issue-1996-08-27•Federal Register final rules — 1996-08-27
Federal Register final rules — 1996-08-27
issue-1996-08-27Federal Register final rules — 1996-08-27Regulation
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. 96-21853 Rotorcraft Regulatory Changes Based on European Joint Airworthiness Requirement; Correction
[Federal Register Volume 61, Number 167 (Tuesday, August 27, 1996)]
[Rules and Regulations]
[Page 43952]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-21853]
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DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Parts 27 and 29
[Docket No. 28008; Amdt. 27-33, 29-40]
RIN 2120-AF65
Rotorcraft Regulatory Changes Based on European Joint
Airworthiness Requirement; Correction
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Final rule; correction.
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SUMMARY: This document contains a correction to the final rule
published in the Federal Register on May 10, 1996 (61 FR 21904). That
final rule amended the airworthiness standards for normal and transport
category rotorcraft under parts 27 and 29 of Title 14, Code of Federal
Regulations (CFR) relating to performance systems, propulsion and
airframes.
FOR FURTHER INFORMATION CONTACT: Carroll Wright, (817) 222-5120.
Need for Correction
In the final rule document (FR Doc. 96-11493) published in the
Federal Register on May 10, 1996, (61 FR 21904), on page 21908, at the
end of the first column, Item No. 14 is corrected to read as follows:
14. Section 29.1305 is amended by redesignating existing paragraphs
(a)(6) through (a)(25) as paragraphs (a)(7) through (a)(26), by adding
a new paragraph (a)(6), and by changing the words ``paragraph (a)(13)''
in the text of redesignated paragraph (a)(13) to read as ``paragraph
(a)(14)''.
Sec. 29.1305 [Corrected]
(a) * * *
(6) An oil pressure indicator for each pressure-lubricated gearbox.
* * * * *
(13) A tachometer for each engine that, if combined with the
applicable instrument required by paragraph (a)(14) of this section,
indicates rotor r.p.m. during autorotation.
* * * * *
Issued in Washington, DC, on August 22, 1996.
Donald P. Byrne,
Assistant Chief Counsel for Regulations.
[FR Doc. 96-21853 Filed 8-26-96; 8:45 am]
BILLING CODE 4910-13-M
Complete official Federal Register PDF
FR Doc. 96-21852 Elimination of Regulations Concerning the Public Lands Highways Discretionary Funds Program
[Federal Register Volume 61, Number 167 (Tuesday, August 27, 1996)]
[Rules and Regulations]
[Pages 43964-43966]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-21852]
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DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
23 CFR Part 667
[FHWA Docket No. 95-28]
RIN 2125-AD69
Elimination of Regulations Concerning the Public Lands Highways
Discretionary Funds Program
AGENCY: Federal Highway Administration (FHWA), DOT.
ACTION: Final rule.
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SUMMARY: The FHWA is eliminating its regulations outlining the
procedures to be followed in administering the Public Lands Highways
(PLH) discretionary funds program. These provisions have become
outdated and unnecessary as a result of amendments made by the
Intermodal Surface Transportation Efficiency Act of 1991 (ISTEA) (Pub.
L. 102-240, 105 Stat. 1914) to the statutory provisions in title 23 of
the United States Code (U.S.C.) which authorize distribution of some of
the funds appropriated for Public Lands Highways among the States on
the basis of need. These amendments to title 23, U.S.C., significantly
modify and clarify the eligibility criteria and selection process of
the PLH discretionary program; as a result, the FHWA regulations
concerning the PLH discretionary program have become obsolete.
Consequently, in the interests of streamlining FHWA regulations and
providing more flexibility in the administration of this program in
accordance with the President's Regulatory Reinvention Initiative, the
FHWA is eliminating these regulations.
EFFECTIVE DATE: September 26, 1996.
FOR FURTHER INFORMATION CONTACT: Mr. Mohan P. Pillay, Office of
Engineering, HNG-12, (202) 366-4655 or Mr. Wilbert Baccus, Office of
the Chief Counsel, HCC-32, (202) 366-1397, Federal Highway
Administration, 400 Seventh Street, SW., Washington, D.C. 20590. Office
hours are from 7:45 a.m. to 4:15 p.m., e.t., Monday through Friday,
except Federal holidays.
SUPPLEMENTARY INFORMATION: Through the PLH Discretionary Program, the
FHWA administers the allocation of Federal funds in the manner
authorized by Sec. 202(b) of title 23 of the U.S.C. ``among those
States having unappropriated or unreserved public lands, nontaxable
Indian lands or other Federal reservations.'' Approximately $50 million
was made available to the States for the PLH Discretionary Program in
FY 1996. The statute directs that 34 percent of the sums appropriated
for public lands highways in a given fiscal year is to be allocated on
the basis of need among qualifying States that apply for such funds
through their State highway departments. 23 U.S.C. 202(b). The statute
also provides that these PLH funds are available for any kind of
transportation project eligible for assistance under title 23, U.S.C.,
that is within or adjacent to or provides access to public lands areas.
23 U.S.C. 204(b).
Although Congress did not direct that regulations be promulgated to
implement the funding scheme established by this statute, the FHWA did
promulgate regulations which outline the procedures for administering
the PLH Discretionary Program. These regulations, for the most part,
merely reiterate the application process and selection criteria
outlined in the statute. For instance, the statute establishes that PLH
discretionary funds are to be distributed on the basis of need among
the States that apply through their State highway departments and that
preference is to be given to those projects which are significantly
impacted by Federal land and resource management activities. Part 667
restates these provisions, but it also supplements the statutory
provisions with overly detailed descriptions of factors to be
considered in the selection process and of the steps taken in the
application and selection procedure. In addition, part 667 restates
some of the factors established in the statute as defining the
eligibility of certain projects for these funds.
The eligibility criteria and selection process of the PLH
discretionary program were modified and greatly clarified by amendments
to title 23, U.S.C., that were enacted as part of the ISTEA (Pub. L.
102-240, 105 Stat. 1914). One change resulting from these amendments is
that title 23, U.S.C., now provides a more detailed explanation of the
kinds of projects which are eligible for PLH discretionary funds. The
regulation delineating eligibility criteria in part 667 states that
funds may be used for ``engineering and construction of the mainline
roadway including adjacent vehicular parking areas and construction
elements related to scenic easements.'' (Sec. 667.7.) After the ISTEA
amendments, title 23, U.S.C., now includes a provision entitled
``Eligible Projects'' which lists adjacent vehicular parking areas and
acquisition of necessary scenic easements as two of seven types of
projects qualifying for PLH funds.
These PLH regulations have also now become inconsistent with title
23, U.S.C., as a result of the ISTEA amendments. Section 667.7 of the
regulations states that ``funds may not be used for right-of-way costs,
maintenance or other ancillaries such as sanitary, water and fire
control facilities''; however, the list of eligible projects added to
title 23, U.S.C., by the ISTEA includes, ``construction and
reconstruction of roadside rest areas including sanitary and water
facilities.'' Thus, in general, the provisions regarding eligibility
for PLH discretionary funds currently included in the FHWA regulations
have become both outdated and unnecessary.
Amendments to title 23, U.S.C., added by the ISTEA also modify the
selection process and the factors that will be taken into account in
allocating PLH discretionary funds among the States. As a result of the
ISTEA amendments, title 23, U.S.C., now states that preference will
still be given to projects which are significantly impacted by Federal
land and resource management activities, but now such preference will
be given only if these projects are proposed by a State which contains
at least 3 percent of the total public lands in the Nation. In light of
this statutory
[[Page 43965]]
change, the regulations in part 667 have become outdated because they
provide that all projects which significantly benefit or improve
Federal land and resource management will be given preference.
Consequently, as this examination of part 667 reveals, these
regulations concerning the PLH Discretionary Program are unnecessary
and in many instances either straightforwardly redundant or outdated
because they have become inconsistent with the authorizing statute.
Therefore, the FHWA is eliminating part 667 as opposed to amending it
to account for the changes brought about by the ISTEA amendments.
Elimination of these regulations will provide more flexibility in
administration of the PLH discretionary program. In addition,
elimination of part 667 will have the effect of further streamlining
FHWA regulations in accordance with the objectives of the President's
Regulatory Reinvention Initiative.
Discussion of Comments
A notice of proposed rulemaking (NPRM) proposing the elimination of
part 667 was published in the December 6, 1995, Federal Register at 60
FR 62359. Interested persons were invited to participate in this
rulemaking by submitting written comments on the NPRM to Docket No. 95-
28 on or before February 5, 1996. Comments were received from two State
highway agencies and one Indian tribe. All comments received in
response to the NPRM were considered during the drafting of this final
rule eliminating the PLH Discretionary Program regulations.
One State had no comments concerning elimination of the existing
regulation; however, two changes in the law were recommended. One such
recommendation proposed a change to the provision in 23 U.S.C. 202(b)
dealing with the preference in PLH discretionary allocations to
projects in a State which contains at least 3 percent of the total
public lands in the Nation. The commenting State recommended that the
percentage of public lands required for giving preference in PLH
discretionary allocation be reduced from 3 percent to 1.5 percent or
deleted entirely. The State also recommended that the ``Hold Harmless''
clause in section 1015(a)(1) of the ISTEA not include apportionment
adjustments tied to allocations made to States under the PLH
Discretionary Program. Both of these recommendations require statutory
amendments and are beyond the scope of a rulemaking action.
Two commenters suggested that the FHWA retain the project selection
criteria presented in 23 CFR 667.3 (c) and (d) as these criteria are
valuable in determining appropriate projects to be selected for
funding. For example, these criteria cover matters such as route
continuity, capacity, and safety and benefits of projects to Federal
lands and resource management. Although these criteria are not
expressed in definitive terms of measurement and their application is
subjective, the FHWA agrees that use of these criteria can produce
information which is valuable for purposes of the selection process. It
is noted that FHWA's annual solicitation for candidate projects which
is publicized via a memorandum to the FHWA regional offices, requests
information on most of these criteria as part of each State's proposal.
The FHWA call for fiscal year (FY) 1997 PLH candidates contains these
selection criteria. The elimination of part 667 will not impact FHWA's
use of these selection criteria, and the FHWA fully intends to include
them in future solicitations for candidate projects if this
discretionary program is reauthorized after FY 1997.
One commenter recommended that the selection criteria, as
previously discussed, also be applied to the non-discretionary portion
of the PLH funding allocated to the States. The non-discretionary PLH
funding (66 percent of PLH funds) is set aside by statute for Forest
Highways and is distributed in accordance with a hybrid formula. Funds
set aside for Forest Highways are not discretionary, and the selection
criteria for PLH discretionary funds cannot be used to allocate the
remaining 66 percent of the PLH funding.
Rulemaking Analyses and Notices
Executive Order 12866 (Regulatory Planning and Review and DOT
Regulatory Policies and Procedures)
The FHWA has considered the impact of this document and has
determined that it is neither a significant rulemaking action within
the meaning of Executive Order 12866 nor a significant rulemaking under
the regulatory policies and procedures of the Department of
Transportation. This rulemaking eliminates FHWA regulations regarding
administration of the PLH Discretionary Program. These regulations have
become outdated and are unnecessary in light of the fact that the
statutory provisions authorizing allocation of these funds adequately
delineate the procedures to be used and the factors to be considered in
selecting the States that will receive funding. This rulemaking
eliminating these obsolete regulations would not cause any significant
changes to the amount of funding available under the PLH Discretionary
Program or to the process by which applicants are selected to receive
funding. Thus, it is anticipated that the economic impact of this
rulemaking will be minimal. In addition, it will not create a serious
inconsistency with any other agency's action or materially alter the
budgetary impact of any entitlements, grants, user fees, or loan
programs; nor will elimination of these regulations raise any novel
legal or policy issues. Therefore, a full regulatory evaluation is not
required.
Regulatory Flexibility Act
In compliance with the Regulatory Flexibility Act (5 U.S.C. 601-
612), the FHWA has evaluated the effects of this rule on small entities
and has determined that elimination of the FHWA regulations regarding
administration of PLH discretionary funds will not have a significant
economic impact on a substantial number of small entities. Elimination
of these regulations will not affect the amount of funding available to
the States through the PLH Discretionary Program or the procedures used
to select the States eligible to receive these funds. Furthermore,
States are not included in the definition of ``small entity'' set forth
in 5 U.S.C. 601. Therefore, the FHWA hereby certifies that this action
will not have a significant economic impact on a substantial number of
small entities.
Exective Order 12612 (Federalism Assessment)
This action has been analyzed in accordance with the principles and
criteria contained in Executive Order 12612, and it has been determined
that this action does not raise sufficient federalism implications to
warrant the preparation of a federalism assessment. Elimination of
these obsolete FHWA regulations concerning the PLH Discretionary
Program would not preempt any State law or State regulation. No
additional costs or burdens would be imposed on the States as a result
of this action, and the States' ability to discharge traditional State
governmental functions would not be affected by this rulemaking.
Executive Order 12372
Catalog of Domestic Assistance Program Number 20.205, Highway
Planning and Construction. The regulations implementing Executive Order
12372 regarding intergovernmental consultation on Federal programs and
activities apply to this program.
[[Page 43966]]
Paperwork Reduction Act
This action does not create a collection of information requirement
for the purposes of the Paperwork Reduction Act of 1995, 44 U.S.C.
3501-3520.
National Environmental Policy Act
The FHWA has analyzed this rulemaking for the purposes of the
National Environmental Policy Act of 1969 (42 U.S.C. 4321-4347) and has
determined that this action would not have any effect on the quality of
the environment. Therefore an environmental impact statement is not
required.
Regulatory Identification Number
A regulation identification number (RIN) is assigned to each
regulatory action listed in the Unified Agenda of Federal Regulations.
The Regulatory Information Service Center publishes the Unified Agenda
in April and October of each year. The RIN contained in the heading of
this document can be used to cross reference this action with the
Unified Agenda.
List of Subjects in 23 CFR Part 667
Highways and roads, Public lands highway funds.
Issued on: August 20, 1996.
Rodney E. Slater,
Federal Highway Administrator.
In consideration of the foregoing and under the authority of 23
U.S.C. 202, 204, and 315, the FHWA removes and reserves part 667 of
title 23, Code of Federal Regulations, as set forth below.
PART 667--PUBLIC LANDS HIGHWAYS FUNDS [REMOVED AND RESERVED]
1. Part 667 is removed and reserved.
[FR Doc. 96-21852 Filed 8-26-96; 8:45 am]
BILLING CODE 4910-22-P
Complete official Federal Register PDF
FR Doc. 96-21848 Oral Dosage Form New Animal Drugs; Ivermectin Tablets and Chewable Cubes; Correction
[Federal Register Volume 61, Number 167 (Tuesday, August 27, 1996)]
[Rules and Regulations]
[Pages 43963-43964]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-21848]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
21 CFR Part 520
Oral Dosage Form New Animal Drugs; Ivermectin Tablets and
Chewable Cubes; Correction
AGENCY: Food and Drug Administration, HHS.
[[Page 43964]]
ACTION: Final rule; correction.
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SUMMARY: The Food and Drug Administration (FDA) is correcting a final
rule that appeared in the Federal Register of July 31, 1996 (61 FR
39867). The document amended the animal drug regulations to reflect
approval of two supplemental new animal drug applications (NADA's)
filed by Merck Research Laboratories, Division of Merck & Co., Inc. The
document was published with a typographical error in the title. This
document corrects that error.
EFFECTIVE DATE: July 31, 1996.
FOR FURTHER INFORMATION CONTACT: Marcia K. Larkins, Center for
Veterinary Medicine (HFV-112), Food and Drug Administration, 7500
Standish Pl., Rockville, MD 20855, 301-827-0137.
In FR Doc. 96-19410, appearing on page 39867 in the Federal
Register of Wednesday, July 31, 1996, the following correction is made:
On page 39867, in the second column, the title of the document is
corrected to read ``Oral Dosage Form New Animal Drugs; Ivermectin
Tablets and Chewable Cubes.''
Dated: August 19, 1996.
Robert C. Livingston,
Director, Office of New Animal Drug Evaluation,Center for Veterinary
Medicine.
[FR Doc. 96-21848 Filed 8-26-96; 8:45 am]
BILLING CODE 4160-01-F
Complete official Federal Register PDF
FR Doc. 96-21843 Emissions Standards for Imported Nonroad Engines
[Federal Register Volume 61, Number 167 (Tuesday, August 27, 1996)]
[Rules and Regulations]
[Pages 43960-43963]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-21843]
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DEPARTMENT OF THE TREASURY
Customs Service
19 CFR Part 12
[T.D. 96-64]
RIN 1515-AB94
Emissions Standards for Imported Nonroad Engines
AGENCY: Customs Service, Department of the Treasury.
ACTION: Final rule.
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SUMMARY: This document sets forth amendments to the Customs Regulations
which conform to regulations that have already been adopted by the
Environmental Protection Agency (EPA), in order to ensure the
compliance of imported nonroad engines with applicable EPA emissions
standards required by law.
EFFECTIVE DATE: August 27, 1996.
FOR FURTHER INFORMATION CONTACT: Leo Wells, Trade Compliance Division,
(202-927-0771).
SUPPLEMENTARY INFORMATION:
Background
The Clean Air Act, as amended, (42 U.S.C. 7401 et seq.), which has
long authorized the Environmental Protection Agency (EPA) to regulate
on-highway motor vehicle and engine emissions, was amended in 1990 to
extend EPA's regulatory authority to include as well nonroad engines
and related vehicles and 2 equipment (see 42 U.S.C. 7521-7525, 7541-
7543, 7547, 7549, 7550, 7601(a)). In brief, EPA was given authority,
inter alia, to regulate those categories or classes of new nonroad
engines and associated vehicles and equipment that contribute to air
pollution, if such nonroad emissions have been determined to be
significant.
To this end, the EPA has since conducted the requisite studies, and
issued regulations in 40 CFR parts 89 and 90, which set emission
standards for certain nonroad engines, specifically new nonroad
compression-ignition engines at or above 50 horsepower (37 kilowatts)
(nonroad large CI engines) as well as new nonroad spark-ignition
engines at or below 25 horsepower (19 kilowatts) (nonroad small SI
engines). For a complete discussion of the background and development
of EPA's regulations concerning emissions standards for nonroad large
CI and small SI engines, see 59 FR 31306 (June 17, 1994) and 60 FR
34582 (July 3, 1995), respectively. The Customs Regulations set forth
in this document are applicable to all nonroad engines incorporated
into nonroad vehicles or nonroad equipment imported into the United
States.
Nonconforming nonroad large CI engines may only be imported by
independent commercial importers (ICIs) who hold valid certificates of
conformity issued by the EPA (see Sec. 12.74(c)(2), infra), unless an
exemption or exclusion otherwise applies thereto. The ICI will be
responsible for assuring that subsequent to importation, the nonroad
engine is properly modified and/or tested to comply with EPA emission
and other requirements over its useful life.
By contrast, no ICI program exists for nonconforming nonroad small
SI engines. However, an individual may import on a single occasion up
to three nonconforming nonroad small SI engines, vehicles or equipment
items for personal use (and not for purposes of resale). In fact, with
specific exceptions, nonconforming nonroad small SI engines, vehicles
and equipment are generally not permitted to be imported for resale.
After an individual's limit of three, or after the first importation,
additional small SI engines, vehicles, or equipment are not permitted
importation, unless an exception or exclusion otherwise so provides.
Exemptions or exclusions to the general restrictions on importing
nonconforming nonroad engines are similar to those contained in
Sec. 12.73, Customs Regulations (19 CFR 12.73) for nonconforming motor
vehicles and their engines, and include exemptions for repair and
alteration, testing, precertification, display, national security,
hardship, use in competition, and certain nonroad engines proven to be
identical, in all material respects, to their corresponding U.S.
versions. Furthermore, foreign diplomatic or military personnel on
assignment in the U.S. may import a nonconforming nonroad engine exempt
from emissions requirements. In addition, nonroad engines greater than
20 original production years old are not subject to EPA emissions
requirements.
Accordingly, Customs is amending its regulations to add a new
Sec. 12.74 which conforms to the regulations that have already been
adopted by EPA, in order to ensure the compliance of imported nonroad
engines with applicable EPA emissions standards required by law.
Inapplicability of Public Notice and Comment and Delayed Effective Date
Requirements, the Regulatory Flexibility Act, and Executive Order 12866
Inasmuch as these amendments merely conform the Customs Regulations
to existing law and
[[Page 43961]]
regulation as noted above, pursuant to 5 U.S.C. 553(b)(B), notice and
public procedure thereon are unnecessary and pursuant to 5 U.S.C.
553(d)(3), a delayed effective date is not required. Since this
document is not subject to the notice and public procedure requirements
of 5 U.S.C. 553, it is not subject to the provisions of the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.). Nor do these amendments meet
the criteria for a ``significant regulatory action'' under E.O. 12866.
Drafting Information. The principal author of this document was
Russell Berger, Regulations Branch, U.S. Customs Service. However,
personnel from other offices participated in its development.
List of Subjects in 19 CFR Part 12
Customs duties and inspection, Imports, Motor vehicles, Motor
vehicle safety, Nonroad engines, Reporting and recordkeeping
requirements.
Amendments to the Regulations
Part 12, Customs Regulations (19 CFR part 12), is amended as set
forth below.
PART 12--SPECIAL CLASSES OF MERCHANDISE
1. The general authority citation for part 12 continues to read as
follows, and the specific authority for Sec. 12.73 is revised by adding
a reference to Sec. 12.74 to read as follows:
Authority: 5 U.S.C. 301; 19 U.S.C. 66, 1202 (General Note 20,
Harmonized Tariff Schedule of the United States (HTSUS)), 1624;
* * * * *
Sections 12.73 and 12.74 also issued under 19 U.S.C. 1484, 42
U.S.C. 7522, 7601;
* * * * *
2. Part 12 is amended by revising the undesignated centerhead
preceding Sec. 12.73, and by adding a new Sec. 12.74 following
Sec. 12.73, to read as follows:
Entry of Motor Vehicles, Motor Vehicle Engines and Nonroad Engines
Under the Clean Air Act, As Amended
* * * * *
Sec. 12.74 Nonroad engine compliance with Federal antipollution
emission requirements.
(a) Applicability of EPA requirements. This section is ancillary to
the regulations of the U.S. Environmental Protection Agency (EPA)
issued under the Clean Air Act, as amended (42 U.S.C. 7401 et seq.),
and found in 40 CFR parts 89 and 90. Nothing in this section should be
construed as limiting or changing in any way the applicability of the
EPA regulations. Those regulations should be consulted for more
detailed information concerning EPA emission requirements. These
requirements apply to nonroad combustion-ignition engines at or above
37 kilowatts (kW), and nonroad spark-ignition engines at or below 19
kW. For the purpose of this section, the term ``nonroad engine''
includes all nonroad engines incorporated into nonroad equipment or
nonroad vehicles when imported into the United States.
(b) Importation of complying nonroad engines. (1) Labeled engines.
Nonroad engines which in their condition as imported are covered by an
EPA certificate of conformity and which bear the manufacturer's label
showing such conformity and other EPA-required information shall be
deemed in compliance with applicable emission requirements for the
purpose of Customs admissibility and entry liquidation determinations.
This paragraph does not apply to importations by independent commercial
importers covered by paragraph (c) of this section.
(2) Pending certification. Nonroad engines otherwise covered by
paragraph (b)(1) of this section which were manufactured for compliance
with applicable emission requirements, but for which an application for
a certificate of conformity is pending with the EPA may be
conditionally released from Customs custody pending production of the
certificate of conformity within 120 days of release.
(c) Importation of nonconforming engines.
(1) By other than an independent commercial importer (ICI). Except
for nonroad engines imported in the particular circumstances covered by
paragraphs (d)-(m) of this section, an individual or business, other
than an independent commercial importer (ICI) holding a currently valid
EPA certificate of conformity for the same nonroad engine class and
fuel type as the engine being imported, may not enter into the United
States a nonconforming nonroad engine to which EPA emissions
requirements apply. Individuals and businesses may, however, arrange
for the importation of nonconforming nonroad engines through an ICI. In
these circumstances, the ICI will not act as an agent or broker for
Customs transaction purposes unless otherwise licensed or authorized to
do so.
(2) By an ICI. (i) Definition. Generally, an ICI is an importer
that holds a certificate of conformity from EPA, but that lacks a
contract with a foreign or domestic nonroad engine manufacturer for
distributing nonroad engines into the United States market and cannot
therefore export as an original equipment manufacturer. Further
specific discussion of who qualifies as an ICI is set forth in the EPA
regulations.
(ii) Procedure. An ICI may enter into the United States certain
nonroad engines, only if it holds a currently valid EPA certificate of
conformity for the same nonroad engine class and fuel type as the
nonroad engines being entered. A ``certificate of conformity'' is the
document which is issued by the Administrator, EPA, to the ICI, and
which entitles the ICI to import nonconforming nonroad engines into the
United States, and ensure that such nonroad engines are brought into
conformance with applicable EPA emissions standards. 40 CFR 89.602-96.
(d) Importation of nonconforming spark-ignition engines at or below
19 kW. (1) General. A nonconforming engine at or below 19 kW may not be
imported by any person, business or ICI, except for purposes other than
resale under paragraph (d)(2) of this section, or unless an exemption
or exclusion applies as provided in paragraphs (e)-(m) of this section.
(2) Importation for purposes other than resale. Any individual may
import on a one-time basis 3 or fewer nonconforming spark-ignition
engines at or below 19 kW for purposes other than resale under 40 CFR
90.611. Such an engine may be conditionally admitted without prior EPA
approval and without bond.
(e) Exemptions and exclusions from emissions requirements based on
age of engine. The following nonroad engines may be imported by any
person and do not have to be shown to be in compliance with emissions
requirements before being entitled to admissibility:
(1) All spark-ignition engines greater than 19 kW, unless regulated
under 19 CFR 12.73;
(2) All compression-ignition engines less than 37 kW;
(3) Spark-ignition engines less than or equal to 19 kW originally
manufactured before the 1997 model year;
(4) Compression-ignition engines greater than or equal to 37 kW but
less than 75 kW originally manufactured before January 1, 1998;
(5) Compression-ignition engines greater than or equal to 75 kW but
less than 130 kW originally manufactured before January 1, 1997;
(6) Compression-ignition engines greater than or equal to 130 kW
but less than or equal to 560 kW originally manufactured before January
1, 1996;
(7) Compression-ignition engines greater than 560 kW originally
[[Page 43962]]
manufactured before January 1, 2000; and
(8) Engines not otherwise exempt from EPA emission requirements and
more than 20 years old. (Age is determined by subtracting the calendar
year of production (as opposed to model year) from the calendar year of
importation.)
(f) Exemption for exports. Nonroad engines which will be used in
nonroad vehicles or equipment intended solely for export to a country
which does not have in force emissions standards identical to EPA
standards are exempt from applicable EPA emissions requirements if both
the engine and its container bear a label or tag indicating that it is
intended solely for export. 40 CFR 89.909 and 90.909. The EPA publishes
in the Federal Register a list of foreign countries that have emissions
standards identical to EPA standards.
(g) Exemptions for diplomats, foreign military personnel and
nonresidents. Subject to the conditions that they are not resold in the
United States and are subsequently exported or destroyed or brought
into conformity with EPA emissions requirements, the following nonroad
engines are exempt from EPA emission requirements:
(1) A nonroad engine imported solely for the personal use of a
nonresident importer or consignee where the use will not exceed one
year and the engine subsequently will be exported; and
(2) A nonroad engine of a member of the armed forces of a foreign
country on assignment in the United States, or of a member of the
personnel of a foreign government on assignment in the United States or
other individual who comes within the class of persons for whom free
entry of nonroad engines has been authorized by the Department of
State. For special documentation requirements, see paragraph (n)(4) of
this section.
(h) Exemption for repairs or alterations. An engine may be imported
by anyone solely for repairs or alterations. Under this exemption, the
engine may not be sold or leased in the United States. 40 CFR 89.611-
96(b)(1) and 90.612(b)(1).
(i) Testing exemption. An engine may be imported by anyone solely
for testing. Such engine may only be operated as an integral part of
the test. 40 CFR 89.611-96(b)(2) and 90.612(b)(2). This exemption is
limited to a period not exceeding one year from the date of importation
unless a request is made under 40 CFR 89.905(f) or 90.905(f), as
applicable, for a one-year extension.
(j) Precertification exemption. An engine may be imported by an
individual as well as by an ICI for use as a prototype in applying for
EPA certification, unless otherwise specified. 40 CFR 89.611-96(b)(3)
and 89.906. Unless the engine is brought into conformity within 180
days from the date of entry, it shall be exported or otherwise disposed
of subject to paragraph (q) of this section.
(k) Display exemption. An engine may be imported by anyone solely
for display in relation to a business or the public interest, as
determined by EPA, if the engine will not be sold in the United States.
This exemption is limited to a period of 12 months or for the duration
of the display, whichever is shorter. Two extensions are available of
up to 12 months each, if approved by EPA, but, in no case may the total
extension period exceed 36 months. 40 CFR 89.611-96(b)(4) and
90.612(b)(3).
(l) Exemption for engines identical to U.S.-certified versions. An
engine may be imported by its owner other than for resale if it is
proven to be identical, in all material respects, to an engine
certified by the original manufacturer for sale in the United States.
40 CFR 89.611-96(c)(3) and 90.612(c)(3).
(m) Exemptions and exclusions based on prior EPA approval. The
following exemptions or exclusions from EPA emission standards apply to
nonroad engines, if prior approval has been obtained in writing from
EPA:
(1) Competition exemption. An engine may be imported for use to
propel a vehicle or to power equipment used solely for competition. 40
CFR 89.611-96(e) and 90.612(e);
(2) National security exemption. An engine that received a national
security exemption in writing from EPA may be imported. 40 CFR 89.611-
96(c)(1), 89.908, 90.612(c)(1) and 90.908; and
(3) Hardship exemption. An engine that received a hardship
exemption in writing from EPA may be imported. 40 CFR 89.911-96(c)(2)
and 90.612(c)(2).
(n) Documentation requirements. (1) Exception for conforming
engines. The special documentation requirements of paragraphs (n)(2)
and (n)(3) of this section do not apply to the entry into the United
States of any nonroad engines shown to be in compliance with applicable
emission requirements under paragraph (b)(1) of this section relating
to labeling.
(2) Declarations of other importers. Release from Customs custody
shall be refused with respect to all entries of nonconforming nonroad
engines into the United States unless there is filed with the entry in
duplicate a declaration in which the importer or consignee declares or
affirms its status as an original equipment manufacturer, an ICI
holding a relevant certificate of conformity, an individual importer,
or other status, and further declares or affirms the status or
condition of the imported engines and the circumstances concerning
importation including a citation to the specific paragraph in this
section upon which application for conditional or final release from
Customs custody is made.
(3) Other documentation and information. The EPA requires, pursuant
to its regulations at 40 CFR 89.604(a) and 40 CFR 90.604(c), that the
following information shall be included or submitted with the
importer's declaration:
(i) The importer's name, address and telephone number;
(ii) Identification of the engine, including the unique engine
number, the engine owner's taxpayer identification number, and his or
her current address and telephone number in the United States if
different from that provided in paragraph (n)(3)(i) of this section;
(iii) Identification, where applicable, of the place where the
engine will be stored until EPA approval of the importer's application
to EPA for final admission;
(iv) Authorization for EPA enforcement officers to conduct
inspections or testing otherwise permitted by the Clean Air Act and
regulations promulgated thereunder;
(v) Identification, in the case of importation by an ICI, of the
certificate of conformity by means of which the engine is being
imported;
(vi) The date of manufacture of the engine;
(vii) The date of entry;
(viii) Identification of the vessel or carrier on which the
merchandise was shipped;
(ix) The entry number, where applicable;
(x) Where prior written approval from EPA is required for an
exemption or exclusion, a statement to the effect that such EPA
approval has been given; and
(xi) Such other further information as may be required by the EPA.
(4) Documentation from diplomats or foreign military personnel. For
entries for which an exemption is claimed under paragraph (g)(2) of
this section, a statement must also be included with the declaration,
identifying and describing the engine importer's official orders, if
any, or, giving the name of the embassy to which the importer is
accredited if the importer is a qualifying member of the personnel of a
foreign government on assignment in the United States.
[[Page 43963]]
(5) Retention and submission of records to Customs. Documents
supporting the information contained in or accompanying the declaration
as set forth in paragraphs (n) (2)-(4) of this section must be retained
by the importer for a period of at least 5 years from the date of
entry, or withdrawal from warehouse, for consumption of the nonroad
engine (see Sec. 162.1c of this chapter), and shall be provided to
Customs upon request.
(o) Release under bond. If a declaration filed in accordance with
paragraph (n)(2) of this section states that the entry is being filed
under circumstances described in either paragraph (h), (i), (j), or (k)
of this section, the entry shall be accepted only if the importer or
consignee gives a bond on Customs Form 301, containing the bond
conditions set forth in Sec. 113.62 of this chapter for the production
of an EPA statement that the engine is in conformity with Federal
emission requirements. Within the period in paragraph (i) or (j) of
this section, or in the case of paragraph (h) or (k) of this section,
the period specified by EPA in its authorization for an exemption, or
such additional period as the port director of Customs may allow for
good cause shown, the importer or consignee shall deliver to the port
director the prescribed statement. If the statement is not delivered to
the director of the port of entry within the specified period, the
importer or consignee shall deliver or cause to be delivered to the
port director those engines which were released under a bond required
by this paragraph. In the event that the engine is not redelivered
within 5 days following the specified period, liquidated damages shall
be assessed in the full amount of the bond, if it is a single entry
bond, or if a continuous bond is used, the amount that would have been
taken under a single entry bond. Liquidated damages under the bond
generally would be equal to 3 times the value of the merchandise
involved in the default (see Sec. 113.62(k) of this chapter).
(p) Notice of inadmissibility or detention. If an engine is
determined to be inadmissible before release from Customs custody, or
inadmissible after release from Customs custody, the importer or
consignee shall be notified in writing of the inadmissibility
determination and/or redelivery requirement. However, if an engine
cannot be released from Customs custody merely because the importer has
failed to furnish with the entry the information required by paragraph
(n) of this section, the engine shall be held in detention by the port
director for a period not to exceed 30 days after filing of the entry
at the risk and expense of the importer pending submission of the
missing information. An additional 30-day extension may be granted by
the port director upon application for good cause shown. If at the
expiration of a period not over 60 days the required documentation has
not been filed, a notice of inadmissibility will be issued.
(q) Disposal of engines not entitled to admission. An engine denied
admission under any provision of this section shall be disposed of in
accordance with applicable Customs laws and regulations. However, an
engine will not be disposed of in a manner in which it may ultimately
either directly or indirectly reach a consumer in a condition in which
it is not in conformity with applicable EPA emission requirements.
(r) Prohibited importations. The importation of nonroad engines
otherwise than in accordance with this section and the regulations of
EPA in 40 CFR parts 89 and 90 is prohibited.
George J. Weise,
Commissioner of Customs.
Approved: June 24, 1996.
Dennis M. O'Connell,
Acting Deputy Assistant Secretary of the Treasury.
[FR Doc. 96-21843 Filed 8-26-96; 8:45 am]
BILLING CODE 4820-02-P
Complete official Federal Register PDF
FR Doc. 96-21841 Pamlico Sound and Adjacent Waters, North Carolina, Danger Zones; Alligator Bayou off St. Andrew Bay, Florida; and Suisun Bay, West of Carquinez Straits at the Naval Weapons Station, Concord, California, Restricted Areas
[Federal Register Volume 61, Number 167 (Tuesday, August 27, 1996)]
[Rules and Regulations]
[Pages 43969-43970]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-21841]
=======================================================================
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DEPARTMENT OF DEFENSE
Department of the Army
Corps of Engineers
33 CFR Part 334
Pamlico Sound and Adjacent Waters, North Carolina, Danger Zones;
Alligator Bayou off St. Andrew Bay, Florida; and Suisun Bay, West of
Carquinez Straits at the Naval Weapons Station, Concord, California,
Restricted Areas
AGENCY: U.S. Army Corps of Engineers, DoD.
ACTION: Final rule.
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SUMMARY: The Corps is amending the regulations which establish several
danger zones in Pamlico Sound and the Neuse River in North Carolina to
delete one of the danger zones and make minor editorial changes to the
regulations. The danger zone as it exists, protrudes into and
interferes with navigation in Turnagain Bay and will not be used again
by the Government for a use that precludes free use by the public. The
Corps is also making minor editorial amendments to the regulations
which establish a restricted area in the waters of Alligator Bayou, a
tributary of St. Andrews Bay and the Gulf of Mexico, Florida and a
restricted area in the waters of Suisun Bay, west of Carquinez Straits
at the Naval Weapons Station, Concord, California, to clarify that
persons, as well as vessels, are not allowed within the restricted
areas. This amendment will not affect the size, location or further
restrict the public's use of the restricted areas. The restricted areas
continue to be essential to the safety and security of Government
facilities, vessels and personnel and protect the public from the
hazards associated with the operations at Government facilities.
EFFECTIVE DATE: October 28, 1996.
ADDRESSES: HQUSACE, CECW-OR, Washington, D.C. 20314-1000.
FOR FURTHER INFORMATION CONTACT: Mr. Ralph Eppard, Regulatory Branch,
CECW-OR at (202) 761-1783, or questions concerning the Pamlico Sound,
NC danger zone revocation may be directed to Mr. David Franklin of the
Wilmington District at (910) 251-44952. Questions concerning the
Alligator Bayou restricted area may be directed to Mr. Larry Evans of
the Jacksonville District at (904) 232-3943. Any questions concerning
the Suisun Bay, California restricted area may be directed to Mr. Mark
D'Avignon of the San Francisco District at (415) 977-8446.
SUPPLEMENTARY INFORMATION: Pursuant to its authorities in Section 7 of
the Rivers and Harbors Act of 1917 (40 Stat. 266; 33 U.S.C. 1) and
Chapter XIX of the Army Appropriations Act of 1919 (40 Stat. 892; 33
U.S.C. 3), the Corps is amending the regulations in 33 CFR Part
334.420, 334.760 and 334.1110.
The Commanding Officer, Marine Corps Air Bases, Eastern Area,
Cherry Point, North Carolina, has requested an amendment to the
regulations in 33 CFR 334.420(b)(1)(ii), to disestablish a danger zone
in the waters off Mulberry Point in Pamlico Sound. The area will be
opened to public use upon the effective date of these final rules. The
remaining danger zones established in 33 CFR 334.420 remain in effect.
We are also making an editorial change to clarify that these danger
zone regulations apply to personnel as well as vessels. The Commanding
Officer, Coastal Systems Station, Dahlgren Division, Naval Surface
Warfare Center, Panama City, Florida, and the Commanding Officer, Naval
Weapons Station Concord, Concord, California have also requested that
the word ``person'' be inserted into the regulations in 33 CFR
334.760(b)(1) and 33 CFR 334.1110(2), respectively, to clarify that
restrictions apply not only to vessels, but to personnel as well. Other
minor editorial changes are being made to 33 CFR 334.1110 to correct
paragraph designations in the regulations. These amendments to the
danger zones in 33 CFR 334.420 and the restricted areas in 33 CFR
334.760 and 334.1110 are being promulgated without being published as
proposed rules with opportunity for public comment because the changes
are editorial in nature and since the revisions do not change the
boundaries or increase the restrictions on the public's use or entry
into the designated areas, the changes will have practically no effect
on the public. Accordingly, we have determined that public comment is
unnecessary and impractical.
Procedural Requirements
a. Review under Executive Order 12866
This final rule is issued with respect to a military function of
the Defense Department and the provisions of Executive Order 12866 do
not apply.
b. Review under the Regulatory Flexibility Act
These rules have been reviewed under the Regulatory Flexibility Act
(Pub. L. 86-354), which requires the preparation of a regulatory
flexibility analysis for any regulation that will have a significant
economic impact on a substantial number of small entities (i.e., small
businesses and small governments). The Corps expects that the economic
impact of the changes to the restricted areas will have practically no
impact on the public, no anticipated navigational hazard or
interference with existing waterway traffic and accordingly, certifies
that this proposal if adopted, will have no significant economic impact
on small entities.
c. Review under the National Environmental Policy Act
An environmental assessment has been prepared for each of these
actions. We have concluded, based on the minor nature of these proposed
amendments that these amendments to danger zones and restricted areas
will not have a significant impact to the human environment, and
preparation of a environmental impact statement is not required. The
environmental assessment for the appropriate area may be reviewed at
the District Offices listed at the end of FOR FURTHER INFORMATION
CONTACT, above.
d. Submission to Congress and the GAO
Pursuant to Section 801(a)(1)(A) of the Administrative Procedure
Act as amended, by the Small Business Regulatory Enforcement Fairness
Act of 1996, the Army has submitted a report containing this rule to
the U.S. Senate, House of Representatives and the Comptroller General
of the General Accounting Office prior to publication of this rule in
the Federal Register. This rule is not a major rule within the meaning
of section 804(2) of the Administrative Procedure Act, as amended.
[[Page 43970]]
e. Unfunded Mandates Act
This rulemaking does not impose an enforceable duty among the
private sector and therefore, is not a Federal private sector mandate
and is not subject to the requirements of Section 202 or 205 of the
Unfunded Mandates Act. We have also found under Section 203 of the Act,
that small governments will not be significantly and uniquely affected
by this rulemaking.
List of Subjects in 33 CFR Part 334
Danger Zones, Navigation (water), Transportation.
For the reasons set out in the preamble, 33 CFR Part 334 is amended
as follows:
PART 334--DANGER ZONE AND RESTRICTED REGULATIONS
1. The authority citation for Part 334 continues to read as
follows:
Authority: 40 Stat. 266; (33 U.S.C. 1) and 40 Stat. 892; (33
U.S.C. 3).
2. Section 334.420 is amended by revising the first sentence of
paragraph (a)(2), removing paragraph (b)(1)(ii), redesignating
paragraphs (b)(1)(iii), (iv) and (v) as (b)(1)(ii), (iii) and (iv),
respectively, and revising paragraph (b)(2) to read as follows:
Sec. 334.420 Pamlico Sound and adjacent waters, N.C.; danger zones for
Marine Corps operations.
(a) * * *
(2) The regulations. The area shall be closed to navigation and
personnel at all times except for vessels engaged in operational and
maintenance work as directed by the enforcing agency. * * *
(b) Bombing, rocket firing, and strafing areas in Pamlico Sound and
Neuse River--(1) The areas. * * *
(2) The regulations. (i) The area described in paragraph (b)(1) of
this section will be used as bombing, rocket firing, and strafing
areas. Live and dummy ammunition will be used. The area shall be closed
to navigation and all persons at all times except for such vessels as
may be directed by the enforcing agency to enter on assigned duties.
The area will be patrolled and vessels ``buzzed'' by the patrol plane
prior to the conduct of operations in the area. Vessels or personnel
which have inadvertently entered the danger zone shall leave the area
immediately upon being so warned.
(ii) The areas described in paragraphs (b)(1)(ii), (iii) and (iv)
of this section shall be used for bombing, rocket firing, and strafing
areas. Practice and dummy ammunition will be used. All operations will
be conducted during daylight hours, and the areas will be open to
navigation at night. No vessel or person shall enter these areas during
the hours of daylight without special permission from the enforcing
agency. The areas will be patrolled and vessels ``buzzed'' by the
patrol plane prior to the conduct of operations in the areas. Vessels
or personnel which have inadvertently entered the danger zones shall
leave the area immediately upon being warned.
* * * * *
3. Section 334.760 is amended by revising paragraph (b)(1) to read
as follows:
Sec. 334.760 Alligator Bayou, a tributary of St. Andrew Bay, Fla.;
restricted area.
* * * * *
(b) The regulations. (1) No vessel or person shall enter the area
or navigate therein without permission of the Commanding Officer, Naval
Ship Research and Development Laboratory, Panama City, Fla., or her/his
authorized representative.
* * * * *
4. Section 334.1110 is amended by revising the heading for
paragraph (a); revising the paragraph (a)(1) designation and heading;
and redesignating paragraph (a)(2) as (b), and revising it to read as
follows:
Sec. 334.1110 Suisun Bay at Naval Weapons Station, Concord; restricted
area.
(a) The area. * * *
(b) The regulations. (1) No person, vessel, watercraft, conveyance
or device shall enter or cause to enter or remain in this area. No
person shall refuse or fail to remove any person or property in his
custody or under his control from this area upon the request of the
Commanding Officer of the Naval Weapons Station Concord or his/her
authorized representative.
(2) The regulations in this section shall be enforced by the
Commanding Officer, Naval Weapons Station Concord, and such agencies as
he/she shall designate.
Dated: August 2, 1996.
Stanley G. Genega,
Major General, U.S. Army, Director of Civil Works.
[FR Doc. 96-21841 Filed 8-26-96; 8:45 am]
BILLING CODE 3710-92-M
Complete official Federal Register PDF
FR Doc. 96-21814 Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Golden Crab Fishery Off the Southern Atlantic States; Initial Regulations; OMB Control Numbers
[Federal Register Volume 61, Number 167 (Tuesday, August 27, 1996)]
[Rules and Regulations]
[Pages 43952-43960]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-21814]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
15 CFR Part 902
50 CFR Part 622
[Docket No. 950316075-6222-03; I.D. 022696A]
RIN 0648-AH86
Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic;
Golden Crab Fishery Off the Southern Atlantic States; Initial
Regulations; OMB Control Numbers
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: NMFS issues this final rule to implement the approved measures
of
[[Page 43953]]
the Fishery Management Plan for the Golden Crab Fishery of the South
Atlantic Region (FMP) and to revise the definition of fish trap
applicable in the exclusive economic zone (EEZ) off the southern
Atlantic states. This rule restricts the harvest or possession of
golden crab in or from the EEZ off the southern Atlantic states and
controls access to the fishery. In addition, NMFS informs the public of
the approval by the Office of Management and Budget (OMB) of the
collection-of-information requirements contained in this rule and
publishes the OMB control numbers for these collections. The intended
effect of this rule is to conserve and manage the golden crab fishery.
EFFECTIVE DATEs: September 26, 1996; except that the amendments to 15
CFR part 902, 50 CFR 622.1, 622.2, 622.4(d), and 622.7(b) and the
additions 50 CFR 622.17 (b) through (f) and (h) are effective August
27, 1996; and the amendments to 50 CFR 622.4(a)(4), 622.5, 622.6, 622.7
(a) and (c), and 622.40(a)(3) and the additions 50 CFR 622.7(z), 622.17
(a), (g), (i), and (j), and 622.45(f) (2) through (4) are effective
October 28, 1996.
ADDRESSES: Comments regarding the collection-of-information
requirements contained in this rule should be sent to Edward E.
Burgess, Southeast Regional Office, NMFS, 9721 Executive Center Drive
N., St. Petersburg, FL 33702, and to the Office of Information and
Regulatory Affairs, OMB, Washington, DC 20503 (Attention: NOAA Desk
Officer).
FOR FURTHER INFORMATION CONTACT: Peter J. Eldridge, 813-570-5305.
SUPPLEMENTARY INFORMATION: The FMP was prepared by the South Atlantic
Fishery Management Council (Council) under the authority of the
Magnuson Fishery Conservation and Management Act (Magnuson Act). The
background and rationale for the measures in the FMP, and the rationale
for the disapproval at the proposed rule stage of the measure that
would have required 100 percent of the owners or operators of permitted
vessels to maintain and submit vessel logbook information, were
contained in the preamble to the proposed rule (61 FR 16076, April 11,
1996) and are not repeated here.
Comments and Responses
Comment: The U.S. Fish & Wildlife Service stated that it had
participated in the development of the golden crab FMP and recommends
its approval and implementation.
Response: NMFS agrees.
Comment: The Council reiterated its support for the FMP. The
Council emphasized that the FMP was necessary to protect the biological
integrity of the golden crab resource and to maintain economic and
social benefits from the fishery by establishing a controlled access
program. The Council remains concerned about the potential for
overfishing this resource. Finally, the Council disagrees with NMFS
concerning the mandatory 100 percent logbook action that NMFS
disapproved.
Response: NMFS agrees with the Council concerning the need for the
FMP. As stated in the proposed rule, NMFS intends to select 100 percent
of vessels for sampling until circumstances change. NMFS believes that
the Southeast Regions' Science and Research Director (SRD) should
determine the sampling protocol for this fishery.
Comment: Four fishing companies and one seafood retailer, located
in Florida, strongly supported the golden crab FMP. They noted that
this is a new fishery and they prefer that NMFS act before overfishing
occurs or conflicts arise among user groups.
Response: NMFS agrees.
Comment: Five golden crab fishermen strongly supported the FMP.
They noted the opportunity to manage a resource from the fishery's
inception. They are concerned about the golden crab resource and
strongly support management to prevent future problems.
Response: NMFS agrees.
Comment: One golden crab consumer reported she supports the FMP
because it will prevent depletion of the resource.
Response: NMFS agrees.
Comment: A citizen concerned about overfishing strongly supported
the FMP. He noted the importance of protecting the golden crab resource
and biodiversity. He also stated that the FMP would protect fishermen
by minimizing the possibility of overfishing.
Response: NMFS agrees.
An early participant in the golden crab fishery made a number of
comments, summarized as follows:
Comment: The 18-month transition period for evaluation of the use
of wire cable for mainlines and buoy lines is needed. Eliminating wire
cable may actually increase, rather than decrease, the risk of habitat
damage.
Response: NMFS supports the evaluation period to determine the
effects of wire cable.
Comment: The requirement that all golden crabs be landed whole is
too restrictive. Specifically, taking females and undersized males is
an unlikely problem because processing them would not be profitable.
Also, it would not be profitable to operate large processing vessels in
this fishery; thus, the Council should allow at-sea processing.
Finally, the quality and value of golden crab processed at sea would be
greater than crabs landed alive and whole.
Response: NMFS agrees with the Council's position that landing
crabs whole is necessary to ensure that females and undersized crabs
are not taken.
Comment: The commenter questioned the necessity of owning a vessel
in order to obtain a permit.
Response: Among the factors considered by the Council in
determining the criteria for initial permits is current participation
in the fishery. NMFS concurs in the Council's use of the requirement as
an indication of current participation in the fishery.
Comment: The middle zone should be combined with the northern zone
for fishing purposes.
Response: The Council decided to establish three zones based on
historical fishing patterns, an estimate of the potential number of
fishermen that would select each zone, and the probable abundance of
golden crab in each zone. The southern zone is the Florida Keys area
which has a very narrow shelf. Consequently, most fishermen in this
area have relatively small vessels. These fishermen exploit a number of
species including golden crab, which is taken most often during the
warmer months of the year. The potential for user conflict is greatest
in this area because the narrow shelf concentrates users in the same
area. Fishermen in the Florida Keys were particularly concerned about
unfair competition with large vessels.
The middle zone is the east coast of Florida north of Miami. The
shelf is also relatively narrow in this area. In addition, fewer
fishing opportunities exist here than in the southern zone. The
relatively small vessels that fish in this zone are heavily dependent
upon the golden crab resource. Again, fishermen in this zone were
concerned about unfair competition with larger vessels.
The northern zone is much larger than either the southern or middle
zones and fishing grounds are much further offshore. Sea and weather
conditions are more severe in this zone. Consequently, larger vessels
are required for fishing operations in this area. Because of the sparse
catch data for the northern zone, less is known concerning the
abundance of golden crab. However, if abundance is proportional to
area, there may be more crabs available in this zone.
The Council wishes to minimize user conflict, especially between
smaller and larger vessels. Since fishermen in the
[[Page 43954]]
southern and middle zones have relatively small vessels and a narrow
area to fish, separating the southern and middle zones from the
northern zone will minimize user conflict and avoid unfair competition.
Because historical fishing patterns (and opportunities) are
substantially different between the southern and middle zones,
separating these areas is appropriate.
In the spring of 1995, an analysis of the Florida golden crab catch
data revealed that most vessels in the golden crab fishery were small
and fished either in the middle or southern zones. At that time,
several owners of large vessels had expressed their intent to conduct
preliminary fishing operations in the northern zone. Because of this
possibility, the Council established the September 1, 1995, qualifying
criterion. The Council did not constrain any vessel concerning
selection of a fishing zone because of the low number of large vessels
involved, although it was hoped that the large vessels would select the
northern zone. If this occurs, user conflict will be minimized in the
other zones and additional catch data will be obtained from the
northern zone. For the reasons summarized above, NMFS agrees with the
Council's separation of the middle and northern zones.
Comment: A minimum size limit could be required in the future.
Response: The Council and NMFS agree. If required, a minimum size
limit may be implemented under the FMP's framework procedure for new
management measures.
Comment: A quota is not necessary at this time.
Response: The Council and NMFS agree and note that, if necessary, a
quota may be implemented under the framework procedure.
Comment: The commenter supports the FMP.
Response: NMFS agrees.
Comment: Another commenter believes that NMFS will not require
vessel logbooks for the golden crab fishery. Specifically, NMFS has
disapproved the mandatory vessel logbook action and logbooks are
necessary to determine the status of the fishery.
Response: NMFS agrees that logbooks are necessary to monitor the
fishery, but disagrees that the sampling levels are an appropriate
matter for the Council to decide. NMFS intends initially to select 100
percent of vessels for logbook reporting and continue this level of
sampling as long as necessary. If circumstances change, or a better
sampling procedure is developed, NMFS needs the flexibility to
implement a more efficient sampling protocol.
Comment: A fisherman reported that he had caught golden crabs since
the control date but implied that he would not qualify for a permit
because he did not catch sufficient crabs prior to September 1, 1995,
to obtain a permit. He believes his exclusion from the fishery is
unfair.
Response: The Council originally announced a control date of April
7, 1995. However, during the public hearing process it became evident
that the number of participants was increasing rapidly off the east
coast of Florida, but only a few vessels were fishing north of Florida
(northern zone). The Council relaxed the original control date by
adding a second criterion for entry; namely, a vessel owner who
documents landings of 2,500 lb by September 1, 1995, would be eligible
for a commercial vessel permit for the fishery. This was designed to
provide vessel owners an additional 5 months to qualify for entry. The
Florida fish trip ticket records indicate that most golden crab
fishermen can catch one to several thousand pounds per trip (average
trips run 3 to 4 days). Accordingly, such fishermen could easily catch
the required 2,500 lbs within the additional five months allowed by the
Council's extended qualifying date.
Changes From the Proposed Rule
Since the proposed rule was published, NMFS, as part of the
President's Regulatory Reinvention Initiative, consolidated most of its
fishery regulations for the Southeast Region into 50 CFR part 622 (61
FR 34930, July 3, 1996). Accordingly, this final rule, instead of
adding a new part to title 50 of the CFR to implement the FMP as
proposed by the Council and approved by NMFS, implements the FMP by
amending 50 CFR part 622. As a result, general provisions that are
common to all federally managed fisheries in the Southeast Region,
already contained in part 622, are not included in this final rule. In
addition, minor changes in language have been made to conform to the
standards in part 622. Substantive changes from the proposed rule are
as follows.
The proposed rule would have allowed 90 days from the date of
publication of the final rule before vessel permits would be required
in the fishery. NMFS now finds that it can issue initial vessel permits
earlier than previously anticipated. Accordingly, the final rule
requires that vessel permits be obtained within 60 days after the date
of publication of this final rule.
Because the eligibility requirements for initial vessel permits can
be met only by owners, the option for either the owner or the operator
to apply for a permit is removed--only vessel owners may apply for a
permit.
At Sec. 622.17(b), the final rule clarifies that the use of
landings records to establish qualifications for an initial vessel
permit is restricted to either the owner of a vessel at the time of the
landings or to a subsequent owner of that vessel. That is, landings
records may be transferred only in connection with a change of
ownership of the harvesting vessel.
Language is added to clarify the time frame during which the
Director, Southeast Region, NMFS (RD), will advise an applicant for a
vessel permit that he or she has not met the eligibility criteria.
For consistency and clarification, NMFS extends the prohibition at
Sec. 622.7(b), regarding falsification of information on or submitted
with a permit application, to information on or submitted with a
request for transfer of a permit.
Under NOAA Administrative Order 205-11, 7.01, dated December 17,
1990, the Under Secretary for Oceans and Atmosphere has delegated to
the Assistant Administrator for Fisheries, NOAA, the authority to sign
material for publication in the Federal Register.
Classification
The RD, with concurrence by the NOAA Assistant Administrator for
Fisheries, determined that the FMP is necessary for the conservation
and management of the golden crab fishery off the southern Atlantic
states and that it is consistent with the Magnuson Act and other
applicable laws, with the exception of the measure that was previously
disapproved. See the proposed rule for a discussion of the disapproved
measure.
This final rule has been determined to be not significant for
purposes of E.O. 12866.
The Assistant General Counsel for Legislation and Regulation of the
Department of Commerce certified to the Chief Counsel for Advocacy of
the Small Business Administration that the proposed rule, if adopted,
would not have a significant economic impact on a substantial number of
small entities. The reasons for this certification were published in
the preamble to the proposed rule (61 FR 16076, April 11, 1996) and are
not repeated here. As a result, a regulatory flexibility analysis was
not prepared.
Notwithstanding any other provision of law, no person is required
to respond
[[Page 43955]]
to, nor shall a person be subject to, a penalty for failure to comply
with a collection of information subject to the requirements of the
Paperwork Reduction Act (PRA) unless that collection of information
displays a currently valid OMB control number.
This rule contains collection-of-information requirements subject
to the PRA--namely, (1) initial vessel permit applications, (2) vessel
permit renewals, (3) vessel permit appeals, (4) dealer permit
applications, (5) vessel reports, (6) dealer reports, (7) notification
requirements for purposes of accommodating observer coverage, (8)
notification requirements for vessels transiting golden crab zones, (9)
gear identification, and (10) vessel identification. The existing
vessel identification requirements contained in 50 CFR 622.6(a)(1)(i)
and (a)(2) are made applicable to a vessel in the golden crab fishery
by requiring such vessel to obtain a permit--each vessel for which a
permit has been issued under 50 CFR 622.4 or 622.17 is required to
comply with those requirements. These collections have been approved by
OMB under OMB control numbers as follows: Items (1) through (4), (7),
and (8)--0648-0205; item (5)--0648-0016; item (6)--0648-0013; item
(9)--0648-0305, and item (10)--0648-0306. The public reporting burdens
for these collections of information are estimated to average 20, 20,
30, 15, 10, 15, 3, 2, 7, and 45 minutes per response, respectively,
including the time for reviewing instructions, searching existing data
sources, gathering and maintaining the data needed, and completing and
reviewing the collections of information. Send comments regarding these
reporting burden estimates or any other aspect of the collections of
information, including suggestions for reducing the burdens, to NMFS
and OMB (see ADDRESSES).
The publication of the OMB control numbers for approved collection-
of-information requirements at 15 CFR part 902, and the addition to the
table of FMPs implemented under part 622 are not substantive rules
within the meaning of 5 U.S.C. 553 and, pursuant to 5 U.S.C. 553(d),
are not subject to a delay in effective date. The revision of the
definition of ``fish trap,'' while a substantive rule, relieves a
restriction and, pursuant to 5 U.S.C. 553(d)(1), is not subject to a
delay in effective date. The addition to the regulations at 50 CFR
622.17(b) through (f) and (h), and the amendments to the associated
provisions at 50 CFR 622.4(d) and 622.7(b), set forth administrative
procedures and authority necessary for timely implementation of the
controlled access program for commercial vessel permits. Consistent
with the FMP, these regulations require that applications for initial
vessel permits be submitted within 30 days after the date of
publication of this rule in the Federal Register. The class of persons
affected by the controlled access program is very small, and all such
affected persons should be aware of the provisions of the controlled
access system, including the vessel permit requirements and, in
particular, the time provided for permit application. Virtually all
affected commercial golden crab fishermen have been involved fully in
the Council process of developing the FMP, which included numerous
public hearings with opportunities for being informed of and commenting
on the Council's proposed management measures. It is extremely unlikely
that any persons affected by the controlled access program are unaware
of the terms of the FMP, or the timing aspects of its implementation.
It is also unlikely that any affected persons will require additional
time to adjust to this regulation. Rather, virtually all industry
participants are anticipating implementation of the FMP and are ready
to apply for their vessel and dealer permits. Furthermore, NMFS can
identify virtually all eligible fishermen for this golden crab fishery
and will give actual notice to those individuals immediately upon
filing of this final rule with the Office of the Federal Register.
Accordingly, a period of delayed effectiveness for the administrative
procedures for implementing the controlled access system in this
instance is unnecessary. It is noted that the administrative procedures
for implementing the controlled access system involve references to the
definitions added to 50 CFR 622.2. For these reasons, the Assistant
Administrator for Fisheries, NOAA, finds that, pursuant to 5 U.S.C.
553(d)(3), good cause exists to waive the 30-day delay in effective
date of the amendments to 50 CFR 662.2, 622.4(d) and 622.7(b) and the
addition of 50 CFR 622.17(b) through (f) and (h). To allow time for
determination of permit eligibility and issuance of permits, NMFS makes
the provisions of this final rule that require permits, or that are
dependent on the possession of a permit, effective October 28, 1996.
List of Subjects
15 CFR Part 902
Reporting and recordkeeping requirements.
50 CFR Part 622
Fisheries, Fishing, Puerto Rico, Reporting and recordkeeping
requirements, Virgin Islands.
Dated: August 21, 1996.
C. Karnella,
Acting Deputy Assistant Administrator for Fisheries, National Marine
Fisheries Service.
For the reasons set out in the preamble, 15 CFR part 902 and 50 CFR
part 622 are amended as follows:
PART 902--NOAA INFORMATION COLLECTION REQUIREMENTS UNDER THE
PAPERWORK REDUCTION ACT: OMB CONTROL NUMBERS
1. The authority citation for part 902 continues to read as
follows:
Authority: 44 U.S.C. 3501 et seq.
2. Effective August 27, 1996, in Sec. 902.1, paragraph (b) table,
in the entries for 50 CFR, the following entries are added in numerical
order to read as follows:
Sec. 902.1 OMB control numbers assigned pursuant to the Paperwork
Reduction Act.
* * * * *
(b) * * *
------------------------------------------------------------------------
Current OMB
control
CFR part or section where the information collection number (all
requirement is located numbers
begin with
0648-)
------------------------------------------------------------------------
* * * *
* * *
50 CFR
* * * *
* * *
622.10................................................. -0205
[[Page 43956]]
* * * *
* * *
622.17................................................. -0205
* * * *
* * *
------------------------------------------------------------------------
PART 622--FISHERIES OF THE CARIBBEAN, GULF, AND SOUTH ATLANTIC
3. The authority citation for part 622 continues to read as
follows:
Authority: 16 U.S.C. 1801 et seq.
4. In Sec. 622.1, table 1, effective August 27, 1996, the following
entry is added in alphabetical order to read as follows:
Sec. 622.1 Purpose and Scope
* * * * *
Table 1.--FMPs Implemented Under Part 622
------------------------------------------------------------------------
Responsible
Fishery
FMP title Management Geographical area
council(s)
------------------------------------------------------------------------
* * * *
* * *
FMP for the Golden Crab Fishery SAFMC South Atlantic
of the South Atlantic Region.
* * * *
* * *
------------------------------------------------------------------------
5. In Sec. 622.2, effective August 27, 1996, in the definition of
``Fish trap'', paragraph (3) is revised and definitions of ``Golden
crab'' and ``Golden crab trap'' are added in alphabetical order to read
as follows:
Sec. 622.2 Definitions and acronyms.
* * * * *
Fish trap * * *
(3) In the South Atlantic EEZ, a trap and its component parts
(including the lines and buoys), regardless of the construction
material, used for or capable of taking fish, except a sea bass pot, a
golden crab trap, or a crustacean trap (that is, a type of trap
historically used in the directed fishery for blue crab, stone crab,
red crab, jonah crab, or spiny lobster and that contains at any time
not more than 25 percent, by number, of fish other than blue crab,
stone crab, red crab, jonah crab, and spiny lobster).
* * * * *
Golden crab means the species Chaceon fenneri, or a part thereof.
Golden crab trap means any trap used or possessed in association
with a directed fishery for golden crab in the South Atlantic EEZ,
including any trap that contains a golden crab in or from the South
Atlantic EEZ or any trap on board a vessel that possesses golden crab
in or from the South Atlantic EEZ.
* * * * *
6. In Sec. 622.4, effective October 28, 1996, the first sentence of
paragraph (a)(4) and, effective August 27, 1996, the first sentence of
paragraph (d) are revised to read as follows:
Sec. 622.4 Permits and fees.
(a) * * *
(4) * * * For a dealer to receive Gulf reef fish, golden crab
harvested from the South Atlantic EEZ, South Atlantic snapper-grouper,
or wreckfish, a dealer permit for Gulf reef fish, golden crab, South
Atlantic snapper-grouper, or wreckfish, respectively, must be issued to
the dealer. * * *
* * * * *
(d) * * * A fee is charged for each permit application submitted
under paragraph (b) of this section or under Sec. 622.17(d) and for
each fish trap or sea bass pot identification tag required under
Sec. 622.6(b)(1)(i). * * *
* * * * *
7. In Sec. 622.5, effective October 28, 1996, the text of paragraph
(a)(2) is redesignated as paragraph (a)(2)(i); the heading of paragraph
(a)(2) is revised; and paragraphs (a)(1)(v), (a)(2)(ii), and (c)(6) are
added to read as follows:
Sec. 622.5 Recordkeeping and reporting.
* * * * *
(a) * * *
(1) * * *
(v) South Atlantic golden crab. The owner or operator of a vessel
for which a commercial permit for golden crab has been issued, as
required under Sec. 622.17(a), who is selected to report by the SRD
must maintain a fishing record on a form available from the SRD.
(2) Reporting deadlines. * * *
(ii) Reporting forms required in paragraph (a)(1)(v) of this
section must be submitted to the SRD postmarked not later than 30 days
after sale of the golden crab offloaded from a trip. If no fishing
occurred during a calendar month, a report so stating must be submitted
on one of the forms postmarked not later than 7 days after the end of
that month. Information to be reported is indicated on the form and its
accompanying instructions.
* * * * *
(c) * * *
(6) South Atlantic golden crab. A dealer who receives from a
fishing vessel golden crab harvested from the South Atlantic EEZ and
who is selected by the SRD must provide information on receipts of, and
prices paid for, South Atlantic golden crab to the SRD at monthly
intervals, postmarked not later than 5 days after the end of each
month.
[[Page 43957]]
Reporting frequency and reporting deadlines may be modified upon
notification by the SRD.
* * * * *
8. In Sec. 622.6, effective October 28, 1996, in paragraph
(a)(1)(i) introductory text, the reference ``Sec. 622.4'' is removed
and the reference ``Sec. 622.4 or Sec. 622.17'' is added in its place;
in the first sentence of paragraph (c) and in paragraph (d), the phrase
``a golden crab trap,'' is added after ``a fish trap,''; a sentence is
added at the end of paragraph (b)(1)(ii); and a sentence is added at
the end of paragraph (b)(2)(ii) to read as follows:
Sec. 622.6 Vessel and gear identification.
* * * * *
(b) * * *
(1) * * *
(ii) * * * A golden crab trap used or possessed in the South
Atlantic EEZ or on board a vessel with a commercial permit for golden
crab must have the commercial vessel permit number permanently affixed
so as to be easily distinguished, located, and identified; an
identification tag issued by the RD may be used for this purpose but is
not required.
(2) * * *
(ii) * * * However, no color code is required on a buoy attached to
a golden crab trap.
* * * * *
9. In Sec. 622.7, effective August 27, 1996, paragraph (b) is
revised; effective September 26, 1996, paragraphs (w),(x), and (y) are
added; and effective October 28, 1996, paragraphs (a) and (c) are
revised and paragraph (z) is added to read as follow:
Sec. 622.7 Prohibitions.
(a) Engage in an activity for which a valid Federal permit is
required under Sec. 622.4 or Sec. 622.17 without such permit.
(b) Falsify information on a permit application or submitted with
such application, as specified in Sec. 622.4 (b) or (g) or Sec. 622.17.
(c) Fail to display a permit or endorsement, as specified in
Sec. 622.4(i) or Sec. 622.17(g).
* * * * *
(w) Fail to comply with the requirements for observer coverage as
specified in Sec. 622.10.
(x) Assault, resist, oppose, impede, intimidate, or interfere with
a NMFS-approved observer aboard a vessel.
(y) Prohibit or bar by command, impediment, threat, coercion, or
refusal of reasonable assistance, an observer from conducting his or
her duties aboard a vessel.
(z) Fish for or possess golden crab in or from a designated fishing
zone of the South Atlantic EEZ other than the zone for which the vessel
is permitted, as specified in Sec. 622.17(h).
10. Effective September 26, 1996, Sec. 622.8 is added to subpart A
to read as follows:
Sec. 622.8 At-sea observer coverage.
(a) If a vessel's trip is selected by the SRD for observer
coverage, the owner or operator of a vessel for which a commercial
permit for golden crab has been issued, as required under
Sec. 622.17(a), must carry a NMFS-approved observer.
(b) When notified in writing by the SRD that his or her vessel has
been selected to carry an NMFS-approved observer, an owner or operator
must advise the SRD in writing not less than 5 days in advance of each
trip of the following:
(1) Departure information (port, dock, date, and time).
(2) Expected landing information (port, dock, and date).
(c) An owner or operator of a vessel on which a NMFS approved
observer is embarked must:
(1) Provide accommodations and food that are equivalent to those
provided to the crew.
(2) Allow the observer access to and use of the vessel's
communications equipment and personnel upon request for the
transmission and receipt of messages related to the observer's duties.
(3) Allow the observer access to and use of the vessel's navigation
equipment and personnel upon request to determine the vessel's
position.
(4) Allow the observer free and unobstructed access to the vessel's
bridge, working decks, holding bins, weight scales, holds, and any
other space used to hold, process, weigh, or store golden crab.
(5) Allow the observer to inspect and copy the vessel's log,
communications logs, and any records associated with the catch and
distribution of golden crab for that trip.
11. Effective August 27, 1996, Sec. 622.17, is added to subpart B
to read as follows:
Sec. 622.17 South Atlantic golden crab controlled access.
(a) [Reserved]
(b) Initial eligibility. A vessel is eligible for an initial
commercial vessel permit for golden crab if the owner meets the
documentation requirements described in paragraph (c) of this section
substantiating his or her landings of golden crab harvested from the
South Atlantic EEZ in quantities of at least 600 lb (272 kg) by April
7, 1995, or at least 2,500 lb (1,134 kg) by September 1, 1995. Only the
owner of a vessel at the time landings occurred may use those landings
to meet the eligibility requirements described in this paragraph,
except if that owner transferred the right to use those landings to a
subsequent owner in writing as part of the vessel's sales agreement. If
evidence of such agreement is provided to the RD, the subsequent owner
may use those landings to meet the eligibility requirements instead of
the owner of the vessel at the time the landings occurred.
(c) Documentation of eligibility. The documentation requirements
described in this paragraph are the only acceptable means for an owner
to establish a vessel's eligibility for an initial permit. Failure to
meet the documentation requirements, including submission of data as
required, will result in failure to qualify for an initial commercial
vessel permit. Acceptable sources of documentation include: Landings
documented by the trip ticket systems of Florida or South Carolina as
described in paragraph (c)(1) of this section and data substantiating
landings that occurred prior to establishment of the respective trip
ticket systems or landings that occurred in North Carolina or Georgia
as described in paragraph (c)(2) of this section.
(1) Trip ticket data. NMFS has access to records of golden crab
landings reported under the trip ticket systems in Florida and South
Carolina. No further documentation or submission of these records is
required if the applicant was the owner of the harvesting vessel at the
time of the landings documented by these records. An applicant will be
given printouts of trip ticket records for landings made when the
applicant owned the harvesting vessel, and an applicant will have an
opportunity to submit records of landings he or she believes should
have been included on such printouts or to clarify allocation of
landings shown on such printouts. Landings reported under these trip
ticket systems and received by the respective states prior to December
31, 1995, with such adjustments/clarifications for landings for which
there is adequate documentation that they should have been included on
the printouts, are conclusive as to landings in the respective states
during the period that landing reports were required or voluntarily
submitted by a vessel. For such time periods, landings data from other
sources will not be considered for landings in these states.
(2) Additional landings data. (i) An owner of a vessel that does
not meet the criteria for initial eligibility for a
[[Page 43958]]
commercial vessel permit based on landings documented by the trip
ticket systems of Florida or South Carolina may submit documentation of
required landings that either occurred prior to the implementation of
the respective trip ticket systems or occurred in North Carolina or
Georgia. Acceptable documentation of such landings consists of trip
receipts or dealer records that definitively show the species known as
golden crab; the vessel's name, official number, or other reference
that clearly identifies the vessel; and dates and amounts of South
Atlantic golden crab landings. In addition, a sworn affidavit may be
submitted to document landings. A sworn affidavit is a notarized
written statement wherein the individual signing the affidavit affirms
under penalty of perjury that the information presented is accurate to
the best of his or her knowledge, information, and belief.
(ii) Documentation by a combination of trip receipts and dealer
records is acceptable, but duplicate records for the same landings will
not result in additional credit.
(iii) Additional data submitted under paragraph (c)(2) of this
section must be attached to a Golden Crab Landings Data form, which is
available from the RD.
(3) Verification. Documentation of golden crab landings from the
South Atlantic EEZ and other information submitted under this section
are subject to verification by comparison with state, Federal, and
other records and information. Submission of false documentation or
information may disqualify a person from initial participation under
the South Atlantic golden crab controlled access program.
(d) Application procedure. Permit application forms are available
from the RD. An application for an initial commercial vessel permit
that is postmarked or hand-delivered after September 26, 1996, will not
be accepted.
(1) An application for a commercial vessel permit must be submitted
and signed by the vessel owner (in the case of a corporate-owned
vessel, an officer or shareholder who meets the requirements of
paragraph (b) of this section; in the case of a partnership-owned
vessel, a general partner who meets these requirements).
(2) An owner must provide the following:
(i) A copy of the vessel's valid U.S. Coast Guard certificate of
documentation or, if not documented, a copy of its valid state
registration certificate.
(ii) Vessel name and official number.
(iii) Name, address, telephone number, and other identifying
information of the vessel owner.
(iv) Documentation of initial eligibility, as specified in
paragraphs (b) and (c) of this section.
(v) The fishing zone in which the vessel will fish, as specified in
paragraph (h) of this section.
(vi) Any other information concerning the vessel, gear
characteristics, principal fisheries engaged in, or fishing areas, as
specified on the application form.
(vii) Any other information that may be necessary for the issuance
or administration of the permit, as specified on the application form.
(e) Issuance. (1) The RD will mail an initial commercial vessel
permit to an applicant no later than October 28, 1996, if the
application is complete and the eligibility requirements specified in
paragraph (b) of this section are met.
(2) Upon receipt of an incomplete application that is postmarked or
hand-delivered on or before September 26, 1996, the RD will notify the
applicant of the deficiency. If the applicant fails to correct the
deficiency within 30 days of the date of the RD's notification, the
application will be considered abandoned.
(3) The RD will notify an applicant, in writing, no later than
October 28, 1996, if the RD determines that the applicant fails to meet
the eligibility requirements specified in paragraph (b) of this
section.
(f) Appeals. (1) An appeal of the RD's decision regarding initial
permit eligibility may be submitted to an ad hoc appeals committee
appointed by the SAFMC.
(2) The appeals committee is empowered only to deliberate whether
the eligibility criteria specified in paragraph (b) of this section
were applied correctly to the appellant's application. In making that
determination, the appeals committee members will consider only
disputed calculations and determinations based on documentation
provided as specified in paragraph (c) of this section, including
transfers of landings records. The appeals committee is not empowered
to consider whether a person should have been eligible for a commercial
vessel permit because of hardship or other factors.
(3) A written request for consideration of an appeal must be
submitted within 30 days of the date of the RD's notification denying
permit issuance and must provide written documentation supporting the
basis for the appeal. Such a request must contain the appellant's
acknowledgment that the confidentiality provisions of the Magnuson Act
at 16 U.S.C. 1853(d) and subpart E of part 600 of this chapter are
waived with respect to any information supplied by the RD to the SAFMC
and its advisory bodies for purposes of receiving the recommendations
of the appeals committee members on the appeal. An appellant may also
make a personal appearance before the appeals committee.
(4) The appeals committee will meet only once to consider appeals
submitted within the time period specified in paragraph (f)(3) of this
section. Members of the appeals committee will provide their individual
recommendations for each appeal to the RD. Members of the appeals
committee may comment upon whether the eligibility criteria, specified
in the FMP and in paragraph (b) of this section, were correctly applied
in each case, based solely on the available record, including
documentation submitted by the appellant. The RD will decide the appeal
based on the initial eligibility criteria in paragraph (b) of this
section and the available record, including documentation submitted by
the appellant and the recommendations and comments from members of the
appeals committee. The RD will notify the appellant of the decision and
the reason therefore, in writing, normally within 30 days of receiving
the recommendation from the appeals committee members. The RD's
decision will constitute the final administrative action by NMFS on an
appeal.
(g) [Reserved]
(h) Fishing zones. (1) The South Atlantic EEZ is divided into three
fishing zones for golden crab. A vessel owner must indicate on the
initial application for a commercial vessel permit the zone in which
the vessel will fish. A permitted vessel may fish for golden crab only
in the zone shown on its permit. A vessel may possess golden crab only
in that zone, except that other zones may be transited if the vessel
notifies NMFS, Office of Enforcement, Southeast Region, St. Petersburg,
FL, by telephone (813-570-5344) in advance and does not fish in an
unpermitted zone. The designated fishing zones are as follows:
(i) Northern zone--the South Atlantic EEZ north of 28 N. lat.
(ii) Middle zone--the South Atlantic EEZ from 25 N. lat. to 28 N.
lat.
(iii) Southern zone--the South Atlantic EEZ south of 25 N. lat.
(2) An owner of a permitted vessel may have the zone specified on a
permit changed only when the change is from the middle or southern zone
to the northern zone. A request for such change must be submitted to
the RD with the existing permit.
[[Page 43959]]
12. In Sec. 622.17, effective October 28, 1996, paragraphs (a),
(g), (i), and (j) are added to read as follows:
Sec. 622.17 South Atlantic golden crab controlled access.
(a) Applicability. For a person aboard a vessel to fish for golden
crab in the South Atlantic EEZ, possess golden crab in or from the
South Atlantic EEZ, off-load golden crab from the South Atlantic EEZ,
or sell golden crab in or from the South Atlantic EEZ, a commercial
vessel permit for golden crab must be issued to the vessel and must be
on board. It is a rebuttable presumption that a golden crab on board or
off-loaded from a vessel in the South Atlantic was harvested from the
South Atlantic EEZ.
* * * * *
(g) Display. A commercial vessel permit issued under this section
must be carried on board the vessel. The operator of a vessel must
present the permit for inspection upon the request of an authorized
officer.
* * * * *
(i) Transfer. (1) A valid golden crab permit may be transferred for
use by another vessel by returning the existing permit(s) to the RD
along with an application for a permit for the replacement vessel.
(2) To obtain a commercial vessel permit via transfer, the owner of
the replacement vessel must submit to the RD a valid permit for a
vessel with a documented length overall, or permits for vessels with
documented aggregate lengths overall, of at least 90 percent of the
documented length overall of the replacement vessel.
(j) Renewal. (1) In addition to the procedures and requirements of
Sec. 622.4(h) for commercial vessel permit renewals, for a golden crab
permit to be renewed, the SRD must have received reports for the
permitted vessel, as required by Sec. 622.5(a)(1)(v), documenting that
at least 5,000 lb (2,268 kg) of golden crab were landed from the South
Atlantic EEZ by the permitted vessel during at least one of the two 12-
month periods immediately prior to the expiration date of the vessel
permit.
(2) An existing permit for a vessel meeting the minimum golden crab
landing requirement specified in paragraph (j)(1) of this section may
be renewed by following the procedure specified in paragraph (d) of
this section. However, documentation of the vessel's initial
eligibility need not be resubmitted.
13. In Sec. 622.32, effective September 26, 1996, paragraphs
(b)(4)(v) and (vi) are added to read as follows:
Sec. 622.32 Prohibited and limited-harvest species.
* * * * *
(b) * * *
(4) * * *
(v) It is intended that no female golden crabs in or from the South
Atlantic EEZ be retained on board a vessel and that any female golden
crab in or from the South Atlantic EEZ be released in a manner that
will ensure maximum probability of survival. However, to accommodate
legitimate incidental catch and retention, the number of female golden
crabs in or from the South Atlantic EEZ retained on board a vessel may
not exceed 0.5 percent, by number, of all golden crabs on board. See
Sec. 622.45(f)(1) regarding the prohibition of sale of female golden
crabs.
(vi) South Atlantic snapper-grouper may not be possessed in whole,
gutted, or filleted form by a person aboard a vessel fishing for or
possessing golden crab in or from the South Atlantic EEZ or possessing
a golden crab trap in the South Atlantic. Only the head, fins, and
backbone (collectively the ``rack'') of South Atlantic snapper-grouper
may be possessed for use as bait.
* * * * *
14. In Sec. 622.35, effective September 26, 1996, paragraph (f) is
added to read as follows:
Sec. 622.35 South Atlantic EEZ seasonal and/or area closures.
* * * * *
(f) Golden crab trap closed areas. In the golden crab northern
zone, a golden crab trap may not be deployed in waters less than 900 ft
(274 m) deep. In the golden crab middle and southern zones, a golden
crab trap may not be deployed in waters less than 700 ft (213 m) deep.
See Sec. 622.17(h) for specification of the golden crab zones.
15. In Sec. 622.38, effective September 26, 1996, paragraph (f) is
added to read as follows:
Sec. 622.38 Landing fish intact.
* * * * *
(f) A golden crab in or from the South Atlantic EEZ must be
maintained in whole condition through landing ashore. For the purposes
of this paragraph, whole means a crab that is in its natural condition
and that has not been gutted or separated into component pieces, e.g.,
clusters.
16. In Sec. 622.40, effective October 28, 1996, paragraph (a)(3) is
revised; and, effective September 26, 1996, paragraph (d)(2) existing
text is redesignated as paragraph (d)(2)(i) and paragraphs (b)(3)(ii),
(c)(3)(ii), and (d)(2)(ii) are added to read as follows:
Sec. 622.40 Limitations on traps and pots.
(a) * * *
(3) South Atlantic EEZ. A sea bass pot or golden crab trap in the
South Atlantic EEZ may be pulled or tended only by a person (other than
an authorized officer) aboard the vessel permitted to fish such pot or
trap or aboard another vessel if such vessel has on board written
consent of the owner or operator of the vessel so permitted. For golden
crab only, a vessel with written consent on board must also possess a
valid commercial vessel permit for golden crab.
(b) * * *
(3) * * *
(ii) A golden crab trap that is used or possessed in the South
Atlantic EEZ must have at least one escape gap or escape ring on each
of two opposite vertical sides. The minimum allowable inside dimensions
of an escape gap are 2.75 by 3.75 inches (7.0 by 9.5 cm); the minimum
allowable inside diameter of an escape ring is 4.5 inches (11.4 cm). In
addition to the escape gaps--
(A) A golden crab trap constructed of webbing must have an opening
(slit) at least 1 ft (30.5 cm) long that may be closed (relaced) only
with untreated cotton string no larger than \3/16\ inch (0.48 cm) in
diameter.
(B) A golden crab trap constructed of material other than webbing
must have an escape panel or door measuring at least 12 by 12 inches
(30.5 by 30.5 cm), located on at least one side, excluding top and
bottom. The hinges and fasteners of such door or panel must be made of
either ungalvanized or uncoated iron wire no larger than 19 gauge (0.04
inch (1.0 mm) in diameter) or untreated cotton string no larger than 3/
16 inch (4.8 mm) in diameter.
(c) * * *
(3) * * *
(ii) A golden crab trap deployed or possessed in the South Atlantic
EEZ may not exceed 64 ft3 (1.8 m3) in volume in the northern
zone or 48 ft3 (1.4 m3) in volume in the middle and southern
zones. See Sec. 622.17(h) for specification of the golden crab zones.
(d) * * *
(2) * * *
(ii) Rope is the only material allowed to be used for a mainline or
buoy line attached to a golden crab trap, except that wire cable is
allowed for these purposes through January 31, 1998.
17. In Sec. 622.41, effective September 26, 1996, paragraph (e) is
added to read as follows:
Sec. 622.41 Species specific limitations.
* * * * *
(e) South Atlantic golden crab. Traps are the only fishing gear
authorized in
[[Page 43960]]
directed fishing for golden crab in the South Atlantic EEZ. Golden crab
in or from the South Atlantic EEZ may not be retained on board a vessel
possessing or using unauthorized gear.
18. In Sec. 622.45, effective September 26, 1996, paragraph (f)(1)
is added and, effective October 28, 1996, paragraphs (f)(2) through (4)
are added to read as follows:
Sec. 622.45 Restrictions on sale/purchase.
* * * * *
(f) South Atlantic golden crab. (1) A female golden crab in or from
the South Atlantic EEZ may not be sold or purchased.
(2) A golden crab harvested in the South Atlantic EEZ on board a
vessel that does not have a valid commercial permit for golden crab, as
required under Sec. 622.17(a), may not be sold or purchased.
(3) A golden crab harvested on board a vessel that has a valid
commercial permit for golden crab may be sold only to a dealer who has
a valid permit for golden crab, as required under Sec. 622.4(a)(4).
(4) A golden crab harvested in the South Atlantic EEZ may be
purchased by a dealer who has a valid permit for golden crab, as
required under Sec. 622.4(a)(4), only from a vessel that has a valid
commercial permit for golden crab.
19. In Sec. 622.48, effective September 26, 1996, paragraph (g) is
added to read as follows:
Sec. 622.48 Adjustment of management measures.
* * * * *
(g) South Atlantic golden crab. MSY, ABC, TAC, quotas (including
quotas equal to zero), trip limits, minimum sizes, gear regulations and
restrictions, permit requirements, seasonal or area closures, time
frame for recovery of golden crab if overfished, fishing year
(adjustment not to exceed 2 months), observer requirements, and
authority for the RD to close the fishery when a quota is reached or is
projected to be reached.
[FR Doc. 96-21814 Filed 8-26-96; 8:45 am]
BILLING CODE 3510-22-P
Complete official Federal Register PDF
FR Doc. 96-21804 Acquisition of Citizenship; Equal Treatment of Women in Conferring Citizenship on Children Born Abroad
[Federal Register Volume 61, Number 167 (Tuesday, August 27, 1996)]
[Rules and Regulations]
[Page 43948]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-21804]
[[Page 43948]]
=======================================================================
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DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
8 CFR Part 301
[INS No. 1736-95]
RIN 1115-AE19
Acquisition of Citizenship; Equal Treatment of Women in
Conferring Citizenship on Children Born Abroad
AGENCY: Immigration and Naturalization Service, Justice.
ACTION: Correction to the interim rule.
-----------------------------------------------------------------------
SUMMARY: This regulation contains corrections to the interim
regulation, published Friday, July 5, 1996, at 61 FR 35111,
establishing procedures for certain United States citizen women to
confer citizenship on their children born outside of the United States
before noon (Eastern Standard Time) May 24, 1934.
EFFECTIVE DATES: July 5, 1996.
FOR FURTHER INFORMATION CONTACT: Jane B. Barker, Adjudications Officer,
Adjudications Branch, Immigration and Naturalization Service, 425 I
Street, NW., Room 3214, Washington, DC 20536, telephone (202) 514-5014.
SUPPLEMENTARY INFORMATION: The Immigration and Naturalization Service
(Service) published an interim rule in the Federal Register on July 5,
1996, at 61 FR 35111 which became effective upon date of publication.
In the interim rule persons residing outside the United States are
directed to ``take the oath of allegiance abroad before any diplomatic
or consular officer of the United States * * *'' This reference has
been removed because the Department of State does not require an oath
of allegiance in connection with passport applications.
Corrections
1. On page 35112, in the first column, in the second paragraph, in
the fourth and fifth lines, remove the phrase: ``for an interview under
oath concerning'' and insert the phrase: ``to make''.
2. On page 35112, in the second column, in Part 301--Nationals and
Citizens of the United States at Birth, in the table of contents, under
``Sec.'', the reference to ``301.0 Procedures.'' is corrected to
``301.1 Procedures.''
Sec. 301.1 [Corrected]
3. On page 35112, in the second column, in Sec. 301.1(a)(2), in the
fourth line, the reference to ``301(H)'' is corrected to read:
``301(h)''.
4. On page 35112, in the third column, in paragraph (b)(2), in the
fourth and fifth lines, remove the phrase ``take the oath of
allegiance'' and insert the phrase: ``make his or her claim''.
Dated: August 22, 1996.
Doris Meissner,
Commissioner, Immigration and Naturalization Service.
[FR Doc. 96-21804 Filed 8-26-96; 8:45 am]
BILLING CODE 4410-10-M
Complete official Federal Register PDF
FR Doc. 96-21798 Broadcast Services; Children's Television
[Federal Register Volume 61, Number 167 (Tuesday, August 27, 1996)]
[Rules and Regulations]
[Pages 43981-43998]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-21798]
-----------------------------------------------------------------------
FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 73
[MM Docket No. 93-48; FCC 96-335]
Broadcast Services; Children's Television
AGENCY: Federal Communications Commission.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This Report and Order amends the children's television
educational and informational programming requirements to strengthen
our enforcement of the Children's Television Act of 1990 (``CTA'').
First, we adopt requirements designed to provide better information to
the public about the shows broadcasters air to fulfill their obligation
under the CTA to air educational and informational programming for
children. Such information will assist parents to guide their
children's television viewing, may ultimately increase the amount of
educational programming available in the market, and will help parents
and others to work with broadcasters in their community to improve
educational programming without government intervention. Second, we
adopt a definition of programming ``specifically designed'' to educate
or inform children (or ``core'' programming) that provides better
guidance to broadcasters concerning their specific obligation under the
CTA to air such programming. Third, we adopt a processing guideline
that will provide certainty for broadcasters about how to comply with
the CTA, counteract market disincentives to air children's educational
and informational programming, and facilitate staff processing of the
children's educational programming portion of renewal applications. The
purpose of these new rules is to improve public access to information
about ``core'' programs, provide better clarity to broadcasters about
their obligation to air such programs, and facilitate our application
processing efforts. This proceeding was initiated by a Notice of
Inquiry and a Notice of Proposed Rule Making.
DATES: Effective date: The rule changes to Secs. 73.673,
73.3526(a)(8)(iii), and 73.3500, will become effective on January 2,
1997, subject to OMB approval under the Paperwork Reduction Act. Notice
in the Federal Register will be given upon OMB's action to confirm this
effective date. The rule changes to Secs. 73.671 and 73.672, 47 CFR
Secs. 73.671, 73.672, will become effective on September 1, 1997.
Written comments by the public on the new and/or modified information
collections are due October 28, 1996.
ADDRESSES: Comments on the information collections contained herein
should be submitted to Secretary, Federal Communications Commission,
Room 222, 1919 M Street, NW., Washington, DC 20554, and a copy
submitted to Dorothy Conway, Federal Communications Commission, Room
234, 1919 M Street, NW., Washington, DC 20554, or via the Internet to
[email protected].
FOR FURTHER INFORMATION CONTACT: Charles Logan, Kim Matthews, or Jane
Gross, Mass Media Bureau, Policy and Rules Division, (202) 418-2130.
For additional information concerning the information collections
contained in this Report and Order contact Dorothy Conway at 202-418-
0217, or via the Internet at [email protected].
SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's
Report and Order in MM Docket No. 93-48, adopted August 8, 1996, and
released August 8, 1996. The complete text of this Report and Order is
available for inspection and copying during normal business hours in
the FCC Dockets Branch (Room 230), 1919 M Street, NW., Washington, DC,
and also may be purchased from the Commission's duplicating contractor,
ITS, at (202) 857-3800, 1919 M Street, NW., Room 246, Washington, DC
20554. This Report & Order contains new or modified information
collections subject to the Paperwork Reduction Act of 1995 (PRA),
Public Law No. 104-13. It will be submitted to the Office of Management
and Budget (OMB) for review under Section 3507(d) of the PRA. OMB, the
general public, and other Federal agencies are invited to comment on
the new or modified information collections contained in this
proceeding.
Synopsis of Report and Order
I. Introduction
In this Report and Order, the Commission takes action to strengthen
its enforcement of the Children's Television Act of 1990 (``CTA''). The
CTA requires the Commission, in its review of each television broadcast
license renewal application, to ``consider the extent to which the
licensee * * * has served the educational and informational needs of
children through the licensee's overall programming, including
programming specifically designed to serve such needs.'' Our initial
regulations implementing the CTA have not been fully effective in
prompting broadcasters to increase the amount of educational and
informational broadcast television
[[Page 43982]]
programming available to children. Some broadcasters are carrying very
little regularly scheduled standard length programming specifically
designed to educate and inform children, and some broadcasters are
claiming to have satisfied their statutory obligations with shows that,
by any reasonable benchmark, cannot be said to be ``specifically
designed'' to educate and inform children within the meaning of the
CTA. In addition, parents and others frequently lack timely access to
information about the availability of programming in their communities
specifically designed to educate and inform children, exacerbating
market disincentives.
2. We refine our policies and rules to remedy these problems.
First, we adopt a number of proposals designed to provide better
information to the public about the shows broadcasters air to fulfill
their obligation to air educational and informational programming under
the CTA. Second, we adopt a definition of programming ``specifically
designed'' to educate and inform children (or ``core'' programming)
that provides better guidance to broadcasters concerning programming
that fulfills their statutory obligation to air such programming. In
order to qualify as core programming, a show must have serving the
educational and informational needs of children as a significant
purpose, be a regularly scheduled, weekly program of at least 30
minutes, and be aired between 7:00 a.m. and 10:00 p.m. The program must
also be identified as educational and informational for children when
it is aired and must be listed in the children's programming report
placed in the broadcaster's public inspection file. Third, we adopt a
processing guideline that will provide certainty for broadcasters about
how to comply with the CTA and facilitate our processing efforts.
II. Background
3. The Importance of Children's Educational TV. Congress has
recognized that television can benefit society by helping to educate
and inform our children. In enacting the CTA, Congress cited research
demonstrating that television programs designed to teach children
specific skills are effective. There is substantial evidence in this
proceeding that children can benefit greatly from viewing educational
television. That television has the power to teach is important because
nearly all American children have access to television and spend
considerable time watching it. The significance of over-the-air
television for children is reinforced by the fact that fewer children
have access to cable television than to over-the-air television. In the
United States, 38 percent of children from ages 12 to 17 and 37 percent
of children from ages 2 to 11 live in homes that are not connected to
cable television. Hence, over-the-air broadcasting is an important
source of video programs for children and for all members of low income
families, including children.
4. Previous Implementation of the CTA. For over 30 years, the
Commission has recognized that, as part of their obligation as trustees
of the public's airwaves, broadcasters must provide programming that
serves the special needs of children. In 1990, Congress enacted the CTA
both to impose limitations on the number of commercials shown during
children's programs and to make clear that the FCC could not rely
solely on market forces to increase the educational and informational
programming available to children on commercial television. In enacting
the CTA Congress intended to increase the amount of educational and
informational broadcast television available to children. Congress
sought to accomplish this objective by placing on each and every
licensee an obligation to provide educational and informational
programming, including programming specifically designed to educate and
inform children, and by requiring the FCC to enforce that obligation.
5. In 1991, the Commission adopted regulations to implement the
CTA. In response to concerns expressed by a number of parties that our
rules provide insufficient guidance for broadcasters seeking to comply
with the CTA, we initiated this proceeding with a Notice of Inquiry
(``NOI''), 58 FR 14367 (March 17, 1993), in 1993. Based on comments
responding to our NOI, as well as comments received in connection with
our 1994 en banc hearing on the subject of children's educational
television programming, we proposed in the Notice of Proposed Rule
Making (``NPRM''), 60 FR 20586 (April 26, 1995), to make a number of
changes to our rules to achieve the goals of the CTA. In response to
the NPRM, we received a substantial number of formal and informal
comments from interested parties.
6. The Economics of Children's Educational Programming. In enacting
the CTA, Congress found that market forces were not sufficient to
ensure that commercial stations would provide children's educational
and information programming. A number of factors explain the
marketplace constraints on providing such programming. Over-the-air
commercial broadcast television stations earn their revenues from the
sale of advertising time. Revenues received from the sale of
advertising depend on the size and the socio-demographic
characteristics of the audience reached by the broadcaster's
programming. Broadcasters thus have a reduced economic incentive to
promote children's programming because children's television audiences
are smaller than general audiences. Broadcasters have even less
economic incentive to provide educational programs for children because
the market for children's educational television may be segmented by
age in ways that do not characterize children's entertainment
programming or adult programming. If stations are required to provide
some educational programming for children, we believe that the same
incentives could cause station owners to prefer to show such
programming when relatively few adults would likely be in the audience.
Furthermore, small audiences with little buying power, such as
children's educational television audiences, are unlikely to be able to
signal the intensity of their demand for such programming in the
broadcasting market. Therefore, broadcasters will have little incentive
to provide such programming because the small audiences and small
resulting advertising revenues means that there will be a substantial
cost to them (the so-called ``opportunity cost'') of forgoing larger
revenues from other types of programs not shown. The combination of all
these market forces consequently can create economic disincentives for
commercial broadcasters with respect to educational programming.
Broadcasters who desire to provide substantial children's educational
programming may face economic pressure not to do so because airing a
substantial amount of educational programming may place that
broadcaster at a competitive disadvantage compared to those who do very
little.
7. The amount of educational programming on broadcast television. A
number of parties have submitted studies in this proceeding examining
the amount of regularly scheduled, standard length educational
programming aired on commercial television stations since passage of
the CTA. These studies are inconclusive in establishing the exact
amount of educational programming that currently is being provided by
broadcasters. They arrive at different conclusions on this question in
part because they define the programming to be measured and select
their samples of broadcast stations in different ways. Despite their
[[Page 43983]]
deficiencies, however, the studies (particularly the study submitted by
Dr. Dale Kunkel) do allow us to conclude that some broadcasters are
providing a very limited amount of programming specifically designed to
educate and inform children and that broadcasters vary widely in their
understanding of the type of programming that the CTA requires. The
conclusion that some stations are airing very little educational
programming for children is also supported by our experience in
implementing the CTA.
8. Availability of educational programming on nonbroadcast media. A
number of broadcasters submitted comments arguing that the Commission
should assess not just the educational programming being provided over-
the-air by broadcast stations, but rather the overall availability of
educational programming in the video marketplace. We believe, however,
that the proper focus in this proceeding should be on the provision of
children's educational programming by broadcast stations, not by cable
systems and other subscription services such as direct broadcast
satellite systems that, in contrast to broadcast service, require the
payment of a subscription fee. The CTA itself expressly focuses on
broadcast licensees. Thus, the statute focuses on the provision of
children's educational programming through broadcasting, a ubiquitous
service, which may be the only source of video programming for some
families that cannot afford, or do not have access to, cable or other
subscription services. While noting an increase in the number of
nonbroadcast outlets available for children to receive video
programming, the House Report at 6 states that ``the new marketplace
for video programming does not obviate the public interest
responsibility of individual broadcast licensees to serve the child
audience.''
9. Conclusion. We conclude, on the basis of the studies before us
that while some broadcasters are providing educational and
informational programming as Congress intended, some are not. Congress
was dissatisfied with commercial broadcasters' performance in 1990
when, according to National Association of Broadcasters (``NAB''),
commercial broadcasters were devoting an average of two hours per week
of airtime to educational programming, and in the CTA Congress provided
that each broadcaster has a duty to serve the educational and
informational needs of children through its overall programming,
including programming specifically designed to serve children's
educational and informational needs. Yet it appears that, six years
after the enactment of the CTA, at least some broadcasters are
providing less than that amount. Given the Commission's duty to treat
similarly situated broadcasters in a similar manner, by approving the
performance under the CTA of broadcasters providing very little
educational programming we would signal that all broadcasters may
provide a minimal amount of such programming. The effect of that would
be contrary to our effort to counter the economic disincentive to
provide children's programming described above. Moreover, in light of
the greater value to advertisers of entertainment programs for adults,
those broadcasters providing very little educational programming for
children may receive an unfair economic advantage, a result that only
exacerbates the economic disincentive to provide children's programming
that Congress identified in enacting the CTA. Thus unless we modify our
approach to implementing the CTA, broadcasters will be able to provide
extremely little educational programming for children. That would be
contrary to Congress' intent in enacting the CTA.
10. The record also shows that our definition of programming
fulfilling the requirements of the CTA should be modified to provide a
clear definition of ``specifically designed'' programming, we will give
better guidance and greater incentives for broadcasters' compliance
with the CTA. Finally, the record in this proceeding also supports the
conclusion that parents and others would profit from additional
information concerning the educational programming available in their
community.
III. Public Information Initiatives
11. We conclude that the market inadequacies that led Congress to
pass the Children's Television Act can be addressed, in part, by
enhancing parents' knowledge of children's educational programming. One
way to encourage licensees to provide such programming is to encourage
and enable the public, especially parents, to interact with
broadcasters. Easy public access to information permits the Commission
to rely more on marketplace forces to achieve the goals of the CTA and
facilitates enforcement of the statute by allowing parents, educators,
and others to actively monitor a station's performance.
12. In considering the options to improve the information available
regarding educational programming, we seek to maximize the access to
such information by the public while minimizing the cost to the
licensee. In response to the comments to the NPRM, we have focused on
three basic methods, described below, to improve the public's access to
information. We will continue to exempt noncommercial television
licensees from children's programming reporting requirements, and we
will also exempt them from the other public information initiatives we
adopt today. In light of Congressional intent to avoid unnecessary
constraints on broadcasters, and in view of the commitment demonstrated
by noncommercial stations in general to serving children, we believe it
is inappropriate to impose reporting obligations on such stations. We
nonetheless encourage noncommercial stations voluntarily to comport
with these initiatives to the extent feasible as a means of providing
parents and other members of the public with additional information
about the availability of children's educational and informational
programming on all broadcast stations.
13. On-Air Identification. We will require broadcasters to provide
on-air identification of core programs, in a manner and form that is at
the sole discretion of the licensee, at the beginning of the program.
We believe the on-air identification of core programs will greatly
assist parents in planning their children's viewing and improve the
children's programming marketplace at minimal cost to stations. On-air
identifiers are likely to reach a larger audience than information
printed in programs guides. Moreover, we note that there is no
certainty that published guides will include such information.
Identifiers will improve broadcaster accountability by publicizing the
programs licensees identify as contributing to their obligation to air
core programming. An on-air identification requirement will make
broadcasters more accountable to the public and further the goal of
minimizing the possibility that the Commission would be forced to
decide whether particular programs serve the educational and
informational needs of children.
14. Some commenter speculated that on-air identifiers could deter
children from watching educational programs. No commenter, however,
presented evidence that such an effect will occur. We will revisit our
decision to require on-air identification if, after some experience,
parties present us with evidence that they in fact have a deterrent
effect. In the meantime, broadcasters will have full discretion to
design their identifiers to minimize or avoid any such effect.
15. Program Guides. We will require each commercial television
broadcast
[[Page 43984]]
station licensee to provide information identifying programming
specifically designed to educate and inform children, and an indication
of the age group for which the program is intended, to publishers of
program guides. It is industry practice for broadcasters to provide
programming information to program guides, which publish such
information without cost to the broadcasters. Further, it has become a
well-established practice to provide specialized information about
programs, such as which programs are closed captioned for the hearing
impaired. As broadcasters routinely provide such information about
their programming to program guides and designate core programs for
their public records, we believe it would require a minimum of effort,
but have a major positive effect, for broadcasters to provide
publishers of program guides and listings, information identifying core
programs, and the age group for which, in the opinion of the
broadcaster, the program is intended.
16. We recognize broadcasters cannot require guides to print this
information. The information, however, is more likely to be in the
program listings if broadcasters routinely provide it. We believe
program guides are an effective means of providing parents with advance
notice of scheduling of educational programs. This information will
assist parents in finding suitable programs for their children and be
useful to parents and others who wish to monitor station performance in
complying with the CTA. We note that a number of broadcasters supported
this proposal, and that the major networks now employ a voluntary
parental advisory plan pursuant to which they provide to program guide
services information indicating whether programs contain material that
may be unsuitable for children. We believe that a universal symbol for
educational programming would also be useful in readily identifying
such programming to the public, and encourage broadcasters to adopt
such a symbol.
17. Public File Proposals. Our rules currently require commercial
licensees to compile reports containing information about the
children's programming they air, including the time, date, duration,
and description of the programs. Licensees maintain these reports in
the station's public inspection file. We identify several ways,
discussed below, to enhance public access to and use of the information
in these reports that can be made without materially increasing any
burden on the licensee.
18. Children's liaison. We will require stations to identify the
person at the station responsible for collecting comments on the
station's compliance with the CTA. We believe it is reasonable to
require licensees to designate a liaison for children's programming and
to include the name and method of contacting that individual in the
station's children's programming reports, since someone at each station
must, as a practical matter, be responsible for carrying out the
broadcaster's responsibilities under the CTA. This requirement also
will facilitate public access to information on stations' educational
programming efforts, and assist stations in responding to comments and
complaints from the public. Moreover, because licensees are currently
required to maintain children's programming reports and letters
received from the public in their public inspection file, this
requirement should not impose a significant additional burden on
licensees.
19. Explanation of how programming meets definition of core
programming. We will require licensees to provide a brief explanation
in their children's programming reports of how particular programs meet
the definition of ``core'' programming. Such descriptions assist
parents and others who wish to monitor station performance in complying
with the CTA. Having a broadcaster identify those programs it relies
upon to meet its CTA obligation on an ongoing basis, rather than the
end of the term, will increase broadcaster accountability. With regard
to a qualifying regular series, we will consider a general description
to be sufficient so long as the description is adequate to provide the
public with enough information about how the series is specifically
designed to meet the educational and informational needs of children.
20. Physically separate reports. We will require licensees to
separate the children's programming reports from other reports they
maintain in their public inspection files. This will enable interested
parties to review the information without having to search through
unrelated materials. This is our current practice with a licensee's
political file. Facilitating access to children's programming reports
will facilitate public monitoring and increase broadcaster
accountability under the CTA; requiring broadcasters to keep their
children's programming reports separate from other portions of their
public inspection files will ensure such ease of access.
21. Publicizing children's programming reports. We will require
that licensees publicize the children's programming reports in an
appropriate manner. We remain concerned that the public is generally
unaware of these reports and agree with commenters who contend that
publicizing the children's programming reports will heighten awareness
of the CTA and invite members of the public to take an active role in
monitoring compliance.
22. Quarterly reports. We will require licensees to prepare
children's programming reports on a quarterly basis. Commenters noted
that a quarterly reporting requirement provides more current
information about station performance and encourages more consistent
focus on educational programming efforts and that, because quarterly
production of children's programming reports will coincide with the
quarterly issues/programs reports that broadcasters currently prepare,
this requirement will not impose a significant additional burden on
licensees. For an experimental period of three years, we will also
require broadcasters to file such quarterly reports with the Commission
on an annual basis, i.e., four quarterly reports filed jointly once a
year. We encourage stations to file quarterly, in electronic form, when
the reports are prepared. We will evaluate whether to continue this
requirement as part of our review of broadcasters' annual reports at
the end of this three-year period.
23. Standardized reporting form. We will provide licensees with a
standardized form for the quarterly children's programming reports. A
standardized form should lessen the burden on broadcasters by
clarifying the information to be included and providing a ready format.
A standardized form will facilitate consistency of reporting among all
licensees, assist in efforts by the public and the Commission to
monitor station compliance with the CTA, and lessen the burden on the
public and Commission staff. This form--a Children's Educational
Television Report--will be designed so licensees can complete the
report on a computer and file it electronically with the Commission for
purposes of the experimental three-year annual filing requirement. We
encourage licensees to file the form with us electronically, although
we will accept filings either on computer diskette or a paper copy of
the report form.
24. This form will request information to identify the individual
station and the programs it airs to meet its obligation under the CTA.
The form will also request information on educational programs that the
station plans to air in the next quarter and ask whether the licensee
has complied with other
[[Page 43985]]
requirements described in this Report and Order. We plan to issue the
reporting form by Public Notice and make it available on the Internet.
IV. Definition of Programming ``Specifically Designed'' to Serve
Children's Educational and Informational Needs
25. The CTA requires every television broadcaster to air
programming ``specifically designed'' to serve the educational and
informational needs of children. Our current definition of educational
and informational programming--``programming that furthers the positive
development of children 16 years of age and under in any respect,
including the child's intellectual/cognitive or social/emotional
needs''-- is very broad and does not further delineate criteria for
programs that are ``specifically designed'' to educate and inform
children. To remedy this situation, we have decided to adopt a more
particularized definition of programming specifically designed to serve
children's educational and informational needs, or ``core''
programming. We intend that this definition will identify programming
that clearly meets the statutory obligation to air programming
``specifically designed'' to meet the educational and informational
needs of children. We emphasize that licensees should not regard our
definition of core programming as imposing a limit on their ability to
air other programming that teaches and informs children even if that
programming does not square with each element of our definition of core
programming.
26. The evidence in the record supports our general proposal to
adopt a definition of core educational and informational programming.
Several of the studies submitted in this proceeding suggest that some
licensees are uncertain about what to classify as programming
specifically designed to meet children's educational and informational
needs. This conclusion is supported by our experience in reviewing
renewal applications and in evaluating licensees' efforts to meet their
CTA obligation to air programming ``specifically designed'' to educate
and inform children. We agree with those commenters who believe that a
particularized definition will assist broadcasters and will avoid
potentially misplaced reliance on general audience and entertainment
programs as specifically designed to educate and inform. By more
precisely defining ``specifically designed'' programming, we increase
the likelihood that such programs will be aired, concomitantly
increasing the likelihood children will benefit as Congress intended,
from such programs.
27. We will retain, with a slight modification, our existing
definition of ``educational and informational programming'' to provide
a description of the broad variety of programs that can serve to comply
with a licensee's overall requirement to air programming that meets
children's educational and informational needs. In order to track more
closely the express language of the CTA, we will modify this definition
somewhat so that the broad category of ``educational and informational
television programming'' is defined as ``any television programming
that furthers the educational and informational needs of children 16
years of age and under in any respect, including children's
intellectual/cognitive or social/emotional needs.''
28. The definition of core programming that we adopt is designed to
provide licensees with clear guidance regarding how we will evaluate
renewal applications. The elements of our proposed definition are also
designed to be as objective as possible so that they are more easily
understood by licensees and the Commission staff and to avoid injecting
the Commission unnecessarily into sensitive decisions regarding program
content. As we stated in the NPRM, programming specifically designed to
serve children's educational and informational needs is the only
category of programming the CTA expressly requires each licensee to
provide. We believe that the definition we adopt today will continue to
provide broadcasters ample discretion in designing and producing such
programming. We emphasize that the test of whether programming
qualifies as core does not depend in any way on its topic or viewpoint.
We now turn to the specific elements of the new definition of core
programming.
Significant Purpose
29. With respect to the first element of our definition, we believe
that, to qualify as core programming, a show must have served the
educational and informational needs of children ages 16 and under as a
significant purpose. The ``significant purpose'' standard appropriately
acknowledges the point advanced by broadcasters and others that to be
successful, and thus to serve children's needs as mandated by the CTA,
educational and informational programming must also be entertaining and
attractive to children. Accordingly, as proposed in the NPRM, we will
require that core programming be specifically designed to meet the
educational and informational needs of children ages 16 and under and
have educating and informing children as a significant purpose.
30. The CTA speaks of programming specifically designed to serve
``the educational and informational needs of children.'' It does not
draw a distinction between educational and informational programming
that furthers children's cognitive and intellectual development and
educational and informational programming that furthers children's
social and emotional development. We decline to draw that distinction
ourselves and accordingly conclude that both fall within the scope of
our definition. The test of whether programming qualifies as core does
not depend in any way on its viewpoint, but solely on whether it is
``specifically designed'' to serve children's educational and
informational needs. In this regard, we note that entertainment
programming with a minor or wrap-around educational and informational
message cannot correctly be said to have serving the educational and
informational needs of children as a significant purpose.1 We
anticipate that any attempt to incorrectly characterize programming as
core will elicit significant opposition from the community, about which
the FCC will be apprised.
---------------------------------------------------------------------------
\1\ The term ``wrap-around'' refers to messages inserted at the
beginning or end of an entertainment program in an effort to make
the program qualify as specifically designed to educate or inform.
---------------------------------------------------------------------------
31. In determining whether programming has a significant purpose of
educating and informing children, we will ordinarily rely on the good
faith judgment of broadcasters, who will be subject to increased
community scrutiny as a result of the public information initiatives
described above. We consequently will rely primarily on such public
participation to ensure compliance with the significant purpose prong
of the definition of core programming, with Commission review taking
place only as a last resort.
32. One suggested rule revision discussed in the NPRM was to
require that educational and informational programming specifically
designed for children be produced with the assistance of independent
educational advisors. We continue to believe that it would not be
appropriate to require the use of educational experts in developing
core programming. Although some broadcasters may find that experts can
provide worthwhile assistance in developing educational programming, as
we stated in the NPRM we prefer to
[[Page 43986]]
minimize the burdens and potential intrusions on programming decisions
of broadcasters and provide them the flexibility to select the means by
which their educational programming is created.
Educational and Informational Objective and Target Child Audience
Specified in Writing
33. With respect to the second element of our core programming
definition, we are persuaded that we should adopt our proposal to
require that the educational and informational objective of core
programming be specified in writing. Requiring a statement of
educational and informational purpose will ensure that broadcasters
devote attention to the educational and informational goals of core
programming and how those goals may be achieved. A written statement of
educational and information purpose should also assist licensees to
distinguish programs specifically designed to serve children's
educational and informational needs from programs whose primary purpose
is to entertain children. Moreover, this requirement can, as noted,
allow parents and other interested parties to participate more actively
in monitoring licensee compliance with the CTA, and thus is consistent
with our public information initiatives.
34. The description of a program's educational and informational
objective, which should be included in the licensee's children's
programming report, does not have to be lengthy. It should state the
educational and informational objective of the program and the expected
educational and informational effects. To satisfy this requirement,
broadcasters need not describe the viewpoint of the program or opinions
expressed on it. The description must be adequate to demonstrate that a
significant purpose of the program is to educate and inform children.
35. We will also require licensees to indicate a specific target
age group for core programs. In enacting the CTA, Congress found that
``[c]hildren's educational programming is most effective when it is
designed to focus on particular age groups and address specific
skills.'' Research has demonstrated that the ability of young children
to comprehend television content varies as a function of age, and that
educational programming should be targeted to an age range of no more
than three to four years to ensure that its content is appropriate to
the developmental level of the intended audience. Requiring licensees
to specify the age group a core program is intended to encourage them
to consider whether the content of the program is suited to the
interests, knowledge, vocabulary, and other abilities of that group. In
addition, this requirement will provide information to parents
regarding the appropriate age for core programs, thereby facilitating
increased program audience and ratings. We decline, however, to
identify particular age ranges of children to which core programs may
be directed. We prefer to leave broadcasters the discretion to develop
programs suited to children with similar educational and informational
needs and to counterprogram to distinct portions of the child audience
as they believe appropriate.
36. In addition, we decline to require broadcasters to serve
particular segments of the child audience. We adhere to our view that
we should not at this time require broadcasters to serve particular
segments of the child audience, particularly in light of the
significant new steps we have adopted to promote the overall
availability of children's educational and informational programming.
Times Core Programming May Be Aired
37. As for the third element of our definition of core programming,
we tentatively proposed in the NPRM to credit as core programming
children's educational programs broadcast between the hours of 6:00
a.m. and 11:00 p.m. After considering the evidence, we will limit the
hours within which programming may qualify as core to a narrower time
frame than that proposed in the NPRM. To qualify as core, a program
must air between the hours of 7:00 a.m. and 10:00 p.m. In specifying
this time period, our intention is to encourage broadcasters to air
educational programming at times the maximum number of child viewers
will be watching. With respect to the morning time limit, recent data
show that during four sample weeks in November 1995, less than 5
percent of children 2 to 17 nationwide were watching television at 6:00
a.m. Monday through Friday, and less than 10 percent of this age group
was in the audience at 6:30 a.m. By 7:00 a.m., however, between 12.5
percent and 14 percent of children 2 to 11 were watching television,
and by 8:00 a.m. more than 20 percent of children 2 to 5, close to 12
percent of children 6 to 8, and just under 9 percent of children 9 to
11, were in the audience. Thus, at 7:00 a.m. Monday through Friday,
nearly four times as many young children are watching television than
at 6:00 a.m. In other words, at 6:00 a.m. on weekdays, 1.3 million
children are watching television. By 7:00 a.m., the number of children
watching television is 5.1 million. Data also show that roughly as many
(i.e., very few) young children are watching television at 6:00 a.m. as
are watching at midnight. With respect to weekend viewing, the same
data show that less than 4 percent of children 2 to 17 were watching
television from 6:00 a.m. to 6:30 a.m. on Saturday. By 7:00 a.m. on
Saturday, however, the percentage of children 2 to 11 in the audience
had risen to between about 5 percent and 7 percent, and continued to
increase sharply to about 16 percent or more by 8:00 a.m. Figures for
Sunday showed a comparable low rate of viewership for all children
prior to 7:00 a.m. followed by a sharp increase between 7:00 a.m. and
8:00 a.m. for children 2 to 11.
38. Despite the relatively small percentage of children in the
audience prior to 7:00 a.m. as compared to after that hour, a number of
studies confirm that broadcasters air a significant percentage of their
educational programming before 7:00 a.m. For example, studies indicate
that approximately 20 percent of educational programs are aired before
7:00 a.m. In light of the evidence demonstrating that only 5 to 10
percent of children are watching television before 7:00 a.m.,
broadcasters appear to be airing a disproportionately large amount of
educational programming during early morning hours in relation to the
relatively few children watching television at that time. As noted in
the NPRM, broadcasters have an incentive to air educational programming
during very early morning hours as this is a less costly time for them
to comply with their educational programming obligation. In view of
these circumstances, we believe it is appropriate to specify that core
programming air no earlier than 7:00 a.m. rather than 6:00 a.m. as
proposed in the NPRM. An early time limit of 7:00 a.m. will ensure that
core programming is shown when more children are likely to be watching
television, especially young children, thus maximizing the benefit of
such programming. In addition, a 7:00 a.m. cut-off will help counter
the economic incentive of broadcasters to air educational and
informational programming to time periods when few children are in the
audience.
39. With regard to the evening limit, we believe it is appropriate
to require that core programming air no later than 10:00 p.m. rather
than 11:00 p.m. as proposed in the NPRM. Recent data
[[Page 43987]]
show that the number of children 2 to 17 watching television drops off
considerably from 10:00 p.m. to 11:00 p.m. For all seven nights
combined (Monday-Sunday), the average number of children 2 to 17 drops
from 13 million at 10:00 p.m. to 8 million at 11:00 p.m. According to
these figures, the number of children 2 to 8 watching television Monday
through Friday peaks at approximately 30 percent at 8:00 p.m., and then
declines sharply to approximately 16 percent by 10:00 p.m. and less
than 10 percent by 11:00 p.m. For older children 9 to 17 Monday through
Friday, viewership peaks somewhat later, between 8:30 and 9:00 p.m. at
approximately 30 percent to 35 percent, and then falls off to
approximately 20 percent to 25 percent at 10:00 p.m. and approximately
12 percent to 19 percent by 11:00 p.m. The data for these age groups
for Saturday and Sunday also show a sharp decline in viewership from
10:00 p.m. to 11:00 p.m. We agree with those commenters who argued that
core programming should be aired before 10:00 p.m. when a larger
proportion of children are awake and watching television. We do not
expect this evening limit to impose a burden on broadcasters, or impede
their program scheduling strategies, as they typically schedule adult
entertainment programming for the 10:00 p.m. to 11:00 p.m. time period.
We therefore will require that, in order to qualify as core,
educational and informational children's programming be aired between
the hours of 7:00 a.m. and 10:00 p.m. We believe that this time period
effectuates the language of the CTA that licensees air programming
``specifically designed'' to serve children's educational and
informational needs, as children are best served by programming that
airs during times more children are watching television.
40. We do not believe that the time period for core programming
must be consistent with the indecency safe harbor (10:00 p.m. to 6:00
a.m.). The indecency safe harbor is intended to provide for the airing
of indecent material when the risk of children in the audience is
minimized, while our purpose in this context is to promote the
availability of children's educational programs when substantial
numbers of children are watching. Nevertheless, the data recited above
indicate that because there is an appreciable drop in the number of
children in the audience after 10:00 p.m. the time frame for purposes
of the core programming definition should be 10:00 p.m. rather than
11:00 p.m.
Regularly Scheduled
41. Turning to the fourth element of our definition of core
programming, we continue to believe that qualifying core programming
should be regularly scheduled, particularly in view of our emphasis on
improving the flow of information to parents through published program
guides and other means to enable them to select educational and
informational programs for their children. Programming that is aired on
a regular basis is more easily anticipated and located by viewers, and
can build loyalty that will improve its chance for commercial success.
A large proportion of television programming, including children's
programming, consists of shows that air on a routine basis. We agree
with those commenters who argue that programs that air regularly can
reinforce lessons from episode to episode. We also believe that
regularly scheduled programs can develop a theme which enhances the
impact of the educational and informational message. Accordingly, to be
considered as core, we will require that educational and informational
programs air on a regular basis. Furthermore, to count as regularly
scheduled programming, such programs must be scheduled to air at least
once a week. Regularly scheduled weekly programming is the dominant
form of television programming. It is more likely to be anticipated by
parents and children, to develop audience loyalty, and to build
successfully upon and reinforce educational and informational messages,
thereby better serving the educational and informational needs of
children. It is also our view that programs that air at less frequent
intervals are less likely to attract a regular audience and to be
anticipated by parents.
42. Television series typically air in the same time slot for 13
consecutive weeks, although some episodes may be preempted for programs
such as breaking news or live sports events. Indeed, evidence suggests
that a significant number of educational and informational programs,
particularly those that air on Saturday, are preempted by sports and
other programming. Although a program must be regularly scheduled on a
weekly basis to qualify as core, we will leave to the staff to
determine, with guidance from the full Commission as necessary, what
constitutes regularly scheduled programming and what level of
preemption is allowable.
43. Specials, including those scheduled to appear on a regular
nonweekly basis, will not be credited as core. As stated above, we
believe that programs that are aired more frequently (i.e., at least
once a week) are more likely to build upon and reinforce educational
and informational messages, more likely to develop audience loyalty,
and more likely to be anticipated by children and parents and thus
attract a regular audience. Nonetheless, we recognize that educational
and informational specials with a significant purpose of serving the
educational and informational needs of children ages 16 and under can
help accomplish the objectives of the CTA and thus can count toward the
second track of our three-hour processing guideline as described below.
The value of such programming is enhanced if parents are informed in
advance of the program and the time it is scheduled to air. We
encourage broadcasters to promote educational and informational
specials and to schedule them far enough in advance to permit
information about the program to be included in program guides.
Substantial Length
44. As to the fifth element of our definition of core programming,
we believe that core programming should be at least 30 minutes in
length. In enacting the CTA, Congress identified a number of examples
of worthwhile educational and informational programs, all of which are
at least one half-hour in length. Although we do not mean to suggest
that these examples in the legislative history are equivalent to
statutory requirements, we believe they reflect the fact that the
dominant broadcast television format is 30 minutes or longer in length.
We believe it reasonable that our rules, which are intended to promote
the accessibility of children's educational and informational
programming, reflect this current industry practice. Programs in these
standard formats are more likely than shorter programming to be
regularly scheduled and to be listed in program guides, and thus are
easier for parents to identify for their child's viewing. In addition,
programs that are 30 minutes or longer allow more time for educational
and informational material to be presented, and a number of commenters
stated that shows of this length can be particularly beneficial to
children. There was no evidence presented in response to the NPRM to
support claims by some parties that children have short attention spans
and thus will not benefit from substantial length programming.
45. We will not credit educational and informational PSAs,
interstitials, or other short segments as core
[[Page 43988]]
programming. The CTA does not preclude broadcasters from counting such
programming as educational and informational; indeed, we recognize that
some short segments have significant public interest benefits.
Nevertheless, while we have previously found that short segment
programming may qualify as specifically designed educational and
informational programming, for the reasons stated above we believe that
programs that are 30 minutes or more in length are a more appropriate
focus of our definition of ``core'' programming. We also note that
short segments and PSAs are less likely to be regularly scheduled or
listed in program guides, and consequently are not easily located and
anticipated by parents and children.
46. We emphasize that programming with a significant purpose of
educating and informing children that is less than 30 minutes in
length, although not credited as core programming, can contribute to
serving children's needs pursuant to the CTA. Such programming can
count toward meeting the three-hour processing guideline when
broadcasters air somewhat less than 3 hours per week of core
programming, as described below. We encourage all broadcasters to
continue to provide a diverse mix of educational and informational
programming, including short segments and PSAs, toward their overall
obligation to provide programming for children.
Identified as Educational and Informational
47. With respect to the sixth element of our definition, we
proposed that stations be required to identify core programs as
educational and informational at the beginning of the program, and to
make available the necessary information for listing these programs as
educational and informational in program guides. As discussed above, we
will adopt both of these proposals in order to improve the information
available to parents regarding programming specifically designed for
children's educational and informational needs, and to assist them in
selecting these programs for their children. We also believe this
measure will make broadcasters more accountable in classifying
programming as specifically designed to educate and inform. Thus, as
with the other aspects of our definition of core programming, we
believe that the identification requirements provide an appropriate
regulatory incentive for licensees to comply with their statutory
obligation to air programming specifically designed to serve children's
educational and informational needs.2
---------------------------------------------------------------------------
\2\ As we noted above, we will exempt noncommercial stations
from these identification requirements.
---------------------------------------------------------------------------
Assessment Guidelines
48. In view of our adoption of a definition of core educational and
informational programming that provides licensees with clearer guidance
regarding the types of programming required to meet their obligation
under the CTA, we believe that our permissive assessment guidelines are
no longer necessary and should be eliminated.
V. Processing Guideline
49. Based on our review of the record, as well as our experience in
enforcing the CTA over the past five years, we have decided to adopt a
three-hour processing guideline. Under this guideline, the Mass Media
Bureau will be authorized to approve the CTA portions of a
broadcaster's renewal application where the broadcaster has aired three
hours per week (averaged over a six month period) of educational and
informational programming that has as a significant purpose serving the
educational and informational needs of children ages 16 and under. A
broadcaster can demonstrate that it has aired three hours per week of
such programming in either of two ways: (A) By checking a box on its
renewal application and providing supporting information indicating
that it has aired three hours per week of regularly scheduled, weekly
shows that are 30 minutes or longer and that otherwise meet the
definition of ``core programming'' (repeats and reruns of core
programming may be counted toward fulfillment of the three-hour
guideline); or (B) By showing that it has aired a package of different
types of educational and informational programming that, while
containing somewhat less than three hours per week of core programming,
demonstrates a level of commitment to educating and informing children
that is at least equivalent to airing three hours per week of core
programming. (By ``package'' we do not mean to imply that the
programming is in any way related by topics or purchased from a single
source.) A broadcaster seeking to secure staff approval under Category
B must show that any reasonable observer would recognize its commitment
to educating and informing children to be at least equivalent to the
commitment reflected in Category A.
50. Broadcasters that do not fall within Category A or B will have
their renewal applications referred to the full Commission. Licensees
referred to the Commission should be on notice by this order that they
will not necessarily be found to have complied with the CTA. Given the
modest nature of the guideline described in Categories A and B, we
expect few broadcasters will fail to meet this benchmark. However, even
if a licensee did not meet the guideline for staff approval, it will
have an opportunity to make a showing before the Commission that it has
satisfied its CTA obligations in other ways. Broadcasters will have a
full opportunity to make this demonstration by, for example, relying in
part on sponsorship of core educational and informational programs on
other stations in the market that increases the amount of core
educational and informational programming on the station airing the
sponsored program and/or on special nonbroadcast efforts which enhance
the value of children's educational and informational television
programming. It is also possible that a licensee might seek to
demonstrate that it suffered such serious economic hardship--such as
bankruptcy--that might excuse noncompliance with the CTA.
51. If we find that a broadcaster has not complied with the CTA, we
will apply the same remedies that we use in enforcing our other rules.
These remedies will vary depending on the severity of the deficiency
based on objective criteria. For less serious deficiencies, we will
consider letters of admonition or reporting requirements. We may also
consider using a ``promise versus performance'' approach. This would be
a prospective remedy under which a licensee would detail its plan for
coming into full compliance with CTA programming obligations; if this
plan meets with Commission approval, the station's license would be
renewed on the condition that the licensee adheres to the plan absent
special circumstances. For more serious violations, we will consider
other sanctions, including forfeitures and short-term renewals. In
extreme cases, we will consider designating the license for hearing to
determine whether the licensee's violations of the CTA and our
implementing rules warrant nonrenewal under the standards set forth in
Section 309(k) of the Communications Act.
52. We believe that a three hour per week processing guideline is a
reasonable benchmark for all broadcast television stations to meet six
years after enactment of the CTA given long-term performance
improvement Congress intended when it passed the Act. The inferences
that we can draw from the
[[Page 43989]]
entire record in this proceeding, including the studies that were
submitted, suggest that this benchmark is a reasonable, achievable
guideline. In the context of the CTA, a processing guideline is clear,
fair and efficient. Our experience in reviewing the children's
programming portions of renewal applications teaches us that a
processing guideline is desirable as a matter of administrative
efficiency in enforcing the CTA and provides desirable clarity about
the extent of a broadcaster's programming responsibilities under the
statute. The guideline will also help ameliorate the inequities that
may arise from the economic disincentives that lead some stations to
air little core programming. Although some broadcasters are airing a
significant amount of educational and informational programming, the
evidence suggests that others are not. A processing guideline will help
minimize the inequities and reduce the disincentives created by below-
average performers by subjecting all broadcasters to the same scrutiny
for CTA compliance by the Commission at renewal time. Moreover, the
greater certainty provided by the processing guideline we adopt should
create a more stable and predictable demand for such programming, and
thus further the CTA's goal of increasing the availability of programs
that teach and inform the nation's children.
53. The processing guideline we adopt is consistent with the CTA in
that it provides a measure of flexibility for licensees in meeting the
requirements of the CTA. We further believe the processing guideline we
adopt is consistent with the text of the CTA, which requires us to
``consider the extent'' to which licensees serve the educational and
informational needs of children through the licensee's overall
programming, including programming specifically designed to serve such
needs.
54. We thus conclude that the public interest and the interests
Congress sought to promote through the CTA will be better served by
this processing guideline approach. We recognize that this is contrary
to our earlier interpretation of the CTA as precluding quantification
of the CTA obligation. In reaching a contrary conclusion, we begin with
the fact that nothing in the statutory language of the CTA forbids the
use of a processing guideline. Furthermore, although there is specific
language in the legislative history, cited in our 1991 Report and Order
and by parties in this proceeding, stating the ``Committee does not
intend that the FCC interpret this section as requiring or mandating a
quantification standard,'' this language does not prohibit us from
seeking to provide greater clarity and guidance through a processing
guideline. Rather, this language simply makes clear that the CTA does
not require quantitative standards or guidelines.
55. We will continue our policy of exempting noncommercial
television stations from specific record-compilation, filing and
submission requirements. As is our current practice, we will require
noncommercial broadcast television stations to maintain documentation
sufficient to show compliance at renewal time with the Act's
programming obligations in response to a challenge or to specific
complaints. Any such showing that a noncommercial station may need to
make will be governed by the definition of core programming and the
processing guideline we adopt.
56. We will monitor the broadcast industry's children's educational
programming performance for three years based upon the children's
programming reports that licensees will file with us annually on an
experimental basis. We will conduct a review of these reports at the
end of this three-year period and take appropriate action as necessary
to ensure that stations are complying with the rules and guidelines we
adopt. To supplement this review, Commission staff will also conduct
selected individual station audits during the next three years to
assess station performance under our new children's educational and
informational programming rules once they go into effect.
57. We invited comment in the NPRM on whether we should sunset any
processing guideline or program standard that we adopt on December 1,
2004, unless affirmatively extended by the Commission. Based on the
record, we do not believe that an automatic expiration of the rules,
absent further Commission action, is appropriate. One of our principal
objectives in implementing the safe harbor processing guideline is to
provide broadcasters and the public with fair notice and certainty
regarding the level of performance at which a licensee can be assured
it is complying with the CTA. Automatic elimination of the processing
guideline is inconsistent with this important objective.
VI. Renewal Procedures
58. We have decided not to require members of the public to
communicate with a licensee prior to filing a petition to deny, as
proposed in the NPRM. Such a requirement could be unduly burdensome to
the public, prevent legitimate complaints from being heard, and deny
the FCC an important source of information. We will nonetheless
encourage parties to seek to resolve CTA programming concerns with the
station before filing a complaint with the Commission, and will
consider whether a petitioner has engaged in such conciliation efforts
as a factor in assessing a petition to deny.
59. We sought comment in the NPRM on whether we should permit
licensees to certify whether they have aired the prescribed amount of
core programming. We decline to adopt this proposal. The parties that
addressed this proposal opposed it on the ground that it would inhibit
public monitoring of broadcaster compliance and was contrary to
Congress' intent that the Commission review a licensee's children's
programming records. Given these concerns, and our decision to require
broadcasters to file children's programming reports with the Commission
for an experimental three-year period, we do not believe a
certification approach is workable.
VII. First Amendment Issues
60. The First Amendment arguments raised by opponents of our
proposed CTA regulations essentially fall into two categories--
arguments that attack the CTA obligation and arguments that attack the
quantification of the CTA obligation. To the extent that some
commenters argue that the CTA is unconstitutional, Congress itself
specifically concluded that ``it is well within the First Amendment
strictures to require the FCC to consider, during the license renewal
process, whether a television licensee has provided information
specifically designed to serve the educational and informational needs
of children in the context of its overall programming.'' Even more
specifically, as the FCC, the courts, and Congress have concluded, a
broadcaster's public interest obligation properly includes an
obligation to serve the educational and informational needs of
children. The question in this proceeding is not whether the Commission
should give effect to the CTA, but how it should do so.
61. The course we adopt today--defining what qualifies as
programming ``specifically designed'' to serve the educational needs of
children and giving broadcasters clear but nonmandatory guidance on how
to guarantee compliance--is a constitutional means of giving effect to
the CTA's programming requirement. ``It does not violate the First
Amendment to treat licensees given the privilege of
[[Page 43990]]
using scarce radio frequencies as proxies for the entire community,
obligated to give suitable time and attention to matters of great
public concern.'' Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 394
(1969). Congress's authority to order ``suitable time and attention to
matters of great public concern'' includes the authority to require
broadcasters to air programming specifically designed to further the
educational needs of children. The airwaves belong to the public, not
to any individual broadcaster. As the Supreme Court observed in CBS,
Inc. v. FCC, ``a licensed broadcaster is `granted the free and
exclusive use of a limited and valuable part of the public domain; when
he accepts that franchise it is burdened by enforceable public
obligations.''' 453 U.S. 367, 395 (1981). The fact that Congress
elected to retain public ownership of the broadcast spectrum and to
lease it for free to private licensees for limited periods carries
significant First Amendment consequences.
62. We have chosen to adopt a processing guideline that requires
broadcasters to show us how they have served the educational and
informational needs of children, and which provides guidance to them
about ways in which they can meet that obligation. We are not, however,
telling licensees what topics to discuss. The Supreme Court has
reaffirmed that ``broadcast programming, unlike cable programming, is
subject to certain limited content restraints imposed by statute and
FCC regulation.'' If the equal-time and personal attack rules and the
rules channeling indecent programming away from times when children are
most likely to be in the viewing audience survive constitutional
scrutiny, then so, a fortiori, would the Commission's considerably less
intrusive proposal for giving meaningful effect to the CTA by defining
``core'' educational programming and establishing a procedure that
broadcasters can use to assure routine staff processing of the CTA
portion of their renewal applications.
63. Our new regulations, like the CTA itself, impose reasonable,
viewpoint-neutral conditions on a broadcaster's free use of the public
airwaves. The CTA and our regulations directly advance the government's
substantial, and indeed compelling, interest in the education of
America's children. As Congress recognized, ``[i]t is difficult to
think of an interest more substantial than the promotion of the welfare
of children who watch so much television and rely upon it for so much
of the information they receive.'' If Congress and the Commission may
ban broadcast of certain material during specified hours, even under
standards of strict scrutiny, it should follow that the Commission's
adoption of less restrictive measures to encourage the airing of
material beneficial to children is consistent with the First Amendment.
That is particularly true because the Children's Television Act is
designed to promote programming that educates and informs children. It
is entirely consistent with the First Amendment to ask trustees of the
public airwaves to pursue reasonable, viewpoint-neutral measures
designed to increase the likelihood that children will grow into adults
capable of fully participating in our deliberative democracy.
64. The measures we adopt today to advance the Nation's interest in
the intellectual development of our children are sustainable under the
analysis in FCC v. Pacifica Foundation, 438 U.S. 726 (1978) as they are
significantly less burdensome than the measure upheld there. Pacifica
upheld a complete ban on a particular type of programming (indecent
programming) during hours when children are likely to be in the
audience, a period which the Commission was later upheld in defining as
16 hours per day (6:00 a.m.-10:00 p.m.) in Action for Children's
Television v. FCC. The measures we adopt today do not ban programming
of any type, they simply notify broadcasters that compliance with the
CTA can be achieved with, on average, less than half an hour a day of
programming expressing any viewpoint on any topic that broadcasters
desire.
65. For those reasons, our implementing rules are constitutional
under the traditional First Amendment standard. But even if evaluated
under a heightened standard, our rules would pass muster because the
interest advanced is compelling and our regulations are narrowly
tailored. As detailed above, our regulations are no more burdensome
than necessary to ensure that children will be able to watch
educational and informational programming. As we explain above, any
programming specifically designed to meet the educational and
informational needs of children can ``count'' for purposes of meeting
the processing guideline. In addition, a broadcaster can rely on other
more general programming and related non-programming efforts to satisfy
its CTA obligation--albeit after full Commission review.
66. We declined to adopt quantitative processing guidelines in 1991
on the ground that they would ``infringe on broadcaster discretion
regarding the appropriate manner in which to meet children's
educational and informational needs.'' Upon further consideration, we
reject that position. Processing guidelines give broadcasters an option
for guaranteeing routine staff processing of the CTA portion of their
renewal applications, but broadcasters remain free to find other ways
to fulfill their obligation. In any event, our initial reluctance to
adopt any form of processing guideline derived in large part from our
wish to initiate implementation of the CTA with as little regulation as
possible. As described above, our subsequent experience has persuaded
us that we should alter our course in the interests of fairness and
efficiency by clarifying ways in which broadcasters can ensure
compliance.
67. Together, the new measures that we adopt today will help
parents, children, and the general public understand the programming
benefits that the CTA is intended to guarantee. That understanding is
necessary to ensure that the public, in exercising informal influence
over the programming choices of broadcasters, can play an important
role in effectuating Congress's intent to increase the amount of
educational children's programming on television. Similarly, both the
clearer definition and the processing guidelines give broadcasters
reasonable notice of nonmandatory ways to guarantee compliance with
their statutory programming obligations. Such clarity is desirable and
helps to narrowly tailor our regulations.
VIII. Effective Dates and Transition Period
68. Our rules regarding on-air identification, program guides,
public file, and reporting requirements will become effective on
January 2, 1997, subject to OMB approval under the Paperwork Reduction
Act, and we will begin to evaluate compliance with these requirements
in renewal applications filed after that date. With respect to our
newly adopted definition of programming specifically designed to serve
the educational and informational needs of children, as well as our
safe harbor processing guideline relating to such programming, we
believe that a longer transition period is appropriate. Accordingly, we
adopt an effective date for these rules of September 1, 1997, and will
begin to evaluate compliance with these provisions in renewal
applications filed after that date. As with all of the provisions
adopted today, these provisions will be applied on a purely prospective
basis.
[[Page 43991]]
69. Thus, renewal applications filed earlier than September 1, 1997
will be assessed for compliance with the program-related provisions of
the CTA based exclusively on the rules and criteria set forth in our
1991 CTA rulemaking proceeding. Beginning September 1, 1997, we will
begin to evaluate renewal applications to determine the extent to which
licensees are providing educational programming that complies with the
new definition of core programming using the new processing guideline.
In this renewal cycle (i.e. for applications filed through April 1999)
such renewals will cover licensee performance that both pre-dates and
post-dates these new rules. Licensee performance during the term that
predates the relevant effective dates will be evaluated under existing
standards and performance that post-dates the rules will be judged
under the new provisions.
Administrative Matters
Paperwork Reduction Act Statement
70. This Report and Order contains new or modified information
collections subject to the Paperwork Reduction Act of 1995 (PRA),
Public Law No. 104-13. It will be submitted to the Office of Management
and Budget (OMB) for review under the PRA. The Commission, as part of
its continuing effort to reduce paperwork burdens, invites OMB, the
general public, and other Federal agencies to comment on the
information collections contained in this Report and Order as required
by the PRA. Public and agency comments are due October 28, 1996.
Comments should address: (a) whether the new or modified collection of
information is necessary for the proper performance of the functions of
the Commission, including whether the information shall have
FR Doc. 96-21798 Broadcast Services; Children's Television
practical
utility; (b) the accuracy of the Commission's burden estimates; (c)
ways to enhance the quality, utility, and clarity of the information
collected; and (d) ways to minimize the burden of the collection of
information on the respondents, including the use of automated
collection techniques or other forms of information technology.
OMB Approval Number: 3060-0214.
Title: Section 73.3526 Local public inspection file of commercial
stations.
Form No.: None.
Type of Review: Revision of existing collection.
Respondents: Businesses or other for-profit.
Number of Respondents: 10,250 commercial radio licensees
recordkeepers ; 1,200 commercial TV licensees recordkeepers; 1,200
commercial TV stations making must-carry/retransmission consent
elections; 1,200 commercial TV stations publicizing existence and
location of children's public inspection file.
Estimated time per response: 104 hours per year for radio
recordkeeping; 130 hours per year for TV recordkeeping; 1 hour per
election statement to 150 cable systems per TV station; 5 minutes per
TV station for revising station identification publicizing the
existence and location of children's public inspection file.
Total annual burden: 1,282,100 hours.
Needs and Uses: Section 73.3526 requires that each licensee/
permittee of a commercial broadcast station maintain a file for public
inspection. The contents of the file vary according to type of service
and status. The contents include, but are not limited to, copies of
certain applications tendered for filing, a statement concerning
petitions to deny filed against such applications, copies of ownership
reports and annual employment reports, statements certifying compliance
with filing announcements in connection with renewal applications,
letters received from members of the public, etc. On August 8, 1996,
the Commission adopted this Report and Order in MM Docket No. 93-49
which, among other things, modifies the requirements currently in
Section 73.3526(a)(8)(iii) by removing the requirement to keep records
of educational and informational programming specifically designed to
serve children's needs. This requirement was replaced with a
requirement that commercial television stations place in their public
inspection file, on a quarterly basis, a Children's Television
Programming Report, maintained in a physically separate file from the
other material kept in the public inspection file. Licensees must also
publicize the existence and location of these Reports and file the
Report annually with the Commission for three years. The data are used
by the public and FCC to evaluate information about broadcast
licensees' performance, to ensure that broadcast stations are
addressing issues concerning the community they are licensed to serve,
and to ensure that radio stations entering into time brokerage
agreements comply with Commission policies pertaining to licensee
control and to the Communications Act and the antitrust laws.
Broadcasters are required to send each cable operator in the station's
market a copy of the election statement applicable to that particular
cable operator. Placing these retransmission consent/must-carry
elections in the public file provides public access to documentation of
station's elections which are used by cable operators in negotiations
with television stations and by the public to ascertain why some
stations are/are not carried by the cable systems. The information
contained in the separate children's television file will be used by
the general public, interested parties, and FCC staff to facilitate
public monitoring of broadcasters' educational programming and to
ensure compliance with the CTA. The requirement that children's
television material be kept in a separate file will provide easier
access to such material.
OMB Approval Number: None.
Title: Section 73.673 Public information initiatives regarding
educational and informational programming for children.
Form No.: None.
Type of Review: New Collection.
Respondents: Businesses or other for-profit.
Number of Respondents: 1,200 commercial television broadcast
licensees.
Estimated Time Per Response: 1 minute per program to ensure that
on-the-air identification is provided; 5 minutes per program to convey
children's television information to publishers of program guides.
Total annual burden: 37,440 hours.
Needs and Uses: This new Section 73.673 will require commercial TV
broadcasters to identify programs specifically designed to educate and
inform children at the beginning of those programs, in a form that is
at the discretion of the licensee, and to provide information
identifying such programs and the age groups for which they are
intended to publishers of program guides. These requirements will
provide better information to the public about the shows broadcasters
air to fulfill their obligation to air educational and informational
programming under the CTA. This information will assist parents who
wish to guide their children's television viewing. In addition, if
large numbers of parents use that information to choose educational
programming for their children, it will increase the likelihood that
the market will respond with more educational programming. Better
information should help parents and others to have an effective
dialogue with broadcasters in their community about children's
programming and, where appropriate, to urge programming improvements
without resorting to government intervention.
[[Page 43992]]
Final Regulatory Flexibility Analysis
71. As required by the Regulatory Flexibility Act, as amended
(``RFA''), an Initial Regulatory Flexibility Analysis (``IRFA''), 5
U.S.C. Sec. 603, was incorporated in the Notice of Proposed Rule Making
in MM Docket No. 93-48 (``NPRM''). The Commission sought written public
comments on the proposals in the NPRM, including the IRFA. The
Commission's Final Regulatory Flexibility Analysis (``FRFA'') 3 in
this Report and Order is as follows:
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\3\ This FRFA conforms to the RFA, as amended by the Contract
with America Advancement Act of 1996, Pub. L. 104-121, 110 Stat. 847
(1996) (``CWAAA''). Subtitle II of the CWAAA is The Small Business
Regulatory Enforcement Fairness Act of 1996 (``SBREFA'').
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A. Need for and Objectives of the Rules
72. The rulemaking proceeding was initiated to explore ways to
implement the Children's Television Act of 1990 (``CTA'') more
effectively by facilitating broadcasters' compliance with their
obligation to air educational and informational programming for
children, including programming specifically designed for this purpose,
and by furthering the CTA's goal of increasing the amount of
educational and informational programming available to children. In
Paras. 9-13 of the Report and Order, we discuss the importance of
children's educational television programming, and in Paras. 25-46 and
throughout this order, we discuss the basis of our concerns that our
prior rules to implement the CTA were not producing a level of
performance consistent with the long-term goals of the statute. The
rules adopted herein meet these objectives by giving licensees clear,
efficient, and fair guidance regarding their children's programming
obligation under the CTA. They do this by increasing the flow of
programming information to the public to facilitate enforcement of the
CTA and improve the functioning of the children's programming
marketplace; by adopting a definition of programming that is clearly
``specifically designed'' to educate and inform children (which we
refer to as ``core programming'') to provide licensees guidance in
fulfilling their statutory obligation to air this programming; and by
adopting a three-hour processing guideline to facilitate review at
renewal time by the Commission, as required by the CTA, of licensees'
compliance with the Act.
B. Issues Raised by the Public Comments in Response to the Initial
Regulatory Flexibility Analysis
73. There were no comments submitted specifically in response to
the IRFA. We have, however, taken into account all issues raised by the
public in response to the proposals raised in this proceeding. In
certain instances, we have modified the rules adopted in response to
those comments.
C. Description and Number of Small Entities to Which the Rules Will
Apply
1. Definition of a ``Small Business''
74. Under the RFA, small entities may include small organizations,
small businesses, and small governmental jurisdictions. 5 U.S.C.
Sec. 601(6). The RFA, 5 U.S.C. Sec. 601(3), generally defines the term
``small business'' as having the same meaning as the term ``small
business concern'' under the Small Business Act, 15 U.S.C. Sec. 632. A
small business concern is one which: (1) is independently owned and
operated; (2) is not dominant in its field of operation; and (3)
satisfies any additional criteria established by the Small Business
Administration (``SBA''). Id. According to the SBA's regulations,
entities engaged in television broadcasting (Standard Industrial
Classification (``SIC'') Code 4833--Television Broadcasting Stations)
may have a maximum of Sec. 10.5 million in annual receipts in order to
qualify as a small business concern.\4\ 13 CFR Secs. 121.101 et seq.
This standard also applies in determining whether an entity is a small
business for purposes of the RFA.
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\4\ This revenue cap appears to apply to noncommercial
educational television stations, as well as to commercial television
stations. See Executive Office of the President, Office of
Management and Budget, Standard Industrial Classification Manual
(1987), at 283, which describes ``Television Broadcasting Stations
(SIC Code 4833) as:
Establishments primarily engaged in broadcasting visual programs
by television to the public, except cable and other pay television
services. Included in this industry are commercial, religious,
educational and other television stations. Also included here are
establishments primarily engaged in television broadcasting and
which produce taped television program materials.
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75. Pursuant to 5 U.S.C. 601(3), the statutory definition of a
small business applies ``unless an agency after consultation with the
Office of Advocacy of the Small Business Administration and after
opportunity for public comment, establishes one or more definitions of
such term which are appropriate to the activities of the agency and
publishes such definition(s) in the Federal Register.'' While we
tentatively believe that the foregoing definition of ``small business''
greatly overstates the number of television broadcast stations that are
small businesses and is not suitable for purposes of determining the
impact of the new rules on small television stations, we did not
propose an alternative definition in the IRFA.5 Accordingly, for
purposes of this Report and Order, we utilize the SBA's definition in
determining the number of small businesses to which the rules apply,
but we reserve the right to adopt a more suitable definition of ``small
business'' as applied to television broadcast stations and to consider
further the issue of the number of small entities that are television
broadcasters in the future. Further, in this FRFA, we will identify the
different classes of small television stations that may be impacted by
the rules adopted in this Report and Order.
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\5\ We have pending proceedings seeking comment on the
definition of and data relating to small businesses. In our Notice
of Inquiry in GN Docket No. 96-113 (In the Matter of Section 257
Proceeding to Identify and Eliminate Market Entry Barriers for Small
Businesses), 61 FR 33066 (June 26, 1996), we requested commenters to
provide profile data about small telecommunications businesses in
particular services, including television, and the market entry
barriers they encounter, and we also sought comment as to how to
define small businesses for purposes of implementing Section 257 of
the Telecommunications Act of 1996, which requires us to identify
market entry barriers and to prescribe regulations to eliminate
those barriers. The comment and reply comment deadlines in that
proceeding have not yet elapsed. Additionally, in our Order and
Notice of Proposed Rule Making in MM Docket No. 96-16 (In the Matter
of Streamlining Broadcast EEO Rule and Policies, Vacating the EEO
Forfeiture Policy Statement and Amending Section 1.80 of the
Commission's Rules to Include EEO Forfeiture Guidelines), 61 FR 9964
(March 12, 1996), we invited comment as to whether relief should be
afforded to stations: (1) based on small staff and what size staff
would be considered sufficient for relief, e.g., 10 or fewer full-
time employees; (2) based on operation in a small market; or (3)
based on operation in a market with a small minority work force. We
have not concluded the foregoing rule making.
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2. Issues in Applying the Definition of a ``Small Business''
76. As discussed below, we could not precisely apply the foregoing
definition of ``small business'' in developing our estimates of the
number of small entities to which the rules will apply. Our estimates
reflect our best judgments based on the data available to us.
77. An element of the definition of ``small business'' is that the
entity not be dominant in its field of operation. We were unable at
this time to define or quantify the criteria that would establish
whether a specific television station is dominant in its field of
operation. Accordingly, the following estimates of small businesses to
which the new rules will apply do not exclude any television station
from the
[[Page 43993]]
definition of a small business on this basis and are therefore
overinclusive to that extent. An additional element of the definition
of ``small business'' is that the entity must be independently owned
and operated. We attempted to factor in this element by looking at
revenue statistics for owners of television stations. However, as
discussed further below, we could not fully apply this criterion, and
our estimates of small businesses to which the rules may apply may be
overinclusive to this extent. The SBA's general size standards are
developed taking into account these two statutory criteria. This does
not preclude us from taking these factors into account in making our
estimates of the numbers of small entities.
78. With respect to applying the revenue cap, the SBA has defined
``annual receipts'' specifically in 13 CFR Sec. 121.104, and its
calculations include an averaging process. We do not currently require
submission of financial data from licensees that we could use in
applying the SBA's definition of a small business. Thus, for purposes
of estimating the number of small entities to which the rules apply, we
are limited to considering the revenue data that are publicly
available, and the revenue data on which we rely may not correspond
completely with the SBA definition of annual receipts.
79. Under SBA criteria for determining annual receipts, if a
concern has acquired an affiliate or been acquired as an affiliate
during the applicable averaging period for determining annual receipts,
the annual receipts in determining size status include the receipts of
both firms. 13 CFR Sec. 121.104(d)(1). The SBA defines affiliation in
13 CFR Sec. 121.103. In this context, the SBA's definition of affiliate
is analogous to our attribution rules. Generally, under the SBA's
definition, concerns are affiliates of each other when one concern
controls or has the power to control the other, or a third party or
parties controls or has the power to control both. 13 CFR
Sec. 121.103(a)(1). The SBA considers factors such as ownership,
management, previous relationships with or ties to another concern, and
contractual relationships, in determining whether affiliation exists.
13 CFR Sec. 121.103(a)(2). Instead of making an independent
determination of whether television stations were affiliated based on
SBA's definitions, we relied on the data bases available to us to
provide us with that information.
3. Estimates Based on Census and BIA Data
80. According to the Census Bureau, in 1992, there were 1,155 out
of 1,478 operating television stations with revenues of less than ten
million dollars. This represents 78 percent of all television stations,
including non-commercial stations. See 1992 Census of Transportation,
Communications, and Utilities, Establishment and Firm Size, May 1995,
at 1-25. The Census Bureau does not separate the revenue data by
commercial and non-commercial stations in this report. Neither does it
allow us to determine the number of stations with a maximum of 10.5
million dollars in annual receipts. Census data also indicates that 81
percent of operating firms (that owned at least one television station)
had revenues of less than 10 million dollars.6
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\6\ Alternative data supplied by the U.S. Small Business
Administration Office of Advocacy indicate that 65 percent of TV
owners (627 of 967) have less than $10 million in annual revenue and
that 39 percent of TV stations (627 of 1,591) have less than $10
million in annual revenue. These data were prepared by the U.S.
Census Bureau under contract to the Small Business Administration.
U.S. Small Business Administration 1992 Economic Census Industry and
Enterprise Receipts Report, Table 2D (U.S. Census Bureau data
adopted by SBA). These data show a lower percentage of small
businesses than the data available directly from the Census Bureau.
Therefore, for purposes of our worst case analysis, we will use the
data available directly from the Census Bureau.
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81. We have also performed a separate study based on the data
contained in the BIA Publications, Inc. Master Access Television
Analyzer Database,7 which lists a total of 1,141 full-power
commercial television stations. We have excluded Low Power Television
(LPTV) stations or translator stations, which will not be subject to
the new requirements, from our calculations.8 It should be noted
that, using the SBA definition of small business concern, the
percentage figures derived from the BIA data base may be underinclusive
because the data base does not list revenue estimates for noncommercial
educational stations, and these are therefore excluded from our
calculations based on the data base.9 While noncommercial stations
are not subject to the new reporting or recordkeeping requirements
adopted in the Report and Order, the new definition (except for the
reporting requirements) and the processing guideline will apply to
them. The BIA data indicate that, based on 1995 revenue estimates, 440
full-power commercial television stations had an estimated revenue of
10.5 million dollars or less. That represents 54 percent of commercial
television stations with revenue estimates listed in the BIA program.
The data base does not list estimated revenues for 331 stations. Using
a worst case scenario, if those 331 stations for which no revenue is
listed are counted as small stations, there would be a total of 771
stations with an estimated revenue of 10.5 million dollars or less,
representing approximately 68 percent of the 1,141 commercial
television stations listed in the BIA data base.
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\7\ BIA Publications, Inc., Chantilly, VA.
\8\ It should be noted that the Commission has attempted to
minimize the burden on small entities by not applying the rules to
LPTV stations and television translators. As of June 30, 1996, there
were 1,903 LPTV stations and 4,910 television translators licensed
in the United States. FCC News Release, Broadcast Station Totals as
of June 30, 1996, Mimeo No. 63298, released July 10, 1996.
\9\ In the Joint Comments of the Association of America's Public
Television Stations and the Public Broadcasting Service (p. 6), it
is reported that there are 38 public television stations with annual
operating budgets of less than $2 million. As of June 30, 1996,
there were 364 public television stations licensed. FCC News
Release, Broadcast Station Totals as of June 30, 1996, released July
10, 1996.
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82. Alternatively, if we look at owners of commercial television
stations as listed in the BIA data base, there are a total of 488
owners. The data base lists estimated revenues for 60 percent of these
owners, or 295. Of these 295 owners, 158 or 54 percent had annual
revenues of 10.5 million dollars or less. Using a worst case scenario,
if the 193 owners for which revenue is not listed are assumed to be
small, the total of small entities would constitute 72 percent of
owners.
83. In summary, based on the foregoing worst case analysis using
census data, we estimate that our rules will apply to as many as 1,155
commercial and non-commercial television stations (78 percent of all
stations) that could be classified as small entities. Using a worst
case analysis based on the data in the BIA data base, we estimate that
as many as approximately 771 commercial television stations (about 68
percent of all commercial televisions stations) could be classified as
small entities. As we noted above, these estimates are based on a
definition that we tentatively believe greatly overstates the number of
television broadcasters that are small businesses. Further, it should
be noted that under the SBA's definitions, revenues of affiliated
businesses that are not television stations should be aggregated with
the television station revenues in determining whether a concern is
small. Therefore, these estimates overstate the number of small
entities since the revenue figures on which they are based do not
include or
[[Page 43994]]
aggregate such revenues from non-television affiliated companies.
84. It should also be noted that the foregoing estimates do not
distinguish between network-affiliated 10 stations and independent
stations. As of April, 1996, the BIA data base indicates that about 73
percent of all commercial television stations were affiliated with the
ABC, CBS, NBC, Fox, UPN, or WB networks. Moreover, seven percent of
those affiliates have secondary affiliations.11 We assume that
compliance with the requirements adopted in the Report and Order will
be less burdensome for network affiliates than for independent
stations, as the networks may provide some core programming to network
affiliates at lower costs than the network affiliates might otherwise
be able to obtain. The networks might also otherwise assist with the
fulfillment of additional requirements.
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\10\ In this context, ``affiliation'' refers to any local
broadcast television station that has a contractual arrangement with
a programming network to carry the network's signal. This definition
of affiliated station includes both stations owned and operated by a
network and stations owned by other entities.
\11\ Secondary affiliations are secondary to the primary
affiliation of the station and generally afford the affiliate
additional choice of programming.
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4. Alternative Classification of Small Stations
85. An alternative way to classify small television stations is by
the number of employees. The Commission currently applies a standard
based on the number of employees in administering its Equal Employment
Opportunity (``EEO'') rule for broadcasting.12 Thus, radio or
television stations with fewer than five full-time employees are
exempted from certain EEO reporting and recordkeeping
requirements.13 We estimate that the total number of commercial
television stations with 4 or fewer employees is 132 and that the total
number of noncommercial educational television stations with 4 or fewer
employees is 136.14
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\12\ The Commission's definition of a small broadcast station
for purposes of applying its EEO rule was adopted prior to the
requirement of approval by the Small Business Administration
pursuant to Section 3(a) of the Small Business Act, 15 U.S.C.
Sec. 632(a), as amended by Section 222 of the Small Business Credit
and Business Opportunity Enhancement Act of 1992, Pub. L. No. 102-
366, Sec. 222(b)(1), 106 Stat. 999 (1992), as further amended by the
Small Business Administration Reauthorization and Amendments Act of
1994, Pub. L. No. 103-403, Sec. 301, 108 Stat. 4187 (1994). However,
this definition was adopted after public notice and an opportunity
for comment. See Report and Order in Docket No. 18244, 35 FR 8825
(June 6, 1970).
\13\ See, e.g., 47 CFR Sec. 73.3612 (Requirement to file annual
employment reports on Form 395-B applies to licensees with five or
more full-time employees); First Report and Order in Docket No.
21474 (In the Matter of Amendment of Broadcast Equal Employment
Opportunity Rules and FCC Form 395), 44 FR 6722 (Feb. 2, 1979). The
Commission is currently considering how to decrease the
administrative burdens imposed by the EEO rule on small stations
while maintaining the effectiveness of our broadcast EEO
enforcement. Order and Notice of Proposed Rule Making in MM Docket
No. 96-16 (In the Matter of Streamlining Broadcast EEO Rule and
Policies, Vacating the EEO Forfeiture Policy Statement and Amending
Section 1.80 of the Commission's Rules to Include EEO Forfeiture
Guidelines), 61 FR 9964 (March 12, 1996). One option under
consideration is whether to define a small station for purposes of
affording such relief as one with ten or fewer full-time employees.
Id. at para. 21.
\14\ We base this estimate on a compilation of 1995 Broadcast
Station Annual Employment Reports (FCC Form 395-B), performed by
staff of the Equal Opportunity Employment Branch, Mass Media Bureau,
FCC.
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86. Size of the station based on the number of employees is only
one factor in assessing the impact of the compliance requirements on
small stations. For example, as discussed below, the resources that may
often be provided from the networks to network affiliates and from
program syndicators to broadcasters showing their programming should
ease the compliance requirements by providing educational program
descriptions which can be used in public information dissemination.
Small group-owned stations may also receive similar benefits from their
parent companies when programs have been produced or acquired for
multiple stations in the group. However, we do not have the necessary
information at this time to determine the number of small group-owned
stations, either under the SBA's definition or based on those stations
that have fewer than five full-time employees.
D. Description of Projected Reporting, Recordkeeping and Other
Compliance Requirements of the Rules
87. The rules adopted in the Report and Order require commercial
television broadcasters, regardless of size, but not including LPTV or
translator stations, to identify programs specifically designed to
educate and inform children at the time those programs are aired (at
the beginning of the program), in a form that is at the discretion of
the licensee, and to provide information identifying such programs and
the age groups for which, in the opinion of the broadcaster, they are
intended, to publishers of program guides.
88. Our rules currently require commercial licensees to complete
reports containing information about the children's programming they
air, including time, date, duration, and description of the programs.
These reports may be produced either quarterly or annually at the
licensee's discretion. Licensees maintain these reports in their public
inspection file.
89. The new rules will require commercial television licensees to
provide a brief explanation in their children's programming reports of
how particular programs meet the definition of programming specifically
designed to meet children's educational and informational needs that is
adopted in the Report and Order. Licensees will be required to produce
their children's reports quarterly. For an experimental period of three
years, broadcasters will be required to file these reports with the
Commission on an annual basis (i.e., four quarterly reports filed
jointly once a year). Broadcasters will also be required to separate
their children's programming reports from other materials in their
public files and to publicize in an appropriate manner the existence
and location of the children's programming reports. The Commission
will, at a later date, adopt a standardized form for the programming
reports. We will also permit, but not require, electronic filing of
children's programming reports. Finally, the Commission will, at a
later date, revise its license renewal form to reflect the new three
hour core programming processing guideline, discussed below.
90. While licensees remain ultimately responsible for ensuring
compliance with our rules, we anticipate that they may be able to refer
to information provided by the broadcast networks and program suppliers
in assessing the educational and informational purpose of programming.
Further, we anticipate that station programming and clerical staff will
continue to be able to perform the other reporting and recordkeeping
functions required under the rules.
91. Under the new rules, commercial television licensees will also
be required to designate a liaison at the station for children's
programming and to include the name and method of contacting that
person in the children's programming reports. In order to minimize
burdens, the Report and Order exempts noncommercial educational
television stations from this requirement. With respect to the liaison,
the rules do not require that a new or additional employee be hired to
perform this function, and we believe that it is reasonable to require
licensees to designate a liaison for children's programming since
someone at each station must, as a practical matter, be responsible for
carrying out the broadcaster's responsibility under the
[[Page 43995]]
CTA to air children's educational television programming and since
licensees are currently required to maintain children's programming
reports and letters received from the public in their public inspection
file.
92. To minimize regulatory burdens, the new rules exempt
noncommercial educational television stations from the foregoing
reporting, filing, and submission requirements and public information
initiatives.
E. Steps Taken To Minimize Significant Economic Impact on Small
Entities and Significant Alternatives Considered
93. In general, we have attempted to keep burdens on television
broadcast stations to a minimum, as discussed below. The regulatory
burdens we have imposed are necessary to ensure compliance with the
CTA.
1. Public Information Initiatives
94. We adopted the requirements that commercial television
broadcasters identify children's educational and informational programs
and designate a liaison for children's programming, as well as the
revised public file requirements, based on the goal of affording the
public sufficient information to play an active role in assuring that
the goals of the CTA are met. We will also make information obtained
from the children's programming reports available on our Internet World
Wide Web site if it is feasible so that it will be accessible by the
public. Allowing the public to play an active role will, in turn, allow
the Commission to minimize its involvement in evaluating the quality of
children's programming and to rely more on the marketplace to achieve
the goals of the CTA, thereby minimizing regulatory burdens.
95. We determined that these information requirements should not
impose significant additional burdens on licensees, and, in adopting
the rules, the Commission has attempted to minimize regulatory and
significant economic burdens on small businesses and facilitate
compliance with reporting rules wherever possible.
a. Identification of Core Programming
96. The burden of the on-air identification requirement on all
commercial television broadcast stations, including small stations, is
minimized because the form of the identification is at their
discretion. The rules adopted provide greater discretion to television
stations and are thus less burdensome than if we had adopted a
requirement that broadcasters use an icon for such identification, as
suggested in the NPRM. Further, such an identification requirement may
benefit small stations by affording a potential increase in audience
size. An on-air identification requirement will make broadcasters more
accountable to the public and further the goal of minimizing the
possibility that the Commission would be forced to decide whether
particular programs serve the educational and informational needs of
children. We note that it is standard practice in the broadcast
industry for stations to make various on-air announcements promoting
their programming. We further note that under longstanding Commission
rules, stations must make station identification and sponsorship
announcements. See 47 CFR Secs. 73.1201, 73.1212.
b. Program Guides
97. Television stations currently submit programming information to
programming guides, which publish such information without cost to the
broadcasters. See para. 60 supra. Our current rules do not require
broadcasters to provide this information to the guides. However, it has
become a well-established practice to provide specialized information
about programs, such as which programs are closed captioned for the
hearing impaired. Our new rules will require commercial television
broadcasters to provide to publishers of program guides information
identifying core programs, and the age group for which, in the opinion
of the broadcaster, the program is intended.15 This information
will assist parents in finding suitable programs for their children and
be useful to parents and others who wish to monitor station performance
in complying with the CTA. We recognize that broadcasters cannot
require publishers to print this information. The information, however,
is more likely to be in the program listings if broadcasters routinely
provide it. This requirement is a minor extension of what small
stations already do for their standard programming. Stations are not
required to purchase advertising space in TV Guide or local TV weekly
publications, only to provide information to them. As broadcasters
routinely provide such information about their programming to program
guides and designate core programs for their public records, we believe
it would require a minimum of effort, but have a major positive effect,
for them to do so.
---------------------------------------------------------------------------
\15\ As described above in Section IV of the Report and Order,
we will require that commercial broadcasters indicate the age of the
target child audience in their program description.
---------------------------------------------------------------------------
c. Public File Requirements
98-99. Our rules currently require commercial television licensees
to compile reports, containing information about the children's
programming they air, including the time, date, duration, and
description of the programs. Licensees maintain these reports in the
station's public inspection file. Our new rules will require commercial
television licensees to prepare these reports using a standardized
format on a quarterly basis. The reports will describe their efforts to
comply with the CTA-related programming requirements outlined in this
decision. Licensees will be required to provide a brief explanation of
how particular programs meet the definition of ``core'' programming.
Commercial television licensees will be required to separate the
children's programming reports from the other reports they maintain in
their public files.
100. The impact of this requirement will depend on the specific
class into which a small station falls. Network-affiliated stations,
regardless of staff size, may have network support in fulfilling
aspects of the reporting requirement for the programs that are
broadcast by the network. For example, we assume that, in developing
the educational and informational programming they furnish to
affiliates, networks will have prepared program information about the
educational and informational benefits to children that can be
disseminated to affiliated stations.16 Assuming that the network
furnishes such material, a small station may be able to rely on it in
preparing its programming report, with respect to the network programs
that it airs. In addition, program syndicators may also provide the
information needed for a small station to complete its children's
programming reports with respect to the programs furnished by the
syndicator, further lessening any burden on small stations.
---------------------------------------------------------------------------
\16\ See e.g., NBC Comments at 7, 19; NBC Reply Comments at 9
(written articulation of the educational theme or goal of each
educational segment furnished to affiliates for inclusion in their
children's programming reports); see also ABC Comments at 12 (ABC
currently provides to its affiliates a brief explanation of how
particular programs meet the definition of educational and
informational programming for children).
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101. A small station that wishes to produce its own children's
educational programming will not have the benefit of any such material
provided by a network or syndicator in fulfilling the program report
requirements. However, assuming a determination of the
[[Page 43996]]
educational and informational attributes of the program has been made
at the pre-production/development stage, additional analysis may not be
necessary in preparing the programming report. It is not required, nor
should it be necessary, for a small station to hire additional
personnel or a children's educational expert to prepare such reports.
The Commission considered but specifically rejected such a requirement
in order to minimize regulatory burdens on licensees.
102. A number of broadcasters and other commenters requested that
the Commission develop a standardized form to facilitate their assembly
of children's programming reports, which they are required to do under
our current rules. See Report and Order, para. 69 and n. 174 supra. So
that the reporting burden will be minimized, the Commission will
develop a standardized form to be used for preparing the quarterly
children's programming reports. We believe that the standardized form
will make compliance with the reporting requirements easier and less
burdensome for all entities, including small entities. See Report and
Order, Paras. 69-72.
103. With regard to licensees publicizing the availability and
location of the programming reports, we believe that this requirement
should not be burdensome on small entities because we do not prescribe
the manner in which licensees are to publicize the availability and
location of the reports, but allow the licensees flexibility to do so
in an appropriate manner. Therefore, licensees may choose to fulfill
the requirement in a manner that is least burdensome to them, provided
they do so in an appropriate manner.
104. Our new rules also require commercial television licensees to
designate a liaison for children's programming and to include the name
and method of contacting that individual in the station's children's
programming reports.17 Licensees already employ sufficient staff
in order to maintain the children's programming reports 18 and
letters received from the public in their public inspection files, as
required by our current regulations.19 Thus, we do not expect that
the new requirement for designation of a liaison will impose a
significant additional burden on licensees. The rules do not require
that a new or additional employee be hired to perform this function,
and we believe that it is reasonable to require licensees to designate
a liaison for children's programming since someone at each station
must, as a practical matter, be responsible for carrying out the
broadcaster's responsibility under the CTA to air children's
educational television programming. In addition, our rules place no
limitations on the licensee's discretion in assigning the liaison
function and determining how it will be carried out.
---------------------------------------------------------------------------
\17\ As noted earlier, noncommercial educational television
licensees are exempt from this requirement.
\18\ NPRM, 60 FR 20586; 47 CFR Sec. 73.1202.
\19\ 47 CFR Sec. 73.1202. Commercial stations are required to
maintain a number of other reports, records, and applications in
their public inspection file as well. See id. at Sec. 73.3526.
---------------------------------------------------------------------------
2. Definition of ``Specifically Designed'' Programming
105. The CTA requires the Commission to consider the extent to
which a broadcaster has ``served the educational and informational
needs of children through the licensee's overall programming, including
programming specifically designed to serve such needs.'' We determined
that we should adopt a definition of programming specifically designed
to serve children's educational and informational needs (or ``core
programming'') because our current definition is very broad, does not
distinguish between general audience/entertainment programs and
programs that are specifically designed to educate and inform, and does
not provide licensees with sufficient guidance regarding their
obligation to air ``specifically designed'' programming as required by
the CTA. The definition is designed to be sensitive to our concerns
that the rules be explicit, clear, simple, and fair and that they
afford clear guidance to licensees as to their obligations under the
CTA.
106. In adopting the definition, we attempted to minimize
regulatory burdens and economic impact on small entities. For example,
the Commission rejected a proposal advanced by several commenters that
licensees be required to consult with educational experts in order for
a program to qualify as core programming. Report and Order, para. 90.
The Commission rejected this proposal in order to minimize burdens on
our licensees. An element of our core programming definition is the
requirement that commercial television licensees specify in writing in
their children's programming report the educational and informational
objective of a core program as well as its target child audience. While
we recognize this element of the revised definition may impose an
additional paperwork burden on commercial licensees, we conclude that
the burden is outweighed by the benefits of the proposal. See Report
and Order, Paras. 91-95. The description of a program's educational
objective does not have to be lengthy, and we do not require that the
description be prepared by an expert.
3. Processing Guideline
107. We adopt a three-hour per week safe harbor processing
guideline. A processing guideline is consistent with the text of the
CTA and with the First Amendment, and we conclude that our current ad
hoc approach provides inadequate guidance to licensees and Commission
staff. Under the new processing guideline adopted, we would permit
staff approval of the children's programming portion of the renewal
application where the three-hour benchmark is met. A measure of
flexibility is afforded to licensees, including small businesses, since
a licensee falling somewhat short of this benchmark could still receive
staff approval based on a showing that it has aired a package of
different types of educational and informational programming that,
while containing somewhat less than three hours per week of core
programming, demonstrates a level of commitment to educating and
informing children that is at least equivalent to airing three hours
per week of core programming. In this regard, specials, PSAs, short-
form programs and regularly scheduled non-weekly shows with a
significant purpose of educating and informing children can count
toward the three hour per week processing guideline. Renewal
applications that do not meet these criteria will be referred for
consideration to the Commission, where they will have a full
opportunity to demonstrate compliance with the CTA. Such applicants may
be able to demonstrate compliance, for example, by relying in part on
sponsorship of core educational and informational programs on other
stations in the market that increases the amount of core educational
and informational programming on the station airing the sponsored
program and/or on special nonbroadcast efforts that enhance the value
of children's educational and informational television programming. A
processing guideline is consistent with the text of the CTA that the
Commission ``consider the extent'' to which licensees serve the
``educational and informational needs of children through the
licensee's overall programming, including programming specifically
designed to serve such needs.'' Report and Order, Paras. 120-130.
108. In adopting this guideline, the Commission seeks to minimize
the
[[Page 43997]]
regulatory burdens and economic impact on licensees, including small
businesses, by delegating authority to the Mass Media Bureau to approve
Category A or Category B renewal applications. See Report and Order,
Paras. 120-34. Additionally, the Commission allows broadcasters
scheduling flexibility by adopting a per-week rather than a per-day
safe harbor and by permitting the three-hour benchmark to be averaged
over a six-month period, and further attempts to minimize the economic
impact by allowing repeats and reruns of core programming to be counted
toward fulfillment of the three-hour guideline.
109. With respect to network affiliates, we expect that networks,
as they have in the past, will provide programming and compliance
information to their affiliates so that, regardless of revenues, the
burden on network-affiliated stations will be minimized. Indeed, as
noted in para. 132 of the Report and Order, Westinghouse Electric
Corporation has announced that it will provide three hours per week of
children's educational programming over the CBS network and on its
owned and operated stations by the fall 1997 season. Further, we assume
that the three-hour per week guideline will not be burdensome because,
as the National Association of Broadcasters (``NAB'') reports,
broadcasters today air an average of more than four hour per week of
total educational and informational programming under the CTA. See
Report and Order, para. 40. Even though that figure may be inflated by
the inclusion of some programming that may not qualify under the
definition of core programming, it suggests that a three-hour
processing guideline is a reasonable level that should not be
particularly difficult for broadcasters to achieve.
110. The Commission considered but did not adopt two alternative
options to the processing guideline: (1) Commission monitoring of the
amount of educational and informational programming on the air during a
period of time following the adoption of measures to improve the flow
of programming information to the public and a definition of core
programming; and (2) adoption of a programming standard that would
require broadcasters to air a specified average number of hours of
programming specifically designed to serve the educational and
informational needs of children. The rule adopted furthers the goal of
making the Commission's rules and processes as clear, efficient, and
fair as possible, while affording licensees discretion to augment their
core programming responsibility with program sponsorship or other
exceptional programming efforts.
111. The Commission concludes that the option chosen strikes the
appropriate balance between the need for certainty and flexibility in
enforcing the CTA and is thus preferable to both the monitoring and
programming standard proposals set forth in the NPRM. It should be
noted that the option chosen, a processing standard, is less burdensome
and affords licensees, including small businesses, greater flexibility
than if the Commission had imposed a programming standard. Based on the
record, the Commission does not believe that three hours of educational
programming would be difficult for most broadcasters to achieve. While
mere monitoring might be less burdensome than a processing guideline,
the Commission concludes in the Report and Order that it is inadvisable
to process renewals under the CTA without some quantitative guidelines
that are published in advance to provide licensees notice as to means
by which they can fulfill their CTA obligations.
112. Finally, the Commission will revise its license renewal form
to reflect the new three hour core programming processing guideline. To
minimize the regulatory burden and economic impact on broadcasters,
including small businesses, they will be able to demonstrative
compliance either by checking a box and providing supporting
information indicating that they have aired an average of three hours
per week of core programming or by showing that they have aired a
package of different types of educational and informational programming
that, while containing somewhat less than three hours per week of core
programming, demonstrates a level of commitment to educating and
informing children that is at least equivalent to airing three hours
per week of core programming. In revising the renewal form, we will
seek to minimize the reporting burden on licensees, including small
businesses, by, for example, permitting them to rely on the children's
programming reports they have previously prepared.
F. Report to Congress
113. The Secretary shall send a copy of this Final Regulatory
Flexibility Analysis along with this Report and Order in a report to
Congress pursuant to Section 251 of the Small Business Regulatory
Enforcement Fairness Act of 1996, codified at 5 U.S.C. Section
801(a)(1)(A). A copy of this FRFA will also be published in the Federal
Register.
Ordering Clauses
114. Accordingly, it is Ordered that, pursuant to the authority
contained in Sections 4 (i) & (j), 303(r), 308, and 403 of the
Communications Act of 1934, 47 U.S.C. 154 (i) & (j), 303(r), 308, 403,
as amended, and the Children's Television Act of 1990, 47 U.S.C.
303b(a), 303b(b), and 394, Part 73 of the Commission's Rules, 47 CFR
Part 73 IS AMENDED as set forth below. The rule changes to Sections
73.673, 73.3526(a)(8)(iii), and 73.3500, 47 CFR Secs. 73.673,
73.3526(a)(8)(iii), 73.3500, shall take effect on January 2, 1997,
subject to OMB approval under the Paperwork Reduction Act. Appropriate
public notice will be given upon OMB's action to confirm this effective
date. The rule changes to Sections 73.671 and 73.672, 47 CFR
Secs. 73.671, 73.672, shall take effect on September 1, 1997.
115. It is further ordered that the new or modified paperwork
requirements contained in this Report and Order (which are subject to
approval by the Office of Management and Budget) will go into effect
upon OMB approval.
116. It is further ordered that the Secretary shall send a copy of
this Report and Order, including the Final Regulatory Flexibility
Analysis, to the Chief Counsel for Advocacy of the Small Business
Administration in accordance with paragraph 603(a) of the Regulatory
Flexibility Act, Public Law No. 96-354, 94 Stat. 1164, 5 U.S.C. 601 et
seq. (1981).
117. It is further ordered that this proceeding is terminated.
List of Subjects in 47 CFR Part 73
Television.
Federal Communications Commission
William F. Caton,
Acting Secretary.
Rule Changes
Part 73 of Title 47 of the Code of Federal Regulations is amended
as follows:
PART 73--RADIO BROADCAST SERVICES
1. The authority citation for Part 73 continues to read as follows:
Authority: 47 U.S.C. 154, 303, 334.
2. Section 73.671 is amended by removing the Note following the
section, revising paragraph (a), and by adding paragraph (c) and Notes
1 and 2 to read as follows:
[[Page 43998]]
Sec. 73.671 Educational and informational programming for children.
(a) Each commercial and noncommercial educational television
broadcast station licensee has an obligation to serve, over the term of
its license, the educational and informational needs of children
through both the licensee's overall programming and programming
specifically designed to serve such needs.
* * * * *
(c) For purposes of this section, educational and informational
television programming is any television programming that furthers the
educational and informational needs of children 16 years of age and
under in any respect, including the child's intellectual/cognitive or
social/emotional needs. Programming specifically designed to serve the
educational and informational needs of children (``Core Programming'')
is educational and informational programming that satisfies the
following additional criteria:
(1) It has serving the educational and informational needs of
children ages 16 and under as a significant purpose;
(2) It is aired between the hours of 7:00 a.m. and 10:00 p.m.;
(3) It is a regularly scheduled weekly program;
(4) It is at least 30 minutes in length;
(5) The educational and informational objective and the target
child audience are specified in writing in the licensee's Children's
Television Programming Report, as described in Sec. 73.3526(a)(8)(iii);
and
(6) Instructions for listing the program as educational/
informational, including an indication of the age group for which the
program is intended, are provided by the licensee to publishers of
program guides, as described in Sec. 73.673(b).
Note 1 to Sec. 73.671: For purposes of determining under this
section whether programming has a significant purpose of serving the
educational and informational needs of children, the Commission will
ordinarily rely on the good faith judgments of the licensee.
Commission review of compliance with that element of the definition
will be done only as a last resort.
Note 2 to Sec. 73.671: The Commission will use the following
processing guideline in assessing whether a television broadcast
licensee has complied with the Children's Television Act of 1990
(``CTA''). A licensee that has aired at least three hours per week
of Core Programming (as defined in paragraph (c) of this section and
as averaged over a six month period) will be deemed to have
satisfied its obligation to air such programming and shall have the
CTA portion of its license renewal application approved by the
Commission staff. A licensee will also be deemed to have satisfied
this obligation and be eligible for such staff approval if the
licensee demonstrates that it has aired a package of different types
of educational and informational programming that, while containing
somewhat less than three hours per week of Core Programming,
demonstrates a level of commitment to educating and informing
children that is at least equivalent to airing three hours per week
of Core Programming. In this regard, specials, PSAs, short-form
programs, and regularly scheduled non-weekly programs with a
significant purpose of educating and informing children can count
toward the three hour per week processing guideline. Licensees that
do not meet these processing guidelines will be referred to the
Commission, where they will have full opportunity to demonstrate
compliance with the CTA (e.g., by relying in part on sponsorship of
core educational/informational programs on other stations in the
market that increases the amount of core educational and
informational programming on the station airing the sponsored
program and/or on special nonbroadcast efforts which enhance the
value of children's educational and informational television
programming).
Sec. 73.672 [Removed and Reserved]
3. Section 73.672 is removed and reserved.
4. New Section 73.673 is added to read as follows:
Sec. 73.673 Public information initiatives regarding educational and
informational programming for children.
(a) Each commercial television broadcast licensee shall identify
programs specifically designed to educate and inform children at the
beginning of the program, in a form that is in the discretion of the
licensee.
(b) Each commercial television broadcast station licensee shall
provide information identifying programming specifically designed to
educate and inform children to publishers of program guides. Such
information shall include an indication of the age group for which the
program is intended.
5. Section 73.3526(a)(8)(iii) is revised to read as follows:
Sec. 73.3526 Local public inspection file of commercial stations.
(a) * * *
(8)(i) * * *
(ii) * * *
(iii) For commercial TV broadcast stations, on a quarterly basis, a
completed Children's Television Programming Report (``Report''), on FCC
Form 398, reflecting efforts made by the licensee during the preceding
quarter, and efforts planned for the next quarter, to serve the
educational and informational needs of children. The Report for each
quarter is to be filed by the tenth day of the succeeding calendar
quarter. The Report shall identify the licensee's educational and
informational programming efforts, including programs aired by the
station that are specifically designed to serve the educational and
informational needs of children, and it shall explain how programs
identified as Core Programming meet the definition set forth in
Sec. 73.671(c). The Report shall include the name of the individual at
the station responsible for collecting comments on the station's
compliance with the Children's Television Act, and it shall be
separated from other materials in the public inspection file. Licensees
shall publicize in an appropriate manner the existence and location of
these Reports. For an experimental period of three years, licensees
shall file these Reports with the Commission on an annual basis, i.e.,
four quarterly reports filed jointly each year, preferably in
electronic form. These Reports shall be filed with the Commission on
January 10, 1998, January 10, 1999, and January 10, 2000.
* * * * *
6. Section 73.3500 is amended by adding entry 398 in numerical
order to read as follows:
Sec. 73.3500 Application and report forms.
* * * * *
------------------------------------------------------------------------
Form number Title
------------------------------------------------------------------------
* * * * *
398............................. Children's Television Programming
Report.
------------------------------------------------------------------------
[FR Doc. 96-21798 Filed 8-26-96; 8:45 am]
BILLING CODE 6712-01-P
Complete official Federal Register PDF
FR Doc. 96-21797 Provision of Roaming Services by Commercial Mobile Radio Service Providers
[Federal Register Volume 61, Number 167 (Tuesday, August 27, 1996)]
[Rules and Regulations]
[Pages 43977-43981]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-21797]
=======================================================================
-----------------------------------------------------------------------
FEDERAL COMMUNICATIONS COMMISSION
47 CFR Parts 20 and 22
[CC Docket No. 94-54; FCC 96-284]
Provision of Roaming Services by Commercial Mobile Radio Service
Providers
AGENCY: Federal Communications Commission.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Federal Communications Commission adopts a Second Report
and Order and Third Notice of Proposed Rulemaking regarding the
offering of roaming services by commercial mobile radio service
providers. The Third Notice of Proposed Rulemaking portion of this
decision is summarized elsewhere in this edition of the Federal
Register. The Second Report and Order expands the scope of the
Commission's existing ``manual'' roaming rule. As a result of this
action, cellular, broadband personal communications services and
certain specialized mobile radio licensees must, as a condition of
their licenses, provide service upon request to any individual roamer
whose handset is technically capable of accessing their networks. This
decision is needed to ensure that customers of all providers competing
in the mass market for two-way, real-time, interconnected switched
voice service have an equal opportunity to obtain manual roaming
service if they are using technically compatible equipment, thus
promoting competition.
EFFECTIVE DATE: October 28, 1996.
FOR FURTHER INFORMATION CONTACT: Jeffrey Steinberg, Wireless
Telecommunications Bureau, (202) 418-1310.
SUPPLEMENTARY INFORMATION: This is a summary of the Second Report and
Order (Second R&O) portion of the Commission's Second Report and Order
and Third Notice of Proposed Rulemaking in CC Docket No. 94-54, FCC 96-
284, adopted June 27, 1996, and released August 13, 1996. The summary
of the Third Notice of Proposed Rulemaking portion of this decision may
be found elsewhere in this edition of the Federal Register. The
complete text of this Second R&O is available for inspection and
copying during normal business hours in the FCC Reference Center (Room
239), 1919 M Street, NW., Washington, DC, and also may be purchased
from the Commission's copy contractor, International Transcription
Service, (202) 857-3800, 2100 M Street, NW., Suite 140, Washington, DC,
20037.
Synopsis of the Second Report and Order
1. In this Second R&O, the Commission extends its existing rule
under which cellular licensees are required to provide manual roaming
service upon request to subscribers in good standing of any cellular
carrier.
2. ``Roaming'' occurs when the subscriber of one commercial mobile
radio service (CMRS) provider utilizes the facilities of another CMRS
provider with which the subscriber has no direct pre-existing service
or financial relationship to place an outgoing call, to receive an
incoming call, or to continue an in-progress call. Typically, although
not always, roaming occurs when the subscriber is physically located
outside the service area of the provider to which he or she subscribes.
Under Sec. 22.901 of the Commission's rules, cellular system licensees
``must provide cellular mobile radiotelephone service upon request to
all cellular subscribers in good standing, including roamers, while
such subscribers are located within any portion of the authorized
cellular geographic service area * * * where facilities have been
constructed and service to subscribers has commenced.''
3. The Commission initiated this proceeding in a Notice of Proposed
Rulemaking and Notice of Inquiry, 59 FR 35664, July 13, 1994, which
requested comment regarding whether the obligation to permit roaming
should be extended to all CMRS, what regulatory standards are
appropriate to promote roaming, and what technical issues or
requirements are implicated. In the Second Notice of Proposed
Rulemaking (Second NPRM), 60 FR 20949, April 28, 1995, the Commission
tentatively concluded that roaming service is important to the
development of a seamless CMRS ``network of networks.'' The Second NPRM
also tentatively concluded that uncertainties concerning the
technological development of non-cellular CMRS and the likelihood that
market forces would adequately promote the availability of roaming
counseled regulatory caution. Therefore, the Commission proposed, in
lieu of a rule, to monitor the development of roaming service and to
intercede as appropriate. In addition,
[[Page 43978]]
the Commission requested comment on several other issues related to
roaming, including the technical feasibility of cross-service roaming,
the necessity of direct physical interconnection to facilitate roaming,
the necessity of access to subscriber databases and any privacy or
proprietary issues raised, and the technical and contractual
arrangements that are currently used to provide roaming in the cellular
service.
4. At the outset, the Commission notes that Sections 201(b) and
202(a) of the Communications Act apply to CMRS providers and govern the
provision of common carrier communications services.1 The
Commission agrees with those commenters that argue that roaming is a
common carrier service because it gives end users access to a foreign
network in order to communicate messages of their own choosing. The
Commission also notes that it has authority to impose a roaming
requirement in the public interest pursuant to its license conditioning
authority under sections 303(r) and 309 of the Communications Act.
---------------------------------------------------------------------------
\1\ See 47 U.S.C. 332(c)(1) (CMRS providers are subject to
duties of common carriers, including Sections 201 and 202).
---------------------------------------------------------------------------
5. The record submitted in response to the Second NPRM demonstrates
that roaming capability is widely available to cellular subscribers, is
highly valued by those subscribers, and is one of the industry's
fastest growing sources of revenue. Thus, roaming capability may be a
key competitive consideration in the wireless marketplace, and newer
entrants may be at a competitive disadvantage vis-a-vis incumbent
wireless carriers if their subscribers have no ability to roam on other
networks. Having said that, the Commission recognizes that roaming
regulation may impose significant costs and burdens on CMRS providers
and that it should narrowly tailor its actions to avoid placing an
undue burden on such providers.
6. Based on comments in the record and the experience of the first
broadband PCS licensee to begin service, the Commission concludes that
the public interest will be served by extending its existing manual
roaming rule, which is part of the Commission's cellular service
rules,2 to obligate all CMRS licensees competing in the mass
market for real-time, two-way voice services and to protect the
subscribers of all carriers offering such services. That group consists
of cellular, broadband PCS and covered SMR providers. These ``covered
SMR providers'' include two classes of SMR licensees. The first
consists of 800 MHz and 900 MHz SMR licensees that hold geographic area
licenses. The second covers incumbent wide area SMR licensees, defined
as licensees who have obtained extended implementation authorizations
in the 800 MHz or 900 MHz SMR service, either by waiver or under
Sec. 90.629 of the Commission's rules. Within each of these classes,
``covered SMR providers'' includes only licensees that offer real-time,
two-way switched voice service that is interconnected with the public
switched network, either on a stand-alone basis or packaged with other
telecommunications services. This is the same group of SMR licensees to
which the Commission applied its recently adopted rule governing
restrictions on resale.
---------------------------------------------------------------------------
\2\ See 47 CFR 22.901.
---------------------------------------------------------------------------
7. Under the rule adopted in this Second R&O, cellular, broadband
PCS, and covered SMR licensees are required to provide manual roaming
to any subscriber of any of these services who is using a handset that
is technically capable of accessing the licensee's system. The rule
does not require licensees to modify their systems in order to provide
service to any end user. To avoid any uncertainty, this decision
clarifies that any subscriber to any covered service with a technically
cellular-compatible handset has the same right as a cellular subscriber
to manually roam on cellular systems. Furthermore, the existing rule is
extended to obligate broadband PCS and covered SMR, as well as
cellular, licensees. Because this Second R&O furthers the public
interest by facilitating the widespread availability of roaming, the
Commission makes compliance with this rule a condition of cellular,
broadband PCS and covered SMR licenses under sections 303(r) and 309 of
the Communications Act.
8. By contrast, the record does not establish that ubiquitous
roaming capability is important to the competitive success or utility
of mobile services other than those offered by cellular, broadband PCS
and covered SMR providers. The Commission therefore concludes that its
action shall be limited to such licensees. In particular, because they
do not compete substantially with cellular and broadband PCS providers,
local SMR licensees offering mainly dispatch services to specialized
customers in a non-cellular system configuration, as well as licensees
offering only data, one-way, or stored voice services on an
interconnected basis, are not covered by the roaming rule. Of course,
any SMR provider that is not interconnected to the public switched
network does not offer CMRS, and therefore is not subject to the
roaming rule. Allegations that particular practices by non-covered CMRS
providers are unjust, unreasonable or otherwise in violation of the
Communications Act would be grounds for complaint under section 208 of
that Act.
Final Regulatory Flexibility Analysis
9. As required by section 603 of the Regulatory Flexibility Act, 5
USC 603 (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was
incorporated in the Second NPRM in this proceeding. The Commission
sought written public comments on the proposals in the Second NPRM,
including on the IRFA. The Commission's Final Regulatory Flexibility
Analysis (FRFA) in this Second R&O conforms to the RFA, as amended by
the Contract With America Advancement Act of 1996, Pub. L. 104-121, 110
Stat. 847 (1996) (CWAAA).3
---------------------------------------------------------------------------
\3\ Subtitle II of the CWAAA is the Small Business Regulatory
Enforcement Fairness Act of 1996 (SBREFA), codified at 5 USC 601 et
seq.
---------------------------------------------------------------------------
I. Need for and Purpose of this Action
10. In this decision, the Commission extends its existing rule
under which cellular licensees are required to provide manual roaming
service upon request to subscribers in good standing of any cellular
carrier. Under the rule adopted in this decision, cellular, broadband
personal communications services (PCS), and certain specialized mobile
radio (SMR) licensees must provide manual roaming service upon request
to subscribers in good standing of all such carriers, provided the
subscriber is using a handset that is technically capable of accessing
the licensee's system. This action will ensure that customers of all
providers competing in the mass market for two-way, real-time,
interconnected switched voice service have an equal opportunity to
obtain manual roaming service, if they are using technically compatible
equipment. In this way, the rule will promote the development of
competition by ensuring that newer entrants to the market, as well as
competitors without extensive affiliations, are not competitively
disadvantaged by the inability of their subscribers to roam.
II. Summary of Issues Raised by the Public Comments in Response to the
Initial Regulatory Flexibility Analysis
11. No comments were filed in direct response to the IRFA. In
general comments on the Second NPRM, however, several commenters raised
issues that might affect small entities. Some of these commenters
argued that
[[Page 43979]]
the Commission should adopt a roaming rule in order to protect the
ability of carriers without a nationwide footprint or extensive
affiliations to compete. Other commenters, however, expressed concern
that compliance with a requirement to offer roaming could be
technically infeasible or unduly costly under some circumstances. In
particular, several commenters urged the Commission not to require
carriers to adopt particular technologies or modify their networks in
order to facilitate roaming. Some commenters also argued that a roaming
requirement could expose carriers to financial losses due to fraud. Two
alliances of rural cellular carriers argued that, in drafting any
roaming rule, the Commission should consider the technical obstacles
faced by providers that do not have SS7 capability, as well as rural
cellular licensees' alleged lack of market power.
III. Description and Estimate of the Small Entities Subject to the
Rules
12. The rule adopted in this Second R&O will apply to cellular,
broadband PCS, and geographic area 800 MHz and 900 MHz SMR licensees,
including licensees who have obtained extended implementation
authorizations in the 800 MHz or 900 MHz SMR services, either by waiver
or under Sec. 90.629 of the Commission's rules. However, the rule will
apply to SMR licensees only if they offer real-time, two-way voice
service that is interconnected with the public switched network.
A. Estimates for Cellular Licensees
13. The Commission has not developed a definition of small entities
applicable to cellular licensees. Therefore, the applicable definition
of small entity is the definition under the Small Business
Administration (SBA) rules applicable to radiotelephone companies. This
definition provides that a small entity is a radiotelephone company
employing fewer than 1,500 persons.4 Since the Regulatory
Flexibility Act amendments were not in effect until the record in this
proceeding was closed, the Commission was unable to request information
regarding the number of small cellular businesses and is unable at this
time to determine the precise number of cellular firms which are small
businesses.
---------------------------------------------------------------------------
\4\ 13 CFR 121.201, Standard Industrial Classification (SIC)
Code 4812.
---------------------------------------------------------------------------
14. The size data provided by the SBA does not enable the
Commission to make a meaningful estimate of the number of cellular
providers which are small entities because it combines all
radiotelephone companies with 500 or more employees.5 The
Commission therefore used the 1992 Census of Transportation,
Communications, and Utilities, conducted by the Bureau of the Census,
which is the most recent information available. This document shows
that only 12 radiotelephone firms out of a total of 1,178 such firms
which operated during 1992 had 1,000 or more employees.6
Therefore, even if all 12 of these firms were cellular telephone
companies, nearly all cellular carriers were small businesses under the
SBA's definition. The Commission assumes, for purposes of its
evaluations and conclusions in this FRFA, that all of the current
cellular licensees are small entities, as that term is defined by the
SBA. Although there are 1,758 cellular licenses, the Commission does
not know the number of cellular licensees, since a cellular licensee
may own several licenses.
---------------------------------------------------------------------------
\5\ U.S. Small Business Administration 1992 Economic Census
Employment Report, Bureau of the Census, U.S. Department of
Commerce, SIC Code 4812 (radiotelephone communications industry data
adopted by the SBA Office of Advocacy).
\6\ U.S. Bureau of the Census, U.S. Department of Commerce, 1992
Census of Transportation, Communications, and Utilities, UC92-S-1,
Subject Series, Establishment and Firm Size, Table 5, Employment
Size of Firms: 1992, SIC Code 4812 (issued May 1995).
---------------------------------------------------------------------------
15. Two alliances of rural cellular licensees filed comments in
which they argued that a roaming rule may have an especially large
impact on rural licensees. In its comments, the Rural Cellular
Coalition states that it has 12 members which serve licensed cellular
areas encompassing approximately 3 million people; the Rural Cellular
Association states that its members serve areas with a cumulative
population of more than 6 million. The Commission does not have
information, however, sufficient to support a meaningful estimate
regarding the total number of rural licensees, nor does it have
specific information regarding how many rural cellular licensees are
small entities. For purposes of this FRFA, the Commission assumes that
all rural cellular licensees are small entities, as that term is
defined by the SBA.
B. Estimates for Broadband PCS Licensees
16. The broadband PCS spectrum is divided into six frequency blocks
designated A through F. Pursuant to 47 CFR 24.720(b), the Commission
has defined ``small entity'' in the auctions for Blocks C and F as a
firm that had average gross revenues of not more than $40 million in
the three previous calendar years. This regulation defining ``small
entity'' in the context of broadband PCS auctions has been approved by
the SBA.7
---------------------------------------------------------------------------
\7\ See Implementation of section 309(j) of the Communications
Act--Competitive Bidding, PP Docket No. 93-253, Fifth Report and
Order, 59 FR 37566 (July 22, 1994).
---------------------------------------------------------------------------
17. The Commission has auctioned broadband PCS licenses in Blocks
A, B, and C. The Commission does not have sufficient data to determine
how many small businesses bid successfully for licenses in Blocks A and
B. As of now, there are 90 non-defaulting winning bidders that qualify
as small entities in the Block C auctions. Based on this information,
the Commission concludes that the number of broadband PCS licensees
affected by the rule adopted in this Second R&O includes the 90 winning
bidders that qualify as small entities in the Block C broadband PCS
auctions.
18. At present, no licenses have been awarded for Blocks D, E, and
F of broadband PCS spectrum. Therefore, there are no small businesses
currently providing these services. However, a total of 1,479 licenses
will be awarded in the D, E, and F Block broadband PCS auctions, which
are scheduled to begin on August 26, 1996. Eligibility for the 493 F
Block licenses is limited to entrepreneurs with average gross revenues
of not more than $125 million. However, the Commission cannot estimate
how many of these licenses will be won by small entities, nor how many
small entities will win D and E Block licenses. Given the facts that
nearly all radiotelephone companies have fewer than 1,000 employees and
that no reliable estimate of the number of prospective D, E, and F
Block licensees can be made, the Commission assumes, for purposes of
its evaluations and conclusions in this FRFA, that all of the licenses
will be awarded to small entities, as that term is defined by the SBA.
C. Estimates for SMR Licensees
19. Pursuant to 47 CFR 90.814(b)(1), the Commission has defined
``small entity'' in auctions for geographic area 800 MHz and 900 MHz
SMR licenses as a firm that had average gross revenues of not more than
$15 million in the three previous calendar years. This regulation
defining ``small entity'' in the context of 800 MHz and 900 MHz SMR has
been approved by the SBA.8
---------------------------------------------------------------------------
\8\ See Amendment of parts 2 and 90 of the Commission's rules to
Provide for the Use of 200 Channels Outside the Designated Filing
Areas in the 896-901 MHz and the 935-940 MHz Bands Allotted to the
Specialized Mobile Radio Pool, PR Docket No. 89-583, Second Order on
Reconsideration and Seventh Report and Order, 60 FR 48913 (September
21, 1995); Amendment of Part 90 of the Commission's Rules to
Facilitate Future Development of SMR Systems in the 800 MHz
Frequency Band, PR Docket No. 93-144, First Report and Order, Eighth
Report and Order, and Second Further Notice of Proposed Rulemaking,
61 FR 6212 (February 16, 1996).
---------------------------------------------------------------------------
[[Page 43980]]
20. The rule adopted in this Second R&O applies to SMR providers in
the 800 MHz and 900 MHz bands that either hold geographic area licenses
or have obtained extended implementation authorizations. The Commission
does not know how many firms provide 800 MHz or 900 MHz geographic area
SMR service pursuant to extended implementation authorizations, nor how
many of these providers have annual revenues of less than $15 million.
Since the Regulatory Flexibility Act amendments were not in effect
until the record in this proceeding was closed, the Commission was
unable to request information regarding the number of small businesses
in this category. The Commission does know that one of these firms has
over $15 million in revenues. The Commission assumes, for purposes of
its evaluations and conclusions in this FRFA, that all of the remaining
existing extended implementation authorizations are held by small
entities, as that term is defined by the SBA.
21. The Commission recently held auctions for geographic area
licenses in the 900 MHz SMR band. There were 60 winning bidders who
qualified as small entities in the 900 MHz auction. Based on this
information, the Commission concludes that the number of geographic
area SMR licensees affected by the rule adopted in this Second R&O
includes these 60 small entities.
22. No auctions have been held for 800 MHz geographic area SMR
licenses. Therefore, no small entities currently hold these licenses. A
total of 525 licenses will be awarded for the upper 200 channels in the
800 MHz geographic area SMR auction. However, the Commission has not
yet determined how many licenses will be awarded for the lower 230
channels in the 800 MHz geographic area SMR auction. There is no basis
to estimate, moreover, how many small entities within the SBA's
definition will win these licenses. Given the facts that nearly all
radiotelephone companies have fewer than 1,000 employees and that no
reliable estimate of the number of prospective 800 MHz licensees can be
made, the Commission assumes, for purposes of its evaluations and
conclusions in this FRFA, that all of the licenses will be awarded to
small entities, as that term is defined by the SBA.
IV. Summary of Projected Reporting, Recordkeeping and Other Compliance
Requirements
23. The rule adopted in this Second R&O imposes no reporting or
recordkeeping requirements. The only compliance requirement is that
licensees subject to the rule (i.e., cellular licensees, broadband PCS
licensees, and geographic area 800 MHz and 900 MHz SMR licensees that
offer real-time, two-way, interconnected switched voice service) must
provide manual roaming service upon request to subscribers in good
standing of covered services who are using technically compatible
equipment.
V. Steps Taken to Minimize the Economic Impact on Small Entities
24. The rule adopted in this Second R&O only requires certain CMRS
licensees to provide manual roaming service to eligible subscribers
upon request. The Commission determines on the present record not to
promulgate any rule governing roaming agreements between carriers, but
instead to request further comment regarding the need for any such rule
and the costs that it would impose. Thus, the Commission in this Second
R&O avoids potential burdens that a rule governing intercarrier roaming
agreements might impose on small entities, including questions
regarding the feasibility and cost of offering automatic roaming under
certain circumstances, the administrative costs of entering into
roaming agreements, and possible exposure to fraud. Furthermore, the
rule requires covered licensees to provide service only to subscribers
who are using equipment that is technically capable of accessing their
systems. The rule therefore does not require carriers to adopt
particular technologies or to modify their networks to accommodate
roamers using different technologies. Because the rule neither requires
carriers to enter into roaming agreements nor impacts their
technological choices, it does not implicate the concerns raised by
rural carriers.
25. The Commission also determines not to apply its roaming rule to
CMRS providers other than cellular, broadband PCS and certain SMR
licensees. Many of the providers that are thereby excluded from the
rule are small entities, including paging, narrowband PCS, air-ground,
public coast service, and non-covered SMR providers. In addition, the
Commission requests comment on whether it should sunset the rule
adopted herein five years after it awards the last group of initial
licenses for currently allotted broadband PCS spectrum.
26. Finally, the Commission believes that the rule adopted in this
Second R&O will benefit certain small entities by ensuring that
subscribers of providers that do not have a nationwide presence or
affiliations will have the same right to obtain roaming service as
subscribers to competing larger carriers, provided they are using
technically compatible equipment.
VI. Significant Alternatives Considered and Rejected
27. The Commission considered and rejected the alternative of not
extending its existing manual roaming rule beyond cellular licensees
and cellular subscribers. Instead, the Commission concluded that the
rule should extend to broadband PCS and covered SMR services in order
to protect smaller and newer providers of these services from likely
competitive disadvantage. At the same time, the Commission rejected the
alternative of extending the rule to other CMRS services because the
record did not establish that ubiquitous roaming capability is
important to the competitive success or utility of these services. The
Commission also rejected the alternative of promulgating a rule
governing intercarrier roaming agreements in this Second R&O because
the record did not sufficiently illuminate the costs and benefits of
any such rule. Finally, the Commission rejected any alternative that
would require carriers to adopt particular technologies or modify their
physical networks.
VII. Report to Congress
28. The Commission shall send a copy of this Final Regulatory
Flexibility Analysis, along with this Second Report and Order, in a
report to Congress pursuant to SBREFA, 5 U.S.C. 801(a)(1)(A).
Ordering Clause
29. Accordingly, it is ordered that the rule amendments appearing
below are adopted and shall be effective October 28, 1996.
List of Subjects
47 CFR Part 20
Communications common carriers
47 CFR Part 22
Communications common carriers
[[Page 43981]]
Federal Communications Commission.
William F. Caton,
Acting Secretary.
Rule Changes
Parts 20 and 22 of Chapter I of Title 47 of the Code of Federal
Regulations are amended as follows:
PART 20--COMMERCIAL MOBILE RADIO SERVICES
1. The authority citation for part 20 continues to read as follows:
Authority: Sec. 4, 303, and 332, 48 Stat. 1066, 1092, as
amended; 47 U.S.C. 154, 303, and 332, unless otherwise noted.
2. Section 20.12 is amended by revising the section heading and
adding new paragraph (c) to read as follows:
Sec. 20.12 Resale and roaming.
* * * * *
(c) Roaming. Each licensee subject to this section must provide
mobile radio service upon request to all subscribers in good standing
to the services of any carrier subject to this Section, including
roamers, while such subscribers are located within any portion of the
licensee's licensed service area where facilities have been constructed
and service to subscribers has commenced, if such subscribers are using
mobile equipment that is technically compatible with the licensee's
base stations.
PART 22--PUBLIC MOBILE SERVICES
1. The authority citation for part 22 continues to read as follows:
Authority: Sec. 4, 303, and 332, 48 Stat. 1066, 1082, as
amended; 47 U.S.C. 154, 303, and 332, unless otherwise noted.
2. Section 22.901 is amended by revising the introductory paragraph
to read as follows:
Sec. 22.901 Cellular service requirements and limitations.
Cellular system licensees must provide cellular mobile
radiotelephone service upon request to subscribers in good standing,
including roamers, as provided in Sec. 20.12 of this chapter. A
cellular system licensee may refuse or terminate service, however,
subject to any applicable requirements for timely notification, to
anyone who operates a cellular telephone in an airborne aircraft in
violation of Sec. 22.925 or otherwise fails to cooperate with the
licensee in exercising operational control over mobile stations
pursuant to Sec. 22.927.
* * * * *
[FR Doc. 96-21797 Filed 8-26-96; 8:45 am]
BILLING CODE 6712-01-P
Complete official Federal Register PDF
FR Doc. 96-21783 United States Standards for Grades of Frozen Cauliflower
[Federal Register Volume 61, Number 167 (Tuesday, August 27, 1996)]
[Rules and Regulations]
[Pages 43939-43943]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-21783]
========================================================================
Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
Prices of new books are listed in the first FEDERAL REGISTER issue of each
week.
========================================================================
Federal Register / Vol. 61, No. 167 / Tuesday, August 27, 1996 /
Rules and Regulations
[[Page 43939]]
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 52
[FV-91-329]
United States Standards for Grades of Frozen Cauliflower
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The purpose of this final rule is to revise the current
voluntary U.S. Standards for Grades of Frozen Cauliflower. This rule
was developed by the Department of Agriculture (USDA) at the request of
the American Frozen Food Institute (AFFI) and the National Food
Processors Association (NFPA). Its effect will be to improve the
standards by: bringing the standards in line with current marketing
practices and innovations in processing techniques; providing for the
``individual attributes'' procedure for product grading with sample
sizes, acceptable quality levels (AQL's), tolerances and acceptance
numbers (number of allowable defects) being published in the standards;
replacing dual grade nomenclature with single letter grade
designations, such as ``U.S. Grade A'' or ``U.S. Fancy,'' with ``U.S.
Grade A;'' and providing a uniform format consistent with other
recently revised U.S. grade standards by adopting definitions for terms
and replacing textual descriptions with easy-to-read tables. This rule
also includes conforming and editorial changes.
EFFECTIVE DATE: September 26, 1996.
FOR FURTHER INFORMATION CONTACT: James R. Rodeheaver, Processed
Products Branch, Fruit and Vegetable Division, Agricultural Marketing
Service, U.S. Department of Agriculture, P.O. Box 96456, Room 0709,
South Building, Washington, DC 20090-6456, Telephone: (202) 720-4693.
SUPPLEMENTARY INFORMATION: The USDA is issuing this rule in conformance
with Executive Order 12866.
Pursuant to the requirements set forth in the Regulatory
Flexibility Act, (5 U.S.C. 601 et seq.), the Agricultural Marketing
Service, has considered the economic impact on small entities.
The Agricultural Marketing Service (AMS) has certified that this
action will not have a significant economic impact on a substantial
number of small entities, as defined in the Regulatory Flexibility Act.
The proposed changes reflect current marketing practices. The use of
these standards is voluntary. A small entity may avoid incurring any
additional economic impact by not employing the standards.
This final rule has been reviewed under Executive Order 12988,
Civil Justice Reform. This action is not intended to have retroactive
effect.
This final rule will not preempt any State or local laws,
regulations, or policies, unless they present an irreconcilable
conflict with this rule. There are no administrative procedures which
must be exhausted prior to any judicial challenge to the provisions of
this rule.
Agencies periodically review existing regulations. An objective of
the regulatory review is to ensure that the grade standards are serving
their intended purpose, the language is clear, and the standards are
consistent with AMS policy and authority.
The Western Technical Advisory Committee of the American Frozen
Food Institute (AFFI) and the USDA Grade Standards Review Subcommittee
of the National Food Processors Association (NFPA), requested that the
USDA prepare a draft revision of the U.S. grade standards for frozen
cauliflower in 1992. They requested that the draft allow for the use of
mechanical trimming devices in cauliflower processing by de-emphasizing
the importance of uniform shape and symmetry of cauliflower clusters in
the standards because mechanical trimmers now perform processing
operations previously done by hand. The mechanical trimming devices
produce clusters which are less uniform in size, shape, and symmetry
and remove, partially or completely, the bud portion of the unit. The
absence of a uniform shape does not significantly affect the eating
quality or nutritional value of frozen cauliflower.
They also requested that the revised standards assign individual
tolerances to each individual quality factor. The system of grading,
referred to as ``individual attributes,'' will provide statistically
derived acceptable quality levels (AQL's) based on the tolerances in
the current grade standards.
The discussion draft incorporated the changes recommended by AFFI
and NFPA. The draft also incorporated USDA's policy of replacing dual
grade nomenclature with single letter grade designations.
In the revision, ``U.S. Grade A'' (or ``U.S. Fancy'') and ``U.S.
Grade B'' (or ``U.S. Extra Standard'') will have simply become ``U.S.
Grade A,'' and ``U.S. Grade B.''
The USDA prepared a discussion draft, incorporating the requested
and editorial changes, and submitted it to AFFI and NFPA for comment.
Minor changes were recommended for the draft revision.
In addition to these changes, the revision will modify the
standards to present them in a simplified easy-to-use format.
Consistent with recent revisions of other U.S. grade standards,
definitions of terms and easy-to-read tables will replace the textual
descriptions. These changes were intended to facilitate better
understanding and more uniform application of the grade standards.
Proposed Rule
A proposed rule to revise the U.S. Standards for Grades of Frozen
Cauliflower was published in the Federal Register on November 24, 1995
(60 FR 57958). A proposal to revise the U.S. Standards for Grades of
Frozen Cauliflower was previously published in the Federal Register on
January 11, 1993 (58 FR 3816). A reopening and extension of the comment
period to December 31, 1993, for the at proposal was published in the
Federal Register on May 25, 1993 (58 FR 29985).
There were no public comments received during the comment period
for the first proposal. However, USDA received comments from Patterson
Frozen Foods, Inc. and AFFI regarding the proposal, after the extended
comment period closed.
The two commenters suggested that the style name ``Nuggets or Small
Clusters'' should be used instead of ``Clusters for Limited Use'' due
to the terms familiarity in the industry and the
[[Page 43940]]
marketplace. USDA agreed with the comment to change in style names to
incorporate familiar names.
Both commenting parties requested a change in the proposed method
of determining style in frozen cauliflower and the requirements. Both
agreed that the method for determining style should be based on
``weight'' instead of ``count'' and Patterson Frozen Foods also
suggested that the six millimeter minimum requirement for ``Nuggets or
Small Clusters'' style be removed since there is no maximum size
requirement for ``Clusters'' style.
Both parties suggested that determining ``style'' by ``weight''
instead of by ``count'' will make the standards more compatible with
the industry's practice of using mechanical trimming devices which
produce clusters that are less uniform in size, shape, and symmetry.
USDA conducted a study using imported and domestic samples in 10,
16, 20, 32 and 35 ounce package sizes to determine the average counts
and weights of cauliflower clusters.
Based on the information collected, USDA agreed with the suggested
change to determine style ``by weight'' instead of ``by count'' for
``Clusters Style'' and with the recommended tolerance of 10 percent by
weight to better reflect industry practices.
USDA disagreed with the elimination of the minimum size requirement
in ``Nuggets or Small Clusters'' style. The prerequisite of
``appearance'' was incorporated into the reproposal to maintain present
tolerances for small pieces of cauliflower (chaff) that affect the
appearance and edibility of ``Nuggets or Small Clusters'' and
``Clusters'' style cauliflower. A definition for ``chaff'' was also
incorporated into the reproposal.
The study conducted by USDA showed that the average unit weight of
``Nuggets or Small Clusters'' was closer to two grams per unit than to
three grams per unit as published in the initial proposal. The AQL's
and acceptance numbers in Table II were adjusted to reflect the
finding.
AFFI and Patterson Frozen Foods asked that the definitions for
``ricey'' and ``fuzzy'' character in the current standards be retained
in the revision. USDA agreed that maintaining the same definitions for
``ricey'' and ``fuzzy'' will reduce confusion within the industry. It
was also requested that the term ``mushy'' character should be deleted
and that its definition be incorporated into the definition for
``soft'' character. The industry believed this change will be less
confusing and more accurate. USDA agreed and made these changes to
clarify the standards based on industry practices.
A change in the definition of ``color defect'' was recommended by
the commenters. It was suggested that a definition differentiating
``minor'' and ``major'' color defects based on existing USDA inspection
criteria should be incorporated into the ``color defect'' definition of
the revision. USDA agreed with the change and incorporated it. The
incorporated changes from the inspection criteria will accurately
reflect the method used in the food industry to evaluate color defects.
Minor changes were suggested for the definitions of the terms
``blemished, fragments, and mechanical damage'' to help clarify their
meaning. Both commenters suggested the term ``discoloration'' should be
removed from the definition of ``blemished,'' and the phrase, ``in the
aggregate,'' should be added to the ``minor blemished and major
blemished'' definition.
AFFI and Patterson Frozen Foods also suggested that the words
``tough or fibrous'' should be added to the definition of ``fragments''
and the words ``seriously'' and ``excessive or'' should be deleted from
the definition of ``mechanical damage.'' USDA agreed with these changes
and incorporated them into the revision.
It was requested that the classified quality factor, ``mushy
character,'' should be deleted from the standards since its definition
has been incorporated into the definition of ``soft character.'' The
USDA deleted the classified quality factor for ``mushy character'' and
adjusted the tolerance for the quality factor, ``soft character'' to
reflect the change.
Changes in the tolerances of several ``classified quality factors''
were suggested. For the quality factor of ``ricey character,''
tolerances of 15 percent for ``Grade A'' and 30 percent for ``Grade B''
were preferred by AFFI and Patterson Frozen Foods because this defect
is more common and less objectionable. For ``soft character'', a
tolerance of 5 percent rather than 10 percent was preferred because it
is more preventable and more objectionable. The USDA has adjusted the
tolerances for ``soft character'' and ``ricey character'' and
incorporated them into the revision.
It was suggested that the quality factor of ``color defect'' be
divided into ``major color defects'' and ``total color defects.'' The
comments suggested tolerances for the new factors should reflect this
change with 3 percent for ``major'' and 8 percent for ``total.'' We
agreed with the changes in the quality factor for color defects and
with the 8 percent tolerance for ``total color defects.'' We did not
agree, however, with the change in the tolerance for ``major color
defects.'' Such a change will present a significant deviation from the
tolerance in the existing U.S. Standards for Grades of Frozen
Cauliflower without valid justification as to why it should be changed.
It was also suggested that the tolerance for mechanical damage, in
Nuggets style, should be increased to 10 percent for ``Grade A'' and 20
percent for ``Grade B'' to better reflect the use of mechanical
trimming devices. USDA agreed with this change and incorporated it in
the revision.
A copy of the initial proposed rule was provided to the
Agricultural Research Service (ARS) for help in identifying studies,
data collection or other information relevant to the possible effect of
the revision on pesticide use. ARS reported that they were unable to
find much information on the subject. The information that was found by
ARS proved not to be relevant.
The changes and issues raised by the comments regarding the first
proposed rule supported publishing another proposed rule that was
published in the Federal Register (60 FR 57958) on November 24, 1995,
with a 60 day comment period. In response to that proposed rule the
only comment received was from AFFI, which agreed with this revision.
Accordingly, this final rule will modify the standards to a simplified
easy-to-use format, consistent with recent revisions of other U.S.
grade standards, with definitions of terms and easy-to-read tables that
will replace the textual descriptions. This final rule is intended to
facilitate better understanding and more uniform application of the
grade standards.
List of Subjects in 7 CFR Part 52
Food grades and standards, Food labeling, Frozen foods, Fruit
juices, Fruits, Reporting and record keeping requirements, Vegetables.
For the reasons set forth in the preamble, 7 CFR part 52 is amended
to read as follows:
PART 52--PROCESSED FRUITS AND VEGETABLES, PROCESSED PRODUCTS
THEREOF, AND CERTAIN OTHER PROCESSED FOOD PRODUCTS \1\
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\1\ Among such other processed food products are the following:
Honey; molasses, except for stockfeed; nuts and nut products, except
oil; sugar (cane, beet, and maple); sirups (blended), sirups, except
from grain; tea, cocoa, coffee, spices, condiments.
---------------------------------------------------------------------------
1. The authority citation for part 52 is revised to read as
follows:
[[Page 43941]]
Authority: 7 U.S.C. 1621-1627.
2. In part 52, Subpart--United States Standards for Grades of
Frozen Cauliflower, is revised to read as follows:
Subpart--United States Standards for Grades of Frozen Cauliflower
Sec.
52.721 Product description.
52.722 Styles.
52.723 Requirements for style.
52.724 Definitions of terms.
52.725 Grades.
52.726 Factors of quality.
52.727 Requirements for classified quality factors.
52.728 Sample size.
52.729 Acceptance criteria.
Subpart--United States Standards for Grades of Frozen Cauliflower
Sec. 52.721 Product description.
Frozen cauliflower is prepared from fresh flower heads of the
cauliflower plant (Brassica oleracea botrytis) by trimming, washing,
and blanching and is frozen and maintained at temperatures necessary
for preservation of the product.
Sec. 52.722 Styles.
(a) Clusters mean individual segments of trimmed and cored
cauliflower heads, which measure not less than 20 mm (0.75 in) in the
greatest dimension across the top of the unit.
(b) Nuggets or Small Clusters mean individual segments of trimmed
and cored cauliflower heads, which measure from 6 mm (0.25 in) to less
than 20 mm (0.75 in) in the greatest dimension across the top of the
unit.
Sec. 52.723 Requirements for style.
(a) Clusters style. A maximum of 10%, by weight, of clusters less
than 20 mm (0.75 in) in the greatest dimension across the top of the
unit are allowed.
(b) Nuggets style. A maximum of 20%, by weight, of clusters, 20 mm
(0.75 in) or greater, and a maximum of 10%, by weight, of clusters less
than 6 mm (0.25 in) in the greatest dimension across the top of the
unit are allowed.
Sec. 52.724 Definitions of terms.
(a) Acceptable quality level (AQL) means the maximum percent of
defective units or the maximum number of defects per hundred units of
product that, for the purpose of acceptance sampling, can be considered
satisfactory as a process average.
(b) Appearance. Good appearance means that the overall appearance
or edibility of the cauliflower is not materially affected and; for
clusters style, a maximum of 5%, by weight, of chaff is allowed for the
sample unit. For nuggets style, a maximum of 10%, by weight, of chaff
is allowed for the sample unit.
(c) Blemished means the cluster is affected or damaged by
pathological injury, insect injury, or any other injury, which singly
or in combination, affects the appearance or eating quality of the
unit.
(1) Minor blemished means a unit with a dark blemish(s), which in
the aggregate, exceeds the area of a circle 4 mm (0.16 in) in diameter
but not 6 mm (0.25 in) or a light blemish(s), which in the aggregate,
exceeds the area of a circle 6 mm (0.25 in) in diameter.
(2) Major blemished means a unit with a dark blemish(s), which in
the aggregate, exceeds the area of a circle 6 mm (0.25 in) in diameter.
(d) Chaff mean individual segments of trimmed and cored cauliflower
material, with and without head material, which measure less than 6 mm
(0.25 in) in its greatest dimension.
(e) Character means the extent of firmness and compactness of the
cluster and its degree of freedom from fuzzy, ricey and soft units.
(1) Fuzzy character means a cluster with sections of head that have
elongated individual flowers (or pedicels) that result in a very fuzzy
appearance.
(2) Ricey character means a cluster with sections of head on which
the ultimate branches have become elongated, causing the flower
clusters to separate and present a loose or open and sometimes granular
appearance.
(3) Soft character means a cluster that is limp and flabby and the
flesh yields readily when handled.
(f) Color defect.
(1) Minor means that after cooking, the cluster possesses a color
that is more than slightly darker than light cream to dark cream.
(2) Major means that after cooking, the cluster possesses a color
that is seriously darkened or discolored.
(g) Core material means the loose or attached center portion of the
cauliflower head which is tough or fibrous.
(h) Defect means any nonconformance of a unit(s) of product from a
specified requirement of a single quality characteristic.
(i) Fragment means a stem or other cauliflower material without
head material that is 6 mm (0.25 in) or greater in the greatest
dimension (excluding tough or fibrous core material, loose leaves, and
chaff).
(j) Loose leaves mean leaf material, exclusive of small tender
leaves, that are detached from the stem.
(k) Mechanical damage means that the appearance of the unit is
affected by trimming, or the unit is crushed or broken to the extent
that the appearance is materially affected.
(l) Normal flavor and odor means that the cauliflower, before and
after cooking, has a flavor and odor that is normal and is free from
objectionable flavors and odors.
(m) Sample unit means the amount of product specified to be used
for grading. For varietal characteristics, flavor and odor and
appearance, a sample unit is the entire container. For blemishes,
character, color, core material, fragments, mechanical damage and loose
leaves, a sample unit is 100 grams for Nuggets Style and 50 units for
Clusters Style. It may be:
(1) The entire contents of a container;
(2) A portion of the contents of a container; or
(3) A combination of the contents of two or more containers.
(n) Tolerance (TOL.) means the percentage of defective units
allowed for each quality factor for a specific sample size.
(o) Unit means one cluster or piece of cauliflower.
Sec. 52.725 Grades.
(a) U.S. Grade A is the quality of frozen cauliflower that meets
the following prerequisites in which the cauliflower:
(1) Has similar varietal characteristics,
(2) Has a normal flavor and odor;
(3) Has a good appearance; and
(4) Is within the limits for defects as specified in Tables I and
II, of this subpart, as applicable for the style in Sec. 52.727.
(b) U.S. Grade B is the quality of frozen cauliflower that meets
the following prerequisites in which the cauliflower:
(1) Has similar varietal characteristics;
(2) Has a normal flavor and odor;
(3) Has a good appearance; and
(4) Is within the limits for defects as specified in Tables I and
II, of this subpart as applicable for the style in Sec. 52.727.
(c) Substandard is the quality of frozen cauliflower that fails to
meet the requirements of U.S. Grade B.
Sec. 52.726 Factors of quality.
The grade of frozen cauliflower is based on meeting the
requirements for the following factors:
(a) Prerequisites;
(1) Varietal characteristics;
(2) Flavor and odor; and
[[Page 43942]]
(3) Appearance.
(b) Classified Quality Factors;
(1) Major blemished;
(2) Total blemished (Major and Minor);
(3) Fuzzy character;
(4) Ricey character;
(5) Soft character;
(6) Major color defects;
(7) Total color defects (Major and Minor);
(8) Core material;
(9) Fragments;
(10) Loose leaves; and
(11) Mechanical damage.
Sec. 52.727 Requirements for classified quality factors.
Table I.--AQL's and Tolerances (Tol.) for Defects in Clusters Style Based on 50 Units of Product for 13 Sample
Units, 50 x 13=650 Units
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Sample Units x Sample Unit Size 1 x 50 3 x 50 6 x 50 13 x 50 21 x 50 29 x 50
----------------------------------------------------------------------------------------------------------------
Units of Product 50 150 300 650 1050 1450
----------------------------------------------------------------------------------------------------------------
Defects AQL TOL
(5)
--------------------------------------------------------------------------------------------------------------------------------------------------------
(1)Grade A
(5)Acceptance numbers
--------------------------------------------------------------------------------------------------------------------------------------------------------
Major Blemished................................................. 3.8 5.0 4 9 17 33 50 67
Total Blemished (Major & Minor)................................. 8.2 10.0 7 18 33 65 101 137
Fuzzy Characteer................................................ 1.3 2.0 2 4 7 13 20 26
Ricey Character................................................. 8.2 10.0 7 18 33 65 101 137
Soft Character.................................................. 0.612 1.0 1 2 4 7 10 14
Major Color Defect.............................................. 0.612 1.0 1 2 4 7 10 14
Total Color Defect (Major & Minor).............................. 6.4 8.0 6 15 26 52 80 108
Core Material................................................... 2.17 3.0 3 6 11 20 31 41
Fragments....................................................... 3.8 5.0 4 9 17 33 50 67
Mechanical Damage............................................... 8.2 10.0 7 18 33 65 101 137
Loose Leaves (each piece)....................................... 2.17 3.0 3 6 11 20 31 41
--------------------------------------------------------------------------------------------------------------------------------------------------------
(1)Grade B
(5)Acceptance numbers
--------------------------------------------------------------------------------------------------------------------------------------------------------
Major Blemished................................................. 8.2 10.0 7 18 33 65 101 137
Total Blemished (Major & Minor)................................. 13.0 15.0 10 26 48 98 154 209
Fuzzy Character................................................. 6.4 8.0 6 15 26 52 80 108
Ricey Character................................................. 13.0 15.0 10 26 48 98 154 209
Soft Character.................................................. 2.9 4.0 3 8 13 26 39 53
Major Color Defect.............................................. 3.8 5.0 4 9 17 33 50 67
Total Color Defect (Major & Minor).............................. 13.8 16.0 11 27 51 104 163 221
Core Material................................................... 3.8 5.0 4 9 17 33 50 67
Fragments....................................................... 8.2 10.0 7 18 33 65 101 137
Mechanical Damage............................................... 17.6 20.0 13 34 63 130 205 279
Loose Leaves (each piece)....................................... 6.4 8.0 6 15 26 52 80 108
Table II.--AQL's and Tolerances (Tol.) for Defects in Nuggets or Small Clusters Style Based on 100 Grams of
Product for 13 Sample Units, 100 x 13=1300 Units
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Sample Units x Sample Unit Size 1 x 100 3 x 100 6 x 100 13 x 100 21 x 100 29 x 100
----------------------------------------------------------------------------------------------------------------
Grams of Product 100 300 600 1300 2100 2900
----------------------------------------------------------------------------------------------------------------
Defects AQL TOL
(5)
--------------------------------------------------------------------------------------------------------------------------------------------------------
(1)Grade A
(5)Acceptance numbers (grams)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Major Blemished................................................. 3.8 5.0 7 17 31 61 94 127
Total Blemished (Major & Minor)................................. 8.2 10.0 13 33 61 123 194 263
Fuzzy Character................................................. 1.3 2.0 3 7 12 23 36 48
Ricey Character................................................. 8.2 10.0 13 33 61 123 194 263
Soft Character.................................................. 0.612 1.0 2 4 7 12 19 24
Major Color Defect.............................................. 2.17 3.0 4 11 19 37 56 76
Total Color Defect (Major & Minor).............................. 8.2 10.0 13 33 61 123 194 263
Core Material................................................... 2.17 3.0 4 11 19 37 56 76
Fragments....................................................... 3.8 5.0 7 17 31 61 94 127
Mechanical Damage............................................... 8.2 10.0 13 33 61 123 194 263
Loose Leaves (each piece)....................................... 3.8 5.0 7 17 31 61 94 127
--------------------------------------------------------------------------------------------------------------------------------------------------------
(1)Grade B
(5)Acceptance numbers (grams)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Major Blemished................................................. 8.2 10.0 13 33 61 123 194 263
Total Blemished (Major & Minor)................................. 13.0 15.0 18 48 91 189 298 407
Fuzzy Character................................................. 6.4 8.0 10 26 48 98 153 208
Ricey Character................................................. 13.0 15.0 18 48 91 189 298 407
Soft Character.................................................. 2.9 4.0 6 13 24 48 74 99
Major Color Defect.............................................. 6.4 8.0 10 26 48 98 153 208
[[Page 43943]]
Total Color Defect (Major & Minor).............................. 13.8 16.0 19 51 96 200 316 430
Core Material................................................... 2.17 3.0 4 11 19 37 56 76
Fragments....................................................... 3.8 5.0 7 17 31 61 94 127
Mechanical Damage............................................... 17.6 20.0 24 63 121 251 398 544
Loose Leaves (each piece)....................................... 6.4 8.0 10 26 48 98 153 208
Sec. 52.728 Sample size.
The sample size used to determine whether the requirements of these
standards are met shall be as specified in the sampling plans and
procedures in the ``Regulations Governing Inspection and Certification
of Processed Fruits and Vegetables, Processed Products Thereof, and
Certain Other Processed Products'' (7 CFR 52.1 through 52.83).
Sec. 52.729 Acceptance criteria.
(a) Style. A lot of frozen cauliflower, is considered as meeting
the requirements for style if the requirements in Sec. 52.723, as
applicable, are not exceeded.
(b) Quality Factors. A lot of frozen cauliflower is considered as
meeting the requirements for quality if:
(1) The prerequisites specified in Sec. 52.726 are met; and
(2) The Acceptance Numbers in Table I or II in Sec. 52.727, as
applicable, are not exceeded.
(c) Single Sample Unit. Each unofficial sample unit submitted for
quality evaluation will be treated individually and is considered as
meeting requirements for quality and style if:
(1) The prerequisites specified in Sec. 52.726 are met; and
(2) The requirements for style in Sec. 52.723 and the Acceptable
Quality Levels (AQL's) in Tables I & II in Sec. 52.727, as applicable,
are not exceeded.
Dated: August 21, 1996.
Robert C. Keeney,
Director, Fruit and Vegetable Division.
[FR Doc. 96-21783 Filed 8-26-96; 8:45 am]
BILLING CODE 3410-02-P
Complete official Federal Register PDF
FR Doc. 96-21762 Office of the Assistant Secretary for HousingFederal Housing Commissioner; Sale of HUD-Held Single Family Mortgages; Notice of Extension of Effective Period of Interim Rule
[Federal Register Volume 61, Number 167 (Tuesday, August 27, 1996)]
[Rules and Regulations]
[Page 43966]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-21762]
=======================================================================
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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
24 CFR Part 291
[Docket No. FR-3814-N-03]
RIN 2502-AG42
Office of the Assistant Secretary for Housing--Federal Housing
Commissioner; Sale of HUD-Held Single Family Mortgages; Notice of
Extension of Effective Period of Interim Rule
AGENCY: Office of the Assistant Secretary for Housing--Federal Housing
Commissioner, HUD.
ACTION: Interim rule; Postponement of expiration date.
-----------------------------------------------------------------------
SUMMARY: On August 31, 1995, HUD published an interim rule to establish
policies and procedures for the sale of HUD-held single family
mortgages. The interim rule provided that its provisions would expire
and not be in effect after September 30, 1996, unless prior to that
date HUD publishes a document to extend the effective date. This
document extends the effective period of the interim rule until HUD
issues a final rule for the sale of HUD-held single family mortgages.
DATES: Effective August 27, 1996 the September 30, 1996 expiration date
for the interim rule adding 24 CFR 291.300 through 291.307 (subpart D)
is postponed until a final rule is published and made effective.
FOR FURTHER INFORMATION CONTACT: Joseph McCloskey, Director, Single
Family Servicing Division, Office of Housing, Room 9178, Department of
Housing and Urban Development, 451 Seventh Street SW, Washington, D.C.
20410, telephone (202) 708-1672. (This telephone number is not toll-
free.) Hearing- or speech-impaired individuals may access this number
via TTY by calling the Federal Information Relay Service at (800) 877-
8339.
SUPPLEMENTARY INFORMATION: HUD published an interim rule to establish
policies and procedures for the sale of HUD-held single family
mortgages on August 31, 1995 (60 FR 45331). (Note: HUD published a
correction to this interim rule on October 6, 1995 (60 FR 52296).) The
August 31, 1995 interim rule explained that HUD had adopted a policy of
setting an expiration date for an interim rule so that the regulatory
provisions would expire unless a final rule is published before that
date (60 FR 45332). This ``sunset'' provision appears in Sec. 291.300
of the interim rule, which provides that Secs. 291.300 through 291.307
shall expire and shall not be in effect after September 30, 1996,
unless prior to September 30, 1996 HUD publishes a final rule adopting
the interim rule with or without changes, or publishes a notice in the
Federal Register to extend the effective date of the interim rule.
The final rule for the sale of HUD-held single family mortgages is
currently in its final stages of development, and HUD anticipates that
it will publish the final rule in the fall of 1996. However, in order
to prevent a period in which the single family mortgage sale program is
without effective regulations, HUD is extending the effective period of
the August 31, 1995 interim rule until the final rule is published and
made effective.
Accordingly, the expiration date of the interim rule published in
the Federal Register on August 31, 1995 (60 FR 45331) is postponed
until a final rule is published and made effective.
Dated: August 20, 1996.
Nicolas P. Retsinas,
Assistant Secretary for Housing--Federal Housing Commissioner.
[FR Doc. 96-21762 Filed 8-26-96; 8:45 am]
BILLING CODE 4210-27-M
Complete official Federal Register PDF
FR Doc. 96-21750 Irish Potatoes Grown in Colorado; Assessment Rate
[Federal Register Volume 61, Number 167 (Tuesday, August 27, 1996)]
[Rules and Regulations]
[Pages 43946-43947]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-21750]
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 948
[Docket No. FV96-948-1 FIR]
Irish Potatoes Grown in Colorado; Assessment Rate
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Final rule.
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SUMMARY: The Department of Agriculture (Department) is adopting as a
final rule, with a correction, the provisions of an interim final rule
that established an assessment rate for the Colorado Potato
Administrative Committee, Northern Colorado Office (Area III)
(Committee) under Marketing Order No. 948 for the 1996-97 and
subsequent fiscal periods. The Committee is responsible for local
administration of the marketing order which regulates the handling of
Irish potatoes grown in Colorado. Authorization to assess potato
handlers enables the Committee to incur expenses that are reasonable
and necessary to administer the program.
EFFECTIVE DATE: Effective on July 1, 1996.
FOR FURTHER INFORMATION CONTACT: Martha Sue Clark, Program Assistant,
Marketing Order Administration Branch, Fruit and Vegetable Division,
AMS, USDA, P.O. Box 96456, room 2523-S, Washington, DC 20090-6456,
telephone 202-720-9918, FAX 202-720-5698, or Dennis L. West, Marketing
Specialist, Northwest Marketing Field Office, Fruit and Vegetable
Division, AMS, USDA, Green-Wyatt Federal Building, room 369, 1220
Southwest Third Avenue, Portland, OR 97204, telephone 503-326-2724, FAX
503-326-7440. Small businesses may request information on compliance
with this regulation by contacting: Jay Guerber, Marketing Order
Administration Branch, Fruit and Vegetable Division, AMS, USDA, P.O.
Box 96456, room 2523-S, Washington, DC 20090-6456, telephone 202-720-
2491, FAX 202-720-5698.
SUPPLEMENTARY INFORMATION: This rule is issued under Marketing
Agreement No. 97 and Order No. 948, both as amended regulating the
handling of Irish potatoes grown in Colorado, hereinafter referred to
as the ``order.'' The order is effective under the Agricultural
Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674),
hereinafter referred to as the ``Act.''
The Department is issuing this rule in conformance with Executive
Order 12866.
This rule has been reviewed under Executive Order 12988, Civil
Justice Reform. Under the marketing order now in effect, Colorado
potato handlers are subject to assessments. Funds to administer the
order are derived from such assessments. It is intended that the
assessment rate as issued herein will be applicable to all assessable
potatoes beginning July 1, 1996, and continuing until amended,
suspended, or terminated. This rule will not preempt any State or local
laws, regulations, or policies, unless they present an irreconcilable
conflict with this rule.
The Act provides that administrative proceedings must be exhausted
before parties may file suit in court. Under section 608c(15)(A) of the
Act, any handler subject to an order may file with the Secretary a
petition stating that the order, any provision of the order, or any
obligation imposed in connection with the order is not in accordance
with law and request a modification of the order or to be exempted
therefrom. Such handler is afforded the opportunity for a hearing on
the petition. After the hearing the Secretary would rule on the
petition. The Act provides that the district court of the United States
in any district in which the handler is an inhabitant, or has his or
her principal place of business, has jurisdiction to review the
Secretary's ruling on the petition, provided an action is filed not
later than 20 days after the date of the entry of the ruling.
Pursuant to requirements set forth in the Regulatory Flexibility
Act (RFA), the
[[Page 43947]]
Agricultural Marketing Service (AMS) has considered the economic impact
of this rule on small entities.
The purpose of the RFA is to fit regulatory actions to the scale of
business subject to such actions in order that small businesses will
not be unduly or disproportionately burdened. Marketing orders issued
pursuant to the Act, and the rules issued thereunder, are unique in
that they are brought about through group action of essentially small
entities acting on their own behalf. Thus, both statutes have small
entity orientation and compatibility.
There are approximately 85 producers of Colorado Area III potatoes
in the production area and approximately 15 handlers subject to
regulation under the marketing order. Small agricultural producers have
been defined by the Small Business Administration (13 CFR 121.601) as
those having annual receipts of less than $500,000, and small
agricultural service firms are defined as those whose annual receipts
are less than $5,000,000. The majority of Colorado Area III potato
producers and handlers may be classified as small entities.
The Colorado potato marketing order provides authority for the
Committee, with the approval of the Department, to formulate an annual
budget of expenses and collect assessments from handlers to administer
the program. The members of the Committee are producers and handlers of
Colorado Area III potatoes. They are familiar with the Committee's
needs and with the costs for goods and services in their local area and
are thus in a position to formulate an appropriate budget and
assessment rate. The assessment rate is formulated and discussed in a
public meeting. Thus, all directly affected persons have an opportunity
to participate and provide input.
In Colorado, both a State and a Federal marketing order operate
simultaneously. The State order authorizes promotion, including paid
advertising, which the Federal order does not. All expenses in this
category are financed under the State order. The jointly operated
programs consume about equal administrative time and the two orders
continue to split administrative costs equally.
The Committee met on April 11, 1996, and unanimously recommended
1996-97 expenditures of $24,462.50 and an assessment rate of $0.01 per
hundredweight of potatoes. In comparison, last year's budgeted
expenditures were $27,362.50. The assessment rate of $0.01 is $0.01
less than last year's established rate. Major expenditures recommended
by the Committee for the 1996-97 year include $11,500 for the manager's
salary, $2,400 for rent, and $1,500 for office supplies, the same as in
1995-96.
The assessment rate recommended by the Committee was derived by
dividing anticipated expenses by expected shipments of Colorado Area
III potatoes. Potato shipments for the year are estimated at 1,450,750
hundredweight which should provide $14,507.50 in assessment income.
Income derived from handler assessments, interest, and rent from the
sublease of office space to the State inspection service, along with
funds from the Committee's authorized reserve, will be adequate to
cover budgeted expenses. Funds in the reserve will be kept within the
maximum permitted by the order.
An interim final rule regarding this action was published in the
June 12, 1996, issue of the Federal Register (61 FR 29635). That
interim final rule added Sec. 948.215 to establish an assessment rate
for the Committee. That rule provided that interested persons could
file comments through July 12, 1996. No comments were received.
While this rule will impose some additional costs on handlers, the
costs are in the form of uniform assessments on all handlers. Some of
the additional costs may be passed on to producers. However, these
costs will be offset by the benefits derived by the operation of the
marketing order. Therefore, the AMS has determined that this rule will
not have a significant economic impact on a substantial number of small
entities.
The assessment rate established in this rule will continue in
effect indefinitely unless modified, suspended, or terminated by the
Secretary upon recommendation and information submitted by the
Committee or other available information.
Although this assessment rate is effective for an indefinite
period, the Committee will continue to meet prior to or during each
fiscal period to recommend a budget of expenses and consider
recommendations for modification of the assessment rate. The dates and
times of Committee meetings are available from the Committee or the
Department. Committee meetings are open to the public and interested
persons may express their views at those meetings. The Department will
evaluate Committee recommendations and other available information to
determine whether modification of the assessment rate is needed.
Further rulemaking will be undertaken as necessary. The Committee's
1996-97 budget and those for subsequent fiscal periods will be reviewed
and, as appropriate, approved by the Department.
After consideration of all relevant material presented, including
the information and recommendation submitted by the Committee and other
available information, it is hereby found that this rule, as
hereinafter set forth, will tend to effectuate the declared policy of
the Act.
This final rule also adds a new subpart heading--Handling
Regulations to the Code of Federal Regulations immediately preceding
Sec. 948.386 Handling regulation.
Pursuant to 5 U.S.C. 553, it is also found and determined that good
cause exists for not postponing the effective date of this rule until
30 days after publication in the Federal Register because: (1) The
Committee needs to have sufficient funds to pay its expenses which are
incurred on a continuous basis; (2) the 1996-97 fiscal period began on
July 1, 1996, and the marketing order requires that the rate of
assessment for each fiscal period apply to all assessable potatoes
handled during such fiscal period; (3) handlers are aware of this
action which was unanimously recommended by the Committee at a public
meeting and is similar to other assessment rate actions issued in past
years; and (4) an interim final rule was published on this action and
provided for a 30-day comment period, and no comments were received.
List of Subjects in 7 CFR Part 948
Marketing agreements, Potatoes, Reporting and recordkeeping
requirements.
Accordingly, the interim final rule amending 7 CFR part 948 which
was published at 61 FR 29635 on June 12, 1996, is adopted as a final
rule with the following change:
PART 948--IRISH POTATOES GROWN IN COLORADO
1. The authority citation for 7 CFR part 947 continues to read as
follows:
Authority: 7 U.S.C. 601-674.
2. Part 948 is amended by adding a new subpart heading immediately
preceding Sec. 948.386 to read as follows:
Subpart--Handling Regulations
Dated: August 21, 1996.
Robert C. Keeney,
Director, Fruit and Vegetable Division.
[FR Doc. 96-21750 Filed 8-26-96; 8:45 am]
BILLING CODE 3410-02-P
Complete official Federal Register PDF
FR Doc. 96-21696 Approval and Promulgation of Implementation Plan; Wisconsin
[Federal Register Volume 61, Number 167 (Tuesday, August 27, 1996)]
[Rules and Regulations]
[Pages 43970-43972]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-21696]
=======================================================================
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[WI67-01-7276; FRL-5550-6]
Approval and Promulgation of Implementation Plan; Wisconsin
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: On May 10, 1996, the Environmental Protection Agency (EPA)
proposed approval of a Wisconsin State Implementation Plan (SIP)
revision. The purpose of the revision was to meet the requirements of
the EPA transportation conformity rule set forth at 40 CFR part 51,
subpart T--Conformity to State or Federal Implementation Plans of
Transportation Plans, Programs, and Projects Developed, Funded or
Approved Under Title 23 U.S.C. or the Federal Transit Act. Conformity
is the process, defined in the Clean Air Act, used to assure that
transportation planning activities meet the SIP's purpose of
eliminating or reducing the severity and number of violations of the
National Ambient Air Quality Standards and achieving expeditious
attainment of such standards. The proposed approval was subject to a 30
day public comment period during which no comments were received.
EFFECTIVE DATE: This final rule will be effective on September 26,
1996.
ADDRESSES: Copies of the SIP revision are available for inspection at
the following address: United States Environmental Protection Agency,
Region 5, Air and Radiation Division, 77 West Jackson Boulevard,
Chicago, Illinois 60604. (It is recommended that you telephone Michael
Leslie at (312) 353-6680 before visiting the Region 5 Office.)
A copy of this SIP revision is available for inspection at the
following location: Office of Air and Radiation (OAR) Docket and
Information Center (Air Docket 6102), room M1500, United States
Environmental Protection Agency, 401 M Street S.W., Washington, D.C.
20460, (202) 260-7548.
FOR FURTHER INFORMATION CONTACT: Michael G. Leslie, 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)
353-6680.
[[Page 43971]]
SUPPLEMENTARY INFORMATION:
I. Background
Section 176(c) of the Clean Air Act (Act), 42 U.S.C 7506(c),
provides that no Federal department, agency, or instrumentality shall
engage in, support in any way or provide financial assistance for,
license or permit, or approve any activity which does not conform to a
SIP which has been approved or promulgated pursuant to the Act.
Conformity is defined as conformity to the SIP's purpose of eliminating
or reducing the severity and number of violations of the National
Ambient Air Quality Standards and achieving expeditious attainment of
such standards, and that such activities will not: (1) cause or
contribute to any new violation of any standard in any area, (2)
increase the frequency or severity of any existing violation of any
standard in any area, or (3) delay timely attainment of any standard or
any required interim emission reductions or other milestones in any
area.
Section 176(c)(4)(A) of the Act requires EPA to promulgate criteria
and procedures for determining conformity of all Federal actions
(transportation and general) to applicable SIPs. The EPA published the
final transportation conformity rules in the November 24, 1993, Federal
Register and codified them at 40 CFR part 51 subpart T--Conformity to
State or Federal Implementation Plans of Transportation Plans,
Programs, and Projects Developed, Funded or Approved Under Title 23
U.S.C. or the Federal Transit Act. The conformity rules require States
and local agencies to adopt and submit to the EPA a transportation
conformity SIP revision not later than November 24, 1994. The State of
Wisconsin submitted a SIP revision to EPA on November 23, 1994, and
supplemented this submittal on June 14, 1995.
II. EPA Action
The EPA is approving the transportation conformity SIP revision for
the State of Wisconsin. The EPA has previously evaluated this SIP
revision and has determined that the State has fully adopted the
provisions of the Federal transportation conformity rules in accordance
with 40 CFR part 51, subpart T. The appropriate public participation
and comprehensive interagency consultations have been undertaken during
development and adoption of this SIP revision.
III. Administrative Requirements
A. Executive Order 12866
This action has been classified as a Table 3 action for signature
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 (OMB) has
exempted this regulatory action from E.O. 12866 review.
B. Regulatory Flexibility Act
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 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.
SIP approvals under section 110 and subchapter I, part D of the
Clean Air 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, the
Administrator certifies 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 CAA, preparation of a flexibility
analysis would constitute Federal inquiry into the economic
reasonableness of state action. The Clean Air Act forbids EPA to base
its actions concerning SIPs on such grounds. Union Electric Co. v. U.S.
EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).
C. Unfunded Mandates
Under Section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA
must prepare a budgetary impact statement to accompany any proposed or
final rule that includes a Federal mandate that may result in estimated
costs to State, local, or tribal governments in the aggregate; or to
private sector, of $100 million or more. Under Section 205, EPA must
select the most cost-effective and least burdensome alternative that
achieves the objectives of the rule and is consistent with statutory
requirements. Section 203 requires EPA to establish a plan for
informing and advising any small governments that may be significantly
or uniquely impacted by the rule.
EPA has determined that the approval action promulgated 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 approves pre-
existing requirements under State or local law, and imposes no new
Federal requirements. Accordingly, no additional costs to State, local,
or tribal governments, or to the private sector, result from this
action.
D. Submission to Congress and the General Accounting Office
Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business
Regulatory Enforcement Fairness Act of 1996, EPA submitted a report
containing this rule and other required information to the U.S. Senate,
the U.S. House of Representatives and the Comptroller General of the
General Accounting Office prior to publication of the rule in today's
Federal Register. This rule is not a ``major rule'' as defined by 5
U.S.C. 804(2).
E. Petitions for Judicial Review
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by October 28, 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 in 40 CFR Part 52
Environmental protection, Air pollution control, Hydrocarbons,
Intergovernmental relations, Ozone, Transportation conformity,
Transportation-air quality planning, Volatile organic compounds.
Dated: July 24, 1996.
Barry C. Degraff,
Acting Regional Administrator.
40 CFR part 52 is amended as follows:
PART 52--[AMENDED]
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C 7401-7671q.
Subpart YY--Wisconsin
2. Section 52.2585 is amended by adding paragraph (j) to read as
follows:
[[Page 43972]]
Sec. 52.2585 Control strategy: Ozone.
* * * * *
(j) Approval--On June 14, 1995, the Wisconsin Department of Natural
Resources submitted a revision to the ozone State Implementation Plan.
The submittal pertained to a plan for the implementation and
enforcement of the Federal transportation conformity requirements at
the State or local level in accordance with 40 CFR part 51, subpart T--
Conformity to State or Federal Implementation Plans of Transportation
Plans, Programs, and Projects Developed, Funded or Approved Under Title
23 U.S.C. or the Federal Transit Act.
[FR Doc. 96-21696 Filed 8-26-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-21694 Approval and Promulgation of Implementation Plans Tennessee: Approval of Revisions to the Tennessee SIP Regarding Volatile Organic Compounds
[Federal Register Volume 61, Number 167 (Tuesday, August 27, 1996)]
[Rules and Regulations]
[Pages 43972-43973]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-21694]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[TN-176-1-9641a; TN-177-1-9642a; FRL-5547-1]
Approval and Promulgation of Implementation Plans Tennessee:
Approval of Revisions to the Tennessee SIP Regarding Volatile Organic
Compounds
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
-----------------------------------------------------------------------
SUMMARY: In this document, EPA is acting on revisions to the Tennessee
State Implementation Plan (SIP) which were submitted to EPA by
Tennessee, through the Tennessee Department of Air Pollution Control
(TDAPC), to amend the Tennessee chapter regulating volatile organic
compounds (VOC). The revisions amending the TDAPC's VOC chapter were
submitted on June 3, 1996, and June 4, 1996, and add rules which
regulate surface coating of plastic parts operations, commercial and
motor vehicle and mobile equipment refinishing operations, and volatile
organic liquid storage tanks. Additionally, the State submitted
revisions to the existing definition for exempt VOCs and to the
existing chapter regulating handling, storage, use and disposal of
volatile organic compounds. These revisions provide emission reductions
for maintenance of the ozone standard in the Nashville ozone
nonattainment area.
DATES: This final rule is effective October 11, 1996, unless adverse or
critical comments are received by September 26, 1996. If the effective
date is delayed, timely notice will be published in the Federal
Register.
ADDRESSES: Written comments on this action should be addressed to
William Denman at the Environmental Protection Agency, Region 4 Air
Programs Branch, 345 Courtland Street, NE, Atlanta, Georgia 30365.
Copies of documents relative to this action are available for public
inspection during normal business hours at the following locations. The
interested persons wanting to examine these documents should make an
appointment with the appropriate office at least 24 hours before the
visiting day. Reference files TN-176-1-9641a and TN-177-1-9642a. The
Region 4 office may have additional background documents not available
at the other locations.
Air and Radiation Docket and Information Center (Air Docket 6102), U.S.
Environmental Protection Agency, 401 M Street, SW, Washington, DC
20460.
Environmental Protection Agency, Region 4 Air Programs Branch, 345
Courtland Street, NE, Atlanta, Georgia 30365, William Denman, 404/347-
3555 extension 4208.
Tennessee Department of Environment and Conservation, Division of Air
Pollution Control, L & C Annex, 9th Floor, 401 Church Street,
Nashville, Tennessee 37243-1531, 615/532-0554.
FOR FURTHER INFORMATION CONTACT: William Denman, Regulatory Planning
and Development Section, Air Programs Branch, Air, Pesticides & Toxics
Management Division, Region 4 Environmental Protection Agency, 345
Courtland Street, NE, Atlanta, Georgia 30365. The telephone number is
404/347-3555 extension 4208. Reference files TN-176-1-9641a and TN-177-
1-9642a.
SUPPLEMENTARY INFORMATION: On June 3, 1996, the Tennessee Department of
Air Pollution Control (TDAPC) submitted a request to the EPA to
incorporate revisions to section 1200-3-18-.01 ``Definitions'' into the
Tennessee SIP. Paragraph 26 of this rule contains the definition of
exempt compounds and was revised to correct typographical errors and
add the recently exempted compounds acetone, parachlorobenzotrifluoride
(PCBTF), and cyclic, branched or linear completely methylated siloxanes
(VMS). Paragraph 87 of this rule contains the definition of volatile
organic compounds and was also revised as described above.
On June 4, 1996, the TDAPC submitted a new rule 1200-3-18-.06
``Handling, Storage, Use, and Disposal of Volatile Organic Compounds
(VOCs)'' to replace the current rule 1200-3-18-.06. The new rule was
expanded to cover the use of VOCs as well as handling, storage and
disposal.
On June 3, 1996, the TDAPC submitted three new VOC rules; 1200-3-
18-.44 ``Surface Coating of Plastic Parts'', 1200-3-18-.45 ``Standards
of Performance for Commercial Motor Vehicle and Mobile Equipment
Refinishing Operations'', and 1200-3-18-.48 ``Volatile Organic Liquid
Storage Tanks''. Rules 1200-3-18-.44 and 1200-3-18-.45 were submitted
to obtain VOC reductions for which credit was taken in the ozone
redesignation maintenance plan for the Nashville ozone nonattainment
area. Rule 1200-3-18-.44 ``Surface Coating of Plastic Parts'' applies
to sources with potential emissions greater than 25 tons per year (tpy)
in the Nashville ozone nonattainment area. Rule 1200-3-18-.45
``Standards of Performance for Commercial Motor Vehicle and Mobile
Equipment Refinishing Operations'' applies to sources whose potential
emissions are greater than 15 pounds per day. Rule 1200-3-18-.48
``Volatile Organic Liquid Storage Tanks'' applies to sources with
potential emissions greater than 100 tpy.
Final Action
The EPA is approving these revisions to the Tennessee SIP as
measures for maintenance of the ozone standard in the Nashville
nonattainment area. This rulemaking is being published without a prior
proposal for approval because the Agency views this as a
noncontroversial amendment and anticipates no adverse comments.
However, in a separate document in this Federal Register publication,
the EPA is proposing to approve the SIP revision should adverse or
critical comments be filed. This action will be effective October 11,
1996, unless, by September 26, 1996, adverse or critical comments are
received.
If the EPA receives such comments, this action will be withdrawn
before the effective date by publishing a subsequent document that will
withdraw the final action. All public comments received will then be
addressed in a subsequent final rule based on the separate proposed
rule. The EPA will not institute a second comment period on this
action. Any parties interested in commenting on this action should do
so at this time. If no such comments are received, the public is
advised that this action will be effective [Insert date 45 days from
date of publication].
Under section 307(b)(1) of the Clean Air Act (CAA), 42 U.S.C.
7607(b)(1), petitions for judicial review of this action must be filed
in the United States
[[Page 43973]]
Court of Appeals for the appropriate circuit by October 11, 1996.
Filing a petition for reconsideration by the Administrator of this
final rule does not affect the finality of this rule for 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) of the
CAA, 42 U.S.C. 7607(b)(2).)
This action has been classified as a Table 3 action for signature
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 (OMB) has
exempted this regulatory action from E.O. 12866 review.
Nothing in this action shall be construed as permitting or allowing
or establishing a precedent for any future request for a revision to
any state implementation plan. Each request for revision to the state
implementation plan shall be considered separately in light of specific
technical, economic, and environmental factors and in relation to
relevant statutory and regulatory requirements.
Under the Regulatory Flexibility Act, 5 U.S.C. 601 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 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.
SIP approvals under section 110 and subchapter I, part D of the CAA
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 CAA,
preparation of a regulatory flexibility analysis would constitute
Federal inquiry into the economic reasonableness of state action. The
CAA forbids EPA to base its actions concerning SIPs 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 7410(a)(2) and 7410(k)(3).
Under sections 202, 203, and 205 of the Unfunded Mandates Reform
Act of 1995 (``Unfunded Mandates Act''), signed into law on March 22,
1995, EPA must undertake various actions in association with proposed
or final rules that include a Federal mandate that may result in
estimated costs of $100 million or more to the private sector, or to
State, local, or tribal governments in the aggregate.
Through submission of this state implementation plan or plan
revision, the State and any affected local or tribal governments have
elected to adopt the program provided for under section 182 of the CAA.
These rules may bind State, local and tribal governments to perform
certain actions and also require the private sector to perform certain
duties. EPA has examined whether the rules being approved by this
action will impose any new requirements. Since such sources are already
subject to these regulations under State law, no new requirements are
imposed by this approval. Accordingly, no additional costs to State,
local, or tribal governments, or to the private sector, result from
this action, and therefore there will be no significant impact on a
substantial number of small entities.
Under section 801(a)(1)(A) of the Administrative Procedure Act
(APA) as amended by the Small Business Regulatory Enforcement Fairness
Act of 1996, EPA submitted a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives and the Comptroller General of the General Accounting
Office prior to publication of 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.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Hydrocarbons,
Incorporation by reference, Intergovernmental relations, Ozone,
Reporting and recordkeeping requirements.
Dated: July 22, 1996.
A. Stanley Meiburg,
Acting Regional Administrator.
Part 52 of chapter I, title 40, Code of Federal Regulations, is
amended as follows:
PART 52--[AMENDED]
1. The authority citation for part 52 continues to read as follows:
Authority: 42.U.S.C. 7401-7671q.
Subpart RR--Tennessee
2. Section 52.2220 is amended by adding (c)(143) to read as
follows:
Sec. 52.2220 Identification of plan.
* * * * *
(c) * * *
(143) Revisions to chapter 1200-3-18 ``Volatile Organic Compounds''
were submitted by the Tennessee Department of Air Pollution Control
(TDAPC) to EPA on June 3, 1996, and June 4, 1996.
(i) Incorporation by reference.
(A) Rule 1200-3-18-.01, paragraphs (26) and (87), effective on
August 10, 1996.
(B) Rule 1200-3-18-.06 ``Handling, Storage, Use, and Disposal of
Volatile Organic Compounds (VOCs)'', effective on August 11, 1996.
(C) Rule 1200-3-18-.44 ``Surface Coating of Plastic Parts'',
effective on August 10, 1996.
(D) Rule 1200-3-18-.45 ``Standards of Performance for Commercial
Motor Vehicle and Mobile Equipment Refinishing Operations'', effective
on January 17, 1996.
(E) Rule 1200-3-18-.48 ``Volatile Organic Liquid Storage Tanks'',
effective on August 2, 1996.
(ii) Other material. None.
[FR Doc. 96-21694 Filed 8-26-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-21692 Approval and Promulgation of Air Quality Implementation Plans; Massachusetts; Marine Vessel Transfer Operations
[Federal Register Volume 61, Number 167 (Tuesday, August 27, 1996)]
[Rules and Regulations]
[Pages 43973-43976]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-21692]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[MA-46-1-7194a; A-1-FRL-5552-9]
Approval and Promulgation of Air Quality Implementation Plans;
Massachusetts; Marine Vessel Transfer Operations
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
-----------------------------------------------------------------------
SUMMARY: EPA is conditionally approving a State Implementation Plan
(SIP) revision submitted by the Commonwealth of Massachusetts. This
revision contains a regulation to reduce volatile organic compound
(VOC) emissions from marine vessel loading operations. The intended
effect of this action is to conditionally approve this regulation into
the Massachusetts SIP. This action is being taken in accordance with
the Clean Air Act.
DATES: This action will become effective October 28, 1996, unless
notice is received by September 26, 1996, that adverse or critical
comments will be submitted. If the effective date is delayed, timely
notice will be published in the Federal Register.
[[Page 43974]]
ADDRESSES: Comments may be mailed to Susan Studlien, Deputy Director,
Office of Ecosystem Protection, U.S. Environmental Protection Agency,
Region I, JFK Federal Building, Boston, MA 02203. Copies of the
documents relevant to this action are available for public inspection
during normal business hours, by appointment at the Office of Ecosystem
Protection, U.S. Environmental Protection Agency, Region I, One
Congress Street, 11th Floor, Boston, MA; Air and Radiation Docket and
Information Center, U.S. Environmental Protection Agency, 401 M Street,
SW. (LE-131), Washington, D.C. 20460; and the Division of Air Quality
Control, Commonwealth of Massachusetts, Department of Environmental
Protection, One Winter Street, 8th Floor, Boston, MA 02108.
FOR FURTHER INFORMATION CONTACT: Anne E. Arnold, (617) 565-3166.
SUPPLEMENTARY INFORMATION: On January 11, 1995, the Massachusetts
Department of Environmental Protection submitted a formal State
Implementation Plan (SIP) submittal containing a new regulation 310 CMR
7.24(8) ``Marine Volatile Organic Liquid Transfer'' as well as
amendments to 310 CMR 7.00 ``Definitions.'' These regulations had been
recently adopted pursuant to the reasonable further progress
requirements and the volatile organic compound reasonable available
control technology (VOC RACT) requirements of the Clean Air Act (CAA)
[Sections 182(b)(1) and 182(b)(2)(C)]. In addition, on March 25, 1995,
DEP submitted additional documentation indicating that these
regulations became effective on January 27, 1995.
Background
Under the pre-amended Clean Air Act (i.e., the Clean Air Act before
the enactment of the amendments of November 15, 1990), ozone
nonattainment areas were required to adopt RACT rules for sources of
VOC emissions. EPA issued three sets of control technique guideline
(CTG) documents, establishing a ``presumptive norm'' for RACT for
various categories of VOC sources. The three sets of CTGs were: (1)
Group I--issued before January 1978 (15 CTGs); (2) Group II--issued in
1978 (9 CTGs); and (3) Group III--issued in the early 1980's (5 CTGs).
Those sources not covered by a CTG were called non-CTG sources. EPA
determined that the area's SIP-approved attainment date established
which RACT rules the area needed to adopt and implement. Under Section
172(a)(1), ozone nonattainment areas were generally required to attain
the ozone standard by December 31, 1982. Those areas that submitted an
attainment demonstration projecting attainment by that date were
required to adopt RACT for sources covered by the Group I and II CTGs.
Those areas that sought an extension of the attainment date under
Section 172(a)(2) to as late as December 31, 1987 were required to
adopt RACT for all CTG sources and for all major (i.e., 100 ton per
year or more of VOC emissions) non-CTG sources.
On November 15, 1990, amendments to the Clean Air Act were enacted.
Pub. L. 101-549, 104 Stat. 2399, codified at 42 U.S.C. Secs. 7401-
7671q. Pursuant to the 1990 Amendments, all of Massachusetts was
classified as serious nonattainment for ozone (56 FR 56694 (Nov. 6,
1991)).
Section 182(b)(2) of the amended Act requires States to adopt RACT
rules for all areas designated nonattainment for ozone and classified
as moderate or above. There are three parts to the Section 182(b)(2)
RACT requirement: (1) RACT for sources covered by an existing CTG--
i.e., a CTG issued prior to the enactment of the 1990 amendments to the
Act; (2) RACT for sources covered by a post-enactment CTG; and (3) all
major sources not covered by a CTG, i.e., non-CTG sources. Also, under
Section 182(c) of the Act, the major source definition for serious
nonattainment areas was lowered to include sources that have a
potential to emit 50 tons or greater of VOCs per year.
In response to the Act's requirement to regulate major non-CTG VOC
sources, Massachusetts adopted 310 CMR 7.24(8) ``Marine Vessel Transfer
Operations'' and submitted this rule to EPA as a SIP revision on
January 11, 1995. Massachusetts' marine vessel rule is briefly
summarized below.
310 CMR 7.24(8) ``Marine Vessel Transfer Operations''
This regulation contains requirements for reducing VOC emissions
from loading events in which organic liquid is loaded onto marine tank
vessels or in which any liquid is loaded into a marine tank vessel
which previously held an organic liquid. Massachusetts' rule prohibits
a loading event to occur unless:
(1) marine tank vessel VOC emissions are limited to 2 lbs per 1,000
bbls of organic liquid transferred; or
(2) marine tank vessel VOC emissions are reduced at least 95
percent by weight from uncontrolled conditions when using a recovery
device or at least 98 percent by weight from uncontrolled conditions
when using a combustion device.
This regulation also limits the loading of marine tank vessels to
those vessels that are vapor tight.
Massachusetts' marine vessel rule will reduce VOC emissions. VOCs
contribute to the production of ground level ozone and smog. This
regulation was adopted as part of an effort to achieve the National
Ambient Air Quality Standard (NAAQS) for ozone. The following is EPA's
evaluation of 310 CMR 7.24(8).
EPA's Evaluation of Massachusetts' Submittal
In determining the approvability of a VOC rule, EPA must evaluate
the rule for consistency with the requirements of the Act and EPA
regulations, as found in Section 110 and Part D of the Act and 40 CFR
Part 51 (Requirements for Preparation, Adoption, and Submittal of
Implementation Plans). EPA's interpretation of these requirements,
which forms the basis for today's action, appears in various EPA policy
guidance documents. The specific guidance relied on for this action is
referenced within the technical support document and this notice. For
the purpose of assisting State and local agencies in developing RACT
rules, EPA prepared a series of CTG documents. The CTGs are based on
the underlying requirements of the Act and specify presumptive norms
for RACT for specific source categories. EPA has not yet developed CTGs
to cover all sources of VOC emissions. Further interpretations of EPA
policy are found in, but not limited to, the following: (1) the
proposed Post-1987 ozone and carbon monoxide policy, 52 FR 45044
(November 24, 1987); (2) the document entitled, ``Issues Relating to
VOC Regulation Cutpoints, Deficiencies, and Deviations, Clarification
to Appendix D of November 24, 1987 Federal Register Notice,'' otherwise
known as the ``Blue Book'' (notice of availability was published in the
Federal Register on May 25, 1988); and (3) the ``Model Volatile Organic
Compound Rules for Reasonably Available Control Technology,'' (Model
VOC RACT Rules) issued as a staff working draft in June of 1992. In
general, these guidance documents have been set forth to ensure that
VOC rules are fully enforceable and strengthen or maintain the SIP.
In addition, Section 183(f) of the amended Act specifically
requires EPA to promulgate RACT standards to reduce VOC emissions from
the loading and unloading of marine tank vessels. Furthermore, on
November 12, 1993 (58 FR 60021), marine vessels were added to the list
of those categories for which EPA will promulgate a maximum achievable
control technology (MACT) standard. On September 19, 1995 (60 FR
[[Page 43975]]
48388), EPA promulgated both RACT and MACT standards for marine tank
vessels.
EPA has evaluated Massachusetts' marine vessel rule and has found
that it is generally consistent with EPA's national marine vessel rule
and current EPA guidance. There are, however, two outstanding issues
associated with the Commonwealth's regulation.
Outstanding Issues
1. Lack of Monitoring Requirements
Massachusetts' regulation requires that, upon initial startup of
the control equipment, the owner or operator of a marine terminal
conduct an initial performance test in order to demonstrate compliance.
However, as was stated in EPA's public hearing comments on
Massachusetts' proposed version of this rule, the regulation should
also require the facility to demonstrate continued compliance as is
required under EPA's national marine vessel rule (40 CFR Sec. 63.564).
Specifically, the regulation should require that certain parameters be
monitored continuously while marine vessel loading or ballasting
operations are occurring and that records be kept of all measurements
needed to demonstrate compliance with the applicable standard including
all data collected in any periods of operation during which the
previously established parameter boundaries are exceeded.
2. Emission Limits for Ballasting Operations
Massachusetts' marine vessel rule applies to the loading of an
organic liquid and to ballasting operations. However, the emissions
limitations stated in Section 7.24(8)(c)(1) of the rule only apply to
``loading events.'' This term, as defined in 310 CMR 7.00, does not
include ballasting operations. Although Sections 7.24(8)(c)(2) and
7.24(8)(d) of Massachusetts' marine vessel rule do require control
equipment to be used during ballasting, these sections do not require
specific emission limitations to be met during ballasting operations.
EPA's national marine vessel rule does not apply to ballasting
operations. The absence of emission limitations for ballasting
operations in Massachusetts' rule, however, is inconsistent with the
information contained in Massachusetts' reasonable further progress
(RFP) plan regarding the reduction in VOC emissions that is expected to
result from the implementation of this rule. Specifically,
Massachusetts' 1990 base year inventory shows that uncontrolled marine
vessel transfer operations result in 3.2 tons of VOC per summer day
(tpsd), which includes 2.8 tpsd from ballasting and 0.4 tpsd from
loading operations. Massachusetts' marine vessel rule SIP submittal
states that ballasting emissions will be reduced by 2.1 tpsd. This
statement assumes that ballasting operations are subject to a 95
percent control efficiency requirement (i.e., 0.95 control efficiency x
0.8 rule effectiveness x 2.8 tpsd uncontrolled = 2.1 tpsd reduction).
Therefore, Massachusetts' marine vessel rule should require that
ballasting operations be subject to the emission limitations stated in
Section 7.24(8)(c)(1)(B) of the rule.
Massachusetts' regulation and EPA's evaluation are detailed in a
memorandum, dated April 23, 1996, entitled ``Technical Support
Document--Massachusetts--Marine Vessel Rule.'' Copies of that document
are available, upon request, from the EPA Regional Office listed in the
ADDRESSES section of this notice.
EPA is publishing this action without prior proposal and
anticipates no adverse comments. However, in a separate document in
this Federal Register publication, EPA is proposing to approve the SIP
revision should adverse or critical comments be filed. This action will
be effective October 28, 1996, unless adverse or critical comments are
received by September 26, 1996.
If the EPA receives such comments, this action will be withdrawn
before the effective date by publishing a subsequent notice that will
withdraw the final action. All public comments received will then be
addressed in a subsequent final rule based on this action serving as a
proposed rule. The EPA will not institute a second comment period on
this action. Any parties interested in commenting on this action should
do so at this time. If no such comments are received, the public is
advised that this action will be effective on October 28, 1996.
Final Action
EPA is conditionally approving 310 CMR 7.24(8) ``Marine Vessel
Transfer Operations'' and the associated 310 CMR 7.00 ``Definitions''
into the Massachusetts SIP.
Under Section 110(k)(4) of the Act, EPA may conditionally approve a
plan based on a commitment from the State to adopt specific enforceable
measures by a date certain, but not later than 1 year from the date of
approval. On February 1, 1996, Massachusetts submitted a written
commitment to address the issues outlined above (i.e., the lack of
monitoring requirements and the lack of emission limits for ballasting
operations) within one year of the date of publication of EPA's
conditional approval. If the Commonwealth fails to do so, this approval
will become a disapproval on October 28, 1997. EPA will notify the
Commonwealth by letter that this action has occurred. At that time, the
conditionally approved submittal will no longer be a part of the
approved Massachusetts SIP. EPA subsequently will publish a notice in
the notice section of the Federal Register notifying the public that
the conditional approval automatically converted to a disapproval. If
the Commonwealth meets its commitment, within the applicable time
frame, the conditionally approved submission will remain a part of the
SIP until EPA takes final action approving or disapproving the new
submittal. If EPA disapproves the new submittal, the conditionally
approved submittal will also be disapproved at that time. If EPA
approves the new submittal, the newly submitted regulations will be
fully approved and will replace the conditionally approved regulations
in the SIP.
If the conditional approval is converted to a disapproval, such
action will trigger EPA's authority to impose sanctions under Section
110(m) of the CAA at the time EPA issues the final disapproval or on
the date the Commonwealth fails to meet its commitment. In the latter
case, EPA will notify the Commonwealth by letter that the conditional
approval has been converted to a disapproval and that EPA's sanctions
authority has been triggered. In addition, the final disapproval
triggers the federal implementation plan (FIP) requirement under
Section 110(c).
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. Secs. 603 and
604. Alternatively, EPA may certify that the rule will not have a
significant 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.
Conditional approvals of SIP submittals under Section 110 and
subchapter I, Part D of the CAA 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.
[[Page 43976]]
Moreover, due to the nature of the federal-State relationship under the
CAA, preparation of a regulatory flexibility analysis would constitute
federal inquiry into the economic reasonableness of State action. The
CAA forbids EPA to base its actions concerning SIPs 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. 7410 (a)(2).
If the conditional approval is converted to a disapproval under
Section 110(k), based on the Commonwealth's failure to meet the
commitment, it will not affect any existing State requirements
applicable to small entities. Federal disapproval of the State
submittal does not affect its State-enforceability. Moreover, EPA's
disapproval of the submittal does not impose a new federal requirement.
Therefore, EPA certifies that this disapproval action does not have a
significant impact on a substantial number of small entities because it
does not remove existing State requirements nor does it substitute a
new federal requirement.
Under Sections 202, 203, and 205 of the Unfunded Mandates Reform
Act of 1995 (``Unfunded Mandates Act''), signed into law on March 22,
1995, EPA must undertake various actions in association with proposed
or final rules that include a Federal mandate that may result in
estimated costs of $100 million or more to the private sector, or to
State, local, or tribal governments in the aggregate.
Through submission of this State Implementation Plan revision, the
State and any affected local or tribal governments have elected to
adopt the program provided for under Sections 182(b) of the Clean Air
Act. These rules may bind State, local and tribal governments to
perform certain actions and also require the private sector to perform
certain duties. To the extent that the rules being approved by this
action will impose no new requirements; such sources are already
subject to these regulations under State law. Accordingly, no
additional costs to State, local, or tribal governments, or to the
private sector, result from this action. EPA has also determined that
this final action does not include a mandate that may result in
estimated costs of $100 million or more to State, local, or tribal
governments in the aggregate or to the private sector.
Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business
Regulatory Enforcement Fairness Act of 1996, EPA submitted a report
containing this rule and other required information to the U.S. Senate,
the U.S. House of Representatives and the Comptroller General of the
General Accounting Office prior to publication of the rule in today's
Federal Register. This rule is not a ``major rule'' as defined by 5
U.S.C. 804(2).
This action has been classified as a Table 3 action for signature
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 (OMB) has
exempted this regulatory action from review under Executive Order
12866.
Nothing in this action should be construed as permitting or
allowing or establishing a precedent for any future request for
revision to any State Implementation Plan. Each request for revision to
the State Implementation Plan shall be considered separately in light
of specific technical, economic, and environmental factors and in
relation to relevant statutory and regulatory requirements.
Under Section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by October 28, 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).)
Note: Incorporation by reference of the State Implementation
Plan for the Commonwealth of Massachusetts was approved by the
Director of the Federal Register on July 1, 1982.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Hydrocarbons,
Incorporation by reference, Ozone.
Dated: July 22, 1996.
John P. DeVillars,
Regional Administrator, Region I.
Part 52 of chapter I, title 40 of the Code of Federal Regulations
is amended as follows:
PART 52--[AMENDED]
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
Subpart W--Massachusetts
2. Section 52.1119 is amended by adding paragraph (a)(2) to read as
follows:
Sec. 52.1119 Identification of plan-conditional approval.
* * * * * *
(a) * * *
(2) Revisions to the State Implementation Plan submitted by the
Massachusetts Department of Environmental Protection on January 11,
1995 and March 29, 1995.
(i) Incorporation by reference.
(A) Letters from the Massachusetts Department of Environmental
Protection dated January 11, 1995 and March 29, 1995 submitting a
revision to the Massachusetts State Implementation Plan.
(B) 310 CMR 7.24(8) ``Marine Vessel Transfer Operations'' effective
in the Commonwealth of Massachusetts on January 27, 1995.
(C) Definitions of ``combustion device,'' ``leak,'' ``leaking
component,'' ``lightering or lightering operation,'' ``loading event,''
``marine tank vessel,'' ``marine terminal,'' ``marine vessel,''
``organic liquid,'' and ``recovery device'' in 310 CMR 7.00
``Definitions'' effective in the Commonwealth of Massachusetts on
January 27, 1995.
(ii) Additional materials.
(A) Letter from the Massachusetts Department of Environmental
Protection dated February 1, 1996 committing to address the outstanding
issues associated with 310 CMR 7.24(8) as identified by EPA in a letter
dated September 19, 1995.
(B) Nonregulatory portions of the submittal.
[FR Doc. 96-21692 Filed 8-26-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-21691 Approval and Promulgation of Implementation Plans; California State Implementation Plan Revision, El Dorado County Air Pollution Control District, Kern County Air Pollution Control District, Placer County Air Pollution Control District, Santa Barbara County Air Pollution Control District, and the South Coast Air Quality Management District; Withdrawal
[Federal Register Volume 61, Number 167 (Tuesday, August 27, 1996)]
[Rules and Regulations]
[Pages 43976-43977]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-21691]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[CA 014-0014; FRL-5553-5]
Approval and Promulgation of Implementation Plans; California
State Implementation Plan Revision, El Dorado County Air Pollution
Control District, Kern County Air Pollution Control District, Placer
County Air Pollution Control District, Santa Barbara County Air
Pollution Control District, and the South Coast Air Quality Management
District; Withdrawal
AGENCY: Environmental Protection Agency (EPA).
ACTION: Withdrawal of direct final rule.
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SUMMARY: Due to an adverse comment, EPA is withdrawing the direct final
rule
[[Page 43977]]
for the approval of revisions to the California State Implementation
Plan. EPA published the direct final rule on June 12, 1996 (61 FR
29659), approving revisions to rules from the following air pollution
control districts: El Dorado County Air Pollution Control District
(EDCAPCD), Kern County Air Pollution Control District (KCAPCD), Placer
County Air Pollution Control District (PCAPCD), Santa Barbara County
Air Pollution Control District (SBCAPCD), and the South Coast Air
Quality Management District (SCAQMD). As stated in that Federal
Register document, if adverse or critical comments were received by
July 12, 1996, the effective date would be delayed and notice would be
published in the Federal Register. EPA subsequently received adverse
comments on that direct final rule. EPA will address the comments
received in a subsequent final action in the near future. EPA will not
institute a second comment period on this document.
EFFECTIVE DATE: Withdrawal of the direct final rule is effective on
August 27, 1996.
FOR FURTHER INFORMATION CONTACT: Erik Beck, Rulemaking Section (A-5-3),
Air and Toxics Division, U.S. Environmental Protection Agency, Region
IX, 75 Hawthorne Street, San Francisco, CA 94105, Internet:
[email protected] Telephone: (415) 744-1202.
SUPPLEMENTARY INFORMATION: See the information provided in the direct
final rule located in the final rules section of the June 12, 1996
Federal Register, and in the Federal Register document located in the
proposed rule section of the June 12, 1996 (61 FR 29725) Federal
Register.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Hydrocarbons,
Incorporation by reference, Intergovernmental relations, Ozone,
Reporting and recordkeeping requirements, Volatile organic compounds.
Dated: August 8, 1996.
Alexis Strauss,
Acting Regional Administrator.
Subpart F of part 52, chapter I, title 40 of the Code of Federal
Regulations is amended as follows:
PART 52--[AMENDED]
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
Subpart F--California
Sec. 52.220 [Amended]
2. Section 52.220 is amended by removing paragraphs
(c)(185)(i)(A)(9), (194)(i)(G), (198)(i)(K), (207)(i)(B)(2), and
(225)(i)(B)(3).
[FR Doc. 96-21691 Filed 8-26-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-21676 Wyoming Regulatory Program
[Federal Register Volume 61, Number 167 (Tuesday, August 27, 1996)]
[Rules and Regulations]
[Pages 43966-43969]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-21676]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 950
[SPATS No. WY-026]
Wyoming Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Final rule; approval of amendment.
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SUMMARY: OSM is approving a proposed amendment to the Wyoming
regulatory program (hereinafter, the ``Wyoming program'') under the
Surface Mining Control and Reclamation Act of 1977 (SMCRA). The
proposed amendment consists of the revision of statutory provisions
pertaining to research and development testing licenses for coal in
situ processing operations. The amendment was intended to revise the
Wyoming program to be consistent with SMCRA and the corresponding
Federal regulations.
EFFECTIVE DATE: August 27, 1996.
FOR FURTHER INFORMATION CONTACT:
Guy V. Padgett, Director, Casper Field Office, Telephone: (307) 261-
5824, Internet address: [email protected].
SUPPLEMENTARY INFORMATION:
I. Background on the Wyoming Program
On November 26, 1980, the Secretary of the Interior conditionally
approved the Wyoming program. General background information on the
Wyoming program, including the Secretary's findings, the disposition of
comments, and the conditions of approval of the Wyoming program can be
found in the November 26, 1980, Federal Register (45 FR 78637).
Subsequent actions concerning Wyoming's program and program
[[Page 43967]]
amendments can be found at 30 CFR 950.12, 950.15, 950.16, and 950.20.
II. Proposed Amendment
By letter dated April 18, 1996, Wyoming submitted a proposed
amendment to its program (administrative record No. WY-32-2) pursuant
to SMCRA (30 U.S.C. 1201 et seq.). Wyoming submitted the proposed
amendment in response to a January 27, 1995, letter from OSM that was
sent in accordance with the Federal regulations at 30 CFR 732.17(c)
(administrative record No. WY-32-1). The provisions of the Wyoming
Environmental Quality Act that Wyoming proposed to revise were: Wyoming
Statute (W.S.) 35-11-426, concerning in situ mineral mining permits and
testing licenses, and W.S. 35-11-431, concerning applications for
research and development testing licenses.
OSM announced receipt of the proposed amendment in the May 10,
1996, Federal Register (61 FR 20773), provided an opportunity for a
public hearing or meeting on its substantive adequacy, and invited
public comment on its adequacy (administrative record No. WY-32-7).
Because no one requested a public hearing or meeting, none was held.
III. Director's Findings
As discussed below, the Director, in accordance with SMCRA and 30
CFR 732.15 and 732.17, finds that the proposed program amendment
submitted by Wyoming on April 18, 1996, is no less stringent than SMCRA
and no less effective than the corresponding Federal regulations.
Accordingly, the Director approves the proposed amendment.
Public Notice and Performance Standards Applicable to Research and
Development Testing Licenses for Coal In Situ Processing Activities
In accordance with the Federal regulations at 30 CFR 732.17(c), by
letter dated January 27, 1995 (administrative record No. WY-032-1), OSM
required that Wyoming revise its approved program to (1) require public
notice for research and development testing of coal in situ processing
activities and (2) clarify that the underground mining performance
standards apply to coal in situ research and development testing
licenses.
In response to OSM's letter, Wyoming proposed to revise the Wyoming
Environmental Quality Act at Wyoming Statute (W.S.) 35-11-426,
concerning in situ mineral mining permits and testing licenses, and
W.S. 35-11-431, concerning applications for research and development
testing licenses.
Specifically, Wyoming proposed to revise W.S. 35-11-426 (a) and (b)
to clarify that all provisions of the act applicable to surface coal
mining operations apply to coal in situ operations, including research
and development testing licenses, regardless of whether such operations
are connected with existing surface or underground coal mines. In
addition, Wyoming proposed to revise W.S. 35-11-431(a)(vi) to specify
that the public notice requirements applicable to surface coal mining
operations at W.S. 35-11-406 (j) and (k) apply to an application for a
research and development testing license.
The provisions at W.S. 35-11-406 (j) and (k) include, among other
things, (1) the requirement that the applicant provide public notice in
a newspaper of general circulation in the locality of the proposed
mining site once a week for four consecutive weeks, (2) the right of
any interested party to file written objections to the application
within thirty days after the last publication of the notice and request
an informal conference, and (3) Wyoming's obligation to publish notice
of and hold either an informal conference or a public hearing within
twenty days after the final date for filing objections. The provision
at W.S. 35-11-406(k) also specifies that the hearing shall be conducted
in accordance with the Wyoming Administrative Procedure Act with the
right to judicial review.
Chapter XVIII of the Wyoming Coal Rules and Regulations, includes,
among other things, permit application requirements pertaining to coal
in situ mining. Section 5, concerning coal in situ research and
development testing license applications, references the requirements
of W.S. 35-11-431. The Wyoming Coal Rules and Regulations at Chapter
III, Section 3, and Chapter V, Section 5, concerning respectively
permits and performance standards for coal in situ processing
activities, require by reference to Chapters IV and VII, compliance
with applicable performance standards for surface and underground
mining operations.
The Federal regulations at 30 CFR 785.22 require that any
application for a permit for in situ operations shall be made according
to all requirements applicable to underground mining activities and
that the operations shall be conducted in compliance with the
performance standards for in situ mining at 30 CFR Part 828.
Applications for underground mining activities are subject to the
public notice requirements for surface coal mining and reclamation
operations at 30 CFR 773.17 and the performance standards pertaining to
underground mining operations at 30 CFR Part 817.
Because Wyoming's proposed revisions at W.S. 35-11-426 (a) and (b),
concerning in situ mineral mining permits and testing licenses, and
W.S. 35-11-431(a)(vi), concerning applications for research and
development testing licenses, respectively, (1) clarify that the
underground mining operation performance standards apply to coal in
situ research and development testing licenses, and (2) require public
notice for research and development testing of coal in situ processing
activities, the Director finds that proposed W.S. 35-11-426 (a) and (b)
and W.S. 35-11-431(a)(vi), in concert with the existing Wyoming
regulations at Chapters III, V, and XVIII, are no less effective than
the Federal regulations at 30 CFR 773.17, 785.22, 817, and 828,
concerning, among other things, public notice requirements and
applicable performance standards for coal in situ operations. The
Director finds that Wyoming has satisfied the requirements of OSM's
January 27, 1995, 30 CFR 732 letter, and approves Wyoming's proposed
revisions at W.S. 35-11-426 (a) and (b) and W.S. 35-11-431(a)(vi).
IV. Summary and Disposition of Comments
Following are summaries of all substantive written comments on the
proposed amendment that were received by OSM, and OSM's responses to
them.
1. Public Comments
University of Wyoming.--By letter dated May 10, 1996, the Associate
Dean and Director of the Agricultural Experiment Station, University of
Wyoming, commented that the proposed revisions of W.S. 35-11-426 and
431(a) should not impact research being conducted and should not
present any additional requirements in conducting future research
projects (administrative record No. WY-32-9).
2. Federal Agency Comments
Pursuant to 732.17(h)(11)(i), OSM solicited comments on the
proposed amendment from various Federal agencies with an actual or
potential interest in the Wyoming program.
U.S. Rural Development.--By letter dated April 26, 1996, the Rural
Development, responded that the revisions appeared to be reasonable
(administrative record No. WY-32-8).
U.S. Natural Resources Conservation Service.--By letter dated May
22, 1996,
[[Page 43968]]
the Natural Resources Conservation Service responded that it had no
comments (administrative record No. WY-32-10).
U.S. Geological Survey.--By letter dated May 23, 1996, the
Geological Survey responded that, because the term ``in situ mineral
mining'' may refer to coal bed methane extraction or coal gasification,
a clear definition of ``in situ mineral mining'' would be very helpful
to avoid the possibility of confusion about its meaning (administrative
record No. WY-32-11).
The Federal regulations, at 30 CFR 701.5, define ``in situ
processes'' to mean
Activities conducted on the surface or underground in connection
with in-place distillation, retorting, leaching, or other chemical
or physical processing of coal. The term includes, but is not
limited to, in situ gasification, in situ leaching, slurry mining,
solution mining borehole mining, and fluid recovery mining.
Wyoming, at W.S. 35-11-103(f)(iv), defines ``in situ mining'' to
mean
A method of in-place surface mining in which limited quantities
of overburden are disturbed to install a conduit or well and the
mineral is mined by injecting or recovering a liquid, solid, sludge
or gas that causes the leaching, dissolution, gasification,
liquefaction or extraction of the mineral. In situ mining does not
include the primary or enhanced recovery of naturally occurring oil
and gas or any related process regulated by the Wyoming oil and gas
conservation commission.
Because in situ literally means in-place, it includes any process
for in-place coal extraction. All coal in situ extraction processes
would be required to meet the applicable performance standards.
U.S. Bureau of Land Management.--By letter dated May 28, 1996, the
Bureau of Land Management, Wyoming State Office, responded that it had
no comments (administrative record No. WY-32-13).
U.S. Bureau of Reclamation.--By letter dated June 17, 1996, the
Bureau of Reclamation responded that it had no comments (administrative
record No. WY-32-14).
3. Environmental Protection Agency (EPA) Concurrence and Comments
Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to solicit
the written concurrence of EPA with respect to those provisions of the
proposed program amendment that relate to air or water quality
standards promulgated under the authority of the Clean Water Act (33
U.S.C. 1251 et seq.) or the Clean Air Act (42 U.S.C. 7401 et seq.).
None of the revisions that Wyoming proposed to make in its amendment
pertain to air or water quality standards. Nevertheless, OSM requested
EPA's concurrence with the proposed amendment and pursuant to 30 CFR
732.17(h)(11)(i), solicited comments on the proposed amendment
(administrative record No. WY-32-6).
By letter dated May 13, 1996, EPA responded that it had no comments
on the amendment and that it concurred with the proposed revisions
(administrative record No. WY-32-12).
4. State Historic Preservation Officer (SHPO) and the Advisory Council
on Historic Preservation (ACHP)
Pursuant to 30 CFR 732.17(h)(4), OSM solicited comments on the
proposed amendment from the SHPO and ACHP (administrative record No.
WY-32-5). Neither the SHPO nor ACHP responded to OSM's request.
V. Director's Decision
Based on the above finding, the Director approves Wyoming's
proposed amendment as submitted on April 18, 1996.
The Director approves, as discussed in the above finding, revision
of W.S. 35-11-426(a) and (b), concerning rules and regulations
applicable to coal in situ mineral mining permits and testing licenses,
and W.S. 35-11-431(a)(vi), concerning public notice of applications for
coal in situ research and development testing licenses.
VI. Procedural Determinations
1. Executive Order 12866
This rule is exempted from review by the Office of Management and
Budget (OMB) under Executive Order 12866 (Regulatory Planning and
Review).
2. Executive Order 12988
The Department of the Interior has conducted the reviews required
by section 3 of Executive Order 12988 (Civil Justice Reform) and has
determined that this rule meets the applicable standards of subsections
(a) and (b) of that section. However, these standards are not
applicable to the actual language of State regulatory programs and
program amendments since each such program is drafted and promulgated
by a specific State, not by OSM. Under sections 503 and 505 of SMCRA
(30 U.S.C. 1253 and 1255) and the Federal regulations at 30 CFR 730.11,
732.15, and 732.17(h)(10), decisions on proposed State regulatory
programs and program amendments submitted by the States must be based
solely on a determination of whether the submittal is consistent with
SMCRA and its implementing Federal regulations and whether the other
requirements of 30 CFR Parts 730, 731, and 732 have been met.
3. National Environmental Policy Act
No environmental impact statement is required for this rule since
section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency
decisions on proposed State regulatory program provisions do not
constitute major Federal actions within the meaning of section
102(2)(C) of the National Environmental Policy Act (42 U.S.C.
4332(2)(C)).
4. Paperwork Reduction Act
This rule does not contain information collection requirements that
require approval by OMB under the Paperwork Reduction Act (44 U.S.C.
3507 et seq.).
5. Regulatory Flexibility Act
The Department of the Interior has determined that this rule will
not have a significant economic impact on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
The State submittal that is the subject of this rule is based upon
counterpart Federal regulations for which an economic analysis was
prepared and certification made that such regulations would not have a
significant economic effect upon a substantial number of small
entities. Accordingly, this rule will ensure that existing requirements
previously promulgated by OSM will be implemented by the State. In
making the determination as to whether this rule would have a
significant economic impact, the Department relied upon the data and
assumptions for the counterpart Federal regulations.
6. Unfunded Mandates
This rule will not impose a cost of $100 million or more in any
given year on any governmental entity or the private sector.
List of Subjects in 30 CFR Part 950
Intergovernmental relations, Surface mining, Underground mining.
Dated: July 25, 1996.
Peter A. Rutledge,
Acting Regional Director, Western Regional Coordinating Center.
For the reasons set out in the preamble, title 30, chapter VII,
subchapter T, part 950 of the Code of Federal Regulations is amended as
set forth below:
[[Page 43969]]
PART 950--WYOMING
1. The authority citation for part 950 continues to read as
follows:
Authority: 30 U.S.C. 1201 et seq.
2. Section 950.15 is amended by adding paragraph (y) to read as
follows:
Sec. 950.15 Approval of regulatory program amendments.
* * * * *
(y) The following statutory provisions, as submitted to OSM on
April 18, 1996, are approved effective August 27, 1996: revision of
W.S. 35-11-426 (a) and (b), concerning in situ mineral mining permits
and testing licenses; and W.S. 35-11-431(a)(vi), concerning
applications for research and development testing licenses.
[FR Doc. 96-21676 Filed 8-26-96; 8:45 am]
BILLING CODE 4310-05-M
Complete official Federal Register PDF
FR Doc. 96-21624 1986-1990 Conservation Reserve Program; 1991-2002 Conservation Reserve Program
[Federal Register Volume 61, Number 167 (Tuesday, August 27, 1996)]
[Rules and Regulations]
[Pages 43943-43946]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-21624]
-----------------------------------------------------------------------
DEPARTMENT OF AGRICULTURE
Farm Service Agency
Commodity Credit Corporation
7 CFR Parts 704 and 1410
RIN 0560-AE84
1986-1990 Conservation Reserve Program; 1991-2002 Conservation
Reserve Program
AGENCY: Farm Service Agency and Commodity Credit Corporation, USDA.
ACTION: Interim rule.
-----------------------------------------------------------------------
SUMMARY: This interim rule modifies provisions for the Conservation
Reserve Program (CRP) which were addressed in rules published on May 8,
1995 (60 FR 22456) and March 15, 1996 (61 FR 10671) concerning the
opportunity for early release of certain acreage from the CRP. The
modifications reflect new provisions enacted in the Federal Agriculture
Improvement and Reform Act of 1996 (1996 Act). This rule also sets out
other modifications to reflect new provisions in the 1996 Act and to
make technical corrections and other minor modifications to the rule.
These additional modifications include: revisions of the ``contour
grass strip'' and ``filterstrip'' definitions to remove size
limitations; a correction of a landlord-tenant reference in the rule; a
reassignment of provisions dealing with the preservation of cropland
bases; and technical changes to reflect a Department of Agriculture
(USDA) reorganization. Further, this rule also updates the base period
for the cropping history needed to enter cropland into the CRP.
DATES: This rule is effective August 27, 1996. Comments concerning this
rule should be received by October 28, 1996, to be assured
consideration.
ADDRESSES: Comments and requests for additional information should be
directed to Cheryl Zavodny, Conservation and Environmental Protection
Division, FSA, P.O. Box 2415, STOP Box 0513, Room 4768-S, Washington,
DC 20013-2415, telephone 202-720-7333.
FOR FURTHER INFORMATION CONTACT: Cheryl Zavodny, (202) 720-7333.
SUPPLEMENTARY INFORMATION:
Executive Order 12866
This interim rule has been determined to be significant and was
reviewed by OMB under Executive Order 12866.
Regulatory Flexibility Act
It has been determined that the Regulatory Flexibility Act is not
applicable to this interim rule because neither FSA nor the Commodity
Credit Corporation (CCC) is required by 5 U.S.C. 553 or any other
provision of law to publish a notice of proposed rulemaking with
respect to the subject matter of this rule.
Environmental Evaluation
It has been determined by an environmental evaluation that this
rule does not have a significant impact on the environmental,
historical, social or economic resources of the Nation. Therefore, it
has been determined that these actions will not require an
Environmental Assessment or an Environmental Impact Statement.
Executive Order 12372
This program is not subject to the provisions of Executive Order
12372, which require intergovernmental consultation with State and
local officials. See notice related to 7 CFR part 3015, subpart V,
published at 48 FR 29115 (June 24, 1983).
Federal Domestic Assistance Program
The title and number of the Federal Domestic Assistance Program, as
found in the Catalog of Federal Domestic Assistance, to which this rule
applies, is the Conservation Program-10.069.
Paperwork Reduction Act
The previous information collection under OMB control number 0560-
0125 has been reinstated with changes and has received emergency
clearance. A regular information collection submission will be
submitted pursuant to the Paperwork Reduction Act of 1995.
Executive Order 12778
This interim rule has been reviewed in accordance with Executive
Order 12778. The provisions of this rule are not retroactive and
preempt State and local laws to the extent such laws are inconsistent
with the provisions of this rule. Before any action may be brought in a
Federal court of competent jurisdiction, the administrative appeal
rights afforded program participants at 7 CFR parts 11, 624, and 780
must be exhausted.
Background
Current regulations in 7 CFR part 704 and 7 CFR part 1410 implement
the CRP, which was first authorized by Title XII of the Food Security
Act of 1985 (1985 Act). Acreage enrolled in signups held from 1986
through 1990 are controlled by regulations in 7 CFR part 704 whereas
acreage enrolled in subsequent signups is controlled under part 1410.
In the CRP, the CCC pays owners and operators of highly erodible and
other environmentally sensitive cropland to convert the land to a
[[Page 43944]]
conserving use cover for a period of at least 10 years. Because of a
desire to redirect CRP to more sensitive land, interim rules published
May 8, 1995, and March 15, 1996, allowed for an early release of some
acreage from some contracts. Subsequently, in the 1996 Act, enacted on
April 4, 1996, CRP enrollments were re-authorized through 2002, and
with respect to existing contracts it was provided that certain CRP
participants could unilaterally obtain an early release of contracts
entered into before January 1, 1995, if the contract had been in effect
for at least 5 years. Under the statute, there is a 60 day waiting
period before the application to terminate is effective. That
termination will not relieve the participant of liability for a pre-
existing contract violation. The 1996 Act provides that land which is
not eligible for the early termination includes filterstrips, grass
waterways, riparian areas, field windbreaks, shelterbelts, shallow
water areas, acreage with an erodibility index of more than 15, and
other lands of high environmental value (including wetlands), as may be
determined by the Secretary. This rule implements those provisions and
modifies the May 1995, and March 1996, interim rules accordingly. In
addition, Title III of the 1996 Act (which covers a number of
conservation issues for the CRP and other programs) allows for the
Secretary to permit technical assistance in connection with the
creation of new enrollments to be obtained from private sources. That
provision has also been incorporated into the regulations. Other
changes to reflect the new legislation include modifications in the
1996 rule which change the CRP statute to reduce from 3 to 1 the number
of years which an owner or operator of cropland must have that status
prior to offering land for enrollment in the CRP.
In addition, this rule makes certain technical changes to the rule.
These include: (1) Affording more flexibility in enrollments by
removing size limits in the definitions of filterstrip and contour
grass strip; (2) correcting the reference to the general regulations
governing landlord-tenant matters and assignments and moving the
reference concerning the preservation of cropland bases from its former
position in part 719, and; (3) changing references from SCS to Natural
Resources Conservation Service.
Further, the rule is amended to change the 1986-1990 base period
previously used to determine whether land qualifies as cropland for CRP
purposes. The new base period will be a 1992-1996 base period. This is
to insure that the limitations of the program to cropland are applied
as fully as possible consistent with the goals of the program.
The Department seeks public comment regarding the acreage
determined ineligible for early release. The Secretary determined, in
addition to the acreage excluded by statute, acreage enrolled under
wetland criteria during signup periods 8 and 9 and acreage on which a
CRP useful life easement is filed will not be eligible. A cost/benefit
analysis was conducted to evaluate two options concerning the types of
enrolled acreage that would not be eligible for early release under
this rule. The first (selected) option included the acreage and cover
types listed in sections 704.20 and 1410.116. The second option added
wetland not enrolled in the eighth and ninth signups, buffer acreage
for all wetland, wellhead protection acres, and acres affected by scour
erosion to the list. About 1.7 million fewer acres would be eligible
for early release under the second option and almost 110,000 fewer
acres would have been released early. The increased plantings from the
higher amount of early release acreage under the first option would
have minimal impacts on farm prices and income. CRP payments would be
$6 million lower under the second option, if none of the withdrawn
acres are replaced with new enrollments until after they would have
normally expired. The loss of environmental benefits under the first
option would be only slightly larger than under the second option. For
additional information or to obtain a copy of the cost/benefit
analysis, contact Tom Browning, USDA/FSA/EPAS, P.O. Box 2415 STOP 0519,
Washington, D.C. 20013-2415.
This interim rule had a statutory requirement to be issued within
90 days following enactment of the Federal Agriculture Improvement and
Reform Act of 1996 on April 4, 1996, as required by Section 1243(c) of
the 1985 Act, as amended by the 1996 Act. Because the modifications in
this rule are required by law, technical in nature, do not limit any
entitlement, and/or involve the provisions of immediate benefits
provided for in the 1996 Act, it has been determined that the delay of
this rule pending comment would be contrary to both the law and the
public interest.
List of Subjects
7 CFR Part 704
Administrative practices and procedures, Base protection,
Conservation plan, Contracts, Environmental indicators, Natural
resources, and Technical assistance.
7 CFR Part 1410
Administrative practices and procedures, Base protection,
Conservation plan, Contracts, Environmental indicators, Natural
resources, and Technical assistance.
Accordingly, 7 CFR parts 704 and 1410 are amended as follows:
PART 704--1986-1990 CONSERVATION RESERVE PROGRAM
1. The authority citation for 7 CFR Part 704 continues to read as
follows:
Authority: 15 U.S.C. 714b and 714c; 16 U.S.C. 3801-3847.
Sec. 704.1 [Amended]
2. Section 704.1 is amended by adding ``, as amended'' after
``(Pub. L. 99-198).''
Sec. 704.2 [Amended]
3. Section 704.2(a)(23) is amended by adding the words ``or as
otherwise authorized by the Secretary'' after the word ``Department.''
Sec. 704.3 [Amended]
4. Section 704.3 is amended in paragraph (a) by removing the words
``State ASC Committees (STC) and County ASC Committees (COC)'' and
adding in their place the words ``State FSA committees (STC) and county
FSA committees (COC)''; in paragraph (b) by removing the words ``Soil
Conservation Service (SCS)'' and adding in their place the words
``Natural Resources Conservation Service (NRCS)''; in paragraph (d) by
removing the words ``Extension Service (ES)'' and adding in their place
``Cooperative State Research, Education and Extension Service''.
Sec. 704.7 [Amended]
5. Section 704.7 is amended in paragraph (a)(3)(ii) by removing
``SCS'' and adding in its place ``NRCS''; in paragraph (d)(4) by
removing the word ``exceeded'' and adding the word ``adjusted'' in its
place and by removing ``SCS'' and adding ``NRCS'' in its place; in
paragraphs (e)(1) and (e)(8) by removing ``SCS'' and adding ``NRCS'' in
its place.
Sec. 704.9 [Amended]
6. Section 704.9 is amended in paragraph (a) by removing the words
``Soil Conservation Service (SCS)'' and adding the words ``NRCS or
another source as approved by the NRCS, in consultation with FSA'' in
its place; in paragraphs (b) and (d) by removing ``SCS'' and adding in
its place ``NRCS.''
[[Page 43945]]
Sec. 704.18 [Amended]
7. Section 704.18 is amended by removing the words ``part 709,
Assignment of Payment'' and adding in their place the words ``part
1404, Assignment of Payments.''
8. Section 704.20 is amended in paragraph (b) by removing ``SCS''
and adding in its place ``NRCS'', and paragraph (a)(4) is revised to
read as follows:
Sec. 704.20 Contract modifications.
(a) * * *
(4) Terminate contracts enrolled in CRP before January 1, 1995,
which have been in effect for at least 5 years as determined by CCC.
Contract acreage located within an average of 100 feet of a perennial
stream or other permanent waterbody, on which a CRP easement is filed,
that was enrolled under the wetland eligibility criteria established in
signup periods eight and nine, and contract acreage on which there
exist the following practices installed or developed as a result of
participation in the CRP or are otherwise required by the NRCS local
Field Office Technical Guide are not eligible for termination prior to
the expiration date of the contract as provided in this paragraph:
grass waterways; filter strips; shallow water areas for wildlife;
bottomland timber established on wetlands; field windbreaks; and,
shelterbelts. In addition, for any land for which an early termination
is sought, the land must have an EI of 15 or less. With respect to any
terminations made under this paragraph (a)(4):
(i) The termination shall become effective 60 days from the date
the participant(s) submits notification to CCC of the participant's
desire to terminate the contract;
(ii) Acreage terminated under this provision is eligible to be re-
offered for CRP during future signup periods providing the acreage
otherwise meets the eligibility criteria established for that signup;
and,
(iii) Participants shall be required to meet conservation
compliance requirements of 7 CFR part 12 to the extent applicable to
other land.
* * * * *
Sec. 704.24 [Amended]
9. Section 704.24 is amended by removing all references therein to
``SCS'' and adding in their place ``NRCS.''
Sec. 704.26 [Amended]
10. Section 704.26 is amended by removing ``713.109 and 713.150''
and adding in its place ``1413.150.''
Sec. 704.27 [Amended]
11. Section 704.27 is amended in paragraph (b) by removing ``SCS''
and adding in its place ``NRCS.''
12. Section 704.30 is amended by adding paragraph (c) as follows:
Sec. 704.30 Miscellaneous.
* * * * *
(c) Cropland acreage established and maintained in vegetative cover
under CRP, including approved volunteer cover, shall retain its
cropland classification for the period of time that the cover is
maintained or as otherwise established by the Deputy Administrator.
PART 1410--1991-1995 CONSERVATION RESERVE PROGRAM
13. The authority citation for 7 CFR Part 1410 continues to read as
follows:
Authority: 15 U.S.C. 714b and 714c; 16 U.S.C. 3831-3847.
14. The title of Part 1410 is amended by removing ``1991-95'' and
adding ``1991-2002'' in its place.
Sec. 1410.1 [Amended]
15. Section 1410.1 is amended by adding, ``as amended'' after
``Food Security Act of 1985.''
Sec. 1410.2 [Amended]
16. Section 1410.2 is amended by: removing the words ``Soil
Conservation Service (SCS)'' in paragraph (f)(2) and adding ``NRCS'' in
their place; in paragraph (h) removing the words ``Extension Service
(ES)'' and adding in their place the words ``Cooperative State
Research, Education, and Extension Service (CSREES)''; and
redesignating paragraphs (g) and (h) as (h) and (i) respectively.
17. Section 1410.2 is further amended by revising paragraphs (a)
and (f)(1) and adding a new paragraph (g), to read as follows:
Sec. 1410.2 Administration.
(a) The regulations in this part will be administered under the
general supervision and direction of the Executive Vice President,
Commodity Credit Corporation (CCC), and the Administrator, Farm Service
Agency (FSA), through the Deputy Administrator for Farm Programs, FSA.
In the field, the regulations in this part will be administered by the
State and county FSA committees (``State committees'' and ``county
committees,'' respectively).
* * * * *
(f)(1) The erosion index (EI), suitability of land for permanent
vegetative or water cover, factors for determining the likelihood of
improved water quality, and adequacy of the planned practice to achieve
desired objectives, shall be determined by the Natural Resource
Conservation Service (NRCS) in accordance with the local field office
technical guide or other guidelines deemed appropriate by the NRCS,
except that no such determination by the NRCS shall compel CCC to
execute a contract which CCC does not believe will serve the purposes
of the program established by this part.
* * * * *
(g) State FSA committees, with NRCS, may develop a State ranking
process to evaluate acreage based on State specific goals and
objectives. Such STC's may choose between developing a State ranking
process or utilizing a national ranking process. States' ranking
processes shall be developed based on recommendations from State
Technical committees, follow national guidelines, and be approved by
the Deputy Administrator.''
* * * * *
Sec. 1410.3 [Amended]
18. Section 1410.3(b) is amended by: removing the definition of
``SCS''; placing the definition of ``FSA'' in its correct alphabetical
position; and in the definition of ``Highly erodible land'' removing
``SCS'' and adding ``NRCS'' in its place.
19. Section 1410.3(b) is further amended by adding, at its
appropriate alphabetical location, a new definition for ``NRCS'' and by
revising the definitions of ``Contour grass strip'', ``Filterstrip'',
and ``FSA'', to read as follows:
* * * * *
``Contour grass strip means a vegetation area that follows the
contour of the land, whose width is determined by the NRCS local office
Field Office Technical Guide and whose designation is included as a
contour grass strip by a conservation plan required under this part;''
* * * * *
``Filterstrip means a strip or area of vegetation of a width
determined appropriate for the purpose by the NRCS local office Field
Office Technical Guide;''
``FSA means the Farm Service Agency of the United States Department
of Agriculture;''
* * * * *
``NRCS means the Natural Resources Conservation Service of the
United States Department of Agriculture;''
* * * * *
[[Page 43946]]
20. Section 1410.13 is amended by adding paragraph (d) to read as
follows:
Sec. 1410.13 Miscellaneous.
* * * * *
(d) Cropland acreage established and maintained in vegetative cover
under CRP, including approved volunteer cover, shall retain its
cropland classification for the period of time that the cover is
maintained or as otherwise established by the Deputy Administrator.
Sec. 1410.102 [Amended]
21. Section 1410.102 is amended in paragraphs (a) and (b) by
removing ``3 years'' and adding in its place ``1 year.''
Sec. 1410.103 [Amended]
22. Section 1410.103 is amended:
In paragraph (a)(1) by removing ``1986 through 1990'' and adding in
its place ``1992 through 1996'';
In paragraph (b)(4) by removing the word ``exceeded'' and adding in
its place the word ``adjusted'' and by removing ``SCS'' and adding in
its place ``NRCS'';
In paragraph (c) by removing ``SCS'' wherever it appears and adding
in its place ``NRCS''; and
In paragraph (f)(2) by removing ``part 703'' and adding in its
place ``part 620''.
Sec. 1410.111 [Amended]
23. Section 1410.111 is amended:
In paragraph (a) by adding after the words ``conservation
district,'' the words ``or another source as approved by the NRCS,''
and
In paragraph (a) removing ``SCS'' and adding in its place ``NRCS''.
24. Section 1410.116 is amended by revising paragraph (a)(5) to
read as follows:
Sec. 1410.116 Contract modifications.
(a) * * *
(5) Terminate contracts enrolled in CRP before January 1, 1995,
which have been in effect for at least 5 years. Contract acreage
located within an average of 100 feet of a perennial stream or other
permanent waterbody, on which a CRP easement is filed, that was
enrolled under the wetland eligibility criteria established in signup
periods 8 and 9, and contract acreage on which there exist the
following practices, installed or developed as a result of
participation in the CRP or as otherwise required by the NRCS local
Field Office Technical Guide, are not eligible for termination prior to
the expiration date of the contract as provided in this paragraph:
grass waterways; filter strips; shallow water areas for wildlife;
bottomland timber established on wetlands; field windbreaks; and,
shelterbelts. In addition, for any land for which an early termination
is sought, the land must have an EI of 15 or less. With respect to
terminations under this paragraph:
(i) The termination shall become effective 60 days from the date
the participant(s) submit notification to CCC of the participant's
desire to terminate the contract;
(ii) Acreage terminated under this provision is eligible to be re-
offered for CRP during future signup periods providing the acreage
otherwise meets the eligibility criteria established for that signup;
and,
(iii) Participants shall be required to meet conservation
compliance requirements of 7 CFR part 12 to the extent applicable to
other land.
* * * * *
Signed at Washington, DC, on August 19, 1996.
Bruce R. Weber,
Acting Administrator, Farm Service Agency and Executive Vice President,
Commodity Credit Corporation.
[FR Doc. 96-21624 Filed 8-26-96; 8:45 am]
BILLING CODE 3410-05-P
Complete official Federal Register PDF
FR Doc. 96-21590 Interagency Guidelines Establishing Standards for Safety and Soundness
[Federal Register Volume 61, Number 167 (Tuesday, August 27, 1996)]
[Rules and Regulations]
[Pages 43948-43952]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-21590]
=======================================================================
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DEPARTMENT OF THE TREASURY
Office of the Comptroller of the Currency
12 CFR Part 30
[Docket No. 96-19]
RIN 1557-AB17
FEDERAL RESERVE SYSTEM
12 CFR Part 208
[Docket No. R-0766]
FEDERAL DEPOSIT INSURANCE CORPORATION
12 CFR Part 364
RIN 3064-AB13
DEPARTMENT OF THE TREASURY
Office of Thrift Supervision
12 CFR Part 570
[No. 96-53]
RIN 1550-AA97
Interagency Guidelines Establishing Standards for Safety and
Soundness
AGENCIES: Office of the Comptroller of the Currency, Treasury; Board of
Governors of the Federal Reserve System; Federal Deposit Insurance
Corporation; and Office of Thrift Supervision, Treasury.
ACTION: Final guidelines.
-----------------------------------------------------------------------
SUMMARY: The Office of the Comptroller of the Currency (OCC), the Board
of Governors of the Federal Reserve System (Board of Governors), the
Federal Deposit Insurance Corporation (FDIC), and the Office of Thrift
Supervision (OTS) (collectively, the agencies) are amending the
Interagency Guidelines Establishing Standards for Safety and Soundness
(Guidelines) to include asset quality and earnings standards. The
Guidelines were adopted pursuant to section 39 of the Federal Deposit
Insurance Act (FDI Act).
EFFECTIVE DATE: October 1, 1996.
FOR FURTHER INFORMATION CONTACT: OCC: Emily R. McNaughton, National
Bank Examiner (202/874-5170), Office of the Chief National Bank
Examiner; David Thede, Senior Attorney (202/874-5210), Securities and
Corporate Practices Division; or Mark Tenhundfeld, Senior Attorney
(202/874-5090), Legislative and Regulatory Activities Division, Office
of the Comptroller of the Currency, 250 E Street, SW, Washington, DC
20219.
Board of Governors: David Wright, Project Manager (202/728-5854),
Division of Banking Supervision and Regulation; Gregory A. Baer,
Managing Senior Counsel (202/452-3236), Legal Division, Board of
Governors of the Federal Reserve System. For the hearing impaired only,
Telecommunication Device for the Deaf (TDD), Dorothea Thompson (202/
452-3544), Board of Governors of the Federal Reserve System, 20th and C
Streets, NW, Washington, DC 20551.
FDIC: Robert W. Walsh, Manager, Planning and Program Development
(202/898-6911) or Michael D. Jenkins, Examination Specialist (202/898-
6896), Division of Supervision; or Susan vandenToorn, Counsel (202/898-
8707), or Nancy L. Alper, Counsel (202/736-0828), Legal Division,
Federal Deposit Insurance Corporation, 550 17th Street, NW, Washington,
DC 20429.
OTS: William Magrini, Senior Project Manager (202/906-5744),
Supervision Policy; or Kevin Corcoran, Assistant Chief Counsel (202/
906-6962), or Teri M. Valocchi, Counsel (Banking and Finance) (202/906-
7299), Chief Counsel's Office, Office of Thrift Supervision, 1700 G
Street, NW, Washington, DC 20552.
SUPPLEMENTARY INFORMATION:
I. Background
A. Statutory Framework
Section 132 of the Federal Deposit Insurance Corporation
Improvement Act of 1991 (FDICIA), Pub. L. 102-242, amended the Federal
Deposit Insurance Act (FDI Act) by adding a new section (section 39,
codified at 12 U.S.C. 1831p-1) that requires each Federal banking
agency to establish by regulation certain safety and soundness
standards for the insured depository institutions and depository
institution holding companies for which it is the primary Federal
regulator. As enacted in FDICIA, section 39(b) of the FDI Act required
the agencies to establish standards by regulation specifying a maximum
ratio of classified assets to capital and minimum earnings sufficient
to absorb losses without impairing capital.
Section 318(a) of the Riegle Community Development and Regulatory
Improvement Act of 1994
[[Page 43949]]
(CDRIA), Pub. L. 103-325, which was enacted on September 23, 1994,
eliminated the application of section 39 to depository institution
holding companies and replaced the requirement that the agencies
``specify'' quantitative asset quality and earnings standards with a
requirement that the agencies prescribe standards, by regulation or by
guideline, relating to asset quality and earnings that the agencies
determine to be appropriate.
B. Agencies' Proposals
The agencies published a joint notice of proposed rulemaking in the
Federal Register on November 18, 1993 (59 FR 60802) that solicited
comment on specific standards that would govern numerous facets of a
depository institution's operations, including quantitative standards
governing a depository institution's asset quality and earnings. On
July 10, 1995 (60 FR 35674), the agencies adopted: (1) final guidelines
in all areas except asset quality and earnings; and (2) a final rule
establishing deadlines for submission and review of safety and
soundness compliance plans which may be required for failure to meet
one or more of the safety and soundness standards adopted in the
Guidelines.1 On the same day (60 FR 35688), the agencies also
proposed revised guidelines concerning asset quality and earnings
standards to address problems noted by many commenters with the
quantitative standards. The primary concern of these commenters was
that it was impossible to design quantitative standards that would be
appropriate for every regulated institution. Because the CDRIA
clarified that quantitative standards were not required, the agencies
proposed to replace the quantitative standards with more comprehensive
qualitative standards that emphasize monitoring, reporting, and
preventive or corrective action appropriate to the size of the
institution and the nature and scope of its activities.
---------------------------------------------------------------------------
\1\ For the OCC, these Guidelines appear as Appendix A to part
30; for the Board of Governors, these Guidelines appear as Appendix
D to part 208; for the FDIC, these Guidelines appear as Appendix A
to part 364; and for the OTS, these Guidelines appear as Appendix A
to part 570.
---------------------------------------------------------------------------
The proposed asset quality standards required an institution to
identify problem assets and estimate inherent losses. The proposal also
required an institution to: (1) consider the size and potential risks
of material concentrations of credit risk; (2) compare the level of
problem assets to the level of capital and establish reserves
sufficient to absorb anticipated losses on those and other assets; (3)
take appropriate corrective action to resolve problem assets; and (4)
provide periodic asset quality reports to the board of directors to
assess the level of asset risk. The proposal noted that the complexity
and sophistication of an institution's monitoring, reporting systems,
and corrective actions should be commensurate with the size, nature,
and scope of the institution's operations.
The agencies proposed earnings standards requiring monitoring and
reporting systems similar to those required in the standards for asset
quality. The proposed earnings standards were intended to enhance early
identification and resolution of problems. The standards required an
institution to compare its earnings trends, relative to equity, assets,
and other common benchmarks, with its historical experience and with
the earnings trends of its peers. The proposed standards also provided
that an institution should: (1) evaluate the adequacy of earnings given
the institution's size, and complexity, and the risk profile of the
institution's assets and operations; (2) assess the source, volatility,
and sustainability of earnings; (3) evaluate the effect of nonrecurring
or extraordinary income or expense; (4) take steps to ensure that
earnings are sufficient to maintain adequate capital and reserves after
considering asset quality and the institution's rate of growth; and (5)
provide periodic reports with adequate information for management and
the board of directors to assess earnings performance.
II. Discussion of Comments
The agencies received a total of 31 2 comments, some of which
were sent to more than one agency. Commenters were overwhelmingly
supportive of the proposal, particularly its reliance on qualitative
and flexible standards in lieu of the quantitative standards originally
proposed. Commenters noted that the more flexible guidelines embodied
in the second proposed rule built upon a depository institution's own
procedures for monitoring, reporting, and taking action with respect to
asset quality and earnings conditions. Commenters agreed that well run
institutions would not have to alter their practices in order to comply
with the proposed standards.
---------------------------------------------------------------------------
\2\ The Board of Governors received 14 comments, while the OCC,
FDIC, and OTS received 8, 6, and 3, respectively.
---------------------------------------------------------------------------
Some commenters suggested amendments to the proposal. One commenter
asked the agencies to clarify how the proposed standards interact with
the examination process and the determination of CAMEL ratings. Another
commenter emphasized that institutions need flexibility in determining
earnings benchmarks and defining the appropriate peer group. A third
commenter suggested that the agencies eliminate the earnings standard
directing each institution to evaluate the effect of nonrecurring or
extraordinary income or expense. This commenter believed such an
evaluation was effectively required by the separate standard requiring
the institution to assess the source, volatility, and sustainability of
earnings. Finally, one commenter asked that institutions be given the
option of complying with quantitative standards.
III. Final Guidelines
The agencies are adopting the asset quality and earnings standards
substantially as proposed. These qualitative standards are sufficiently
flexible to permit an institution to adopt practices that are
consistent with safe and sound banking practices and that are
appropriate for the institution. Moreover, the standards are designed
to prompt a depository institution to take steps that will help
identify emerging problems in the institution.
The final rule makes two minor changes to the asset quality
standards. First, the order of the steps a depository institution is to
take is rearranged to reflect more accurately the appropriate sequence
of these steps. Second, the final rule deletes the word ``quality'' in
the standard requiring periodic asset reports (asset quality standard 6
in the final guidelines). This change was made to emphasize that the
report is to address each of the asset quality standards, as
appropriate, and not focus solely on problem assets. In response to the
comment about the redundant earnings standards, the final rule combines
the two standards concerning the nonrecurring income and sustainability
of income. The agencies agree that these standards need not be listed
separately, given the significant overlap in what they address. A
discussion of the remaining comments follows.
Impact on examinations and ratings. The guidelines will not change
the examination process or the determination of CAMEL ratings. These
guidelines represent the agencies' longstanding expectation regarding
an institution's management of asset quality and earnings, and, as
such, will not require a change in the agencies' examination procedures
or the determination of an institution's rating.
Definition of peer group. The agencies recognize that defining a
peer group
[[Page 43950]]
necessarily entails making decisions about which criteria to use. The
guidelines identify equity and asset data as two commonly used
benchmarks in defining a peer group and expressly state that an
institution may use other commonly used benchmarks. The agencies will
be flexible in permitting institutions to select criteria reasonably
designed to provide a meaningful peer group comparison.
Quantitative standards. The agencies have decided against returning
to quantitative standards in lieu of, or in addition to, the standards
proposed. The agencies believe the standards contained in the final
guidelines will encourage the adoption of practices that are consistent
with safe and sound banking practices and that are appropriate for a
given institution. Moreover, the agencies believe that these standards
will be more effective than quantitative standards would be in helping
identify emerging problems in a financial institution. However, even
though the agencies are not adopting quantitative standards, the
agencies will continue to analyze asset quality ratios and earnings
levels, and trends thereof, in assessing an institution.
IV. Regulatory Flexibility Act
Pursuant to section 605(b) of the Regulatory Flexibility Act, 5
U.S.C. 605(b), the agencies hereby certify that these guidelines will
not have a significant economic impact on a substantial number of small
entities. Accordingly, a regulatory flexibility analysis is not
required. As is explained more fully in the preamble to these
guidelines, the guidelines are designed to illustrate what the agencies
consider to be steps that are consistent with safe and sound banking
practices while preserving flexibility for an institution to adopt a
system that is appropriate for its circumstances.
V. Executive Order 12866
The OCC and OTS have determined that these final guidelines are not
significant regulatory actions for purposes of Executive Order 12866.
VI. OCC and OTS: Unfunded Mandates Reform Act of 1995 Statement
Section 202 of the Unfunded Mandates Reform Act of 1995, Pub. L.
104-4 (Unfunded Mandates Act) requires that an agency prepare a
budgetary impact statement before promulgating any rule likely to
result in a Federal mandate that may result in the expenditure by
State, local, and tribal governments, in the aggregate, or by the
private sector of $100 million or more in any one year. If a budgetary
impact statement is required, section 205 of the Unfunded Mandates Act
also requires an agency to identify and consider a reasonable number of
regulatory alternatives before promulgating a rule. The OCC and OTS
have determined that the final guidelines will not result in
expenditures by State, local, and tribal governments, or by the private
sector, of $100 million or more in any one year. Accordingly, the OCC
and the OTS have not prepared a budgetary impact statement or
specifically addressed any regulatory alternatives. As discussed in the
preamble, the final guidelines represent the standards applied by the
agencies in examining insured depository institutions, and, therefore,
represent no change in the agencies' policies and impose minimal new
Federal requirements.
List of Subjects
12 CFR Part 30
Administrative practice and procedure, National banks, Reporting
and recordkeeping requirements, Safety and soundness.
12 CFR Part 208
Accounting, Agriculture, Banks, banking, Confidential business
information, Crime, Currency, Federal Reserve System, Mortgages,
Reporting and recordkeeping requirements, Safety and soundness,
Securities.
12 CFR Part 364
Administrative practice and procedure, Bank deposit insurance,
Banks, banking, Reporting and recordkeeping requirements, Safety and
soundness.
12 CFR Part 570
Accounting, Administrative practices and procedures, Bank deposit
insurance, Holding companies, Reporting and recordkeeping requirements,
Savings associations, Safety and soundness.
Office of the Comptroller of the Currency
12 CFR CHAPTER I
Authority and Issuance
For the reasons set forth in the joint preamble, part 30 of chapter
I of title 12 of the Code of Federal Regulations is amended as follows:
PART 30--SAFETY AND SOUNDNESS STANDARDS
1. The authority citation for part 30 is revised to read as
follows:
Authority: 12 U.S.C. 93a, 1831p-1.
2. The table of contents of appendix A to part 30 is amended by
adding entries for II.G. and II.H. to read as follows:
Appendix A to Part 30--Interagency Guidelines Establishing
Standards for Safety and Soundness
Table of Contents
* * * * *
II. * * *
G. Asset quality.
H. Earnings.
* * * * *
3. Item II of appendix A to part 30 is amended by adding paragraphs
G and H to read as follows:
* * * * *
II. Operational and Managerial Standards
* * * * *
G. Asset quality. An insured depository institution should
establish and maintain a system that is commensurate with the
institution's size and the nature and scope of its operations to
identify problem assets and prevent deterioration in those assets. The
institution should:
1. Conduct periodic asset quality reviews to identify problem
assets;
2. Estimate the inherent losses in those assets and establish
reserves that are sufficient to absorb estimated losses;
3. Compare problem asset totals to capital;
4. Take appropriate corrective action to resolve problem assets;
5. Consider the size and potential risks of material asset
concentrations; and
6. Provide periodic asset reports with adequate information for
management and the board of directors to assess the level of asset
risk.
H. Earnings. An insured depository institution should establish and
maintain a system that is commensurate with the institution's size and
the nature and scope of its operations to evaluate and monitor earnings
and ensure that earnings are sufficient to maintain adequate capital
and reserves. The institution should:
1. Compare recent earnings trends relative to equity, assets, or
other commonly used benchmarks to the institution's historical results
and those of its peers;
2. Evaluate the adequacy of earnings given the size, complexity,
and risk profile of the institution's assets and operations;
3. Assess the source, volatility, and sustainability of earnings,
including the effect of nonrecurring or extraordinary income or
expense;
4. Take steps to ensure that earnings are sufficient to maintain
adequate
[[Page 43951]]
capital and reserves after considering the institution's asset quality
and growth rate; and
5. Provide periodic earnings reports with adequate information for
management and the board of directors to assess earnings performance.
* * * * *
Dated: May 21, 1996.
Eugene A. Ludwig,
Comptroller of the Currency.
Federal Reserve System
12 CFR CHAPTER II
Authority and Issuance
For the reasons set forth in the joint preamble, part 208 of
chapter II of title 12 of the Code of Federal Regulations is amended as
follows:
PART 208--MEMBERSHIP OF STATE BANKING INSTITUTIONS IN THE FEDERAL
RESERVE SYSTEM (REGULATION H)
1. The authority citation for part 208 continues to read as
follows:
Authority: 12 U.S.C. 36, 248 (a) and (c), 321-338, 461, 481,
486, 601, 611, 1814, 1823(j), 1831o, 1831p-1, 3906, 3909, 3310,
3331-3351, 15 U.S.C. 78b, 78o-4(c)(5), 78q, 78q-1, 78w, 781(b),
781(i), and 1781(g).
2. The table of contents of appendix D to part 208 is amended by
adding entries for II.G. and II.H. to read as follows:
Appendix D to Part 208--Interagency Guidelines Establishing Standards
for Safety and Soundness
Table of Contents
* * * * *
II. * * *
G. Asset quality.
H. Earnings.
* * * * *
3. Item II of appendix D to part 208 is amended by adding
paragraphs G and H to read as follows:
* * * * *
II. Operational and Managerial Standards
* * * * *
G. Asset quality. An insured depository institution should
establish and maintain a system that is commensurate with the
institution's size and the nature and scope of its operations to
identify problem assets and prevent deterioration in those assets. The
institution should:
1. Conduct periodic asset quality reviews to identify problem
assets;
2. Estimate the inherent losses in those assets and establish
reserves that are sufficient to absorb estimated losses;
3. Compare problem asset totals to capital;
4. Take appropriate corrective action to resolve problem assets;
5. Consider the size and potential risks of material asset
concentrations; and
6. Provide periodic asset reports with adequate information for
management and the board of directors to assess the level of asset
risk.
H. Earnings. An insured depository institution should establish and
maintain a system that is commensurate with the institution's size and
the nature and scope of its operations to evaluate and monitor earnings
and ensure that earnings are sufficient to maintain adequate capital
and reserves. The institution should:
1. Compare recent earnings trends relative to equity, assets, or
other commonly used benchmarks to the institution's historical results
and those of its peers;
2. Evaluate the adequacy of earnings given the size, complexity,
and risk profile of the institution's assets and operations;
3. Assess the source, volatility, and sustainability of earnings,
including the effect of nonrecurring or extraordinary income or
expense;
4. Take steps to ensure that earnings are sufficient to maintain
adequate capital and reserves after considering the institution's asset
quality and growth rate; and
5. Provide periodic earnings reports with adequate information for
management and the board of directors to assess earnings performance.
* * * * *
By order of the Board of Governors of the Federal Reserve
System, June 14th, 1996.
William W. Wiles,
Secretary of the Board.
Federal Deposit Insurance Corporation
12 CFR CHAPTER III
Authority and Issuance
For the reasons set forth in the joint preamble, part 364 of
chapter III of title 12 of the Code of Federal Regulations is amended
as follows:
PART 364--STANDARDS FOR SAFETY AND SOUNDNESS
1. The authority citation for part 364 continues to read as
follows:
Authority: 12 U.S.C. 1819 (Tenth), 1831p-1.
2. The table of contents of appendix A to part 364 is amended by
adding entries for II.G. and II.H. to read as follows:
Appendix A to Part 364--Interagency Guidelines Establishing Standards
for Safety and Soundness
Table of Contents
* * * * *
II. * * *
G. Asset quality.
H. Earnings.
* * * * *
3. Item II of appendix A to part 364 is amended by adding
paragraphs G and H to read as follows:
* * * * *
II. Operational and Managerial Standards
* * * * *
G. Asset quality. An insured depository institution should
establish and maintain a system that is commensurate with the
institution's size and the nature and scope of its operations to
identify problem assets and prevent deterioration in those assets. The
institution should:
1. Conduct periodic asset quality reviews to identify problem
assets;
2. Estimate the inherent losses in those assets and establish
reserves that are sufficient to absorb estimated losses;
3. Compare problem asset totals to capital;
4. Take appropriate corrective action to resolve problem assets;
5. Consider the size and potential risks of material asset
concentrations; and
6. Provide periodic asset reports with adequate information for
management and the board of directors to assess the level of asset
risk.
H. Earnings. An insured depository institution should establish and
maintain a system that is commensurate with the institution's size and
the nature and scope of its operations to evaluate and monitor earnings
and ensure that earnings are sufficient to maintain adequate capital
and reserves. The institution should:
1. Compare recent earnings trends relative to equity, assets, or
other commonly used benchmarks to the institution's historical results
and those of its peers;
2. Evaluate the adequacy of earnings given the size, complexity,
and risk profile of the institution's assets and operations;
3. Assess the source, volatility, and sustainability of earnings,
including the effect of nonrecurring or extraordinary income or
expense;
4. Take steps to ensure that earnings are sufficient to maintain
adequate capital and reserves after considering the institution's asset
quality and growth rate; and
[[Page 43952]]
5. Provide periodic earnings reports with adequate information for
management and the board of directors to assess earnings performance.
* * * * *
By order of the Board of Directors.
Dated at Washington, D.C. this 13th day of August 1996.
Federal Deposit Insurance Corporation.
Jerry L. Langley,
Executive Secretary.
Office of Thrift Supervision
12 CFR CHAPTER V
Authority and Issuance
For the reasons set forth in the joint preamble, part 570 of
chapter V of title 12 of the Code of Federal Regulations is amended as
follows:
PART 570--SUBMISSION AND REVIEW OF SAFETY AND SOUNDNESS COMPLIANCE
PLANS AND ISSUANCE OF ORDERS TO CORRECT SAFETY AND SOUNDNESS
DEFICIENCIES
1. The authority citation for part 570 continues to read as
follows:
Authority: 12 U.S.C. 1831p-1.
2. The table of contents of appendix A to part 570 is amended by
adding entries for II.G. and II.H. to read as follows:
Appendix A to Part 570--Interagency Guidelines Establishing
Standards for Safety and Soundness
Table of Contents
* * * * *
II. * * *
G. Asset quality.
H. Earnings.
* * * * *
3. Item II of appendix A to part 570 is amended by adding
paragraphs G and H to read as follows:
* * * * *
II. Operational and Managerial Standards
* * * * *
G. Asset quality. An insured depository institution should
establish and maintain a system that is commensurate with the
institution's size and the nature and scope of its operations to
identify problem assets and prevent deterioration in those assets. The
institution should:
1. Conduct periodic asset quality reviews to identify problem
assets;
2. Estimate the inherent losses in those assets and establish
reserves that are sufficient to absorb estimated losses;
3. Compare problem asset totals to capital;
4. Take appropriate corrective action to resolve problem assets;
5. Consider the size and potential risks of material asset
concentrations; and
6. Provide periodic asset reports with adequate information for
management and the board of directors to assess the level of asset
risk.
H. Earnings. An insured depository institution should establish and
maintain a system that is commensurate with the institution's size and
the nature and scope of its operations to evaluate and monitor earnings
and ensure that earnings are sufficient to maintain adequate capital
and reserves. The institution should:
1. Compare recent earnings trends relative to equity, assets, or
other commonly used benchmarks to the institution's historical results
and those of its peers;
2. Evaluate the adequacy of earnings given the size, complexity,
and risk profile of the institution's assets and operations;
3. Assess the source, volatility, and sustainability of earnings,
including the effect of nonrecurring or extraordinary income or
expense;
4. Take steps to ensure that earnings are sufficient to maintain
adequate capital and reserves after considering the institution's asset
quality and growth rate; and
5. Provide periodic earnings reports with adequate information for
management and the board of directors to assess earnings performance.
* * * * *
Dated: June 3, 1996.
John F. Downey,
Executive Director, Supervision.
[FR Doc. 96-21590 Filed 8-26-96; 8:45 am]
BILLING CODE 4810-33-P, 6210-01-P, 6714-01-P, 6720-01-P
Complete official Federal Register PDF
FR Doc. 96-21528 Revocation of Certain Regulations Affecting Food
[Federal Register Volume 61, Number 167 (Tuesday, August 27, 1996)]
[Rules and Regulations]
[Page 43963]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-21528]
=======================================================================
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Food and Drug Administration
21 CFR Part 105
[Docket No. 95N-310F]
Revocation of Certain Regulations Affecting Food
AGENCY: Food and Drug Administration, HHS.
ACTION: Final rule; confirmation of effective date.
-----------------------------------------------------------------------
SUMMARY: The Food and Drug Administration (FDA) is confirming the
effective date of July 3, 1996, of the final rule published in the
Federal Register of June 3, 1996 (61 FR 27771), that revoked
regulations on diabetic labeling and on sodium intake labeling. These
regulations were among those regulations identified by the agency for
revocation as a result of a page-by-page review of its regulations that
cover food and cosmetics. This regulatory review was in response to the
administration's ``Reinventing Government'' initiative that seeks to
streamline government and to ease the burden on regulated industry and
consumers.
DATES: Effective date confirmed: July 3, 1996. This revocation is
applicable for all products initially introduced or initially delivered
for introduction into interstate commerce on or after this date. Any
labels or labeling that require revision as a result of this revocation
shall comply no later than January 1, 1998.
FOR FURTHER INFORMATION CONTACT: Michelle A. Smith, Center for Food
Safety and Applied Nutrition (HFS-158), Food and Drug Administration,
200 C St. SW., Washington, DC 20204, 202-205-5099.
SUPPLEMENTARY INFORMATION: In the Federal Register of June 3, 1996 (61
FR 27771), FDA issued a final rule entitled ``Revocation of Certain
Regulations Affecting Food'' that, among other things, revoked
regulations on diabetic labeling in Sec. 105.67 (21 CFR 105.67) and on
sodium intake labeling in Sec. 105.69 (21 CFR 105.69).
FDA gave interested persons until July 3, 1996, to file written
objections to the revocation of these regulations and to request a
hearing on the specific provisions to which there were objections. No
objections or requests for hearing were received in response to the
final regulation.
List of Subjects in 21 CFR Part 105
Dietary foods, Food grades and standards, Food labeling, Infants
and children.
Therefore, under the Federal Food, Drug, and Cosmetic Act (secs.
201, 401, 403, 409, 411, 701, 721 of (21 U.S.C. 321, 341, 343, 348,
350, 371, 379e)) and under authority delegated to the Commissioner of
Food and Drugs (21 CFR 5.10), notice is hereby given that no objections
were received, and that the removal of Sec. 105.67 on diabetic labeling
and Sec. 105.69 on sodium intake labeling became effective on July 3,
1996. Any labels or labeling that require revision as a result of this
revocation shall comply no later than January 1, 1998.
Dated: August 15, 1996.
William K. Hubbard,
Associate Commissioner for Policy Coordination.
[FR Doc. 96-21528 Filed 8-26-96; 8:45 am]
BILLING CODE 4160-01-F
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