regular contact with or control over Indian
children if he/she has been found guilty of or entered a plea of nolo
contendere or guilty to any offense under Federal, state, or tribal law
involving crimes of violence, sexual assault, sexual molestation,
sexual exploitation, sexual contact or prostitution, or crimes against
persons.
Sec. 63.13 What does the Indian Child Protection and Family Violence
Prevention Act require of the Bureau of Indian Affairs and Indian
tribes or tribal organizations receiving funds under the Indian Self-
Determination and Education Assistance Act or the Tribally Controlled
Schools Act?
(a) The Bureau of Indian Affairs must compile a list of all
authorized positions which involve regular contact with or control over
Indian children; investigate the character of each individual who is
employed, or is being considered for employment; and, prescribe minimum
standards of character which each individual must meet to be appointed
to such positions.
(b) All Indian tribes or tribal organizations receiving funds under
the authority of the Indian Self-Determination and Education Assistance
Act or the Tribally Controlled Schools Act of 1988 must conduct a
background investigation for individuals whose duties and
responsibilities would allow them regular contact with or control over
Indian children, and employ only individuals who meet standards of
character that are no less stringent than those prescribed for the
Bureau of Indian Affairs.
Sec. 63.14 What positions require a background investigation and
determination of suitability for employment or retention?
All positions that allow an applicant, employee, or volunteer
regular contact with or control over Indian children are subject to a
background investigation and determination of suitability for
employment.
Sec. 63.15 What questions should an employer ask?
Employment applications must:
(a) Ask whether the applicant, volunteer, or employee has been
arrested or convicted of a crime involving a child, violence, sexual
assault, sexual molestation, sexual exploitation, sexual contact or
prostitution, or crimes against persons;
(b) Ask the disposition of the arrest or charge;
(c) Require that an applicant, volunteer or employee sign, under
penalty of perjury, a statement verifying the truth of all information
provided in the employment application; and
(d) Inform the applicant, volunteer or employee that a criminal
history record check is a condition of employment and require the
applicant, volunteer or employee to consent, in writing, to a record
check.
Sec. 63.16 Who conducts the background investigation and prepares the
determination of suitability for employment?
(a) The Bureau of Indian Affairs must use the United States Office
of Personnel Management (OPM) to conduct background investigations for
Federal employees. The BIA must designate qualified security personnel
to adjudicate the results of background investigations.
(b) Indian tribes and tribal organizations may conduct their own
background investigations, contract with private firms, or request the
OPM to conduct an investigation. The investigation should cover the
past five years of the individual's employment, education, etc.
Sec. 63.17 How does an employer determine suitability for employment
and efficiency of service?
(a) Adjudication is the process employers use to determine
suitability for employment and efficiency of service. The adjudication
process protects the interests of the employer and the rights of
applicants and employees. Adjudication requires uniform evaluation to
ensure fair and consistent judgment.
(b) Each case is judged on its own merits. All available
information, both favorable and unfavorable, must be considered and
assessed in terms of accuracy, completeness, relevance, seriousness,
overall significance, and how similar cases have been handled in the
past.
(c) An adjudicating official conducts the adjudication. Each
Federal agency, Indian tribe, or tribal organization must appoint an
adjudicating official, who must first have been the subject of a
favorable background investigation.
(1) Indian tribes and tribal organizations must ensure that persons
charged with the responsibility for adjudicating employee background
investigations are well-qualified and trained.
(2) Indian tribes and tribal organizations should also ensure that
individuals who are not trained to adjudicate these types of
investigations are supervised by someone who is experienced and receive
the training necessary to perform the task.
(d) Each adjudicating official must be thoroughly familiar with all
laws, regulations, and criteria involved in making a determination for
suitability.
[[Page 32277]]
(e) The adjudicating official must review the background
investigation to determine the character, reputation, and
trustworthiness of the individual. At a minimum, the adjudicating
official must:
(1) Review each security investigation form and employment
application and compare the information provided;
(2) Review the results of written record searches requested from
local law enforcement agencies, former employers, former supervisors,
employment references, and schools; and
(3) Review the results of the fingerprint charts maintained by the
Federal Bureau of Investigation or other law enforcement information
maintained by other agencies.
(f) Relevancy is a key objective in evaluating investigative data.
The adjudicating official must consider prior conduct in light of:
(1) The nature and seriousness of the conduct in question;
(2) The recency and circumstances surrounding the conduct in
question;
(3) The age of the individual at the time of the incident;
(4) Societal conditions that may have contributed to the nature of
the conduct;
(5) The probability that the individual will continue the type of
behavior in question; and,
(6) The individual's commitment to rehabilitation and a change in
the behavior in question.
Sec. 63.18 Are the requirements for Bureau of Indian Affairs
adjudication different from the requirements for Indian tribes and
tribal organizations?
Yes.
(a) In addition to the minimum requirements for background
investigations found in Sec. 63.12, Bureau of Indian Affairs'
adjudicating officials must review the OPM National Agency Check and
Inquiries which includes a search of the OPM Security/Suitability
Investigations Index (Sll) and the Defense Clearance and Investigations
Index (DCII), and any additional standards which may be established by
the BIA.
(b) All Bureau of Indian Affairs employees who have regular contact
with or control over Indian children must be reinvestigated every five
years during their employment in that or any other position which
allows regular contact with or control over Indian children.
(c) Indian tribes and tribal organizations may adopt these
additional requirements but are not mandated to do so by law.
Sec. 63.19 When should an employer deny employment or dismiss an
employee?
(a) An employer may deny employment or dismiss an employee when an
individual has been found guilty of or entered a plea of guilty or nolo
contendere to any Federal, state or tribal offense involving a crime of
violence, sexual assault, sexual molestation, child exploitation,
sexual contact, prostitution, or crimes against persons.
(b) An employer may deny employment or dismiss an employee when an
individual has been convicted of an offense involving a child victim, a
sex crime, or a drug felony.
Sec. 63.20 What should an employer do if an individual has been
charged with an offense but the charge is pending or no disposition has
been made by a court?
(a) The employer may deny the applicant employment until the charge
has been resolved.
(b) The employer may deny the employee any on-the-job contact with
children until the charge is resolved.
(c) The employer may detail or reassign the employee to other
duties that do not involve contact with children.
(d) The employer may place the employee on administrative leave
until the court has disposed of the charge.
Sec. 63.21 Are there other factors that may disqualify an applicant,
volunteer or employee from placement in a position which involves
regular contact with or control over Indian children?
Yes.
(a) An applicant, volunteer, or employee may be disqualified from
consideration or continuing employment if it is found that:
(1) The individual's misconduct or negligence interfered with or
affected a current or prior employer's performance of duties and
responsibilities.
(2) The individual's criminal or dishonest conduct affected the
individual's performance or the performance of others.
(3) The individual made an intentional false statement, deception
or fraud on an examination or in obtaining employment.
(4) The individual has refused to furnish testimony or cooperate
with an investigation.
(5) The individual's alcohol or substance abuse is of a nature and
duration that suggests the individual could not perform the duties of
the position or would directly threaten the property or safety of
others.
(6) The individual has illegally used narcotics, drugs, or other
controlled substances without evidence of substantial rehabilitation.
(7) The individual knowingly and willfully engaged in an act or
activities designed to disrupt government programs.
(b) An individual must be disqualified for Federal employment if
any statutory or regulatory provision would prevent his/her lawful
employment.
Sec. 63.22 Can an employer certify an individual with a prior
conviction or substantiated misconduct as suitable for employment?
(a) The Bureau of Indian Affairs must use Federal adjudicative
standards which allow the BIA to certify that an individual is suitable
for employment in a position that does not involve regular contact with
or control over Indian children. The adjudicating officer must
determine that the individual's prior conduct will not interfere with
the performance of duties and will not create a potential for risk to
the safety and well-being of Indian children.
(b) Indian tribes and tribal organizations must identify those
positions which permit contact with or control over Indian children and
establish standards to determine suitability for employment. Those
standards should then be used to determine whether an individual is
suitable for employment in a position that permits contact with or
control over Indian children. If not, the individual may only be placed
in a position that does not permit contact with or control over Indian
children.
Sec. 63.23 What rights does an applicant, volunteer or employee have
during this process?
(a) The applicant, volunteer, or employee must be provided an
opportunity to explain, deny, or refute unfavorable and incorrect
information gathered in an investigation, before the adjudication is
final. The applicant, volunteer, or employee should receive a written
summary of all derogatory information and be informed of the process
for explaining, denying, or refuting unfavorable information.
(b) Employers and adjudicating officials must not release the
actual background investigative report to an applicant, volunteer, or
employee. However, they may issue a written summary of the derogatory
information.
(c) The applicant, volunteer, or employee who is the subject of a
background investigation may obtain a copy of the reports from the
originating (Federal, state, or other tribal) agency and challenge the
accuracy and completeness of any information maintained by that agency.
[[Page 32278]]
(d) The results of an investigation cannot be used for any purpose
other than to determine suitability for employment in a position that
involves regular contact with or control over Indian children.
(e) Investigative reports contain information of a highly personal
nature and should be maintained confidentially and secured in locked
files. Investigative reports should be seen only by those officials who
in performing their official duties need to know the information
contained in the report.
Sec. 63.24 What protections must employers provide to applicants,
volunteers and employees?
(a) Indian tribes and tribal organizations must comply with the
privacy requirements of any Federal, state, or other tribal agency
providing background investigations. Indian tribes and tribal
organizations must establish and comply with personnel policies that
safeguard information derived from background investigations.
(b) The Bureau of Indian Affairs must comply with all policies,
procedures, criteria, and guidance contained in the Bureau of Indian
Affairs Manual or other appropriate guidelines.
(c) Federal agencies exercising authority under this part by
delegation from OPM must comply with OPM policies, procedures,
criteria, and guidance.
Secs. 63.25-63.29 [Reserved]
Subpart C--Indian Child Protection and Family Violence Prevention
Program
Sec. 63.30 What is the purpose of the Indian child protection and
family violence prevention program?
The purpose of this program is to develop tribally-operated
programs to protect Indian children and reduce the incidence of family
violence on Indian reservations.
Sec. 63.31 Can both the Bureau of Indian Affairs and tribes operate
Indian child protection and family violence prevention programs?
Yes. However, tribes are encouraged to develop and operate programs
to protect Indian children and reduce the incidence of family violence
in Indian country.
Sec. 63.32 Under what authority are Indian child protection and
family violence prevention program funds awarded?
The Secretary is authorized to enter into contracts with Indian
tribes, tribal organizations, or tribal consortia pursuant to the
Indian Self-Determination and Education Assistance Act, as amended, 25
U.S.C. 450 et seq., for the development and establishment of Indian
child protection and family violence prevention programs. This includes
compacting with tribes under the Self-Governance program procedures.
Sec. 63.33 What must an application for Indian child protection and
family violence prevention program funds include?
In addition to the Indian Self-Determination and Education
Assistance Act, as amended, 25 U.S.C. 450 et seq., contracting
requirements, each application must provide the following information:
(a) The name and address of the agency or official to be
responsible for the investigation of reported cases of child abuse and
child neglect, the treatment and prevention of incidents of family
violence, and the provision of immediate shelter and related assistance
for victims of family violence and their dependents;
(b) Projected service population of the program;
(c) Projected service area of the program; and
(d) Projected number of cases per month.
Sec. 63.34 How are Indian child protection and family violence
prevention program funds distributed?
(a) Funds will be distributed, subject to the availability of
appropriations, and:
(1) In any fiscal year that the appropriation exceeds 50 percent of
the level of funding authorized for this purpose by the Act, 49 percent
must be distributed equally to all tribes and tribal organizations and
49 percent must be distributed on a per capita basis according to the
population of children residing in the service area. Two percent of the
annual appropriation will be set aside for distribution to tribes
demonstrating special circumstances.
(2) In any fiscal year that the appropriation does not exceed 50
percent of the level of funding authorized for this purpose by the Act,
funding must be distributed in equal amounts to all tribes. Two percent
of the annual appropriation will be set aside for distribution to
tribes demonstrating special circumstances.
(3) Special circumstances include but are not limited to a high
incidence of child sexual abuse, a high incidence of violent crimes, a
high incidence of violent crimes against women, or the existence of a
significant victim population within the community.
(i) This 2 percent will be subject to discretionary distribution by
the Assistant Secretary--Indian Affairs, or his or her designee. Tribes
may request these funds through their respective area offices. All
requests must demonstrate a high incidence of child sexual abuse, a
high incidence of violent crimes, a high incidence of violent crimes
against women, or the existence of a significant victim population
within the community.
(ii) Special circumstances funds will remain available through the
third quarter of each fiscal year. In the fourth quarter, unallocated
special circumstances funds will be redistributed as set forth in
paragraphs (a)(1) and (a)(2) of this section, except that there will be
no additional set aside for special circumstances.
(b) Any tribe not wishing to receive Indian child protection and
family violence prevention funds must inform its respective area office
in writing within 90 days after receiving notice of the allocation from
the area office. Each area office may reallocate unused Indian child
protection and family violence prevention program funds as provided in
this section.
(c) Funds may be used as matching shares for other federally funded
programs which contribute to and promote prevention of child abuse,
child neglect, and family violence on Indian reservations, but may not
be used to supplant funds available for the same general purposes.
(d) Any income resulting from the operation of Indian child
protection and family violence prevention programs may be retained and
used to promote prevention of child abuse, child neglect, and family
violence on Indian reservations.
Sec. 63.35 How may Indian child protection and family violence
prevention program funds be used?
Indian child protection and family violence prevention program
funds may be used to:
(a) Establish child protective services programs.
(b) Establish family violence prevention and treatment programs.
(c) Develop and implement multidisciplinary child abuse
investigation and prosecution programs.
(d) Provide immediate shelter and related assistance to victims of
family violence and their dependents, including construction or
renovation of facilities to establish family violence shelters.
(e) Purchase equipment to assist in the investigation of cases of
child abuse and child neglect.
(f) Develop protocols and intergovernmental or interagency
[[Page 32279]]
agreements among tribal, Federal, state law enforcement, courts of
competent jurisdiction, and related agencies to ensure investigations
of child abuse cases to minimize the trauma to the child victim, to
define and specify each party's responsibilities, and to provide for
the coordination of services to victims and their families.
(g) Develop child protection codes and regulations that provide for
the care and protection of children and families on Indian
reservations.
(h) Establish community education programs for tribal members and
school children on issues of family violence, child abuse, and child
neglect.
(i) Establish training programs for child protective services, law
enforcement, judicial, medical, education, and related services
personnel in the investigation, prevention, protection, and treatment
of child abuse, child neglect, and family violence.
(j) Establish other innovative and culturally relevant programs and
projects that show promise of successfully preventing and treating
family violence, child abuse, and child neglect.
Sec. 63.36 What are the special requirements for Indian child
protection and family violence prevention programs?
(a) Each tribe must develop appropriate standards of service,
including caseload standards and staffing requirements. The following
caseload standards and staffing requirements are comparable to those
recommended by the Child Welfare League of America, and are included to
assist tribes in developing standards for Indian child protection and
family violence prevention programs:
(1) Caseworkers providing services to abused and neglected children
and their families have a caseload of 20 active ongoing cases and five
active investigations per caseworker.
(2) Caseworkers providing services to strengthen and preserve
families with children have a caseload of 20 families. If intensive
family-centered crisis services are provided, a caseload of 10 families
per caseworker is recommended.
(3) It is recommended that there be one supervisor for every six
caseworkers.
(b) The negotiation and award of contracts, grants, or funding
agreements under these regulations must include the following
requirements:
(1) Performance of background investigations to ensure that only
those individuals who meet the standards of character contained in
Sec. 63.12 are employed in positions which involve regular contact with
or control over Indian children.
(2) Submission of an annual report to the contracting officer's
representative which details program activities, number of children and
families served, and the number of child abuse, child neglect, and
family violence reports received.
(3) Assurance that the identity of any person making a report of
child abuse or child neglect will not be disclosed without the consent
of the individual and that all reports and records collected under
these regulations are confidential and to be disclosed only as provided
by Federal or tribal law.
(4) Assurance that persons who, in good faith, report child abuse
or child neglect will not suffer retaliation from their employers.
Secs. 63.37--63.50 [Reserved]
Dated: June 6, 1996.
Ada E. Deer,
Assistant Secretary--Indian Affairs.
[FR Doc. 96-15511 Filed 6-20-96; 8:45 am]
BILLING CODE 4310-02-P
Complete official Federal Register PDF
FR Doc. 96-15388 Importation, Exportation, and Transportation of Wildlife
[Federal Register Volume 61, Number 121 (Friday, June 21, 1996)]
[Rules and Regulations]
[Pages 31850-31873]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15388]
=======================================================================
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Parts 13 and 14
RIN 1018-AB49
Importation, Exportation, and Transportation of Wildlife
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This final rule updates the U.S. Fish and Wildlife Service
(Service) regulations providing for uniform rules and procedures for
the importation, exportation, and transportation of wildlife. Several
definitions are added and amended. The Service's exception to the
designated port of entry requirement for wildlife products or
manufactured articles worn as articles of clothing or contained in
accompanying personal baggage is amended. The exceptions to the import
declaration requirements and export declaration requirements are also
amended. The Service minimum age requirement for certain antique
articles, other than scrimshaw, imported into the United States is
changed. The Service is also revising its clearance requirements and
its refusal of clearance requirements. The Service's import declaration
filing requirements are also changed.
Changes are also made in the marking requirements for containers
used to ship fish or wildlife. Further changes are made in the import
and export requirements and fee schedules and the exceptions to license
requirements. In addition to the above changes, the non-standards fee
schedule in part 13 for an import/export license is amended. Finally,
the Service will allow the importation and exportation of dead,
preserved, dried, or embedded scientific wildlife specimens by
accredited scientists or accredited scientific institutions engaged in
taxonomic or systematic research at any U.S. Customs port, or by way of
the international mail.
EFFECTIVE DATE: This rule is effective July 22, 1996.
FOR FURTHER INFORMATION CONTACT: Thomas Striegler, Special Agent in
Charge, Branch of Investigations, Division of Law Enforcement, Fish and
Wildlife Service, U.S. Department of Interior, Washington, DC 20240,
Telephone Number (703) 358-1949.
SUPPLEMENTARY INFORMATION:
Background
The Fish and Wildlife Service (Service) has oversight
responsibilities under statutory and regulatory authority to regulate
the importation, exportation, and transportation of wildlife. The
Service, consistent with this authority, has established an inspection
program to oversee the importation, exportation, and transportation of
wildlife and wildlife products. The Service, in support of its program
activities, has promulgated regulations, subject to exemptions and
permitted exceptions, restricting the importation and exportation of
wildlife and wildlife products to certain designated ports, border
ports, and special ports enumerated within the Code of Federal
Regulations. Service regulations governing the importation,
exportation, and transportation of wildlife are codified in 50 CFR part
14 and are implemented through the efforts of Service Special Agents
and Wildlife Inspectors, and with the essential support, cooperation,
and assistance of the U.S. Customs Service (Customs) and the Department
of Agriculture, Animal and Plant Health Inspection Service (APHIS) and
other cooperating agencies.
The Service is making the following changes to the Importation,
Exportation, and Transportation of Wildlife regulations in part 14. A
new section Sec. 14.4, entitled ``Definitions'', is being added to
include several new definitions. In adding these new definitions, the
Service's intent is to provide greater uniformity in the interpretation
of part 14. This section, includes a definition for the term
``commercial'' to explain when the commercial intent of a shipment
becomes presumptive. The effect of this definition is to clarify when a
wildlife shipper is required to obtain an import/export license, and
when the personal baggage exception does not apply. A definition is
also added for the term ``export'' to delineate when the filing of an
export declaration and clearance by a Service Officer will be required.
The term ``accompanying personal baggage'' is also defined to eliminate
any ambiguity as to when hand-carried items and checked baggage will be
regarded by the Service as an export or import. The meaning of the term
``domesticated animal'' is defined to distinguish such animals from
wildlife.
The Service, in order to clarify its requirements, is defining the
terms ``Accredited scientific institutions'' and ``Accredited
scientist.'' The term ``Accredited scientific institution'' is defined
to include any public museum, public zoological park, accredited
institution of higher education, accredited member of the American Zoo
and Aquarium Association, accredited member of the American Association
of Systematic Collections, or any State or Federal government agency
that conducts biological or medical research. The term ``Accredited
scientist'' is defined to include any individual associated with,
employed by, or under contract to and accredited by an accredited
scientific institution for the purposes of conducting biological or
medical research, and whose research activities are approved and
sponsored by the scientific institution granting accreditation.
In addition to the above changes, the term ``worn'' in Sec. 14.15
is being removed and replaced with term ``used'' in order to clearly
define when wildlife products are included within the personal baggage
and household effects exception to the designated port requirements.
The Service is making several administrative corrections within the
text of the regulations. The erroneous references to Sec. 14.93(d) in
Sec. 14.82(a)(2) and the erroneous reference to Sec. 14.93(d)(1) in
Sec. 14.93(c)(5) are being changed to read Sec. 14.93(c) and
Sec. 14.93(c)(1), respectively. These citations refer to the requisite
record requirements applicable to holders of an import/export license.
A reference to the permit requirements of part 23 is included
within several sections of part 14. The requirements of part 23
implement the Convention on International Trade in Endangered Species
of Wild Fauna and Flora (CITES). The following provisions are being
changed to include references to part 23: At Sec. 14.21, the exceptions
to the Service's license requirements for shellfish and fishery
products; at Sec. 14.55, the exceptions to Service wildlife clearance
requirements stating when wildlife and wildlife products may be
imported without clearance; at Sec. 14.62(a), the exceptions to the
import declaration requirements stating when a Service import
declaration (Form 3-177) is not required; at Sec. 14.64(a), the
exception to export declaration requirements stating when a Service
export declaration (Form 3-177) is not required; and at
Sec. 14.92(a)(1) and 14.92(a)(2), the exceptions to license
requirements stating when wildlife may be imported or exported without
the procurement of a Service import/export license.
The Service is changing the age minimum in Sec. 14.22 for certain
antique articles to be consistent with changes in the Endangered
Species Act. The
[[Page 31851]]
Service is also adding in Sec. 14.21(a)(2) an exception to the
designated port requirements for live aquatic invertebrates of the
Class Pelecypoda (commonly known as oysters, clams, mussels, and
scallops) and the eggs, larvae, or juvenile forms thereof exported for
purposes of propagation, or research related to propagation. A
designated port exception is also added at Sec. 14.21(b) for pearls
imported or exported for commercial purposes.
The Service is also facilitating the importation or exportation of
dead, preserved, dried, or embedded scientific taxonomic or systematic
collection specimens, or parts thereof, by accredited scientists or
accredited institutions by making several changes in its current
regulations. The Service is adding a new section, at Sec. 14.24, to be
entitled ``Scientific Specimens.'' This new section provides that dead,
preserved, dried, or embedded taxonomic or systematic collection
specimens may be imported or exported by accredited scientists or
scientific institutions by way of any Customs port or to be shipped
through the international mail. This exception, however, does not apply
in situations where the wildlife being imported or exported requires a
permit under any of the Service regulations established in 50 CFR parts
16, 17, 18, 21, 22, and 23 that set forth the Service regulations
implementing: the Lacey Act, 18 U.S.C. 42; the Endangered Species Act
(ESA), 16 U.S.C. 1531-1543; the Marine Mammal Protection Act (MMPA), 16
U.S.C. 1361-1407; the Migratory Bird Treaty Act (MBTA), 16 U.S.C. 703-
712; the Bald and Golden Eagle Protection Act (Eagle Act), 16 U.S.C.
668; and the Convention on International Trade in Endangered Species of
Wild Flora and Fauna (CITES), respectively. In addition, this exception
does not apply to any specimen or part of any specimen taken as a
result of sport hunting. The term ``sport hunting'' will be given its
common and ordinary meaning.
The requirements for the clearance of wildlife, at Sec. 14.52, and
the refusal of clearance of wildlife, at Sec. 14.53, are being changed
to show the applicability of these sections to both exported and
imported wildlife. The provisions of Sec. 14.52 are being changed to
specifically state, in both import and export situations, the
requirements of presentation of wildlife for clearance and the
requirement of clearance of wildlife by a Service officer prior to
export or prior to U.S. Custom Service release of an importation.
The Service's refusal of clearance provisions at Sec. 14.53 are
also being changed to require the identification of wildlife by species
or subspecies name. This change is intended to alleviate the confusion
often caused by the use of common names. This section is also being
changed to include as an additional basis for the refusal of clearance
the failure to pay an assessed penalty levied upon an importer or
exporter under part 11. Another significant change being made to
Sec. 14.53 is the establishment of a formal detention process for
wildlife or wildlife products, similar to that of the Customs Service.
The detention procedure is necessary in order for the Service to
determine the applicability of state or foreign law relating to
imported or exported wildlife, and/or to ascertain the validity of
foreign permits.
In order to ensure humane and expeditious inspection and handling
of shipments of wildlife, the Service is revising Sec. 14.54 to include
a provision requiring that the Service be notified at least 48 hours
prior to the ``estimated time of arrival'' of live or perishable
shipments of wildlife or wildlife products. The Service is to be
similarly notified when wildlife inspection is requested to be
accomplished upon arrival or when wildlife is to be inspected prior to
export.
In general, all wildlife imported into the United States must be
cleared in accordance with Sec. 14.52 by a Service officer prior to its
release from detention by Customs officers. Clearance by a Service
officer may be obtained only at designated ports, border ports, special
ports, or any port where importation is authorized by permit, unless
the wildlife is otherwise exempted from such requirement. The Service's
existing exceptions to clearance requirements for certain wildlife are
set forth in Sec. 14.55. The Service is amending Sec. 14.55 by adding a
new paragraph at Sec. 14.55(d) providing an additional exception to the
Service clearance requirements for dead, preserved, dried, or embedded
specimens or parts thereof imported or exported by accredited
scientists or accredited scientific institutions for taxonomic or
systematic research purposes.
The regulations concerning the requirements of the Service Form 3-
177, Declaration for Importation or Exportation of Fish or Wildlife, in
Sec. 14.61 are being changed to include changes brought about by the
U.S. Customs Automated Commercial System (ACS) and the Automated Broker
Interface (ABI) electronic entry system, and to clarify the requirement
of filing an import declaration. Changes in Customs entry system allow
entry documents to be filed electronically by an authorized Customs
broker using the electronic entry system. The provisions of Sec. 14.61
require that a completed Declaration for Importation and Exportation of
Fish and Wildlife (Form 3-177) be filed with the Service when clearance
is requested. A Declaration for Importation and Exportation of Wildlife
does not have to be filed, however, for certain categories of wildlife
provided an exception under Sec. 14.62, entitled ``Exceptions to Import
Declaration Requirements.'' The Service is amending Sec. 14.62 by
revising Sec. 14.62(c) and adding a new paragraph at Sec. 14.6(d) to
provide an additional exception to the import declaration requirements.
New 14.62(d) provides that a Declaration for the Importation or
Exportation of Fish or Wildlife (Form 3-177) does not have to be filed
at the time of importation for shipments of dead, preserved, dried, or
embedded scientific specimens or parts thereof, imported by accredited
scientists or accredited scientific institutions for taxonomic or
systematic research purposes. Instead, Form 3-177 must be filed within
180 days of importation with the appropriate Assistant Regional
Director for Law Enforcement in the Region where the importation
occurs. The specimens must be identified to the most accurate taxonomic
classification reasonably practicable using the best available
taxonomic information, and the country of origin must be declared. This
exception to the import declaration requirements is limited to
exchanges made by accredited scientists or accredited scientific
institutions and does not apply to any specimens or parts thereof taken
as a result of sport hunting. In addition, this exception does not
apply in situations where the wildlife being imported requires a permit
under any of the Service regulations established in Title 50 CFR parts
16, 17, 18, 21, 22, and 23, or in situations involving non-accredited
scientists or institutions.
The Service's exceptions to import requirements in Sec. 14.62 also
are being changed to exclude, in addition to articles intended for
sale, articles or samples used as exhibits to solicit sales. In
addition, Sec. 14.62 is being revised to remove the incorrect reference
to an obsolete Customs Service form.
Section 14.63 sets forth the requirement that a completed
Declaration of Importation and Exportation of Fish or Wildlife (Form 3-
177) must be filed with the Service prior to the export of any
wildlife. Certain exceptions to this export declaration requirement are
provided in Sec. 14.64. The Service is amending Sec. 14.64 by adding a
new paragraph at Sec. 14.64(b)(3) to provide an additional exception to
[[Page 31852]]
the Service's export declaration requirements. This exception will
provide that a Declaration for the Importation or Exportation of Fish
or Wildlife (Form 3-177) does not have to be filed at the time of
exportation for shipments of dead, preserved, dried, or embedded
scientific specimens or parts thereof, exported by accredited
scientists or accredited scientific institutions for taxonomic or
systematic research purposes. This exception, however, will not apply
in situations where the wildlife being exported requires a permit under
any of the Service regulations established in Title 50 CFR parts 16,
17, 18, 21, 22, and 23, or in situations involving non-accredited
scientists or institutions. A Form 3-177 must be filed, however, within
180 days of exportation with the appropriate Assistant Regional
Director--Law Enforcement in the Region where the exportation occurs.
The specimens must be identified to the not accurate taxonomic
classification reasonably practicable using the best available
taxonomic information, and the country of origin must be declared. This
exception to the export declaration requirements will be limited to
exchanges made by accredited scientists or accredited scientific
institutions and will not apply to any specimens or parts thereof taken
as a result of sport hunting.
In Sec. 14.64(a) the Service is adding an additional exception to
the export declaration requirements for live aquatic invertebrates of
the Class Pelecypoda (commonly known as oysters, clams, mussels, and
scallops) and the eggs, larvae, or juvenile forms thereof exported for
the purposes of propagation, or research related to propagation. The
word ``live'' has been added to this exception to more accurately
reflect the Service's intent of applying to live specimens only. The
Service is also restating the exceptions to the export declaration
requirements under Sec. 14.64(b)(1) and Sec. 14.64(b)(2) by excluding,
in addition to wildlife articles intended for sale, articles or samples
used as exhibits to solicit sales.
Changes are also being made in the marking requirements of
Sec. 14.81, and the alternatives and exceptions to the marking
requirements in Sec. 14.82, to add provisions requiring the conspicuous
marking of containers or packages to indicate when the contents are
venomous species. In making this proposal, the Service hopes to prevent
injuries. The Service is also revising Sec. 14.81 to require that
wildlife shipments be accompanied with an accurate and legible list of
the contents by scientific species name and the number of each species.
Section 14.91(c) establishes that persons engaged in certain
enumerated activities are required to hold an import/export license.
The provisions of this section are being changed and amended to reduce
any ambiguity and to require persons who commercially import or export
wildlife in the form of food products taken from populations of non-
domesticated animals to be licensed. Sections 14.92(a)(5) and
14.92(a)(6) are being added to include within the exceptions to the
license requirements an exception for live aquatic invertebrates of the
Class Pelecypoda, (commonly known as oysters, clams, mussels, and
scallops) and the eggs, larvae, or juvenile forms thereof exported for
purposes of propagation, or research related to propagation, and for
pearls imported or exported for commercial purposes. Sections
14.92(b)(1) and 14.92(b)(2) are being amended to limit the existing
exception to the import/export license requirement for common carriers
and custom house brokers to instances where they are acting as
transporters or agents and not as the importer or exporter of record.
Inspection and License Fees
Inspectors working at designated ports of entry are vested with the
authority by statute and regulation to undertake the physical
inspection and identification of wildlife shipments and to examine all
associated wildlife shipment documentation for sufficiency. Service
uniform import export user fee schedules are currently set out at 50
CFR 14.93(f). With some exceptions, these inspection procedures are
required for all shipments of wildlife regardless of value, size of
shipment, or variety of regulated wildlife species, and therefore, are
equivalent in their demands upon work units of the Service. Because of
the nature of inspections and the administrative support required, a
direct correlation between the value of wildlife shipments and the
operating costs incurred by the Service in inspection of wildlife
cannot be made. The Service, therefore, has historically assessed user
fees according to standardized schedules codified in the Code of
Federal Regulations and has avoided as impracticable the levying of
fees based solely upon the value of wildlife shipped.
Since 1988 there have been four studies of the Service's import/
export user fee policies: A 1988 report prepared by the Service,
Division of Finance, of findings and recommendations on review of Law
Enforcement Management Information System and Import/Export Fee Billing
and Collection System; a 1988 user charges and collection report by the
Department of Interior, Office of the Inspector General; a 1991 Law
Enforcement Functional Analysis Review prepared by a fish and Wildlife
Service Functional Analysis Review Team; and a 1992 draft of the CITES
Implementation Study, prepared by Traffic, U.S.A., a wildlife trade
monitoring group associated with the World Wildlife Fund. One
recommendation consistently made in these studies is that the Service
should change its user fee policies and rates to recover the full cost
of services provided to individuals and businesses. The recommendation
was also made that the Service license and charge user fees to all
commercial importers and exporters of wildlife and wildlife products.
The Service is therefore adjusting its fees for certain activities in
order to recover the actual costs of the services provided for all
commercial import/export activities. An analysis of import/export data
for the three most recent years for which complete data is available
from the Law Enforcement Management Information System database shows
that the Service is only recouping about $2 million annually of the
total wildlife inspection budget of $4.35 million. Thus, approximately
45 percent of the total cost of the Service's wildlife inspection
program is recovered through the current user fees rates.
Consequently, the Service is adjusting its fee schedules in order
to recoup the full cost of the import/export inspection program. The
new fee schedules are being moved to a new section, Sec. 14.94,
entitled ``Fees.'' First, the Service is requiring all commercial
importers and exporters of wildlife and wildlife products to obtain an
import/export license without regard to the total value of wildlife or
wildlife products imported or exported each year. Thus, the Service is
eliminating the yearly value exception in Sec. 14.92(b)(6). This is a
change from the current system in which only commercial importers/
exporters who import or export more than $25,000 in wildlife products
annually have been required to obtain a license. Second, the Service is
reducing the cost of an import/export license from the present rate of
$125 per year to $50 per year. Third, the Service is increasing the
fees charged at designated ports in order to cover the full cost of the
inspection services provided. The present inspection fee has been $25
since 1986. The Service's analysis indicates that the average cost
[[Page 31853]]
to the Service to process a shipment is approximately $55 per shipment.
Therefore, the Service is increasing the cost of this fee to $55 per
shipment to more realistically recover costs. Fourth, the Service is
increasing the administrative fee changed at non-designated ports from
$25 to $55, in addition to an hourly minimum fee, to recover its actual
costs and to make this fee consistent with the increase in the
designated port inspection fee. The Service believes these adjustments
in the fee rates and applications are reasonable and fair in light of
the actual demands upon limited Service resources.
The Service will make substantive changes to Title 50 CFR part 13
at a later time. The Service has changed the non-standard fee schedule
in Sec. 13.11(d)(4) to be consistent with the changes made to part 14.
Summary of Comments and Information Received
On Wednesday, September 14, 1994, the Service published, in the
Federal Register (59 FR 47212) a proposed rule revising Title 50 CFR
parts 13 and 14. In response to this notice, the Service received a
total of 568 comments from the public. These included: 14 from
academies, 13 from associations, 30 from companies, 11 from
congressmen, 106 from museums, 28 from societies, 17 from states, 107
from citizens, 163 from universities, and 70 from miscellaneous other
groups. Several of the comments received by the Service in response to
the proposed rule were either unrelated to the proposed changes or
resulted from lack of understanding of the current regulation, and are
not discussed below.
During the comment period, the Service received numerous inquiries
and comments from members of the scientific community. Members of the
scientific community were extremely concerned about the effects of the
Service's regulations upon the ordinary scientific exchange of
scientific specimens being shipped internationally through the mail or
by way of ports other than officially designated Service ports of
entry. Many expressed the concern that the Service's proposed
regulations would seriously discourage much needed scientific research
by adding significantly to its cost in dollars, hours worked, and
paperwork. The Service, in publishing its proposed rule of September
14, 1994, did not intend to make any substantive changes to the
existing requirements related to scientific specimens. The existing
requirements relating to the importation and exportation of wildlife at
Service Designated Ports, and the inclusion of invertebrates within the
definition of wildlife, remained unchanged.
The Service, however, has benefited from the many comments received
and is making additional changes to Part 14 to address the concerns of
the respondents. The numerous comments and inquiries received by the
Service have helped the Service identify the technical and procedural
problems associated with the present requirements in part 14, and those
problems contained in the proposed rule. The Service has already
acknowledged the need for some substantive changes and published in the
Federal Register (60 FR 15277) a supplementary proposed rule on
Thursday, March 23, 1995, allowing for scientific exchange. The
significant change is the addition of a new section at Sec. 14.24,
entitled ``Scientific Specimens'' that allows accredited scientists or
accredited scientific institutions to import or export, at any Customs
port or through the international mail system, dead, preserved, dried,
or embedded taxonomic or systematic collection specimens. This
exception would not apply to wildlife being imported or exported that
would require a permit under any of the Service regulations established
in Title 50, Code of Federal Regulations, parts 16, 17, 18, 21, 22, and
23.
Comments Pertaining to 50 CFR 14.4: Definitions
Comments
The Service received numerous comments on the definitions proposed
for inclusion within Sec. 14.4. Comments were received from a great
variety of interested persons on this section, including, numerous
scientists involved in importing or exporting scientific specimens for
taxonomic or biological control purposes, individual sportsmen and
sportsmen's organizations concerned with the importation or exportation
of sport-hunted trophies, commercial import/export businesses, and
``for-profit'' amusement parks importing or exporting live wildlife for
display purposes.
A significant portion of the comments pertaining to Sec. 14.4
concerned the Service's definition of ``commercial.'' This term is used
to clarify when a wildlife shipper is required to obtain an import/
export license, and when the personal baggage exception does not apply.
The proposed rule defines commercial to mean related to the offering
for sale or resale, purchase, trade, barter, or the actual or intended
transfer in the pursuit of gain or profit, of any item of wildlife and
includes the use of any wildlife article as an exhibit for the purpose
of soliciting sales, without regard to quantity or weight. A
presumption is also established within this definition to provide that
eight or more similar unused items will be considered by the Service to
be commercial use. This presumption specifically excludes such items as
antiques, collectibles, or curios. The effect of this presumption,
however, may be rebutted by the importer, exporter, or owner, or by the
Service.
Many scientists were of the opinion that the definition of
``commercial'' as written would have an adverse effect upon scientific
study by restricting the free exchange of scientific specimens among
researchers and systematic biologists. Another scientist noted that
systematic biology is a shared endeavor, that has as its basic
scientific data the natural history specimens that are maintained in
museums or similar institutions that are shared internationally by way
of scientific exchange.
Many respondents considered the presumption effect of this
definition to be inappropriate when applied to shipments of scientific
shipments such as insects. Some scientists characterized the definition
as a ``subjective determination'' that lacked all merit as applied to
invertebrates. Others saw the definition as having a ``vertebrate''
bias and thought that the regulations seem to be targeted to vertebrate
species and not invertebrates. The laws governing the traffic, loan,
and exchange of invertebrate scientific specimens, as one respondent
noted, should not be confused with commercial uses of wildlife.
Comments included the assertion that scientific specimens are not
generally imported or exported for profit or commercial gain, have no
commercial value or commercial use, and will often contain more than
eight similar items or scientific specimens within a shipment. Many
comments explained that an exchange of scientific specimens of insects
may contain many hundreds of specimens. Several other common themes ran
through many of the comments.
Service Response
The Service's definition of commercial has been misinterpreted to
apply to scientific exchange specimens. The Service acknowledges the
concerns of the many respondent scientists and has made changes to
accommodate scientific exchange in its final regulations by adding a
new section at
[[Page 31854]]
Sec. 14.24 allowing for certain exceptions to the designated port and
declaration filing requirements by accredited scientists and scientific
institutions. A definition of commercial is important to clearly
differentiate when a particular import or export is being done for a
commercial purpose, due to the obvious detrimental impact commercial
activity can have on wildlife populations. In many instances, items
intended for commercial sale or to solicit sales are declared as
personal effects. The effect of the presumption is merely to inform the
public that unless a person can prove otherwise, eight or more unused
items will automatically be considered a commercial shipment. Other
amounts can be considered commercial depending on the facts and
circumstances of each case. This definition was never intended to reach
taxonomic specimens since it was intended only to apply to wildlife
products and not scientific specimens.
Comments
One commercial exhibitor requested that the Service amend the
definition of commercial to include what the respondent termed ``the
use of any wildlife article as an exhibit for the purpose of soliciting
sales thereof.'' Another respondent from the business community
suggested the ``presumed commercial'' number be reduced from 8 to 3,
and further suggested that the Service include a value limit of
$5,000.00 for any individual wildlife item being imported or exported.
Another commenter from the wildlife import/export industry, questioned
whether wildlife items, imported for display at trade shows or as a
sample, would necessarily be considered a commercial importation under
what the respondent termed the ``eight or more'' commercial
presumption, if the item(s) themselves were not intended for sale. One
respondent requested that the definition of commercial be revised to
include a presumption that cataloged specimens, transported from one
research institution to another, are not commercial. Several
respondents suggested that such scientific collections be considered
``collectibles'' and therefore exempt from what was characterized as
the ``rule of eight'' commercial shipment presumption standard.
Service Response
The Service's intent was to clearly include samples used to solicit
sales within the definition of commercial, because of the obvious
commercial intent. Items used as exhibits in order to solicit sales are
clearly being transferred for a commercial purpose, although the
individual items may not actually be sold, they are being imported or
exported for a commercial purpose. The Service will keep the commercial
presumption at eight. This presumption number merely serves as a
threshold point and gives the public some notice of when the Service
will view their imports or exports as presumptively commercial. Again,
other lesser amounts can be determined to be commercial based upon the
facts and circumstances of each case. The Service will evaluate such
indicators of commercial intent such as the value, condition, the
purpose of the import etc., in making its determination.
Comments
Several comments were received from wildlife professionals
commenting in an unofficial capacity, regarding the exception provided
for antiques, collectibles and curios, within the proposed definition
of commercial. One individual noted that there has been an increase in
the commercial trade of such wildlife items, which in the commenter's
opinion, may encourage certain individuals to attempt to circumvent the
applicable declaration requirements and inspection fee by falsely
claiming this exception. The Service, however, also received extensive
comments from representatives of wildlife user groups suggesting that
additional exceptions be added within the definition of commercial for
such articles as antiques, collectibles, and curios that are presently
not included.
Service Response
The Service has considered the above comments carefully and agrees
with the commenters suggestion to eliminate the exception in the
definition of commercial for antiques, collectibles and curios, for the
following reasons. The Service believes that the commenter is correct
in stating that the trade in antiques, collectibles and curios
containing wildlife products is on the increase. Importers of antiques,
collectibles or curios containing wildlife which are subject to the
provisions of this part should be required to rebut the same commercial
presumption, for quantities of 8 or more, as importers of wildlife
products not considered to be antiques, collectibles or curios. the
intent of the commercial definition is to advise the public that the
Service will consider an importer to have commercial intent when
importing eight or more similar unused items containing wildlife, in
order to discourage commercial dealers from using the personal effects
exemption contained at Sec. 14.15 to circumvent declaration and license
requirements. This definition was proposed by the Service to address
the enforcement problem of wildlife dealers, including dealers in
antiques, curios and collectibles, using the personal effects exemption
improperly. The Service finds serious inequity in allowing dealers in
these items an exception in the definition of commercial while not
allowing exceptions for other commercial dealers. The Service has
removed this exception from the definition of commercial. Importers of
eight or more similar unused wildlife products will be considered
uniformly by the Service and will be required to rebut the same
presumption regardless of the wildlife being imported being classified
as an antique, curio or collectible. The Service has considered the
fact that removing this exception from the definition of commercial
will increase the volume of wildlife products being viewed as having
potential commercial intent and requiring additional attention by
Service personnel. This manpower consideration is, in part, what
prompted the inclusion of an exception in the definition of commercial
in the proposed rule initially. However, upon further review, the
Service believes that having a threshold number of eight before the
commercial presumption is triggered will eliminate many shipments from
requiring more detailed inquiry from Service personnel. This change to
the definition of commercial will relieve Customs and Service personnel
from defining ``antique, curio or collectibile'' (for purposes of the
commercial definition), will not change the ability of noncommercial
importers to rebut the commercial presumption if they are importing
eight or more similar items, and will make the Service's intent, of
requiring all commercial dealers to obtain import/export licenses and
declare their shipments, less ambiguous.
The commenters suggestion of not excepting antiques from the
definition of commercial has also been considered by the Service. The
Service believes that Sec. 14.22, Certain antique articles, adequately
addresses the importation of bona fide antiques containing endangered
or threatened species. The Service believes that to include an
additional exception in the definition of commercial for antiques is
unnecessary. Those antiques not containing endangered or threatened
species will be presumed commercial if eight or more similar items are
imported, requiring the importer to rebut the
[[Page 31855]]
commerical presumption, similar to importers of collectibles and
curios.
Comments
Several commenters expressed concern that their particular activity
involving the import and export of wildlife would be considered
``commercial'' using the Service's definition of commercial in the
proposed rule.
Service Response
Without exception, the Service intends that any activity meeting
the definition of commercial contained in Sec. 14.4 will be considered
as such and will require the individual or business to obtain an
Import/Export License. However, the use of the new definition of
commercial is not the only criteria which the Service uses to determine
if an Import/Export License is required. The current Sec. 14.91(a),
which is not being changed in this rulemaking, requires anyone
``engaging in business as an importer or exporter of wildlife'' to
first obtain a valid import/export license.
Comments
One representative of a hunting/conservation group expressed the
opinion that within the definition of commercial there should be an
additional exemption for ``personal use sport hunted trophies.'' Sport
hunted trophies as the respondent explained will often number more than
eight items and should be entitled to a presumption of being a
noncommercial import or export.
Service Response
The Service recognizes that the importation of most sport hunted
trophies are for personal use. However due to the fact that some sport
hunted trophies are of a commercial nature, the Service feels that a
categorical exemption is not warranted.
Comments
Many respondents proposed specific changes or additions to the
definitions provided to address their particular activity. One
respondent suggested that the Service define the terms ``item of
wildlife'' and ``similar unused items'' to exclude scientific
collection of invertebrates. Other respondents questioned whether the
word ``similar'' was to be defined by either Class, Family, Species,
Subspecies or some other classifying factors. Another respondent
representing a large animal advocacy group suggested that ``items of
wildlife'' and ``similar items'' do not adequately address shipments of
live animals and should be amended to read ``shipment of eight or more
similar items or live wild animals.''
Service Response
The Service believes that the terms to be used in the Definitions
section should be interpreted in the broadest sense and assigned their
common ordinary meaning. The Service does not see any merit in
attempting to define terms so narrowly as to apply only to one specific
activity or circumstance.
Comments
Although most respondents opposed the adoption of the commercial
presumption as written and its application to all wildlife being
imported or exported for scientific purpose, some respondents supported
the proposal. Most notably, one respondent expressed the opinion that
all such shipments should be uniformly considered commercial with the
burden of proof being placed upon the importer, exporter or owner to
clearly demonstrate otherwise.
As the respondent further elaborated, this is especially applicable
to situations where commercially traded highly priced wildlife and
wildlife products are imported or exported in small quantities.
Service Response
The Service continues to believe that there is a strong rationale
and basis for the application of the presumption provided in the
definition of commercial.
Comments
The Service received a few comments on the definition of export.
One broker, concerned about the definition of export in Sec. 14.4,
noted that the single act of presenting a shipment by a broker or
exporter to a Service Wildlife Inspector for export should not
automatically constitute an export or attempt to export as proposed by
the Service. The respondent further emphasized that there are occasions
when the required documentation or tags for the export of wildlife is
only discovered to be missing after the wildlife has been presented for
export clearance. This, the respondent maintained, has subjected
exporters to civil and or criminal penalties, even where such omissions
are due to innocent behavior and no illegal act was attempted. The
respondent suggested that the exporter and the Service should be given
an opportunity to mutually determine whether a particular shipment has
met all the legal requirements.
Service Response
The burden of presenting the proper documentation is clearly upon
the importer or exporter of record. The effect of the Service
regulations is merely to establish when an item is an export or import.
In the case of imports the Service will only have access to items when
those items have been imported. The Service is also required to inspect
shipments of wildlife being exported. In such situations the status of
the item needs to be clearly understood for declaration filing and for
validation of CITES permits. The Service's intent was to clearly define
when an item has become an export, all allow the public to ascertain at
what point in the shipping process the Service considers a wildlife
item to be exported. For example, the Service would consider the
consignment of goods to a common carrier destined for a point outside
the United States as an attempt to export.
Comments
Responses were received concerning the definition proposed in
Sec. 14.4 for Domesticated animals. Several respondents requested the
inclusion of particular species within the list provided of recognized
``domesticated animals.'' One respondent suggested the inclusion of
such vertebrates as the corn snake, rat snake, king snake, milk snake,
bearded dragon, leopard gecko, garter snake, and others. Another
importer suggested the Service include within its list several
additional species of reptiles and amphibians such as the prairie king
snake, clawed frog, alligator, red-eared slider, bullfrog, and leopard
frog. One respondent requested that the Asian water buffalo and the
bactrian camel also be included.
Service Response
The list of domesticated animals incorporates Service policy which
was developed over a substantial period of time. This list represents
many of the most commonly seen species that have been domesticated
historically. The list was never intended to be all inclusive and many
additional species could be added. The Service will reevaluate the list
on a periodic basis. The Service has reviewed the suggestions made and
has determined that the domesticated animals definition will remain as
proposed, with the exception of the addition of honeybees.
Comments
A few comments were received that concerned the list of
domesticated birds contained within the definition of domesticated
animals in Sec. 14.4. One respondent suggested the Service
[[Page 31856]]
further explain what was meant by the descriptive words ``Ducks and
geese--domesticated varieties.'' Another respondent requested that the
Service delete from the list of domesticated birds the word domestica
from the scientific name Columba livia domestica.
Service Response
The terms, ducks and geese--domesticated varieties, means common
varieties of ducks and geese that are raised in animal husbandry and
are not commonly found in the wild. The scientific name ``domestica''
is intended to indicate that the Service considers only domesticated
varieties of this species to be domesticated animals.
Comments
One respondent was concerned with the Service list of domesticated
fish categorized as domestic for export purposes only. This list, as
the respondent noted, includes domesticated carp and goldfish. The
respondent was concerned about the effects of such classification for
there has been an increased number of smuggling cases of fish that are
falsely marked as goldfish. The respondent suggested that a wildlife
declaration form, 3-177, should be a minimum requirement for the import
or export of such items. A few respondents were concerned with insects
listed as domesticated. One respondent suggested adding honeybees, with
the exclusion of the Africanized honeybees, to the list of domesticated
insects.
Service Response
The Service is cognizant that any exemption to its inspection and
clearance requirements may be perceived as an opportunity for persons
to smuggle. The Service, however, is prepared for such eventualities
and will periodically spot check the trade in such items to ascertain
the degree of compliance. The Service does not believe that the
regulation of such exempt items is warranted at this time. The Service
does, however, see merit in the suggestion of adding honeybees, not to
include africanized honeybees, to the list of insects exempted from
inspection and clearance. Honeybees do not represent an enforcement
concern for the Service, are considered to be ecologically beneficial
insects that are not endangered or threatened or proposed for such
listing under the Endangered Species Act, and have historically been
domesticated. In response to the comments received, honeybees have been
added to the list of domesticated insects at Sec. 14.4.
Comments
A significant number of comments were received from the scientific
community regarding the shipment of scientific specimens in the form of
taxonomic or systematic collections via the U.S. and international mail
systems. Most respondents expressed great concern that without this
method of shipment the U.S. scientific community would become isolated
from foreign institutions. This would result, according to the
respondent, in the scientific community becoming unwilling and
economically unable to ship scientific materials to the United States
for research purposes. Most respondents felt that an exemption should
be included within the definition of commercial in Sec. 14.4 or at
Sec. 14.55 for bona fide research specimens.
Many respondents were troubled by the Service's failure to define
the terms ``bona fide research institution'' and ``scientist.'' Many
respondents specifically requested that the Service define the terms
``scientific institution'' and ``scientific collection'' by regulation
and provide such entities an exception to the marking and clearance
requirement of part 14. One respondent suggested that the term
``Research Institution'' should be defined to include any institution,
organization, or agency established for the purpose of conducting
scientific biological research and educational activities, that is
eligible for registration as a scientific institution by the Management
Authority of the CITES Conference 2.14 standards for registration of
scientific institutions.
Service Response
The Service, as mentioned earlier in the discussion, has taken
steps to clarify its requirements as they pertain to scientific
specimens. The Service does not use the term ``bona fide research
institution'' and has defined the terms accredited scientific
institution and accredited scientist. The Service has made several
changes in its regulations to provide an exception for dead, preserved,
dried, or embedded scientific specimens in Sec. 14.24. The Service is
also providing an exception to its clearance requirements in
Sec. 14.55, an exception to import declaration requirements in
Sec. 14.62, and an exception in its export declaration requirements in
Sec. 14.64 for such specimens in response to commenters concerns.
Comments
Several respondents were opposed to the Service providing any
special status to bona fide scientists or scientific institutions. One
respondent noted that much valuable research has been done by
``amateurs'' such as Charles Darwin and James Audubon and that the
ability of such persons to continue their valuable work should not be
hindered and that they too should be included within the definition of
``scientist.''
Service Response
The Service provided for this exemption because it did not intend
to interfere with the work of accredited scientists engaged in
scientific pursuits. The Service was faced with the problem, however,
of how it could provide for scientific exchange yet maintain oversight
and differentiate such exchange from commercial shipments. The Service
acknowledges that much important work in the natural sciences has and
continues to be done by independent collectors and researchers, many of
which lack formal degrees in science. Amateur scientists, however, can
seek and obtain accreditation for their work from such institutions as
defined, or can simply comply with the requirements of this part. The
Service believes this to be a proper and reasonable alternative in view
of the recent trend of commercial sale of insects, particularly,
species of butterflies and beetles. The Service arrived at what it
believed was a fair standard in providing for such exchange by
accredited scientists working with accredited institutions.
Comments Pertaining to 50 CFR 14.12 Designated Ports
Many comments were received concerning the use of designated ports
for the import or export of wildlife and the shipment of wildlife items
through the U.S. mail. Many respondents requested that the shipment of
scientific specimens through the mail be made exempt from the
designated port and border port requirements for wildlife. Many
respondents were concerned about the anticipated economic hardship if
the shipment of scientific specimens were limited to Service designated
ports for clearance and the ordinary use of the mail was restricted.
One respondent suggested that the scientific specimens should be
included within the revised Sec. 14.15, or that Sec. 14.31(b)(4) be
rephrased to read: ``The port(s) of entry, including all ports of entry
for international mail, where importation or exportation is requested *
* *.''
[[Page 31857]]
Service Response
The Service acknowledges the concerns scientists have about the use
of the mail and has provided a limited exemption explicitly at
Sec. 14.24.
Comments Pertaining to Sec. 14.15: Personal Baggage and Household
Effects
One respondent requested that the Service define the terms
``household effects'' and ``residence.'' One representative of a
scientific institution requested that the Service include scientific
specimens within the existing provisions of Sec. 14.15 that provide for
personal baggage and household effects. This, as noted by the
respondent, would allow scientific specimens contained in a person's
personal baggage or household effects to be imported or exported at any
Customs port of entry and would help to avoid any confusion regarding
certain scientific specimens, particularly bird and mammal skins, being
considered ``raw or dressed fur, raw, salted, or crusted hide or
skin.'' These, as the respondent noted, are specifically excluded at
Sec. 14.15(b) from this exception to the designated port requirement
for imported or exported wildlife.
One respondent representing a falconry association requested that
falconry birds, lawfully held pursuant to a permit under 50 CFR 21.28
and 21.29 be included in the ``personal baggage exemption'' for
temporary imports and exports when such imports and exports are to
Mexico or Canada for recreational sport hunting purposes.
Service Response
The Service finds no merit in the above suggestions. The provisions
of Sec. 14.15 were intended to cover only certain kinds of wildlife
products and manufactured articles not intended for sale and used as
clothing or contained in personal baggage, or such products and
articles as mounted game trophies or tanned hides which are a common
part of a shipment of household effects. These exceptions to the
designated port requirements were never intended to apply to live
wildlife, or to wildlife requiring a permit, even if the intended use
is of a scientific nature. Live wildlife, and wildlife covered under
the provisions of 50 CFR parts 16, 17, 18, 21 or 23, require a higher
level of oversight by the Service.
Comments Pertaining to 50 CFR 14.21 Shellfish and Fishery Products
One respondent expressed some concern about the harvest and export
of freshwater mussel shells within the Class Pelecypoda. Although the
amendment as proposed in Sec. 14.21(a)(2) specifically states ``aquatic
invertebrates of the Class Pelecypoda,'' the respondent felt that there
would be some confusion by the public and the courts. The respondent
suggested that the Service identify what freshwater species of aquatic
invertebrates are not exempt.
Service Response
The Service finds no merit in the above suggestion in view of the
burden of codifying thousands of species of aquatic invertebrates when
comparatively few species are being exempted.
Comments
Another respondent recommended changes to Sec. 14.21(b) Pearls,
suggesting that this part should be expanded to include both import and
export by including ``pearls imported or exported for commercial
purposes may enter or leave.''
Service Response
The Service finds merit in this suggestion in that it points out a
deficiency in the proposed language of the exception. The Service's
intent in referencing Pearls under the shellfish and fishery products
exemption at Sec. 14.21 is to grant the same exemption to pearls as is
currently given fishery products for human consumption, which includes
exemption from the designated port requirement and declaration
requirement for exports. The addition of Sec. 14.21(b) is intended to
codify Service policy on pearls issued in March 1985, in which pearls
would be considered shellfish and fishery products. The language at
Sec. 14.21(b) will be changed in this final rule to reflect the intent
of the Service to exempt pearls exported for commercial purposes.
Section 14.21(b) will be modified to read ``pearls imported or exported
for commercial purposes may enter or exit the United States at any
Customs port of entry.''
Comments Pertaining to 50 CFR 14.22 Certain Antique Articles
Under the provisions of Sec. 14.22 as revised, any person may
import any article, other than scrimshaw, that is at least 100 years
old, and is composed in whole or in part of an endangered or threatened
species listed under 50 CFR 17.11 or 17.12, and has not been repaired
or modified with any part of any endangered or threatened species.
Under this section, such importations are authorized to occur at any
port designated by Customs for the importation of such antique
articles. Several comments were received in regards to this section.
One respondent recommended that this section be amended to include both
importations and exportations. The respondent suggesting addition of
text to the section to provide that ``Except for antique items
requiring a permit pursuant to part 23, any person may import or export
at any port * * *.'' One respondent recommended that the exemptions for
certain antiques in Sec. 14.22 be completely eliminated and noted as a
basis for making this recommendation the apparent increased commercial
trade in such items. A concern expressed by one respondent was that
certain dealers would attempt to circumvent the declaration requirement
and inspection fee by falsely claiming the exemption. Another
respondent who was similarly concerned noted that as proposed this
section would allow the importation of antique elephant ivory.
Service Response
The Service has carefully considered these comments and responds by
noting that the exemption at Sec. 14.22 is intended to only apply to
the import of certain antique articles. The statutory exemption
contained at 16 U.S.C. 1539(h) is specific in granting the exemption
only to imports. To authorize export of certain antiques under this
Section would clearly be beyond the Service's statutory authority. This
section, however, does not prohibit persons from applying for a permit
to export certain antique articles containing endangered species from
the United States under the provisions of 16 U.S.C. 1539(f). It is
clearly the intent of the Service that antique articles containing
parts of species now listed as endangered or threatened and meeting
certain standards be exempt from the designated port requirement. With
respect to the commenter's suggestion of eliminating the exemption in
this part for certain antiques, collectibles and curios, the Service
believes it has addressed the issue that many of these items are
destined for commercial markets by removing the exemption for antiques,
collectibles and curios from the definition of commercial. The Service
believes that it has adequately and reasonably addressed this issue.
With respect to the commenter's suggestion that the revision to
Sec. 14.22 will allow the importation of antique elephant ivory,
antique ivory is already allowed to be imported under provisions of the
African Elephant Conservation Act.
[[Page 31858]]
Comments Pertaining to 50 CFR 14.52 Clearance of Wildlife
Many respondents expressed some concern about the effects of
physical inspection on fragile scientific specimens by Service Wildlife
Inspectors. Many of these respondents strongly recommended that the
transfer of scientific collections between ``accredited scientific
institutions'' be made exempt from the inspection and clearance
requirements. One scientist suggested that if documents are provided
for non-protected species then actual physical inspection of such
specimens should not be required. Several environmental education and
animal advocacy groups expressed contrary views and were insistent that
all shipments of wildlife be physically inspecte4d prior to clearance.
On a related issue, many representatives of animal welfare
organizations were concerned with the adequacy of the Service's
inspection program and expressed the view that all shipments,
particularly importations and exportations of live wildlife, should be
physically inspected.
One representative of an entomological society was concerned with
what the respondent perceived as the Service's increased, burdensome
regulations upon entomologists. The respondent further noted that the
Service's regulations as proposed would require the hiring of brokers
and agents to facilitate the shipment of scientific specimens through
Service designated ports. The respondent also noted that such
requirements will significantly increase the costs of scientific
exchange.
Service Response
The Service has responded to these concerns raised by the
scientific community in the provisions added at Sec. 14.24. This
section provides for an exception to the designated port requirement
and extends the declaration filing requirements of dead, preserved,
dried, or embedded scientific specimens, not requiring a permit, that
are imported or exported by accredited scientists or accredited
scientific institutions.
Comments
Other respondents were concerned with Sec. 14.52(c)(3), which
requires the importer to make available to the Service all permits and
documents required by the laws or regulations of any foreign country
prior to obtaining clearance by the Service. Many respondents were
concerned about the detainment and possible seizure of cargo while the
Service determines the permits and documentation required by a foreign
country.
The Service proposed to add a paragraph at Sec. 13.52(c)(5) to
provide that the Service will require ``any documents and permits
required by the country of natal origin of the wildlife'' to be
provided upon importation or exportation. Many respondents were
concerned with problems in establishing the ``country of natal origin''
of wildlife. Several respondents were concerned with the scope of this
additional documentation requirement. The respondents noted, that
importers and exporters would be required to obtain export licenses,
captive-breeding certificates, or breeding licenses from the ``country
of natal origin.'' Some respondents were concerned about potential
challenges to foreign permits and the procedures that would become
necessary to establish the validity of such permits and other
documentation. Many importers expressed concern with ``country of natal
origin'' requirements and believed that it would often be impossible to
determine what documentation was required. Several respondents
anticipated problems in obtaining the required documentation and were
concerned that shipments may be detained and seized under the
procedures specified in Sec. 14.53(a). One respondent was concerned
about having to obtain documents and permits from foreign governments
within the proposed time period. The respondent recommended that a
mechanism be provided for the granting of extensions. Several
respondents asked: if wildlife is currently to be exported legally, why
should additional documentation be required? It would be difficult,
noted one respondent, to obtain documents and permits from the country
of natal origin for ``thousands of specimens.'' Another respondent
suggested that this requirement should be maintained for endangered
invertebrate wildlife but believed such a requirement to be unworkable
when applied to non-protected species.
Service Response
The Service has historically required, and will continue to
require, the importer of record to satisfy the provisions of Sec. 14.52
by supplying those items listed under paragraph (c), in order for the
Service to make a determination as to the legality of the wildlife or
wildlife products being imported. It is clearly the position of the
Service that those individuals engaged in importing wildlife or
wildlife products into the United States make reasonable efforts to
determine lawful origin of the wildlife or wildlife products and to
ensure compliance with applicable foreign law. It is also the intent of
the Service to detain shipments containing wildlife or wildlife
products when compliance with foreign law is in question. Questions
will arise as to the status of a shipment under foreign law or CITES
when the importer of record fails to supply the Service with permits or
other documentation which are known or suspected by the Service to be
required by a foreign country. In some instances it may require an
additional amount of time (in excess of 30 days) for the Service to
verify the requirements of a foreign country when a shipment is
questioned, in which case the revision to Sec. 14.53(a) allows, for the
extension of the 30 day provision to ``a longer period if specifically
stated.''
The Service's intent in modifying Sec. 14.52 is to clarify for the
public what documentation the importer of record is required to supply
upon requesting clearance for imported wildlife and wildlife products.
In proposing to require documentation from the ``country of natal
origin'' the Service was attempting to address the enforcement concern
of wildlife being unlawfully exported from an originating country in
violation of an existing ban on exports, or in violation of a foreign
law designed to regulate the export of such wildlife, and its
subsequent re-exportation from a secondary country to the United
States. The Service is bound by domestic law and international treaty
to ensure compliance with foreign law. The Service finds merit,
however, in the comments submitted. The Service recognizes that
determining the natal origin and requiring documentation for each
successive importation and re-exportation of wildlife may impose an
unreasonable burden on importers and Service personnel. In response to
these concerns the Service will revise Sec. 14.52(c)(5) to read: ``Any
documents and permits required by the country of export or re-export of
the wildlife.'' This revision will allow the public to more easily
determine when they have met the requirements imposed by CITES or of
foreign law. However, this revision will not completely relieve the
importer of the burden of providing proof of lawful export in
circumstances where wildlife is coming from a country known to the
Service to have a ban on the export of such wildlife, even if coming
through a re-exporting country. In those circumstances the importer may
be required to show proof of lawful export from the ``country of natal
origin'' to the country of re-export or to the United States. In
response to the comments received, the Service has
[[Page 31859]]
determined that it would be unreasonable to require country of natal
origin documentation with every importation, especially in the absence
of reasonable suspicion of unlawful export from the country of natal
origin. This Section has been appropriately revised in this final rule.
Comments Pertaining to 50 CFR 14.53 Detention and Refusal of Clearance
The Service has proposed several amendments to the Refusal of
Clearance section in Sec. 14.53. Many respondents were concerned about
the new detention and refusal of clearance requirements in
Sec. 14.53(a) and the process by which a detention becomes a formal
seizure. In general, this new section provides that any Service officer
may detain imported wildlife in accordance with established procedures.
The Service, however, will provide notice of the detention containing a
description of the wildlife involved, and the basis for the detention,
and describe the general nature of the tests or inquiries to be
conducted during the detention. This section also provides that if the
legality of the wildlife has not been determined within 30 days after
the date of notice, or other period as stated, that the wildlife shall
be deemed to be seized and no further notification of seizure will be
issued. This requirement is intended to establish a limit to the
duration of any detention by the Service of wildlife items being
imported or exported and to specify when such detention may be given
the status of having been seized for the purposes of filing an appeal.
The effect of this change is to clearly distinguish at what point an
ordinary detention of wildlife for purpose of inspection, clearance, or
identification can be regarded as having been seized.
One representative of the pet industry thought the proposed
conversion, from a detention to a ``formal'' seizure would violate
Constitutional Due Process requirements. Another respondent was
concerned that the 30-day seizure rule could be manipulated in the
Service's favor by dragging its feet. This respondent was also
concerned that detained property, that later became a seizure, would be
disposed of without further notice to the importer. Another wildlife
exhibitor expressed concern regarding the detention of large animals
without providing the shipper the opportunity to respond ``within a
reasonable period of time'' after being notified.
Service Response
The Service does not intend for any of the changes in Sec. 14.53 to
discourage dialog between an importer and the Service during a period
of detention. The importer of wildlife being detained would be free to
offer, in good faith, any information documentary or otherwise, to
assist the Service in its inquiry of the legality, identity, or origin
of wildlife or wildlife products being imported.
Comments
Another respondent requested that formal detention criteria be
established similar to the criteria outlined for refusal of clearance
in Sec. 14.53(b). The respondent noted that without such guidelines
there would be significant inconsistencies in the application of
detention and the potential for abuse. One representative of the
wildlife import/export industry remarked that although there are
guidelines provided for the Service's ``refusal of clearance'' of
wildlife shipments, there are no such guidelines for the ``detention''
of wildlife.
Service Response
Guidelines are offered in this section for refusal of clearance due
to a refusal being of a direct nature which could lead to the immediate
seizure and initiation of forfeiture action or other appropriate action
by the Service. Detention of wildlife or wildlife products being
imported is merely a formal inquiry period whereby the Service
establishes the status of a given shipment. The Service believes that
providing for a formal detention period giving the importer or exporter
time in which to comply with Service requirements is reasonable, given
the alternative of refusing clearance on the shipment, and possibly
seizing it and seeking forfeiture. The myriad circumstances which would
give rise to some reasonable suspicion and would then dictate formal
detention are so numerous and variable that the Service needs some
flexibility in its application of detention. In general, goods will be
detained either to identify the wildlife being imported, or to verify
foreign permits presented for clearance. The Service would note that
specific guidelines for seizure and forfeiture of imported wildlife and
wildlife products are contained at 50 CFR part 12.
Comments
One respondent suggested that the Service amend the proposed
changes to Sec. 14.53(a) by adding safeguards found in Customs law
found at 19 U.S.C. 1499. Specifically, the respondent requested that
the Service add two phrases: ``the anticipated length of the
detention''; and ``what information should be furnished by the importer
or consignee that may accelerate the disposition of the detention.''
Service Response
This section will require the Service to inform the importer or
consignee of the maximum period of detention, after which the wildlife,
if not released, will be considered seized. As stated, the Service is
willing to accept any information, offered in good faith, that the
importer or consignee can provide to assist in determining the status
of imported wildlife. However, the Service does not want to require
information to be submitted by the importer in each detention
circumstance, since detention frequently involves communication between
the Service and foreign governments in document verification, which is
beyond the control of the importer or does not require input from the
importer.
Comments
Several respondents suggested that the text of Sec. 14.53(a) be
amended to provide for the detention for both imported and exported
wildlife. Another respondent suggested adding APHIS inspectors to those
officers vested with the authority to detain wildlife shipments. The
respondent noted that APHIS has the authority to regulate CITES plant
material under part 24 and on those occasion when Customs or Service
Inspectors are not available, APHIS Inspectors are available to detect
shipments which need Service attention. Many respondents were concerned
about the storage of detained wildlife. Other respondents were
concerned about who would be responsible for the storage costs incurred
as a result of the Service detaining an importation and whether, in the
case of live wildlife shipments, they would be stored in adequate
facilities.
Service Response
The USDA, in particular APHIS, unlike the Customs Service has not
been granted authority in this regulation to detain wildlife shipments
for the Service. Although the USDA provides valuable assistance to the
Service in detecting shipments containing wildlife, only the Customs
Service is authorized to act in the absence of Service personnel.
The Service clearly intends for the cost of storage or demurrage of
shipments in a formal detention status to be borne by the importer or
owner of those goods as is customary with other regulatory agencies
such as the Customs Service.
[[Page 31860]]
Comments
Several respondents were concerned about Sec. 14.53(b)(2). This
paragraph provides that any Service officer may refuse clearance of
imported or exported wildlife and any Customs officer acting under
Sec. 14.54 may refuse clearance of imported wildlife when there are
reasonable grounds to believe that the correct identity and country of
origin of the wildlife has not been established. This paragraph further
provides that in such cases the burden is upon the owner, importer,
exporter, consignor, or consignee to establish such identity by
scientific names to the species level or, if any subspecies is
protected by the laws of this country or the country of origin, to the
subspecies level. Several respondents expressed concern with the
addition at Sec. 14.53(b)(5), which provides that the Service, or any
Customs officer acting under Sec. 14.54, may refuse clearance of
imported or exported wildlife when there is reasonable grounds to
believe that any fee or assessed penalties against the importer or
exporter under part 11 of this chapter have not been paid. A few
respondents felt that they would be penalized for exercising their
right to contest a civil or criminal penalty which had previously been
asses
FR Doc. 96-15388 Importation, Exportation, and Transportation of Wildlife
sed.
Service Response
The Service has carefully considered these comments and believes
that nothing in the amendment to Sec. 14.53 will actually deny any
individual the right to contest or appeal a civil or criminal penalty
levied against them. The Service finds merit, however, in the
commenter's concern that this Section may appear to be coercive, and
would discourage an importer or exporter from exercising their right to
file an appeal under part 11. In response to the commenter's concerns,
and to clarify for the public when the Service will or will not
exercise its authority under Sec. 14.53, the Service will further
revise this section to read that the Service will refuse clearance for
non-payment of assessed penalties, except for those assessments on
appeal. The revised Sec. 14.53(b)(5) will read as follows: ``Any fee or
portion of balance due for inspection fees required by Sec. 14.93,
14.94, or penalties assessed against the importer or exporter under 50
CFR part 11, has not been paid. This paragraph shall not apply to
penalty assessments on appeal in accordance with the provisions of part
11.''
Comments Pertaining to 50 CFR 14.54 Unavailability of Service Officers
Many respondents were concerned with Service proposals to change
Sec. 14.54(a). Several scientists thought the requirement to notify the
Service 48 hours in advance of importations and exportations was
impractical for such shipments are often times made on a continuous
basis during the scientific field work season. One Service employee
responding in a private capacity noted that the Service in
Sec. 14.54(a) needs to expand or define the term ``conditional
release'' as it relates to shipments released to importers prior to
clearance. Another respondent noted that the phrase ``within a
reasonable time'' could be subject to differing interpretations if it
was not better explained or defined. One respondent noted the proposed
amendments changed the word ``if'' to ``where'' in the phrase ``where a
Service officer is not available.'' The respondent further remarked
that at designated ports Service officers are available. One wildlife
professional commenting in a private capacity suggested that the 48
hour notification should be required to be made during normal business
hours. Another respondent suggested that to cover weekend and holidays
the 48 hour notification should be increased to 72 hours. Importers, as
one respondent explained, often do not receive notice of importations
until 12 hours prior to the importations. Another respondent claimed
that wildlife importers are often not notified of the arrival of such
shipments until after they are in route. One respondent suggested that
in such circumstances a ``special inspection fee,'' similar to that
assessed for overtime fees, should be charged to provide for these
unscheduled inspections.
Service Response
The Service has carefully reviewed these comments and notes that
the revisions to Sec. 14.54(a) do not apply to every importation. This
section is intended to apply to circumstances involving import of live
or perishable wildlife or wildlife products or when inspection is
requested at the time of arrival. The Service believes that businesses
dealing in perishable wildlife or wildlife products at least
contemplate the arrival of shipments within a 48 hour time frame, which
would allow for Service notification. The Service is attempting to
provide an increased level of service to those persons dealing in live
or perishable wildlife or to those whose shipments must be expedited
upon arrival. The Service cannot provide this level of response, if
some form of prior notification is not given. The Service will keep the
notification requirement at 48 hours for affected imports.
Comments
Many other comments were received concerning the proposed provision
to require that the Service be notified and the shipment be made
available for inspection 48 hours prior to exportation. Several
respondents from the Alaskan fur trade anticipated problems with the
Service notification requirement.
The lack of basic communication, as one respondent explained, from
the ``bush,'' the prevalence of ``multi-carrier'' methods of shipments
originating with small bush carriers, and the usual delays caused by
weather are all significant factors which would complicate or inhibit
individual compliance with such notification requirements. Several
representatives of the wildlife import/export industry thought the 48
hour advance notice for exportations in Sec. 14.54(f) was unreasonable,
particularly when notice is given to a Designated Port during normal
working hours. Several other respondents agreed with the 48 hour prior
notification for exports in Sec. 14.54(f) but believed it would not be
possible to make shipments of live perishable wildlife available for
inspection 48 hours prior to shipment. One respondent requested that
the term ``time of exportation'' be made clearer and suggested that the
term be revised to read ``the scheduled time of departure'' of the
vehicle, vessel, or aircraft from the port where the shipment was
presented for inspection. One commenter believed that such a
requirement would be detrimental to the welfare of live wildlife. The
respondent suggested that the proposal be amended to provide for a 24
hour notice and to require that the shipment be made available for
inspection at least five (5) hours prior to shipment. One respondent
representing a sports hunting and conservation organization expressed
concern with the term ``perishable'' and asked if salted or dried skins
and sport hunted trophies would be considered as perishable wildlife.
The respondent further noted that without a more specific definition of
the term, there would be inconsistencies in the interpretations made by
individual Wildlife Inspectors. One respondent was particularly
concerned that Sec. 14.54(f) did not include the same provision for
``when Service officers are not available'' as does Sec. 14.54(a). The
respondent noted that in situations when a shipment is prepared for
export
[[Page 31861]]
and the Service is unavailable to inspect it, there should be a
provision to allow the shipment to be sent without physical inspection
by the Service so as not to incur additional fees and charges.
Service Response
The Service believes that the 48 hour notification requirement is
reasonable in view of the ability of Customs Officers to act on behalf
of Service Officers under the authority of Sec. 14.54 when Service
Officers are not available, and the provision under Sec. 14.54
requiring clearance by a Service Officer ``unless expressly authorized
otherwise.'' This last provision will allow for clearance of exports
without physical inspection in unusual situations. The Service is
attempting to maintain effective oversight while allowing for clearance
in those situations in which an export would be delayed an unreasonable
period of time waiting for physical inspection, or in which an officer
is not available. The 48 hour notification becomes particularly
important, in view of the requirement to obtain clearance prior to
export, when dealing with live wildlife. The Service cannot maintain a
high level of service, maintain oversight, and avoid unnecessary and
costly live wildlife mortality, without some prior notification of the
intent to export. The Service will not automatically consider salted or
dried skins or sport-hunted trophies to be perishable items.
Comments Pertaining to 50 CFR 14.55 Exceptions to Clearance
Requirements
Many representatives of professional scientific organizations were
concerned with the effect of clearance requirements on the field of
biological control. One respondent noted that wildlife shipments are
already regulated by APHIS under the Plant Pest Act and should,
therefore, be exempted from the Service's inspection and clearance
requirement. Customs and APHIS, in the respondent's opinion, already
adequately regulate the movement of such wildlife and the Service
regulations are, therefore, overly burdensome. The Service, as the
respondent suggested, could be alternatively notified of pending
shipments by the receipt of an APHIS PPQ-526 permit.
Service Response
Neither APHIS nor the Customs Service is mandated to regulate the
import and export of wildlife and wildlife products to and from the
United States. The Service's mission and expertise is different than
that of APHIS or the Customs Service and no additional exceptions under
this part can be justified.
Comments Pertaining to 50 CFR 14.61 Import Declaration Requirements
One respondent representing an entomological society requested that
Sec. 14.64(b)(1) apply to both imports and exports of scientific
specimens. Numerous respondents expressed concern with the requirement
to file 3-177 declarations with wildlife identification to the species
level, stating that identifying scientific specimens is a long and
laborious process that would take much longer than the 180 day
requirement. Numerous other respondents expressed concern with the
anticipated administrative burden and cost associated with the
declaration requirement. Many respondents suggested exempting the trade
of scientific specimens from the Service's requirement to file a
Declaration for Importation or Exportation of Fish or Wildlife (Form 3-
177) except where shipments contained endangered species. Other
respondents were concerned with what was characterized as the
anticipated ``endless loop of filing for extensions.''
Numerous respondents representing museums and the systematic
scientists' community expressed concern with the requirement to file 3-
177 for shipments of scientific collections. Many commenters noted that
their current inventory of specimens is extensive and, therefore, would
be impossible to list. Another respondent similarly noted that
shipments of scientific collections are often made in bulk and the
required inventory would be impossible to provide.
Service Response
The Service believes that it has addressed these concerns in its
addition of Sec. 14.24 to this Part.
Comments Pertaining to 50 CFR 14.62 Exceptions to Import Declaration
Requirements
One respondent believed that the 180 day requirement to update a
declaration in Sec. 14.62(c) is too long a time period. This, in the
respondent's opinion, had made it difficult for the Service to track
incomplete 3-177s. One scientist requested that the text of
Sec. 14.62(a) be revised to provide that a 3-177 form does not have to
be filed for importation of scientific specimens that are being shipped
from one scientific institution to another. The respondent further
noted that ``the Service can have no particular interest in keeping
track of the tens of thousands of scientific specimens in museums that
are being sent to experts or authorities around the world for study
purposes.''
Service Response
The Service believes it has addressed these comments in its
addition of Sec. 14.24 to this part.
Comments Pertaining to 50 CFR 14.64 Exception to Export Declaration
Requirements
Several respondents suggested that the export of American raw furs
should be made totally exempt from the Service's regulations. Several
other respondents expressed similar opinions about what they regarded
as the over-regulation of the fur trapping ``industry.'' One self-
described producer of captive-bred reptiles and amphibians requested
that an exemption for reptiles and amphibians be added, similar to that
provided in Sec. 14.64(a) for live aquatic invertebrates. This, the
respondent proposed, would allow the shipment of such animals for
propagation purposes such as the exchange of breeding stocks. One
respondent noted, regarding Sec. 14.64(b)(1), that because the value of
wildlife products is arbitrary, the threshold value of $250.00 should
be eliminated as a specific exemption to the declaration requirement.
One representative of an entomological society requested that
Sec. 14.64(b)(1) be made uniformly applicable to both the import and
export of scientific specimens. One respondent from a sport hunting
association requested that the Service eliminate the exception for game
trophies in Sec. 14.62(b)(2). The respondent believed that there was a
continued need for the Service to monitor this activity as it relates
to the illegal harvest and subsequent exportation of wildlife. One
respondent representing an animal advocacy organization suggested
eliminating the game trophy exemption of this part and cited the
Service's need to maintain records pertaining to noncommercial
exportations of sport taken trophy fish and big game animals by foreign
hunters and fisherman departing with wildlife trophies as personal
baggage.
Numerous respondents suggested that scientific specimens should be
allowed to be shipped via the U.S. mail. Many respondents suggested
amending this section to include scientific specimens for scientific
institutions and museums. Many scientists concerned with the import and
export of biological control agents stated there should be an exemption
to the declaration requirement for these items. One representative of a
state wildlife agency
[[Page 31862]]
noted that scientific specimens have no commercial value or a value
less than $250.00 and, therefore, should be exempted from the export
declaration requirement. It has been suggested that noncommercial
importations of scientific specimens be exempted as well. One
respondent suggested that wildlife being imported as personal
accompanying baggage should be required to be declared and the 3-177
presented.
Service Response
The Service must balance effective oversight of activities
involving the import and export of wildlife against the inconveniences
caused by regulation. Those species indigenous to the U.S. and those
species of wildlife common in trade are of particular importance in the
regulatory scheme due to the Service's mission of protecting both
indigenous wildlife and wildlife around the world threatened by over-
utilization. The United States is a leader in wildlife management and
the world's largest consumer of wildlife products, which places a
burden on the Service to ensure that wildlife imported or exported
complies with appropriate state and foreign law. Exceptions to
regulatory requirements are carefully considered by the Service and
developed over a long period of time. The Service does not see any
merit in adding species commonly found in commercial trade, and not
currently captive-bred to any large degree, to the exceptions to export
declaration requirements. The suggestions made by commenters to expand
the export declaration exemptions to species whose survival is affected
by trade would be inconsistent with the mission of the Service and the
intent of the regulation. Conversely, the Service cannot regulate all
exports made under the personal effects exemption due to the Service's
limited statutory authority, and the obvious impact this would have on
movement of persons into and out of the United States. The Service will
maintain oversight of export activity and make adjustments to the
exceptions section as appropriate. The Service believes that the
exceptions granted to scientific specimens in this part are warranted
and adequately address those respondents' concerns.
The Service has added the word ``live'' to the export declaration
exception at Sec. 14.64(a) for aquatic invertebrates of the Class
Pelecypoda, to more accurately reflect the Service's intent of
exempting only living specimens of oysters, clams, mussels, and
scallops.
Comments Pertaining to 50 CFR 14.81 Marking Requirements
Numerous comments were received in regards to Sec. 14.81. One
respondent expressed concern with toxic substances being shipped
incidental to importations or exportations of wildlife, for example,
insecticides in shipments of raw hides. The containers, according to
the respondent, should be marked as to the hazard/identity of the toxic
substances. One respondent suggested that the change the term
``scientific species name'' to read ``species scientific name.'' One
representative of a Federal agency expressed concern regarding the
inability to accurately identify scientific specimens to meet this
requirement. Several representatives of scientific institutions noted
that it may not be possible to identify scientific specimens to species
level at the time of importation. Many state agency representatives
expressed similar concern regarding the identification of scientific
specimens to the species level. It was noted by several such agencies
that such invertebrate shipments often contain thousands of specimens
which may take years to identify.
Several specific suggestions were received concerning the marking
of containers. One respondent suggested marking as ``specimens for
scientific study'' with the shipper and receiver being on a registry of
``registered scientific collections.'' The respondent further noting
that if follow up document inspections were required by the Service,
the shipments would be well documented by the scientific facility
making such inspection possible. Numerous representatives of foreign
scientific institutions also expressed concern with the marking of as
yet unidentified scientific specimens being submitted for
identification. Several representatives of foreign institutions noted
that scientific collections are generally sent as rough-sorted, bulk
shipments and meeting this requirement would be impossible. One
respondent from the wildlife import/export business community noted
that the requirement to submit a shipping list containing the
scientific name being shipped was a redundant effort as the 3-177
already contains this information. Additionally, the shipping documents
are often provided by the shipper's agent and not directly under the
control of the importer. Several respondents noted that they may have
many different species in an insect specimen shipment. Another
requested that the wording be amended to provide for a legible list of
a shipment's contents containing the identification of the specimens
identified to the lowest taxonomic level that is scientifically
possible. This would involve the number of each taxon listed and
whether the members of the listed taxa are venomous.
Service Response
The Service's intent in revising this section is twofold. First, is
the obvious safety concern of Wildlife Inspectors examining live
wildlife shipments that may contain venomous species. This requirement
will allow inspectors to identify the presence of venomous species
without having the importer's declaration present. Declarations are
generally filed when making entry, not necessarily when the shipment
arrives. Second, this revision will assist Wildlife Inspectors in
determining the applicability of this part when encountering wildlife
shipments for which no declaration has been filed.
Comments Pertaining to 50 CFR 14.82 Aternatives and Exceptions to the
Marking Requirement
Several responses received pertained to this Section. One
representative of a large animal advocacy group suggested using the
words ``the scientific name the identifies the species,'' due to what
the respondent noted as the variety and confusion concerning the use of
common names and the problem of proper identification using those
names.
Service Response
The Service finds merit in this suggestion but will not make any
additional changes to this section at this time in order to avoid
making the revision to the marking requirement overly burdensome on
wildlife shippers.
Comments Pertaining to 50 CFR 14.91 License Requirements
Many comments were received regarding Sec. 14.91. Several wildlife
importers agreed with the requirement that all persons engaged in the
business as an importer or exporter of wildlife obtain a valid import/
export license, and that no exemption by class or threshold dollar
amount should be provided. One respondent questioned, with regard to
Sec. 14.91(c)(5), whether the requirement was to include a taxidermist
who is not the ``importer of record'' but is a direct recipient of
hunting trophies taken by the ``importer of record.''
Service Response
This section requires certain persons who engage in the enumerated
activities to hold a valid Service import/export license, including
taxidermists. If a
[[Page 31863]]
taxidermist is importing or exporting wildlife for commercial purposes
as the ``importer or exporter of record,'' then a license is required.
No license is required if a taxidermist is the mere recipient of
wildlife or delivery point for a hunter acting as ``importer or
exporter of record,'' since the actual importing and exporting is
arranged and paid for by the hunter himself.
Comments
Several comments were received from trappers in Alaska pertaining
to this section. Many of these respondents expressed concern with the
proposed change that would require them to obtain a license to export
furs to Canada. Many of these trappers, according to the respondent,
are part-time operators who did not previously meet the $25,000.00
threshold license requirement. Many commenters believed that this
proposal was unwarranted due to the fact that they currently have to
obtain CITES permits and non-designated port permits. Several fur
industry representatives were concerned about the regulations as they
would apply to the shipment of furs and were opposed to the elimination
of the $25,000.00 threshold. Many believed that the added cost of this
requirement was not warranted. Several respondents were concerned about
the effects of the Service's license requirements on small importers or
exporters. One respondent thought that small import or export business
should not be required to obtain licenses. One respondent requested the
duration of an import/export license in Sec. 14.93(d) to be changed to
a period of two years to reduce costs incurred by smaller importers.
Service Response
Clearly, fur trappers exporting furs from the United States are
doing so with a commercial intent. Therefore, those persons are
``engage[d] in business as an importer or exporter of wildlife,''
whether they do so on a full-time or part-time basis. Moreover,
although the Service recognizes that the elimination of the $25,000
threshold will impose additional costs on some small importers and
exporters, the revised licensing system will more accurately reflect
the Service's costs in providing inspection services.
Comments
One respondent inquired as to whether the proposed regulation
changes were in compliance with the ``Regulatory Flexibility Act,''
which establishes procedural requirements for Federal agencies to
determine whether a particular regulation is having a significant
economic effect on a substantial number of small entities. This law is
intended to ensure that laws and regulations designed for application
to large scale entities have been applied uniformly to small
businesses, small organizations, and small governmental jurisdictions
even though the problems that gave rise to government action may not
have been caused by those small entities.
Service Response
The Service has determined that this regulatory change will not
have a significant economic effect on a substantial number of small
entities as required by the Regulatory Flexibility Act (See Required
Determinations).
Comments
Many respondents representing scientific institutions had
misunderstandings concerning the license requirement for noncommercial,
scientific shipments. Many were concerned that they would now be
presumed to be commercial under the presumption of commercial intent
provided within the definition of commercial in Sec. 14.4.
Service Response
The Service clearly intends to exclude scientific specimens from
the license and designated port requirements unless those scientific
specimens are imported or exported for primarily commercial purposes.
The exceptions contained at Sec. 14.24 apply to dead, preserved, dried,
or embedded scientific specimens imported or exported by accredited
scientists or accredited scientific institutions for research purposes
only. The license requirement will apply to those importers or
exporters of scientific specimens whose intent is commercial.
Comments
One environmental education company and several animal advocacy
groups suggested that convicted wildlife violators should be prohibited
from obtaining an Import/Export license. The respondent further
suggested that any license already issued should be revoked by the
Service upon the individual or organization's conviction.
Service Response
Provisions for the revocation or suspension of permits or licenses
are contained at 50 CFR part 13.
Comments Pertaining to 50 CFR 14.92 Exception to License Requirements
Numerous comments were received regarding Sec. 14.92. One Service
employee responding in a private capacity requested a change in
Sec. 14.92(a)(3) to require importers to document their claim that
certain imported items are ``ranched,'' meaning the item was derived
from ranched-raised wildlife. The respondent believed that many such
shipments are routinely declared as ranched to circumvent fee
requirements. Another respondent suggested deleting this exception
entirely. The respondent explained that this exception was first
established to assist World War II veterans operating fur ranches as a
commercial business. The respondent noted that other commercial
businesses dealing with captive-raised wildlife have not been afforded
a similar exception. One respondent suggested that Sec. 14.92(a)(6) be
amended to include export within the exception provided to exempt
pearls imported or exported for commercial purposes.
Service Response
The Service finds merit in the above responses but will not make
the changes to Sec. 14.92(a)(3) regarding furbearers born and bred in
captivity at this time due to the prevalence of ranched furs in the fur
industry, and due the Service's ability to verify whether or not furs
have in fact been taken from the wild and portrayed as captive bred.
The Service also finds merit in the addition of the word ``exported''
to Sec. 14.92(a)(6) to exempt pearls exported for commercial purposes
from the license requirement. The Service has made the appropriate
revision to this section in response to comments received.
Comments
Numerous respondents representing wildlife importers and exporters
requested that the Service add the words, ``for-profit zoological
institutions and theme parks'' to this section to provide for when
importation or exportations are for educational or exhibition purposes
and not for resale. One respondent representing the falconry community
requested that falconers, licensed pursuant to part 21 or by the nation
of permanent residence, importing or exporting legally held raptors for
falconry purposes and not for purchase, sale, barter, or transfer of
such raptors, be included as an exemption to this license requirement
in Sec. 14.92(b).
Service Response
The Service believes that it has adequately addressed the most
common exceptions to the license requirement in this section. The
Service believes that to categorically exempt faconers or ``for-profit
zoological institutions and theme
[[Page 31864]]
parks'' from the license requirement would be inappropriate since these
activities can involve a commercial purpose. The exceptions listed in
this part represent longstanding exceptions to several regulatory
requirements of the Service. If falconers or zoological institutions
are not engaged in the business of importing or exporting wildlife, as
defined at Sec. 14.91(b), then the license requirement will not apply.
Comments Pertaining to 50 CFR 14.94-Fees
Numerous comments were received on the issue of user fees provided
for in Sec. 14.94 Fees. This section establishes the Service fee
schedule for a variety of services provided by the Service to importers
and exporters of wildlife.
Many comments were directed specifically at the requirements of
Sec. 14.94(a)(1), which provides that an overtime fee may be charged,
in addition to the inspection fee, for certain importations or
exportations of wildlife, where the wildlife being imported or exported
is part of a commercial shipment. One respondent expressed concern that
the Service would not be charging overtime fees for noncommercial
shipments, i.e., personal pets, or shipments by scientific non-profit
institutions.
Many respondents expressed concern with the proposed $55.00
inspection fee and questioned whether such a fee would apply to
scientific specimens imported for research purposes. Many respondents
believed that this would present them with a significant problem
considering their limited operating budgets. Several representatives
from foreign scientific institutions were concerned with the imposition
of inspection fees for scientific specimens, believing that such
shipments would now be considered as presumptively commercial under the
Service's revised definition of commercial.
One respondent suggested that the calculation of the inspection
fees should be based on 5% of the declared value of the shipment with a
minimum level of $100.00 per inspection. The monies collected,
according to the respondent, should then be used to increase the number
of physical inspections performed. The U.S. taxpayer, as the respondent
noted, should not be subsidizing the wildlife import and export
business. Another respondent suggested that the Service adopt an
overtime fee schedule consistent with other regulatory agencies. One
respondent was concerned as to the collection of fees by the Service
for commercial shipments made via the mail. The respondent wondered
whether such items would be subject to a Service refusal of clearance
while the Service is awaiting payment.
Several of the respondents were concerned about the application of
overtime fees as provided in Sec. 14.94(b), as such fees relate to
after-hour noncommercial importations. Respondents expressed concern
regarding the Service's increase in inspection fees while at the same
time reducing the license fee to commercial operators. This, as one
respondent expressed, seemingly discriminates against the noncommercial
importers in favor of commercial users. A respondent noted that the
preamble background information, found in the Federal Register notice
(September 14, 1994; 59 FR 47214) states that noncommercial shipments
and shipments by persons exempt from the license requirements are not
to be charged an inspection fee, but may be charged ``overtime costs''
incurred at the specific request of the importer or exporter. The
respondent further noted that under Sec. 14.94(a)(1) overtime fees
apply only to ``commercial shipments.''
Service Response
The Service appreciates these comments because it points out a
deficiency in the proposed rule which erroneously tied overtime fees to
``commercial shipments.'' The Service clearly intends for overtime fees
to apply to importers and exporters of wildlife who request clearance
outside of normal work hours, regardless of commercial or noncommercial
status. The language in the proposed rule which erroneously linked
overtime fees to those holding import/export licenses may have
suggested to the respondents that the Service was ``discriminating''
against noncommercial importers. Section 14.94(b) has been revised
appropriately to reflect the Service's intent and in response to
commenters concerns. Paragraph (b) has been revised in this final rule
to reflect that any importer or exporter requiring clearance by a
Service Officer who requests that an inspection be done outside of
normal work hours will be charged an overtime fee in accordance with
the fee schedule found in Sec. 14.94(d). The structure of the fee
schedule at Sec. 14.94(d) has also been redesigned in this final rule
to make the applicability of the new fees clearer and less confusing
for the public. The fees themselves will remain as proposed for the
reasons stated.
Comments
Many commercial importers expressed concern with the proposed
increase in inspection fees. One representative of a wildlife import/
export business complained that the average cost of $55 to process a
shipment was not valid and that a flat, per-shipment fee is not the
best method. The respondent further suggested that the Service adopt a
fee schedule similar to that used by Customs which uses an ``ad
valorem'' with flat fee minimum/reimbursable overtime. One respondent
noted that at the John F. Kennedy International Airport tropical fish
shipments routinely arrive on Sundays. The respondent questioned why
such fees were necessary, when other Federal regulatory agencies
schedule employees to work on Sunday without charging higher fees. The
Service, as the respondent further noted, should be more flexible in
scheduling their Inspector work hours to fit the needs of individual
ports. Several importers requested that a cap on importation filing
fees of $1250.00 annually be placed on smaller importers. Another
respondent similarly suggested eliminating the fee for, small business
which do not import more than $20,000.00 annually. Another respondent
suggested that the Service eliminate the fee for reexports for, as the
respondent explained, the importer had been charged originally without
the shipment having been changed.
Service Response
The Service acknowledges these concerns and is attempting, through
this revision, to maintain the most efficient inspection program
possible without allowing its fee structure to become overly burdensome
to smaller importers. The analyses of the Service's inspection program
mentioned in the proposed rule clearly indicate a need to raise
inspection fees and overtime rates to be commensurate with costs
incurred by the Service. Most ports, both designated and non-
designated, are not staffed to allow for the inclusion of ``regular
hours'' on weekends or holidays or after normal business hours, which
may require certain importers or exporters to pay more for inspections
done at these hours. The Service has, in the past, examined the ``ad
valorem'' method of reimbursement and has determined that a flat fee is
the best method, since actual work required to inspect wildlife
shipments does not correlate well with the value of the shipment. In
other words, shipments of high value do not always require Wildlife
Inspectors to perform more work. The Service will monitor the
collection of fees closely and in the event fees generate sufficient
revenue to pay for additional staffing at certain ports to allow for
expanded
[[Page 31865]]
hours of inspection, the Service will respond accordingly.
Comments
One response was received with regards to the Service billing of an
overtime inspection in which three wildlife shipments were inspected.
The respondent noted that the charges for the three inspections were
not prorated over the three shipments but all three received the same
full charge. The respondent suggested the Service prorate the charge
for multiple importations and incorporate a 1 hour minimum overtime
charge. One respondent noted that in his opinion the fees were so high
with regards to exportations that it seemed to constitute a ``tax'' on
exportations which, in his words, was unconstitutional. One exporter
commented that most of his business is exporting the same or like item
over and over. His inspection consists of sending in his fee and
3-177 with his shipments never being physically inspected. He suggests
reducing or eliminating this repetitive process but gave no suggestions
on how this might be accomplished.
Service Response
As noted in the proposed rule the Service is merely attempting to
recoup costs incurred in the inspection process by adjusting its fee
schedule in this final rule. In those instances, as described by the
commenter, when several shipments are inspected outside normal work
hours or multiple shipments are inspected for one importer on multiple
entries, the Service, by policy, does not prorate associated charges.
However, in response to commenter's concerns the Service has added an
exception at Sec. 14.94(b)(4) to allow for multiple shipments consigned
to the same importer/exporter and inspected at one location on
overtime, to pay one minimum hourly overtime fee at designated ports.
The inspection fee will still apply to each shipment.
Comments
Many comments were received from the animal welfare community that
requested increased inspections at port of Miami and that the Service
should increase fees to a minimum of $100 to pay for the increased cost
of law enforcement personnel. Many comments were received from
representatives of scientific institutions concerning fees. Many
respondents representing scientific organizations expressed concern
with the inspection fee of $55.00 per shipment, noting that such a fee
imposed upon wildlife imports and exports would be too high for their
budgets. Several respondents perceived the Service's proposal as an
increased regulatory burden on the scientific community and believed it
had the potential to ``isolate'' the United States from the
international scientific community. Of particular concern to several
scientists was the ``trade'' of non-endangered species. One respondent
noted that he knew of no evidence that supported the notion that
scientific collecting poses a threat to non-endangered insects. Another
scientist similarly suggested that the Service, due to lack of funding
and manpower, should concentrate its regulatory effort on threatened
and endangered species and those covered by CITES.
Service Response
The Service notes that these commenters' concerns are precisely why
an inspection program was established by the Service in 1975. In order
for the Service to determine if a shipment contains threatened or
endangered species, or CITES species, and consequently to determine if
those species are affected by trade, the shipment must be inspected by
qualified personnel who can make that determination. Again,
noncommercial importers and exporters of wildlife will not be subject
to fees unless requiring and requesting clearance outside of normal
business hours, or using nondesignated ports.
Comments
Many respondents appeared to have some misunderstanding regarding
the collection of fees and quoted the overtime schedule as if the
overtime fees applied to all inspections. Other respondents suggested
that higher rates be charged for inspections performed at non-
designated ports. Many respondents opposed the reduction in the license
fee but supported an increase in the inspection fee to cover the
inspection program, to the extent that such an increase would allow for
100% inspection of shipments. One respondent suggested that the service
should establish a mileage fee for overtime inspections similar to
Customs. A pet industry spokesman suggested the increase in fees be
phased in over time and requested that a more detailed justification of
the hourly rate for inspections be made available when the final rule
is published. Several respondents suggested that the inspection fee be
prorated when multiple inspections are being performed for the same
importer, primarily at non-designated ports. Numerous respondents
requested the Service justify the increased inspection fee.
Service Response
Under the new user fee structure the Service will charge a higher
rate at nondesignated ports, in the form of an Administrative fee plus
a 2 hour minimum charge, to cover the increased administrative costs
associated with nondesignated ports. The Service has determined that
inspection fees or administrative fees at nondesignated ports will not
be prorated due to the obvious incentive given to importers/exporters
to combine shipments, when the workload for wildlife inspectors would
remain the same. The Service intends to charge mileage fees for
inspections conducted at nondesignated ports with no permanent law
enforcement staff present. The Service understands the concerns raised
by respondents regarding justification of user fee increases, and
refers to the following four studies, conducted since 1988 which
recommended, and justified, fee increases in the inspection program:
the Service, Division of Finance, findings and recommendations on
review of the Law Enforcement Management Information System and Import/
Export Fee Billing and Collection System, a 1988 user charges and
collection report by the Department of the Interior Office of Inspector
General, a 1991 Law Enforcement Functional Analysis Review, and a 1992
draft of the CITES Implementation Study prepared by Traffic USA, the
trade monitoring group associated with the World Wildlife Fund.
Comments
Many respondents were concerned with the low numbers of physical
inspections of wildlife shipments being imported into the United
States. One respondent expressed support for the Service's regulation
of imports and exports of wildlife and other products being imported
for a commercial purpose, particularly, as the respondent noted, when
such imports or exports involve threatened and endangered species.
Service Response
The Service anticipates an increase in the physical inspection rate
of wildlife shipments on a nationwide basis, due, in part, to the
increase in fees justified in the studies mentioned in this final rule.
Fee adjustments allowing the Service to more accurately recover costs
may also allow the Service to hire additional personnel.
[[Page 31866]]
Summary of Comments Received to the Supplemental Rule
On March 23, 1995, the Service published in the Federal Register
(60 FR 15277) a supplemental proposed rule proposing additional changes
to these parts. In response to this notice the Service received a total
of 12 comments. These included 2 from associations, 2 from states, 3
from museums, 1 council, 1 union, 1 club, 1 university and a citizen.
The comments were as follows:
One respondent noted an error in the definition section provided at
Sec. 14.4. The respondent noted that the term ``accredited member of
the American Zoological Association'' was stated twice. The correct
name according to the respondent is the American Zoo and Aquarium
Association.
In regards to Sec. 14.53(b)(2), one respondent noted that in his
research during foreign explorations for natural enemies of targeted
plant pests, which are collected and shipped to quarantine facilities,
organisms are usually identified to a higher level of taxa than
species. Identification of such collected materials, may not be
available for a considerable period of time. Another respondent noted
that although the original Lacey Act recognized the existence of the
Federal Plant Pest Act, the new FWS regulations appear to overlook this
provision.
Several comments pertained to the Service 3-177 form. One
respondent suggested the Service make the reporting of dead specimens
an annual or biannual report. One scientific institution noted that
their collections do not specify whether the wildlife was taken as a
result of sport hunting, and that, therefore, such collections should
be given a blanket exemption for already deposited specimens. Another
respondent was concerned with the perceived requirement that a
scientific collector obtain a hunting license and worried that
scientific collecting may be viewed as sport hunting.
One respondent observed that the Service's definition of scientist
does not include retired professors or those at smaller colleges that
do not have established public collections, who are generally
considered amateurs in the field of entomology. Another respondent
noted that dead specimens should be allowed to be transported freely
(3-177 form only) without further clearance. One respondent requested
that the Service automate the 3-177 form to streamline the process by
downloading the data from each accredited institution twice annually.
One respondent suggested that birds should not require authentication
of collecting and export permits from the country of origin each time
they are transferred; that dead, non-endangered or CITES listed birds
should have no restriction on importation; and that a 3-177 should not
be needed for dead birds. Instead, the respondent noted that the
paperwork could be kept at the institution and open for inspection at
any time. Another respondent asked for additional time to respond to
what the respondent characterized as a complicated piece of law.
Another respondent noted that if a specimen was procured for a
scientific institution, the regulations that are applied to permit the
legal import should be consistent across the board with no exceptions
as to how it was acquired. Once a permit is issued, the respondent
noted, the specimens covered by that permit should have the status of
specimens that do not require a permit. Other respondents, however, saw
no logical reason why scientific specimens legally taken as the result
of sport hunting should be excluded from the exceptions provided. One
respondent requested that the Service not require authentication of
collecting and export permits from the country of origin each time they
are transferred internationally. One respondent suggested that the
Migratory Bird Office and Law Enforcement get together on a common
definition of scientific institution to avoid two different standards.
The only shipments that should require reporting to the Service, one
respondent noted, should be those that contain species listed under
CITES or the U.S. Endangered Species Act. One respondent requested that
State and Federal government agencies should be exempt from
requirements pertaining to permits and be given some kind of blanket
import-export permit.
Service Response
The Service appreciates these comments and responds by stating that
the Federal Government, in particular the Service, is bound by
international treaty and domestic law to require certain types of
documentation, reporting, declaration, and regulation as relates to the
import and export of wildlife and wildlife products (including
insects). The Service, in its revision of this part, has been
responsive to the demands of the public while fulfilling its
obligations under law. The Service believes that the modification of
these regulations, in particular addressing the concerns of the
scientific collecting community, have taken into account public
concerns while fulfilling the Service's obligations.
Need for Final Rule Making
The Fish and Wildlife Service is updating the regulations for the
importation, exportation, and transportation of wildlife. Definitions
have been added and several errors and missing references have been
corrected. Several ambiguities in the text have been restated for
clarify. Changes were necessary in several sections for the purposes of
identification of wildlife, to provide uniformity with the Customs
Service, to more clearly articulate requirements, to circumscribe
exceptions to requirements, and to provide for the safety of
inspectors.
Changes in the Service import/export user fees policies and rates
were made in order to recover the full costs of license and inspection
services to require all commercial importers and exporters of wildlife
and wildlife products to obtain an import/export license, to adjust the
cost of a wildlife import/export license, to adjust the inspection fee
charged to licensees at designated ports, and to adjust the
administrative fee charged for each wildlife shipment cleared at a non-
designated port.
Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq.
As required by the Paperwork Reduction Act of 1995 (44 U.S.C.
3507(d)), the Service has received approval for collection of
information under this regulation using the Declaration for Importation
or Exportation of Fish or Wildlife form 3-177, approval number 1018-
0012 which expires June 30, 1997, and using the Federal Fish and
Wildlife License/Permit Application form 3-200, approval number 1018-
0022 which expires January 31, 1997.
Information collection is accomplished under this part through the
use of these two forms and is used to satisfy various requirements in
this regulation, including, species and shipping information from the
Declaration form 3-177, and licensing information from the Application
form 3-200. The information requested on these forms is not being
modified in this rule, however, changes are being made which will
affect the number of persons or businesses required to file an Import/
Export License Application form 3-200 to obtain an Import/Export
License.
Changes also are being made in the exceptions granted to certain
persons from the Declaration filing requirements.
The Declaration filing exceptions contained in this final rule will
not result in any increased information
[[Page 31867]]
collection by the Service. However, those persons or businesses
engaging in business as an importer or exporter of wildlife who may
have previously been excepted from the license requirement, will now be
required to file a 3-200 Application form with the Service in order to
obtain an import/export license. This will result in increased use of
an existing information collection. The information to be collected
will include the applicant's name and complete address, type of
business and description of the activity for which a license is
required, principal officer information, location where activity under
the license is conducted, and business, agency, or institutional
affiliation of the applicant. The likely respondents to this collection
of information will be persons engaging in business as importers or
exporters of wildlife who are not currently licensed by the Service.
This information will be used by the Service to determine the
applicability of the license requirement, and to implement the
licensing and fee collection process. This information collection will
be required annually and will require approximately a 1.0 hour total
annual reporting and recordkeeping burden per respondent. The Service
estimates that the number of likely respondents will be approximately
700, making a total annual reporting and recordkeeping burden of 700
hours.
Economic Effects
This rulemaking was not subject to review by the Office of
Management and Budget under Executive Order 12866.
The Service conducted a cost/benefit analysis in compliance with
the provisions of the Small Business Regulatory Enforcement Fairness
Act of 1996 (Pub. L. 104-121). Data for commercial imports and exports
of wildlife and wildlife products for the 1994 calendar year were used
to estimate the financial impact on commercial wildlife importers and
exporters from the revised user fee schedule contained in the proposed
rule and in this final rule. Calendar year 1994 data were chosen for
the analysis for their completeness and because the Service feels that
the commercial data for 1994 are typical of calendar year totals. The
analysis shows that the Service processes approximately 70,000 wildlife
and wildlife product imports and exports per year, and that of those
shipments approximately 56,000 are imported or exported for commercial
purposes. The 1994 data show that the Service issued approximately
1,700 commercial import/export licenses in 1994, and those licensees
imported or exported approximately 40,000 commercial shipments. These
figures equate to approximately 23 commercial shipments per licensee
per year. The total number of shipments made for commercial purposes
(56,000) minus the number of commercial shipments made by licensees
(40,000) equals 16,000 shipments made for commercial purposes by non-
licensees that, presumably, meet one of the current licensing
exceptions. The most likely exception in these cases would be the
$25,000 annual threshold requirement for obtaining a license. This
exception is being eliminated in this final rule. By using the 23
shipments per licensee per year figure as representative of all
commercial importers and exporters, the Service estimates that 700 non-
licensed commercial importers and exporters shipping 16,000 shipments
per year will be affected by the new license requirement. Based upon
the 23 shipments per year figure, the 1,700 licensees currently paying
$25 per shipment in user fees and $125 annual license fee are paying
$700 annually in user fees. Under this final rule those licensees will
pay an additional $615 based upon $55 per shipment and a $50 license
fee, or $1,315 annually in user fees. The 700 non-licensed commercial
importers and exporters who are now exempt from the fee requirement
also will pay $1,315 per year based upon the 23 shipment per year
average and the new user/license fees. As stated in this final rule,
these fees will generate approximately $2 million in additional user
fees which will allow the Service to more closely recoup actual costs
of the wildlife inspection program.
A review under the Regulatory Flexibility Act of 1980 (5 U.S.C. 601
et seq.) has revealed that this rulemaking will not have a significant
effect on a substantial number of small entities, which include
businesses, organizations, or governmental jurisdictions. The
Department of the Interior is seeking to assess the least possible fee
increase that will enable the Service to recoup its costs associated
with the Service's Import/Export program. As discussed in the proposed
rule, fees have not been increased since 1986. This fee increase will
more closely align the Federal Government's operating cost with
revenues. This rule will affect all importers and exporters equally and
is expected to remove any competitive advantage enjoyed by unlicensed
importers or exporters. Because of the modest cost involved, the fee
increase is expected to have a minimal effect on those small entities
as defined in the Regulatory Flexibility Act.
The Service has determined and certifies pursuant to the Unfunded
Mandates Act, 2 U.S.C. 1502 et seq., that his rulemaking will not
impose a cost of $100 million or more in any given year or local or
State governments or private entities.
National Environmental Policy Act (40 CFR part 1500)
Pursuant to the requirements of section 102(2)(C) of the National
Environmental Policy Act of 1969 (42 U.S.C. 4332(2)(C)), an
environmental assessment was not prepared for this action. The action
that is covered under a categorical exclusion from the National
Environmental Policy Act procedures. An Environmental Action memorandum
is on file at the Service's office in Arlington, Virginia. A
determination has been made pursuant to section 7 of the Endangered
Species Act that the revision of part 14 will not affect any Federally
listed or proposed for listing threatened or endangered species or
their critical habitats.
Authorship
The originators of this final rule are Law Enforcement Specialist
Paul McGowan and Special Agent John M. Neal, Division of Law
Enforcement, U.S. Fish and Wildlife Service, Washington, DC.
List of Subjects
50 CFR Part 13
Administrative practice and procedure, Exports, Fish, Imports,
Plants, Reporting and recordkeeping requirements, Transportation,
Wildlife.
50 CFR Part 14
Animal welfare, Exports, Fish, Imports, Labeling, Reporting and
recordkeeping requirements, Transportation, Wildlife.
Regulation Promulgation:
For the Reasons set out in the preamble, title 50, chapter I,
subchapter B of the Code of Federal Regulations is amended as set forth
below:
PART 13--GENERAL PERMIT PROCEDURES
1. The authority citation for part 13 is revised to read as
follows:
Authority: 16 U.S.C. 668a, 704, 712, 742j-1, 1382, 1538(d),
1539, 1540(f), 3374, 4901-4916; 18 U.S.C. 42; 19 U.S.C. 1202; E.O.
11911, 41 FR 15683; 31 U.S.C. 9701.
[[Page 31868]]
Subpart B--Applications for Permits
2. Section 13.11 is amended by revising the table in (d)(4) to read
as follows:
Sec. 13.11 Application procedures.
* * * * *
(d) * * *
(4) * * *
------------------------------------------------------------------------
Type of permit Fee
------------------------------------------------------------------------
Import/Export License (Section 14.93)....... $50.
Marine Mammal (Section 18.31)............... $100.
Migratory Bird-Banding or marking (21.22)... None.
Bald or Golden Eagles (Part 22)............. None.
------------------------------------------------------------------------
* * * * *
PART 14--IMPORTATION, EXPORTATION, AND TRANSPORTATION OF WILDLIFE
1. The authority citation for part 14 continues to read as follows:
Authority: 16 U.S.C. 704, 712, 1382, 1538(d)-(f), 1540(f), 3371-
3378, 4223-4244, and 4901-4916; 18 U.S.C. 42; 19 U.S.C. 42; 31
U.S.C. 483(a).
2. A new Sec. 14.4 entitled ``Definitions'' is added to subpart A
to read as follows:
Sec. 14.4 Definitions.
In addition to definitions contained in Part 10 of this subchapter,
in this part:
Accompanying personal baggage means all hand-carried items and all
checked baggage of a person entering into or departing from the United
States.
Accredited scientist means any individual associated with, employed
by, or under contract to and accredited by an accredited scientific
institution for the purpose of conducting biological or medical
research, and whose research activities are approved and sponsored by
the scientific institution granting accreditation.
Accredited scientific institutions means any public museum, public
zoological park, accredited institution of higher education, accredited
member of the American Zoo and Aquarium Association, accredited member
of the American Association of Systematic Collections, or any State or
Federal government agency that conducts biological or medical research.
Commercial means related to the offering for sale or resale,
purchase, trade, barter, or the actual or intended transfer in the
pursuit of gain or profit, of any item of wildlife and includes the use
of any wildlife article as an exhibit for the purpose of soliciting
sales, without regard to quantity or weight. There is a presumption
that eight or more similar unused items are for commercial use. The
Service or the importer/exporter/owner may rebut this presumption based
upon the particular facts and circumstances of each case.
Domesticated animals includes, but is not limited to, the following
domesticated animals that are exempted from the requirements of this
subchapter B (except for species obtained from wild populations).
Mammals: Alpaca--Lama alpaca; Camel--Camelus dromedarius; Camel
(Boghdi)--Camelus bactrianus; Cat (domestic)--Felis domesticus;
Cattle--Bos taurus; Dog (domestic)--Canis familiaris; European rabbit--
Ortyctolagus cuniculus; Ferret (domestic)--Mustela putorius; Goat--
Capra hircus; Horse--Equus caballus; Llama--Lama glama; Pig--Sus
scrofa; Sheep--Ovis aries; Water buffalo--Bubalus bubalus; White lab
mice--Mus musculus; White lab rate--Rattus norvegicus.
Fish (For export purposes only): Carp (koi)--Cyprinus carpio;
Goldfish--Carassius auratus.
Birds: Chicken--Gallus domesticus; Ducks & geese--domesticated
varieties; Guinea fowl--Numida meleagris; Peafowl--Pavo cristatus;
Pigeons (domesticated)--Columba livia domestrica; Turkey--Meleagris
gallopavo; Domesticated or Barnyard Mallards include: Pekin; Aylesbury;
Bouen; Cayuga; Gray Call; White Call; East Indian; Crested; Swedish;
Buff Orpington; Indian Runner; Campbell; Duclair; Merchtem; Termonde;
Magpie; Chinese; Khaki Campbell.
Insects: Crickets, mealworms, honeybees (not to include Africanized
varieties), and similar insects that are routinely farm raised.
Other Invertebrates: Earthworms and similar invertebrates that are
routinely farm raised.
Export means to depart from, to send from, to ship from, or to
carry out of, or attempt to depart from, to send from, to ship from, or
to carry out of, or to consign to a carrier in any place subject to the
jurisdiction of the United States with an intended destination of any
place not subject to the jurisdiction of the United States, whether or
not such departure, sending, or carrying, or shipping constitutes an
exportation within the meaning of the Custom laws of the United States.
When a passenger leaving the jurisdiction of the United States enters
the designated international area of embarkation of an airport, all
accompanying personal hand-carried items and checked baggage will be
regarded as exports.
Import means to land on, bring into, or introduce into, or attempt
to land on, bring into, or introduce into any place subject to the
jurisdiction of the United States, whether or not such landing,
bringing, or introduction constitutes an importation within the meaning
of the tariff laws of the United States.
3. Section 14.15 is amended by revising paragraph (a) to read as
follows:
Sec. 14.15 Personal baggage and household effects.
(a) Any person may import into or export from the United States at
any Customs port wildlife products or manufactured articles that are
not intended for commercial use and are used as clothing or contained
in accompanying personal baggage. However, this exception to the
designated port requirement does not apply to any raw or dressed fur;
raw, salted, or crusted hide or skin; game trophy; or to wildlife
requiring a permit pursuant to part 16, 17, 18, 21, or 23 of this
subchapter B.
* * * * *
4. Section 14.21 is revised to read as follows:
Sec. 14.21 Shellfish and fishery products.
(a) (1) General. Except for wildlife requiring a permit pursuant to
part 17 or 23 of this subchapter, shellfish and fishery products
imported or exported for purposes of human or animal consumption or
taken in waters under the jurisdiction of the United States or on the
high seas for recreational purposes may enter or exit at any Customs
port.
(2) Except for wildlife requiring a permit pursuant to part 17 or
part 23 of this subchapter, live aquatic invertebrates of the Class
Pelecypoda (commonly known as oysters, clams, mussels, and scallops)
and the eggs, larvae, or juvenile forms thereof may be exported for
purposes of propagation, or research related to propagation, at any
Customs port.
(b) Pearls. Except for wildlife requiring a permit pursuant to part
17 or 23 of this subchapter, pearls imported or exported for commercial
purposes may enter or exit the United States at any Customs port of
entry. For the purposes of this Part, all references to the term
shellfish and fishery products will include pearls.
5. Section 14.22 is revised to read as follows:
Sec. 14.22 Certain antique articles.
Any person may import at any Customs Service port designated for
such purpose, any article (other than scrimshaw, defined in 16 U.S.C
1539(f)(1)(B) and 50 CFR 217.12 as any art form that involves the
etching or
[[Page 31869]]
engraving of designs upon, or the carving of figures, patterns, or
designs from, any bone or tooth of any marine mammal of the order
Cetacea) that is at least 100 years old, is composed in whole or in
part of any endangered or threatened species listed under Sec. 17.11 or
Sec. 17.12 of this subchapter, and has not been repaired or modified
with any part of any endangered or threatened species on or after
December 28, 1973.
6. A new Sec. 14.24 is added to read as follows:
Sec. 14.24 Scientific specimens.
Except for wildlife requiring a permit pursuant to parts 16, 17,
18, 21, 22 or 23 of this subchapter, dead, preserved, dried, or
embedded scientific specimens or parts thereof, imported or exported by
accredited scientists or accredited scientific institutions for
taxonomic or systematic research purposes may enter or exit through any
U.S. Customs port, or may be shipped through the international mail
system. Provided, that this exception will not apply to any specimens
or parts thereof taken as a result of sport hunting.
7. Section 14.32 is amended by revising paragraph (c)(2) to read as
follows:
Sec. 14.32 Permits to import or export wildlife at non-designated port
to minimize deterioration or loss.
* * * * *
(c) * * *
(2) Permittee must pay fees in accordance with Sec. 14.94.
* * * * *
8. Section 14.33 is amended by revising paragraph (c)(2) to read as
follows:
Sec. 14.21 Permits to import or export wildlife at non-designated port
to alleviate undue economic hardship.
* * * * *
(c) * * *
(2) Permittee must pay fees in accordance with Sec. 14.94.
* * * * *
9. Section 14.52 is amended by revising paragraphs (a), (b), the
introductory text of paragraph (c), paragraphs (c)(3), and (c)(4) and
by adding paragraph (c)(5) to read as follows:
Sec. 14.52 Clearance of wildlife.
(a) Except as otherwise provided by this subpart, a Service officer
must clear all wildlife imported into the United States prior to
release from detention by Customs officers. A Service officer must
clear all wildlife to be exported from the United States prior to the
physical loading of the merchandise on a vehicle or aircraft, or the
containerization or palletizing of such merchandise for export, unless
a Service officer expressly authorizes otherwise. Such clearance does
not constitute a certification of the legality of an importation or
exportation under the laws or regulations of the United States.
(b) An importer/exporter or his/her agent may obtain clearance by a
Service officer only at designated ports (Sec. 14.12), at border ports
(Sec. 14.16), at special ports (Sec. 14.19), or at a port where
importation or exportation is authorized by a permit issued under
subpart C of this part. An importer/exporter must return forthwith any
wildlife released without a Service officer's clearance or clearance by
Customs for the Service under authority of Sec. 14.54 to a port where
clearance may be obtained pursuant to this subpart.
(c) To obtain clearance, the importer, exporter, or the importer's
or exporter's agent will make available to a Service officer or a
Customs officer acting under Sec. 14.54:
* * * * *
(3) All permits or other documents required by the laws or
regulations of any foreign country;
(4) The wildlife being imported or exported; and
(5) Any documents and permits required by the country of export or
re-export for the wildlife.
10. Section 14.53 is revised to read as follows:
Sec. 14.53 Detention and refusal of clearance.
(a) Detention. Any Service officer, or Customs officer acting under
Sec. 14.54, may detain imported or exported wildlife and any associated
property. As soon as practicable following the importation or
exportation and decision to detain, the Service will mail a notice of
detention by registered or certified mail, return receipt requested, to
the importer or consignee, or exporter, if known or easily
ascertainable. Such notice mut describe the detained wildlife or other
property, indicate the reason for the detention, describe the general
nature of the tests or inquiries to be conducted, and indicate that if
the releasability of the wildlife has not been determined within 30
days after the date of the notice, or a longer period if specifically
stated, that the Service will deem the wildlife to be seized and will
issue no further notification of seizure.
(b) Refusal of clearance. Any Service officer may refuse clearance
of imported or exported wildlife and any Customs officer acting under
Sec. 14.54 may refuse clearance of imported wildlife when there are
responsible grounds to believe that:
(1) A Federal law or regulation has been violated;
(2) The correct identity and country of origin of the wildlife has
not been established (in such cases, the burden is upon the owner,
importer, exporter, consignor, or consignee to establish such identity
by scientific name to the species level or, if any subspecies is
protected by the laws of this country or the country of origin to the
subspecies level);
(3) Any permit, license, or other documentation required for
clearance of such wildlife is not available, is not currently valid,
has been suspended or revoked, or is not authentic;
(4) The importer, exporter, or the importer's or exporter's agent
has filed an incorrect or incomplete declaration for importation or
exportation as provided in Sec. 14.61 or Sec. 14.63; or
(5) The importer, exporter, or the importer's or exporter's agent
has not paid any fee or portion of balance due for inspection fees
required by Sec. 14.93 or Sec. 14.94, or penalties assessed against the
importer or exporter under 50 CFR part 11. This paragraph does not
apply to penalty assessments on appeal in accordance with the
provisions of part 11.
11. Section 14.54 is amended by revising paragraphs (a), and adding
paragraph (f) to read as follows:
Sec. 14.54 Unavailability of Service officers.
(a) Designated ports. All wildlife arriving at a designated port
must be cleared by a Service officer prior to Customs clearance and
release. When importers or their agents expect live or perishable
shipments of wildlife or wildlife products or request inspection at the
time of arrival, they must notify the Service at least 48 hours prior
to the estimated time of arrival. However, where a Service officer is
not available within a reasonable time, Customs Officers may clear live
or perishable wildlife subject to post-clearance inspection and
investigation by the Service.
* * * * *
(f) Exports. Exporters or their agents must notify the Service and
make the shipment available for inspection at least 48 hours prior to
the estimated time of exportation of any wildlife.
12. Section 14.55 is amended by revising the introductory text of
the section and by adding paragraph (d) to read as follows:
Sec. 14.55 Exceptions to clearance requirements.
Except for wildlife requiring a permit pursuant to part 17 or 23 of
this subchapter B, clearance is not required
[[Page 31870]]
for the importation of the following wildlife:
* * * * *
(d) Dead, preserved, dried, or embedded scientific specimens or
parts thereof, imported or exported by accredited scientists or
accredited scientific institutions for taxonomic or systematic research
purposes. Except: That this exception will not apply to any specimens
or parts thereof taken as a result of sport hunting.
13. Section 14.61 is revised to read as follows:
Sec. 14.61 Import declaration requirements.
Except as otherwise provided by the regulations of this subpart,
importers or their agents must file with the Service either a completed
Declaration for Importation or Exportation of Fish or Wildlife (Form 3-
177), signed by the importer or the importer's agent, or an electronic
Form 3-177, filed through the United States Customs Service Automated
Commercial System (ACS) by an authorized Customs broker using the
Automated Broker Interface (ABI), upon the importation of any wildlife
at the place where Service clearance under Sec. 14.52 is requested.
However, wildlife may be transshipped under bond to a different port
for release from custody by Customs Service officers under 19 U.S.C.
1499. For certain antique articles as specified in Sec. 14.22,
importers or their agents must file a Form 3-177 with the District
Director of Customs at the port of entry prior to release from Customs
custody. Importers or their agents must furnish all applicable
information requested on the Form 3-177 and the importer, or the
importer's agent, must certify that the information furnished is true
and complete to the best of his/her knowledge and belief.
14. Section 14.62 is amended by revising paragraph (a), by removing
paragraph (b)(2) and by redesignating existing paragraphs (b)(3) and
(b)(4) as (b)(2) and (b)(3) respectively, and by revising paragraph (c)
and adding paragraph (d) to read as follows:
Sec. 14.62 Exceptions to import declaration requirements.
(a) Except for wildlife requiring a permit pursuant to part 17 or
23 of this subchapter B, an importer or his/her agent does not have to
file a Declaration for Importation or Exportation of Fish or Wildlife
(Form 3-177) for importation of shellfish and fishery products imported
for purposes of human or animal consumption, or taken in waters under
the jurisdiction of the United States or on the high seas for
recreational purposes;
(b) * * *
(2) Wildlife products or manufactured articles that are not
intended for commercial use and are used as clothing or contained in
accompanying personal baggage, except that an importer or his/her agent
must file a Form 3-177 for raw or dressed furs; for raw, salted, or
crusted hides or skins; and for game or game trophies; and
(3) Wildlife products or manufactured articles that are not
intended for commercial use and are a part of a shipment of the
household effects of persons moving their residence to the United
States, except that an importer or his/her agent must file a
declaration for raw or dressed furs and for raw, salted, or crusted
hides or skins.
* * * * *
(c) General declarations for certain specimens. Notwithstanding the
provisions of 14.61 and except for wildlife included in paragraph (d)
of this section, an importer or his/her agent may describe in general
terms on a Declaration for the Importation or Exportation of Fish or
Wildlife (Form 3-177) scientific specimens imported for scientific
institutions for taxonomic, systematic research, or faunal survey
purposes. An importer or his/her agent must file an amended Form 3-177
within 180 days after filing of the general declaration with the
Service. The declaration must identify specimens to the most accurate
taxonomic classificatio
FR Doc. 96-15388 Importation, Exportation, and Transportation of Wildlife
n reasonably practicable using the best
available taxonomic information. The Director may grant extensions of
the 180-day period.
(d) Except for wildlife requiring a permit pursuant to part 16, 17,
18, 21, 22 or 23 of this subchapter, an importer or his/her agent does
not have to file a Declaration for the Importation or Exportation of
Fish or Wildlife (Form 3-177) at the time of importation for shipments
of dead, preserved, dried, or embedded scientific specimens or parts
thereof, imported by accredited scientists or accredited scientific
institutions for taxonomic or systematic research purposes. An importer
or his/her agent must file a Form 3-177 within 180 days of importation
with the appropriate Assistant Regional Director--Law Enforcement in
the Region where the importation occurs. The declaration must identify
the specimens to the most accurate taxonomic classification reasonably
practicable using the best available taxonomic information, and must
declare the country of origin. Except: That this exception will not
apply to any specimens or parts thereof taken as a result of sport
hunting.
15. Section 14.64 is amended by revising paragraphs (a), (b)(1),
(b)(2) and by adding (b)(3) to read as follows:
Sec. 14.64 Exceptions to export declaration requirements.
(a) Except for wildlife requiring a permit pursuant to Part 17 or
23 of this subchapter B, an exporter or his/her agent does not have to
file a Declaration for Importation or Exportation of Fish or Wildlife
(Form 3-177) for the exportation of shellfish and fishery products
exported for purposes of human or animal consumption or taken in waters
under the jurisdiction of the United States or on the high seas for
recreational purposes, and does not have to file for the exportation of
live aquatic invertebrates of the Class Pelecypoda (commonly known as
oysters, claims, mussels, and scallops) and the eggs, larvae, or
juvenile forms thereof exported for purposes of propagation, or
research related to propagation.
(b) * * *
(1) Wildlife that is not intended for commercial use where the
value of such wildlife is under $250;
(2) Wildlife products or manufactured articles, including game
trophies, that are not intended for commercial use and are used as
clothing or contained in accompanying personal baggage or are part of a
shipment of the household effects of persons moving their residence
from the United States; and
(3) Shipments of dead, preserved, dried, or embedded scientific
specimens or parts thereof, exported by accredited scientists or
accredited scientific institutions for taxonomic or systematic research
purposes. An exporter or his/her agent must file a Form 3-177 within
180 days of exportation with the appropriate Assistant Regional
Director--Law Enforcement in the Region where the exportation occurs.
The declaration must identify the specimens to the most accurate
taxonomic classification reasonably practicable using the best
available taxonomic information, and must declare the country of
origin. Except: That this exception will not apply to any specimens or
parts thereof taken as a result of sport hunting.
16. Section 14.81 is revised to read as follows:
Sec. 14.81 Marking requirement.
Except as otherwise provided in this subpart, no person may import,
export, or transport in interstate commerce any container or package
containing any fish or wildlife (including shellfish and fishery
products) unless he/she marks each container or package
[[Page 31871]]
conspicuously on the outside with both the name and address of the
shipper and consignee. An accurate and legible list of its contents by
species scientific name and the number of each species and whether or
not the listed species are venomous must accompany the entire shipment.
17. Section 14.82 is amended by revising paragraphs (a)(1)(ii)(A),
(1)(2), and (a)(3) to read as follows:
Sec. 14.82 Alternatives and exceptions to the marking requirement.
(a) * * *
(1)(i) * * *
(ii) * * *
(A) The common name that identifies the species (examples include:
Chinook (or king) salmon; bluefin tuna; and whitetail deer) and whether
or not the listed species is venomous; and
* * * * *
(2) Affixing the shipper's wildlife import/export license number
preceded by the three letters ``FWS'' on the outside of each container
or package containing fish or wildlife, if the shipper has valid
wildlife import/export license issued under authority of 50 CFR part
14. For each shipment marked in accordance with this paragraph, the
records maintained under Sec. 14.93(c) must include a copy of the
invoice, packing list, bill of lading, or other similar document that
accurately states the information required by paragraph (a)(1)(ii) of
this section.
(3) In the case of subcontainers or packages within a larger
packing container, only the outermost container must be marked in
accordance with this section. Except, that for live fish or wildlife
that are packed in subcontainers within a larger packing container, if
the subcontainers are numbered or labeled, the packing list, invoice,
bill or lading, or other similar document, must reflect that number or
label. However, each subcontainer containing a venomous species must be
clearly marked as venomous.
* * * * *
18. Section 14.91 is amended by revising paragraph (a) and (c) to
read as follows:
Sec. 14.91 License requirement.
(a) Prohibition. Except as otherwise provided in this subpart, it
is unlawful for any person to engage in business as an importer or
exporter of wildlife without first having obtained a valid import/
export license from the Director.
* * * * *
(c) Certain persons required to be licensed. The definition in
paragraph (b) of this section includes, but is not limited to, persons
who import or export wildlife for commercial purposes:
(1) For trade, sale, or resale, such as animal dealers, animal
brokers, pet dealers, pet suppliers, and laboratory research suppliers;
(2) In the form of fur for tanning, manufacture, or sale, such as
fur trappers, dealers, brokers, and manufacturers;
(3) In the form of hides and skins for tanning, manufacture, or
sale, such as hide, skin, and leather dealers, brokers, manufacturers,
and processors;
(4) In the form of products (such as garments, bags, shoes, boots,
jewelry, rugs, or curios) for sale, such as wholesalers, retailers,
distributors, and brokers;
(5) As taxidermists in connection with the mounting processing, or
storage of trophies or specimens;
(6) As freight forwarders; and
(7) In the form of food products taken from populations of non-
domesticated animals.
19. Section 14.92 is amended by revising paragraphs (a)(1), (a)(2),
(a)(3), and (a)(4) and adding (a)(5) and (a)(6), and by revising
(b)(1), (b)(2), (b)(4), and (b)(5) and by removing paragraph (b)(6) to
read as follows:
Sec. 14.92 Exceptions to license requirements.
(a) * * *
(1) Shellfish and fishery products that do not require a permit
under Part 17 or 23 of this subchapter B and that are imported or
exported for purposes of human or animal consumption;
(2) Shellfish and fishery products that do not require a permit
under part 17 or 23 of this subchapter B and that are taken in waters
under the jurisdiction of the United States or on the high seas for
recreational purposes;
(3) Fox, nutria, rabbit, mink, chinchilla, marten, fisher, muskrat,
and karakul and their products if the animals have been bred and born
in captivity;
(4) Live farm-raised fish and farm-raised eggs of species not
requiring a permit under part 17 or 23 of this subchapter B that are
being exported;
(5) Live aquatic invertebrates of the Class Pelecypoda (commonly
known as oysters, clams, mussels, and scallops) and the eggs, larvae,
or juvenile forms thereof exported for purposes of propagation or
research related to propagation; and
(6) Pearls imported or exported for commercial purposes.
(b) * * *
(1) Common carriers when engaged as transporters and not as
importers or exporters of record;
(2) Custom house brokers when engaged as agents and not as
importers or exporters of record;
* * * * *
(4) Federal, State, or municipal agencies; and
(5) Circuses importing or exporting wildlife for exhibition
purposes only and not for purchase, sale, barter, or transfer of such
wildlife.
20. Section 14.93 is amended by revising paragraphs (c)(4), and
(c)(5) to read as set forth below, and by removing paragraph (f).
Sec. 14.93 License application procedure, conditions, and duration.
* * * * *
(c) * * *
(4) Subject to applicable limitations of law, licensees must
provide duly authorized Service officers at all reasonable times, upon
notice, access to the licensee's places of business and give an
opportunity to examine the licensee's inventory of imported wildlife
and the records required to be kept under paragraph (c)(1) of this
section, and give an opportunity to copy such records;
(5) Licensees must, upon written request by the Director, submit
within 30 days of such request a report containing the information
required to be maintained by paragraph (c)(1) of this section.
* * * * *
21. Section 14.94 is added to read as follows:
Sec. 14.94 Fees.
(a) License and Inspection fees. The Service will impose a yearly
fee for a license pursuant to Sec. 14.93. In addition, each licensee
must pay an inspection fee for each wildlife shipment imported into or
exported from the United States at a designated port.
(b) Designated port overtime fees. The Service may charge importers
or exporters of wildlife, regardless of being licensed as a commercial
importer or exporter, a fee for overtime for inspections that begin
before normal working hours, that extend beyond normal working hours,
or are on a holiday, Saturday, or Sunday if the importer/exporter
requested that the inspection be performed outside normal work hours.
Overtime fees consist of an increased hourly rate equal to 1\1/2\ times
the average hourly rate of a journeyman level wildlife inspector.
Overtime fees will be in addition to inspection fees imposed for
license holders at designated ports. If an importer/exporter presents a
shipment for inspection during normal work hours but the Service cannot
perform the inspection
[[Page 31872]]
during normal work hours on that day, the service will give the
importer/exporter the option of performing the inspection later during
normal work hours or charging for overtime. The Service's ability to
perform inspections during overtime hours will depend on the
availability of Service personnel. The Serivce will use the following
parameters when calculating the overtime fee:
(1) Inspection overtime commences when a Service officer departs
that officer's residence or official duty station enroute to the
inspection site or at the end of normal work hours. Inspection overtime
terminates when the officer returns to the point of departure or
official duty station or when the inspection is completed, whichever
occurs later.
(2) For an inspection at a designated port beginning less than 1
hour before normal work hours, the Service will charge 1 hour of time,
at an hourly rate of 1\1/2\ times the average hourly rate of a
journeyman level Wildlife Inspector. For all other overtime inspections
at a designated port the Service will charge a minimum of 2 hours of
time, at an hourly rate of 1\1/2\ times the average hourly rate of a
journeyman level Wildlife Inspector, except that for all inspections
performed on a federal holiday the Service will charge a minimum of 2
hours at twice the average hourly rate of a journeyman level Wildlife
Inspector.
(3) The Service will charge any inspection time in excess of the 2-
hour minimum in quarter hour increments at the same hourly rate as the
first 2 hours. The Service will round up inspection time of 10 minutes
or more to the next quarter hour and will disregard any time less than
10 minutes.
(4) The fee schedule will apply to all inspections regardless of
importer/exporter of record, except, that the Service will charge
multiple shipments consigned to the same importer/exporter and
inspected at one location one 2-hour minimum or actual time, whichever
is greater.
(c) Nondesignated port fees. The Service will charge permittees
issued permits under subpart C of this part, and licensed commercial
importers and exporters a fee for inspections at nondesignated ports.
The fees consist of a flat administrative fee plus a minimum of two
hours of time at staffed nondesignated ports. The Service will use the
following parameters when calculating fees:
(1) During normal working hours the Service will charge permittees
issued permits under subpart C of this part, regardless of being
licensed as a commercial importer or exporter, an administrative fee
plus a minimum of 2 hours of time at the average hourly rate of a
journeyman level wildlife inspector. The Service will charge permittees
requesting clearance outside normal working hours, including Saturday
and Sunday, an administrative fee plus a minimum of 2 hours of time at
1\1/2\ times the average hourly rate of a journeyman level wildlife
inspector, except that for all inspections performed on a federal
holiday the Service will charge a minimum of 2 hours at twice the
average hourly rate of a journeyman level wildlife inspector.
(2) The Service will charge any inspection time in excess of the 2-
hour minimum in quarter hour increments at the same hourly rate as the
first 2 hours. The Service will round up inspection time of 10 minutes
or more to the next quarter hour and will disregard any time less than
10 minutes.
(3) The Service will not charge importers or exporters who are not
required to have a permit under subpart C of this part, except that the
Service will charge licensed importers or exporters an administrative
fee only during normal working hours, and overtime hourly rates and
minimums will apply outside normal working hours.
(4) For inspections performed under a permit issued under subpart C
of this part at nondesignated ports with no permanent Service law
enforcement staff, the Service will charge all costs associated with
inspection and clearance, including, salary, travel and transportation
costs, and per diem.
(d) Schedule.
General Fees
------------------------------------------------------------------------
Import/Export license fee........ $50 per year.
Inspection fee................... $55 per shipment.
------------------------------------------------------------------------
Inspection Fee Schedule
------------------------------------------------------------------------
Designated ports: Licensees:
Inspections during normal $55 Inspection fee.
work hours.
Inspections beginning less than 1 $55 Inspection fee plus $30.
hour before normal work hours.
Inspections beginning more than 1 $55 Inspection fee plus 2 hour
hour before normal work hours. minimum at $30/hr.
Inspections after normal work $55 Inspection fee plus 2 hour
hours (including Saturdays and minimum at $30/hr.
Sundays).
Inspections on federal holidays.. $55 Inspection fee plus 2 hour
minimum at $40/hr.
Designated ports: Nonlicensees:
Inspection during normal work No charge.
hours.
Inspections beginning outside 2 hour minimum at $30/hr.
normal work hours.
Staffed nondesignated ports:
Subpart C permit holders,
regardless of license status:
Inspections during normal $55 Administrative fee plus 2 hour
work hours. minimum at $20/hr.
Inspections beginning outside $55 Administrative fee plus 2 hour
normal work hours (including minimum at $30/hr.
Saturdays and Sundays).
Inspections on federal $55 Administrative fee plus 2 hour
holidays. minimum at $40/hr.
[[Page 31873]]
Nonstaffed nondesignated $55 Administrative fee plus all costs
ports:. associated with inspection and
clearance.
Staffed nondesignated ports: No
subpart C permit required
(Border/Special Ports):
Import/export license holders $55 Administrative fee.
All others................... No charge.
(1) The Service will not refund any fee or any portion of any
license or inspection fee or excuse payment of any fee because
importation or clearance of wildlife shipment is refused for any
reason.
(2) [Reserved]
Dated: February 6, 1996.
George T. Frampton Jr.,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 96-15388 Filed 6-20-96; 8:45 am]
BILLING CODE 4310-55-M
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