issue-1996-02-28•Federal Register final rules — 1996-02-28
Federal Register final rules — 1996-02-28
issue-1996-02-28Federal Register final rules — 1996-02-28Regulation
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. 96-4559 Airworthiness Standards; Systems and Equipment Rules Based on European Joint Aviation Requirements
[Federal Register Volume 61, Number 40 (Wednesday, February 28, 1996)]
[Rules and Regulations]
[Pages 7409-7410]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-4559]
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[[Page 7410]]
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Parts 23 and 91
[Docket No. 27806, Amendment No. 91-248]
RIN 2120-AE59
Airworthiness Standards; Systems and Equipment Rules Based on
European Joint Aviation Requirements
AGENCIES: Federal Aviation Administration, DOT.
ACTION: Final rule, correction.
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SUMMARY: This document contains a correction to the final rule
published on February 9, 1996 (61 FR 5151). This action removes the
numbers ``91-247'', inadvertently used in the heading of the document
and replaces it with the numbers ``91-248''.
EFFECTIVE DATE: March 11, 1996.
FOR FURTHER INFORMATION CONTACT:
Earsa Tankesley, Aerospace Engineer, Standards Office (ACE-100), Small
Airplane Directorate, Federal Aviation Administration, 601 East 12th
Street, Kansas City, Missouri 64106, telephone (816) 426-6932.
In the final rule on page 5151 in the issue of Friday, February 9,
1996, delete the numbers ``91-247'', from the heading and add the
numbers ``121-248'' to the heading.
Issued in Washington, DC on February 21, 1996.
Donald P. Byrne,
Assistant Chief Counsel, Regulations Division.
[FR Doc. 96-4559 Filed 2-27-96; 8:45 am]
BILLING CODE 4910-13-M
Complete official Federal Register PDF
FR Doc. 96-4537 Offshore Supply Vessels
[Federal Register Volume 61, Number 40 (Wednesday, February 28, 1996)]
[Rules and Regulations]
[Pages 7425-7426]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-4537]
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DEPARTMENT OF TRANSPORTATION
Coast Guard
46 CFR Parts 90, 98, 125, 126, 127, 128, 129, 130, 131, 132, 133,
134, 135, 136, 170, 174, and 175
[CGD 82-004 and CGD 86-074]
RIN 2115-AA77
Offshore Supply Vessels
AGENCY: Coast Guard, DOT.
ACTION: Interim rule, with request for comments; reopening of comment
period.
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SUMMARY: On November 16, 1995, the Coast Guard published an Interim
Rule (IR) [60 FR 57630], a complete set of regulations applicable to
new offshore supply vessels (OSVs), including liftboats, and provided
an opportunity for public comment. Because of a request from the
Offshore Marine Service Association (OMSA), who represents more than
280 OSV-related companies, the Coast Guard is
[[Page 7426]]
reopening the comment period for about 45 days.
DATES: Comments must arrive on or before March 31, 1996.
ADDRESSES: Mail comments to the Executive Secretary, Marine Safety
Council (G-LRA, 3406) [CGD 82-004 or CGD 86-074], U.S. Coast Guard,
2100 Second Street, SW., Washington, DC 20593-0001, or deliver them to
Room 3406 at that address between 8 a.m. and 4 p.m., Monday through
Friday, except Federal holidays. Phone, (202) 267-1477.
The Executive Secretary maintains the public docket for this
rulemaking. Comments will become part of this docket and will be
available for inspection or copying at Room 3406, U.S. Coast Guard
Headquarters.
FOR FURTHER INFORMATION CONTACT:
James M. Magill, Commandant (G-MOS-2), Room 1208c, U.S. Coast Guard
Headquarters, 2100 Second Street SW., Washington, DC 20593-0001, (202)
267-1181.
SUPPLEMENTARY INFORMATION:
Request for Comments
The IR, published on November 16, 1995, invited and encouraged
interested persons to participate in the rulemaking by submitting
written comments, including views, data, and arguments, by February 14,
1996. OMSA has asked for more time to prepare comments, citing the need
for its members to review the IR in light of the fact that a number of
new technical and logistic advances and innovations have been
implemented since the publication of the Notice of Proposed Rulemaking
(NPRM) on May 9, 1989. Because of this, and the fact that the comment
period spanned the holidays of Christmas and New Year, the Coast Guard
is reopening the comment period for about 45 days, until March 31,
1996. Interested persons may participate in this rulemaking by
submitting written data, views, or arguments on the IR. Persons
submitting comments should include their names and addresses, identify
this rulemaking [CGD 82-004 and CGD 86-074] and the specific section or
paragraph of the IR or related documents to which the comments apply,
and give a reason for each comment. Please submit two copies of all
comments and attachments in an unbound format, no larger than 8\1/2\ by
11 inches, suitable for copying and electronic filing. Any person
wishing acknowledgment of receipt of comments should enclose a stamped,
self-addressed postcard or envelope. The Coast Guard will consider all
comments received by the end of the comment period before it acts
further on the rulemaking, and the Final Rule may vary from the IR in
light of the comments.
The Coast Guard plans no public hearing. Persons may request a
public hearing by writing to the Marine Safety Council at the address
under ADDRESSES. The request should include the reasons why a hearing
would be beneficial. If the Coast Guard determines that the opportunity
for oral presentations will aid this rulemaking, it will hold a public
hearing at a time and place announced by a later notice in the Federal
Register.
Dated: February 20, 1996.
Joseph J. Angelo,
Director for Standards, Office of Marine Safety, Security and
Environmental Protection.
[FR Doc. 96-4537 Filed 2-27-96; 8:45 am]
BILLING CODE 4910-14-M
Complete official Federal Register PDF
FR Doc. 96-4536 Safety Zone; Lower Mississippi River, Mile 538.0 to Mile 542.0
[Federal Register Volume 61, Number 40 (Wednesday, February 28, 1996)]
[Rules and Regulations]
[Pages 7413-7414]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-4536]
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DEPARTMENT OF TRANSPORTATION
33 CFR Part 165
[CGD02-96-076]
RIN 2115-AA97
Safety Zone; Lower Mississippi River, Mile 538.0 to Mile 542.0
AGENCY: Coast Guard, DOT.
ACTION: Temporary rule.
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SUMMARY: The Coast Guard is establishing a temporary safety zone on the
Lower Mississippi River between mile 538.0 and mile 542.0. This
regulation is needed to restrict vessel traffic in the regulated area
to prevent a collision with a sunken deck barge, surveying and salvage
equipment and to provide a safe work area for survey and salvage
personnel. The regulation restricts navigation in the regulated area
and may have a significant affect on commercial traffic.
[[Page 7414]]
DATES: This regulation becomes effective at 4 a.m. on February 2, 1996,
and terminates at 8 a.m. on August 31, 1996.
FOR FURTHER INFORMATION CONTACT: Lt. Byron Black, Chief, Port
Operations, Captain of the Port, 200 Jefferson Avenue, Suite 1301,
Memphis, TN 38103, (901) 544-3941.
SUPPLEMENTARY INFORMATION:
Background and Purpose
At approximately midnight on February 2, 1996, a deck barge sank at
approximate mile 540.0 on the Lower Mississippi River. The deck barge's
exact location remains unknown and survey operations at Lower
Mississippi River mile 540.0 are underway. The navigable channel will
be blocked during survey and salvage operations. A safety zone has been
established on the Lower Mississippi River from mile 538.0 to mile
540.0 in order to facilitate safe vessel passage. Entry of vessels or
persons into this zone is prohibited unless specifically authorized by
the Captain of the Port.
In accordance with 5 U.S.C. 553, a notice of proposed rulemaking
was not published for this regulation and good cause exists for making
it effective in less than 30 days after Federal Register publication.
Publication of a notice of proposed rulemaking and delay of effective
date would be contrary to the public interest because immediate action
is necessary. Specifically, immediate action is necessary to facilitate
the survey for the sunken deck barge's exact location. Harm to the
public or environment may result if vessel traffic is not controlled
during the operations. As a result, the Coast Guard deems it to be in
the public's best interest to issue a regulation immediately.
Regulatory Evaluation
This rule is not a significant regulatory action under section 3(f)
of Executive Order 12866 and does not require an assessment of
potential costs and benefits under section 6(a)(3) of that order. It
has not been reviewed by the Office of Management and Budget under that
order. It is not significant under the regulatory policies and
procedures of the Department of Transportation (DOT) (44 FR 11040;
February 26, 1979). The Coast Guard expects the economic impact of this
rule to be so minimal that a full Regulatory Evaluation under paragraph
10e of the regulatory policies and procedures of DOT is unnecessary.
Collection of Information
This rule contains no information collection requirements under the
Paperwork Reduction Act (44 U.S.C. 3501 et. seq.).
Federalism
The Coast Guard has analyzed this rule under the principles and
criteria contained in Executive Order 12612 and has determined that
this rule does not have sufficient federalism implications to warrant
the preparation of a Federalism Assessment.
Environment
The Coast Guard considered the environmental impact of this rule
and concluded that, under paragraph 2.B.2 of Commandant Instruction
M16475.1B (as revised by 59 FR 38654; July 29, 1994), this rule is
categorically excluded from further environmental documentation.
List of Subjects in 33 CFR Part 165
Harbors, Marine safety, Navigation (water), Reporting and
recordkeeping requirements, Security measures, Vessels, Waterways.
For the reasons set out in the preamble, the Coast Guard amends 33
CFR Part 165 as follows:
PART 165--[AMENDED]
1. The authority citation for Part 165 continues to read as
follows:
Authority: 33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1(g),
6.04-1, 6.04-6, and 160.5; 49 CFR 1.46.
2. A new temporary Sec. 165.T02-076 is added to read as follows:
Sec. 165.T02-076 Safety Zone; Lower Mississippi River.
(a) Location. The following area is a Safety Zone: Lower
Mississippi River mile 538.0 to mile 542.0.
(b) Effective dates. This section is effective at 4 a.m. on
February 3, 1996, and terminates at 8 a.m. on August 31, 1996.
(c) Regulations. In accordance with the general regulations in
Sec. 165.23, entry into this zone is prohibited except as authorized by
the Captain of the Port. The Captain of the Port, Memphis, Tennessee,
will notify the maritime community of conditions affecting the area
covered by this safety zone by Marine Safety Information Radio
Broadcast on VHF Marine Band Radio, Channel 22 (157.1 MHz).
Dated: February 3, 1996.
P.L. Mountcastle,
Lieutenant Commander, USCG, Acting Captain of the Port.
[FR Doc. 96-4536 Filed 2-27-96; 8:45 am]
BILLING CODE 4910-14-M
Complete official Federal Register PDF
FR Doc. 96-4535 Safety Zone; Lower Mississippi River, Mile 528.0 to Mile 532.0
[Federal Register Volume 61, Number 40 (Wednesday, February 28, 1996)]
[Rules and Regulations]
[Page 7413]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-4535]
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DEPARTMENT OF TRANSPORTATION
Coast Guard
33 CFR Part 165
[CGD02-96-077]
RIN 2115-AA97
Safety Zone; Lower Mississippi River, Mile 528.0 to Mile 532.0
AGENCY: Coast Guard, DOT.
ACTION: Temporary rule.
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SUMMARY: The Coast Guard is establishing a temporary safety zone on the
Lower Mississippi River between mile 528.0 and mile 532.0. This
regulation is needed to restrict vessel traffic in the regulated area
to prevent a collision with sunken barges, surveying and salvage
equipment and to provide a safe work area for survey and salvage
personnel. The regulation restricts navigation in the regulated area
and may have a significant effect on commercial traffic.
DATES: This regulation becomes effective at 10:02 p.m. on February 3,
1996, and terminates at 8 a.m. on August 31, 1996.
FOR FURTHER INFORMATION CONTACT:
Lt. Byron Black, Chief, Port Operations, Captain of the Port, 200
Jefferson Avenue, Suite 1301, Memphis, TN 38103, (901) 544-3941.
SUPPLEMENTARY INFORMATION:
Background and Purpose
At approximately 10 p.m. on February 3, 1996, the M/V SCAUP
collided with the Greenville, MS bridge sinking rock barges at
approximate mile 531.3 on the Lower Mississippi River. The sunken
barges' exact location remains unknown and survey operations at Lower
Mississippi River mile 531.3 will commence shortly. The navigable
channel will be blocked during survey and salvage operations. A safety
zone has been established on the Lower Mississippi River from mile
528.0 to mile 532.0 in order to facilitate safe vessel passage. Entry
of vessels or persons into this zone is prohibited unless specifically
authorized by the Captain of the Port.
In accordance with 5 U.S.C. 553, a notice of proposed rulemaking
was not published for this regulation and good cause exists for making
it effective in less than 30 days after Federal Register publication.
Publication of a notice of proposed rulemaking and delay of effective
date would be contrary to the public interest because immediate action
is necessary. Specifically, immediate action is necessary to facilitate
the survey for the sunken barges' exact location. Harm to the public or
environment may result if vessel traffic is not controlled during the
operations. As a result, the Coast Guard deems it to be in the public's
best interest to issue a regulation immediately.
Regulatory Evaluation
This rule is not a significant regulatory action under section 3(f)
of Executive Order 12866 and does not require an assessment of
potential costs and benefits under section 6(a)(3) of that order. It
has not been reviewed by the Office of Management and Budget under that
order. It is not significant under the regulatory policies and
procedures of the Department of Transportation (DOT) (44 FR 11040;
February 26, 1979). The Coast Guard expects the economic impact of this
rule to be so minimal that a full Regulatory Evaluation under paragraph
10e of the regulatory policies and procedures of DOT is unnecessary.
Collection of Information
This rule contains no information collection requirements under the
Paperwork Reduction Act (44 U.S.C. 3501 et seq.).
Federalism
The Coast Guard has analyzed this rule under the principles and
criteria contained in Executive Order 12612 and has determined that
this rule does not have sufficient federalism implications to warrant
the preparation of a Federalism Assessment.
Environment
The Coast Guard considered the environmental impact of this rule
and concluded that, under paragraph 2.B.2 of Commandant Instruction
M16475.1B (as revised by 59 FR 38654; July 29, 1994), this rule is
categorically excluded from further environmental documentation.
List of Subjects in 33 CFR Part 165
Harbors, Marine safety, Navigation (water), Reporting and
recordkeeping requirements, Security measures, Vessels, Waterways.
For the reasons set out in the preamble, the Coast Guard amends 33
CFR part 165 as follows:
PART 165--[AMENDED]
1. The authority citation for part 165 continues to read as
follows:
Authority: 33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1(g),
6.04-1, 6.04-6, and 160.5; 49 CFR 1.46.
2. A new temporary Sec. 165.T02-077 is added to read as follows:
Sec. 165.T02-077 Safety Zone; Lower Mississippi River.
(a) Location. The following area is a Safety Zone: Lower
Mississippi River mile 528.0 to mile 532.0.
(b) Effective dates. This section is effective at 10:02 p.m. on
February 3, 1996, and terminates at 8 a.m. on August 31, 1996.
(c) Regulations. In accordance with the general regulations in
Sec. 165.23, entry into this zone is prohibited except as authorized by
the Captain of the Port. The Captain of the Port, Memphis, Tennessee,
will notify the maritime community of conditions affecting the area
covered by this safety zone by Marine Safety Information Radio
Broadcast on VHF Marine Band Radio, Channel 22 (157.1 MHz).
Dated: February 3, 1996.
P.L. Mountcastle,
Lieutenant Commander, USCG, Acting Captain of the Port.
[FR Doc. 96-4535 Filed 2-27-96; 8:45 am]
BILLING CODE 4910-14-M
Complete official Federal Register PDF
FR Doc. 96-4529 Removal of Obsolete Recyclables Regulations
[Federal Register Volume 61, Number 40 (Wednesday, February 28, 1996)]
[Rules and Regulations]
[Pages 7426-7427]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-4529]
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DEPARTMENT OF TRANSPORTATION
Surface Transportation Board
49 CFR Parts 1039, 1134, 1135 and 1145
[STB Ex Parte No. 531]
Removal of Obsolete Recyclables Regulations
AGENCY: Surface Transportation Board.
ACTION: Final rule.
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SUMMARY: The Surface Transportation Board (the Board) is removing
obsolete recyclable commodities regulations from the Code of Federal
Regulations.
EFFECTIVE DATE: January 1, 1996.
FOR FURTHER INFORMATION CONTACT: Beryl Gordon, (202) 927-5610. [TDD for
the hearing impaired: (202) 927-5721.]
SUPPLEMENTARY INFORMATION: Effective January 1, 1996, the ICC
Termination Act of 1995, Pub. L. No. 104-88, 109 Stat. 803 (the Act),
abolished the Interstate Commerce Commission (the Commission) and
established within the Department of Transportation the Surface
Transportation Board. Section 204 of the Act provides that ``[t]he
Board shall promptly rescind all regulations established by the
[Commission] that are based on provisions of law repealed and not
substantively reenacted by this Act.'' 49 U.S.C. 10710, the statutory
basis for the part 1134 discrimination against recyclables
regulations,1 and 49 U.S.C. 10731, the statutory basis for the
part 1145 rail rates on recyclables regulations,2 have been
repealed. We are therefore removing the now obsolete parts 1134 and
1145 regulations, as well as a reference to part 1145 in Sec. 1039.11
and another obsolete regulation pertaining to recyclable rates,
Sec. 1135.1(h). These changes are not necessarily the final revisions
to the regulations in light of the elimination of Sec. 10710 and
Sec. 10731.3
\1\ These regulations were originally issued in Public Law 93-
236--Freight Rates for Recyclables, 346 I.C.C. 408 (1974), and
revised in Revised Rules of Practice, 358 I.C.C. 189 (1977). The
regulations were redesignated as a result of final rules in Ex Parte
No. 55 (Sub-No. 55), Revision and Redesignation of the Rules of
Practice, 47 FR 49534 (November 1, 1982).
\2\ Final rules were adopted and revised in Cost Ratios for
Recyclables-Compliance Procedures, 6 I.C.C.2d 103 (1989) and 8
I.C.C.2d 182 (1991).
\3\ We will consider separately the disposition of 49 CFR
1039.14(b)(5). Parties may inform the Board whether other
regulations are affected by the removal of 49 U.S.C. 10710 and
10731.
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Because this action merely reflects, and is required by, the
enactment of the Act and will not have an adverse effect on the
interests of any person, this action will be deemed to be effective as
of January 1, 1996.
This action will not significantly affect either the quality of the
human environment or the conservation of energy resources.
List of Subjects
49 CFR Part 1039
Agricultural commodities, Intermodal transportation, Manufactured
commodities, Railroads.
49 CFR Parts 1134 and 1145
Administrative practice and procedure, Freight, Railroads.
49 CFR Part 1135
Administrative practice and procedure, Railroads, Reporting and
recordkeeping requirements.
Decided: February 15, 1996.
By the Board, Chairman Morgan, Vice Chairman Simmons, and
Commissioner Owen.
Vernon A. Williams,
Secretary.
For the reasons set forth in the preamble and under the authority
of 49 U.S.C. 721(a), title 49, chapter X of the Code of Federal
Regulations is amended as set forth below:
PART 1039--EXEMPTIONS
1. The authority citation for part 1039 is revised to read as
follows:
Authority: 5 U.S.C. 553 and 49 U.S.C. 721 and 10502.
Sec. 1039.11 [Amended]
2. Section 1039.11(a) is amended by removing the following language
from the paragraph immediately following
[[Page 7427]]
the table in paragraph (a): ``(Note: Certain recyclable commodities may
be partially exempted pursuant to the provisions of 49 CFR 1145.9)''.
PART 1134--[REMOVED]
3. Part 1134 is removed.
PART 1135--RAILROAD COST RECOVERY PROCEDURES
4. The authority citation for part 1135 is revised to read as
follows:
Authority: 5 U.S.C. 553 and 49 U.S.C. 721 and 10708.
Sec. 1135.1 [Amended]
5. Section 1135.1 is amended by removing paragraph (h).
PART 1145--[REMOVED]
6. Part 1145 is removed.
[FR Doc. 96-4529 Filed 2-27-96; 8:45 am]
BILLING CODE 4915-00-P
Complete official Federal Register PDF
FR Doc. 96-4528 Removal of Obsolete Securities Regulations
[Federal Register Volume 61, Number 40 (Wednesday, February 28, 1996)]
[Rules and Regulations]
[Page 7428]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-4528]
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DEPARTMENT OF TRANSPORTATION
49 CFR Part 1175
[STB Ex Parte No. 535]
Removal of Obsolete Securities Regulations
AGENCY: Surface Transportation Board.
ACTION: Final rule.
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SUMMARY: The Surface Transportation Board (the Board) is removing
obsolete regulations concerning securities from the Code of Federal
Regulations.
EFFECTIVE DATE: January 1, 1996.
FOR FURTHER INFORMATION CONTACT: Beryl Gordon (202) 927-5610. [TDD for
the hearing impaired: (202) 927-5721.]
SUPPLEMENTARY INFORMATION: Effective January 1, 1996, the ICC
Termination Act of 1995, Pub. L. No. 104-88, 109 Stat. 803 (the Act),
abolished the Interstate Commerce Commission (the Commission) and
established within the Department of Transportation the Surface
Transportation Board. Section 204 of the Act provides that ``[t]he
Board shall promptly rescind all regulations established by the
[Commission] that are based on provisions of law repealed and not
substantively reenacted by this Act.'' 49 U.S.C. 11301, the statutory
basis for the part 1175 exempt issuance of securities and assumption of
obligations regulations, has been repealed. We are therefore removing
the now obsolete part 1175 regulations.1 These changes are not
necessarily the final modifications in the regulations resulting from
the elimination of 49 U.S.C. 11301.2
\1\ These regulations were issued in Exemption--Railroad
Regulation Under 49 U.S.C. 11301, 1 I.C.C.2d 915 (1985).
\2\ At this time, we are not removing related matters found in
the regulations concerning user fees (Sec. 1002), the environment
(Sec. 1105.6(c)(2)(ii)), certificates to construct, acquire or
operate railroad lines (Sec. 1150.10(d)), and interlocking officers
(Sec. 1185.2), because we plan to separately address those parts
shortly. Parties may submit other suggested changes to the Code of
Federal Regulation in light of the elimination of Sec. 11301.
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Because this action merely reflects, and is required by, the
enactment of the Act and will not have an adverse effect on the
interests of any person, this action will be deemed to be effective as
of January 1, 1996.
This action will not significantly affect either the quality of the
human environment or the conservation of energy resources.
List of Subjects in 49 CFR Part 1175
Administrative practice and procedure, Railroads, Reporting and
recordkeeping requirements, Securities.
Decided: February 20, 1996.
By the Board, Chairman Morgan, Vice Chairman Simmons, and
Commissioner Owen.
Vernon A. Williams,
Secretary.
For the reasons set forth in the preamble and under the authority
of 49 U.S.C. 721(a), title 49, chapter X of the Code of Federal
Regulations is amended by removing part 1175.
[FR Doc. 96-4528 Filed 2-27-96; 8:45 am]
BILLING CODE 4915-00-P
Complete official Federal Register PDF
FR Doc. 96-4519 Preliminary Assessment Information and Health and Safety Data Reporting; Addition of Chemicals
[Federal Register Volume 61, Number 40 (Wednesday, February 28, 1996)]
[Rules and Regulations]
[Pages 7421-7425]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-4519]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 712 and 716
[OPPTS-82048; FRL-4996-9]
Preliminary Assessment Information and Health and Safety Data
Reporting; Addition of Chemicals
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Interagency Testing Committee (ITC) in its 37th Report to
EPA revised the Toxic Substances Control Act (TSCA) Section 4(e)
Priority List by recommending for testing 28 chemical substances. The
ITC recommendations must be given priority consideration by EPA in
promulgating test rules. EPA is adding these chemical substances to two
model information-gathering rules: the TSCA Section 8(a) Preliminary
Assessment Information Rule (PAIR) and the TSCA Section 8(d) Health and
Safety Data Reporting Rule. These model rules will require
manufacturers and importers of the substances identified herein to
report certain production, use, and exposure-related information, and
manufacturers, importers, and processors of the listed substances to
report unpublished health and safety data to EPA. This rule also makes
certain modifications to a final
[[Page 7422]]
rule published in the Federal Register of February 9, 1994; the TSCA
section 8(d) Health and Safety Data Reporting rule.
EFFECTIVE DATE: March 29, 1996.
FOR FURTHER INFORMATION CONTACT:
Susan B. Hazen, Director, TSCA Environmental Assistance Division
(7408), Office of Pollution Prevention and Toxics, Environmental
Protection Agency, 401 M St., SW., Rm. E-543, Washington, DC 20460,
Telephone: (202) 554-1404, TDD: (202) 554-0551, e-mail: TSCA-
H[email protected].
SUPPLEMENTARY INFORMATION: This rule adds 28 chemical substances to the
PAIR and the section 8(d) Health and Safety Data Reporting Rule.
Manufacturers, importers, and processors of these chemicals will be
required to report unpublished health and safety data, and
manufacturers and importers will be required to report end use,
exposure, and production volume data to EPA.
This document also modifies TSCA section 8(d) of a final rule
published in the Federal Register of February 9, 1994 (59 FR 5956), to
require submission of ecological effects data for o-sec-butylphenol
(CAS No. 89-72-5).
I. Background
Section 4(e) of TSCA established the ITC and authorized it to
recommend to EPA chemical substances and mixtures (chemicals) to be
given priority consideration in proposing test rules under section 4.
For some of these chemicals, the ITC may designate that EPA must
respond to its recommendations within 12 months. In this time, EPA must
either initiate a rulemaking to test the chemical or publish in the
Federal Register its reasons for not doing so.
On November 22, 1995, EPA announced the receipt of the 37th Report
of the ITC, and it was then published in the Federal Register of
February 2, 1996 (61 FR 4188). The 37th Report revises the Committee's
priority list of chemicals by recommending the addition of 28 chemical
substances for testing to the section 4(e) priority list.
This rule adds 28 substances to the section 8(a) Preliminary
Assessment Information Reporting Rule PAIR and the section 8(d) Health
and Safety Data Reporting Rule. These two rules are model information
gathering rules which assist the ITC in making testing recommendations
and aid EPA in responding to the ITC recommendations.
EPA issued the PAIR under section 8(a) of TSCA (15 U.S.C. 2607(a)),
and it is codified at 40 CFR part 712. This model section 8(a) rule
establishes standard reporting requirements for manufacturers and
importers of the chemicals listed in the rule at 40 CFR 712.30. These
manufacturers and importers are required to submit a one-time report on
general volume, end use, and exposure-related information using the
Preliminary Assessment Information Manufacturer's Report (EPA Form
7710-35). EPA uses this model section 8(a) rule to gather current
information on chemicals of concern quickly.
EPA issued the model Health and Safety Data Reporting Rule under
section 8(d) of TSCA (15 U.S.C. 2607(d)), and it is codified at 40 CFR
part 716. The section 8(d) model rule requires past, current, and
prospective manufacturers, importers, and processors of listed
chemicals to submit to EPA copies and lists of unpublished health and
safety studies on the listed chemicals that they manufacture, import,
or process. These studies provide EPA with useful information and have
provided significant support for EPA's decisionmaking under TSCA
sections 4, 5, 6, 8, and 9.
These model rules provide for the automatic addition of ITC
priority list chemicals. Whenever EPA announces the receipt of an ITC
report, EPA may, at the same time without further notice and comment,
amend the two model information-gathering rules by adding the
recommended chemicals. The amendment adding these chemicals to the PAIR
and the Health and Safety Data Reporting Rule becomes effective 30 days
after publication in the Federal Register.
II. Chemicals To Be Added
In its 37th Report to EPA, the ITC recommended adding 28
alkylphenols and alkylphenol ethoxylates to the section 8(a) PAIR and
the section 8(d) Health and Safety Data Reporting Rule. While 28
chemical substances are identified in the regulatory text, 34 CAS
numbers are listed. Two chemical substances, branched 4-nonyphenol
(mixed isomers) and (1,1,3,3-tetramethylbutyl)phenol (mixed isomers)
are characterized with multiple CAS numbers.
For a complete listing of the substances being added to the section
8(d) model rule and the PAIR, see the regulatory text of this document.
In response to the data needs of EPA and the Department of
Interior, TSCA section 8(d) reporting requirements for o-sec-
buytlphenol (CAS No. 89-72-5) are being amended to require submission
of ecological effects data (59 FR 5956, February 9, 1994).
III. Reporting Requirements
A. Preliminary Assessment Information Rule
All persons who manufactured or imported the chemical substances
named in this rule during their latest complete corporate fiscal year
must submit a Preliminary Assessment Information Manufacturer's Report
(EPA Form No. 7710-35) for each manufacturing or importing site at
which they manufactured or imported a named substance. A separate form
must be completed for each substance and submitted to the Agency no
later than May 28, 1996. Persons who have previously and voluntarily
submitted a Manufacturer's Report to the ITC or EPA may be able to
submit a copy of the original Report to EPA or to notify EPA by letter
of their desire to have this voluntary submission accepted in lieu of a
current data submission. See Sec. 712.30(a)(3).
Details of the reporting requirements, the basis for exemptions,
and a facsimile of the reporting form, are provided in 40 CFR part 712.
Copies of the form are available from the TSCA Environmental Assistance
Division at the address listed under FOR FURTHER INFORMATION CONTACT.
B. Health and Safety Data Reporting Rule
Listed below are the general reporting requirements of the section
8(d) model rule.
1. Persons who, in the 10 years preceding the date a substance is
listed, either have proposed to manufacture, import, or process, or
have manufactured, imported, or processed, the listed substance must
submit to EPA; A copy of each health and safety study which is in their
possession at the time the substance is listed.
2. Persons who, at the time the substance is listed, propose to
manufacture, import, or process; or are manufacturing, importing, or
processing the listed substance must submit to EPA:
a. A copy of each health and safety study which is in their
possession at the time the substance is listed.
b. A list of health and safety studies known to them but not in
their possession at the time the substance is listed.
c. A list of health and safety studies that are ongoing at the time
the substance is listed and are being conducted by or for them.
d. A list of each health and safety study that is initiated after
the date the substance is listed and is conducted by or for them.
[[Page 7423]]
e. A copy of each health and safety study that was previously
listed as ongoing or subsequently initiated and is now complete--
regardless of completion date.
3. Persons who, after the time the substance is listed, propose to
manufacture, import, or process the listed substance must submit to
EPA:
a. A copy of each health and safety study which is in their
possession at the time they propose to manufacture, import, or process
the listed substance.
b. A list of health and safety studies known to them but not in
their possession at the time they propose to manufacture, import, or
process the listed substance.
c. A list of health and safety studies that are ongoing at the time
they propose to manufacture, import, or process the listed substance,
and are being conducted by or for them.
d. A list of each health and safety study that is initiated after
the time they propose to manufacture, import, or process the listed
substance, and is conducted by or for them.
e. A copy of each health and safety study that was previously
listed as ongoing or subsequently initiated and is now complete--
regardless of the completion date.
The bulk of reporting is required at the time the substance is
listed. Persons described in categories 1 and 2 do all or most of their
health and safety data reporting at the start of the reporting period.
The remaining reporting requirements, specifically categories 2(d),
2(e), and 3, continue prospectively.
Detailed guidance for reporting unpublished health and safety data
is provided in the Federal Register of September 15, 1986 (51 FR
32720). Also found there are explanations of the reporting exemptions.
C. Submission of PAIR Reports and Section 8(d) Studies
PAIR reports and section 8(d) health and safety studies must be
sent to: TSCA Document Processing Center (7407), Office of Pollution
Prevention and Toxics, Environmental Protection Agency, 401 M St., SW.,
Washington, DC 20460, ATTN: (insert either PAIR or 8(d) Reporting).
D. Removal of Chemical Substances from the Rules
Any person who believes that section 8(a) or 8(d) reporting
required by this rule is unwarranted, should promptly submit to EPA in
detail the reasons for that belief. EPA, in its discretion, may remove
the substance from this rule for good cause (40 CFR 712.30 and
716.105). When withdrawing a substance from the rule, EPA will issue a
rule amendment for publication in the Federal Register.
IV. Economic Analysis
A. Preliminary Assessment Information Rule
The economic analysis for the addition of the 28 chemicals to the
TSCA Section 4(e) Priority List will be based largely on the methods
and data sources developed for the analyses of the original Section
8(a) Preliminary Assessment Information Rule (PAIR). These analyses
are:
1. Economic Impact and Small Business Definition Analysis for TSCA
Section 8(a) Preliminary Assessment Information Rule. Office of
Regulatory Analysis, OTS, U.S. EPA. February 1980.
2. Economic Analysis of the Final Section 8(a) Preliminary
Assessment Information Rule. R.A. Horner, Regulatory Impacts Branch,
OTS, U.S. EPA. November 12, 1981.
The Chemical Update System (CUS) was searched to determine the
manufacturers and importers of the 28 chemicals. This search identified
17 firms manufacturing or importing the 28 chemicals at a total of 14
sites.
Reporting Costs (dollars)
(a) 26 reports estimated at $1,483.73 per report=$38,576.98
(b) 17 sites at $465.99 per site=$7,921.83
Total Cost=$46,498.81
Mean cost per site=$46,499/14 sites=$3,321.36
Mean cost per firm=$46,499/17 firms=$2,735.24
Reporting Burden (hours)
(a) Rule familiarization: 7 hrs/site x 14 sites=98
(b) Reporting: 22 hrs/report x 26 reports=572
Total burden hours=707
Average burden per site=707 hours/14 sites=50.5
Average burden per firm=707 hours/17 firms=41.6
EPA Costs (dollars)
It is estimated that the annual cost to the Federal Government will
be 1.36 FTEs (or 2,828.8 hours annually). At an estimated $69,370 per
FTE, the total of 1.36 FTEs will cost EPA $94,343.
B. Health and Safety Data Reporting Rule
EPA estimates the total reporting costs for establishing section
8(d) reporting requirements for the 11 chemicals will be $84,954. The
methodology used in this economic analysis was derived from the
approach used in the analysis of the original 8(d) reporting: Impact
Analysis for the Health and Safety Data Reporting Rule (Office of Toxic
Substances, U.S. EPA, September 1982). Although EPA has used the best
available data to make its economic projections, much of the
information is based upon the 1986 TSCA Inventory Update and secondary
information from industry sources.
The estimated reporting costs are broken down as follows:
Initial corporate review.........................................$8,382
Site identification..............................................12,573
File searches at site............................................28,329
Photocopying existing studies.....................................3,208
Title listing.....................................................1,277
Managerial review for CBI........................................18,549
Reporting on newly-initiated studies................................491
Submissions after initial reporting period.......................11,653
Additional costs....................................................492
Total......................................................84,954
Reporting Burden (hours)
(a) Initial review: 108 hrs
(b) Reporting: 953 hrs
Total reporting burden hours=1,061 hrs
V. Rulemaking Record
The following documents constitute the record for this rule (docket
control number OPPTS-82048). All of these documents are available to
the public in the TSCA Nonconfidential Information Center (NCIC),
formerly the TSCA Public Docket Office, from 12 noon to 4 p.m., Monday
through Friday, excluding legal holidays. The NCIC is located at EPA
Headquarters, Rm. NE-B607, 401 M St., SW., Washington, DC 20460.
1. This final rule.
2. The economic analysis for this rule.
3. The Thirty-seventh Report of the ITC.
VI. Regulatory Assessment Requirements
A. Executive Order 12866
Pursuant to Executive Order 12866 (58 FR 51735, October 4, 1993),
it has been determined that this rule is not ``significant'' because
the Office of Management and Budget (OMB) has waived review of these
types of actions, and is therefore not subject to OMB review.
B. Paperwork Reduction Act
OMB has approved the information collection requirements contained
in this rule under the provisions of the Paperwork Reduction Act of
1980, 44 U.S.C. 3501 et seq. and has assigned OMB control number 2070-
0054 for PAIR reporting and 2070-0004 for TSCA section 8(d) reporting.
Information concerning the collection of
[[Page 7424]]
this information, its use, and estimated costs may be found in Units I.
and IV. of this preamble.
C. Regulatory Flexibility Act
Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601 et seq.),
the Agency must consider whether a regulatory action will have an
adverse economic impact on small entities. Section 605(b) requires the
Agency to either certify that the regulatory action will not have a
significant economic impact on a substantial number of small entities,
or prepare a regulatory flexibility analysis. EPA has determined that
this regulatory action does not impose any adverse economic impacts on
small entities.
D. Unfunded Mandates Reform Act and Executive Order 12875
Pursuant to Title II of the Unfunded Mandates Reform Act of 1995
(Pub. L. 104-4), EPA has determined that this regulatory action does
not contain any ``unfunded mandates,'' as described by the Act, for
State, local, or tribal governments or the private sector. In addition,
EPA has determined that this action does not result in the expenditure
of $100 million or more by any State, local or tribal governments, or
by anyone in the private sector. The costs associated with this action
are described in the Executive Order 12966 section above.
E. Executive Order 19898
Due to the nature of this action which is confined to information-
gathering activities, it was not necessary for the Agency to consider
environmental justice related issues pursuant to Executive Order 19898
(59 FR 7629, February 16, 1994).
List of Subjects in 40 CFR Parts 712 and 716
Environmental protection, Chemicals, Hazardous substances, Health
and safety data, Reporting and recordkeeping requirements.
Dated: February 22, 1996.
Frank D. Kover,
Acting Director, Chemical Control Division, Office of Pollution
Prevention and Toxics.
Therefore, 40 CFR Chapter I is amended as follows:
PART 712--[AMENDED]
1. In part 712:
a. The authority citation for part 712 continues to read as
follows:
Authority: 15 U.S.C. 2607(a).
b. Section 712.30(e) is amended in the table by alphabetically
adding the new category ``Alkylphenols and Alkylphenol Ethoxylates,''
to read as follows:
Sec. 712.30 Chemicals lists and reporting periods.
* * * * *
(e) * * *
----------------------------------------------------------------------------------------------------------------
CAS No. Substance Effective date Reporting date
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Alkylphenols and Alkylphenol Ethoxylates:
80-46-6...................... 4-tert-Pentylphenol.......................... 3/29/96 5/29/96
88-18-6...................... 2-tert-Butylphenol........................... 3/29/96 5/29/96
94-06-4...................... 4-(1-Methylbutyl)phenol...................... 3/29/96 5/29/96
98-54-4...................... 4-tert-Butylphenol........................... 3/29/96 5/29/96
99-71-8...................... 4-sec-Butylphenol............................ 3/29/96 5/29/96
104-40-5..................... 4-Nonylphenol................................ 3/29/96 5/29/96
104-43-8..................... 4-Dodecylphenol.............................. 3/29/96 5/29/96
949-13-3..................... 2-Octylphenol................................ 3/29/96 5/29/96
1300-16-9.................... Nonylphenol (mixed isomers).................. 3/29/96 5/29/96
1322-69-6.................... (1,1,3,3-Tetramethylbutyl)phenol (mixed 3/29/96 5/29/96
isomers).
1331-57-3.................... Dodecylphenol (mixed isomers)................ 3/29/96 5/29/96
1638-22-8.................... 4-n-Butylphenol.............................. 3/29/96 5/29/96
1806-26-4.................... 4-Octylphenol................................ 3/29/96 5/29/96
2315-66-4.................... Decaethylene glycol 4-isooctylphenyl ether... 3/29/96 5/29/96
2497-58-7.................... Hexaethylene glycol 4-isooctylphenyl ether... 3/29/96 5/29/96
3180-09-4.................... 2-Butylphenol................................ 3/29/96 5/29/96
3884-95-5.................... 2-(1,1,3,3-Tetramethylbutyl)phenol........... 3/29/96 5/29/96
9002-93-1.................... Polyethylene glycol 4-(tert-octyl)phenyl 3/29/96 5/29/96
ether.
9036-19-5.................... Polyethylene glycol mono(octyl)phenyl ether.. 3/29/96 5/29/96
11066-49-2................... Isononylphenol (mixed isomers)............... 3/29/96 5/29/96
14938-35-3................... 4-Pentylphenol............................... 3/29/96 5/29/96
17404-66-9................... 4-(1-Methyloctyl)phenol...................... 3/29/96 5/29/96
25154-52-3................... Nonylphenol (mixed isomers).................. 3/29/96 5/29/96
27178-34-3................... tert-Butylphenol (mixed isomers)............. 3/29/96 5/29/96
27193-28-8................... (1,1,3,3-Tetramethylbutyl)phenol (mixed 3/29/96 5/29/96
isomers).
27193-86-8................... Dodecylphenol (mixed isomers)................ 3/29/96 5/29/96
27985-70-2................... (1-Methylheptyl)phenol (mixed isomers)....... 3/29/96 5/29/96
29932-96-5................... (1,1,3,3-Tetramethylbutyl)phenol (mixed 3/29/96 5/29/96
isomers).
30105-54-5................... (1,1,3,3-Tetramethylbutyl)phenol (mixed 3/29/96 5/29/96
isomers).
31195-95-6................... Isobutylphenol (mixed isomers)............... 3/29/96 5/29/96
54932-78-4................... 4-(2,2,3,3-Tetramethylbutyl)phenol........... 3/29/96 5/29/96
2744-41-6.................... (1,1,3,3-Tetramethylbutyl)phenol (mixed 3/29/96 5/29/96
isomers).
68987-90-6................... Poly(oxy-1,2-ethanediyl), - 3/29/96 5/29/96
(octylphenyl)--hydroxy-, branched.
84852-15-3................... Branched 4-nonylphenol (mixed isomers)....... 3/29/96 5/29/96
* * * * * * *
----------------------------------------------------------------------------------------------------------------
[[Page 7425]]
PART 716--[AMENDED]
2. In part 716:
1a. The authority citation for part 716 continues to read as
follows:
Authority: 15 U.S.C. 2607(d).
b. Section 716.120(d) is amended in the table by alphabetically
adding the new category ``Alkylphenols and Alkylphenol Ethoxyates'' and
revising the entry for o-sec-butylphenol under the category ``OSHA
Chemicals in Need of Dermal Absorption Testing'' to read as follows:
Sec. 716.120 Substances and listed mixtures to which this subpart
applies.
* * * * *
(d) * * *
----------------------------------------------------------------------------------------------------------------
CAS No.
Category (exemption for Special exemptions Effective date Sunset date
category)
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Alkylphenols and Alkylphenol Ethoxyates:
tert-Butylphenol (mixed isomers)..... 27178-34-3 Sec. 716.20(b)(4) 3/29/96 3/29/06
applies.
2-Butylphenol........................ 3180-09-4 Sec. 716.20(b)(4) 3/29/96 3/29/06
applies.
2-tert-Butylphenol................... 88-18-6 Sec. 716.20(b)(4) 3/29/96 3/29/06
applies.
4-n-Butylphenol...................... 1638-22-8 Sec. 716.20(b)(4) 3/29/96 3/29/06
applies.
4-sec-Butylphenol.................... 99-71-8 Sec. 716.20(b)(4) 3/29/96 3/29/06
applies.
4-tert-Butylphenol................... 98-54-4 Sec. 716.20(b)(4) 3/29/96 3/29/06
applies.
Decaethylene glycol 4-isoctylphenyl 2315-66-4 Sec. 716.20(b)(4) 3/29/96 3/29/06
ether. applies.
4-Dodecylphenol...................... 104-43-8 Sec. 716.20(b)(4) 3/29/96 3/29/06
applies.
Dodecylphenol (mixed isomers)........ 1331-57-3 Sec. 716.20(b)(4) 3/29/96 3/29/06
applies.
Dedecylphenol (mixed isomers)........ 27193-86-8 Sec. 716.20(b)(4) 3/29/96 3/29/06
applies.
Hexaethylene glycol 4-isoctylphenyl 2497-58-7 Sec. 716.20(b)(4) 3/29/96 3/29/06
ether. applies.
Isobutylphenol (mixed isomers)....... 31195-95-6 Sec. 716.20(b)(4) 3/29/96 3/29/06
applies.
Isononylphenol (mixed isomers)....... 11066-49-2 Sec. 716.20(b)(4) 3/29/96 3/29/06
applies.
4-(1-Methylbutyl)phenol.............. 94-06-4 Sec. 716.20(b)(4) 3/29/96 3/29/06
applies.
(1-Methylheptyl)phenol (mixed 27985-70-2 Sec. 716.20(b)(4) 3/29/96 3/29/06
isomers). applies.
4-(1-Methyloctyl)phenol.............. 17404-66-9 Sec. 716.20(b)(4) 3/29/96 3/29/06
applies.
Nonylphenol (mixed isomers).......... 1300-16-9 Sec. 716.20(b)(4) 3/29/96 3/29/06
applies.
25154-52-3 Sec. 716.20(b)(4) 3/29/96 3/29/06
applies.
4-Nonylphenol........................ 104-40-5 Sec. 716.20(b)(4) 3/29/96 3/29/06
applies.
Branched 4-nonylphenol (mixed 84852-15-3 Sec. 716.20(b)(4) 3/29/96 3/29/06
isomers). applies.
2-Octylphenol........................ 949-13-3 Sec. 716.20(b)(4) 3/29/96 3/29/06
applies.
4-Octylphenol........................ 1806-26-4 Sec. 716.20(b)(4) 3/29/96 3/29/06
applies.
4-Pentylphenol....................... 14938-35-3 Sec. 716.20(b)(4) 3/29/96 3/29/06
applies.
4-tert-Pentylphenol.................. 80-46-6 Sec. 716.20(b)(4) 3/29/96 3/29/06
applies.
Polyethylene glycol mono(octyl)phenyl 9036-19-5 Sec. 716.20(b)(4) 3/29/96 3/29/06
ether. applies.
Polyethylene glycol 4-(tert- 9002-93-1 Sec. 716.20(b)(4) 3/29/96 3/29/06
octyl)phenyl ether. applies.
Poly(oxy-1,2-ethanediyl), - 48987-90-6 Sec. 716.20(b)(4) 3/29/96 3/29/06
(octylphenyl)--hydroxy-, applies.
branched.
2-(1,1,3,3-Tetramethylbutyl)phenol... 3884-95-5 Sec. 716.20(b)(4) 3/29/96 3/29/06
applies.
(1,1,3,3-Tetramethylbutyl)phenol 1322-69-6 Sec. 716.20(b)(4) 3/29/96 3/29/06
(mixed isomers). applies.
27193-28-8 Sec. 716.20(b)(4) 3/29/96 3/29/06
applies.
29932-96-5 Sec. 716.20(b)(4) 3/29/96 3/29/06
applies.
30105-54-5 Sec. 716.20(b)(4) 3/29/96 3/29/06
applies.
62744-41-6 Sec. 716.20(b)(4) 3/29/96 3/29/06
applies.
4-(2,2,3,3-Tetramethylbutyl)phenol... 54932-78-4 Sec. 716.20(b)(4) 3/29/96 3/29/06
applies.
* * * * * * *
OSHA Chemicals in Need of Dermal
Absorption Testing:
o-sec-butylphenol.................... 89-72-5 ..................... 3/11/94 3/11/04
* * * * * * *
----------------------------------------------------------------------------------------------------------------
[FR Doc. 96-4519 Filed 2-27-96; 8:45 am]
BILLING CODE 6560-50-M
Complete official Federal Register PDF
FR Doc. 96-4515 Removal of Obsolete Passenger Train or Ferry Discontinuance Regulations
[Federal Register Volume 61, Number 40 (Wednesday, February 28, 1996)]
[Rules and Regulations]
[Pages 7427-7428]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-4515]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
49 CFR Part 1153
[STB Ex Parte No. 534]
Removal of Obsolete Passenger Train or Ferry Discontinuance
Regulations
AGENCY: Surface Transportation Board.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Surface Transportation Board (the Board) is removing
obsolete regulations concerning passenger train and ferry
discontinuances from the Code of Federal Regulations.
EFFECTIVE DATE: January 1, 1996.
FOR FURTHER INFORMATION CONTACT: Beryl Gordon (202) 927-5610. [TDD for
the hearing impaired: (202) 927-5721.]
SUPPLEMENTARY INFORMATION: Effective January 1, 1996, the ICC
Termination Act of 1995, Pub. L. No. 104-88, 109 Stat. 803 (the Act),
abolished the Interstate Commerce Commission (the Commission) and
established within the Department of Transportation the Surface
Transportation Board. Section 204 of the Act provides that ``[t]he
Board shall promptly rescind all regulations established by the
[Commission] that are based on provisions of law repealed and not
substantively reenacted by this Act.'' 49 U.S.C. 10908 and 10909, the
statutory bases for the part 1153 passenger train
[[Page 7428]]
or ferry discontinuance regulations, have been repealed. We are
therefore removing the now obsolete part 1153 regulations.1 These
changes are not necessarily the final changes in the regulations
resulting from the elimination of 49 U.S.C. 10908 and 10909.2
\1\ These regulations were last modified in Discontinuance or
Change of Train or Ferry Service, 366 I.C.C. 877 (1983).
\2\ At this time, we are not removing related matters found in
the regulations concerning user fees (Sec. 1002) and environmental
regulations (Sec. 1105.6), because we plan to separately address
those parts shortly. Parties may submit other suggested changes to
the Code of Federal Regulations in light of the elimination of
Sec. 10908 and Sec. 10909.
---------------------------------------------------------------------------
Because this action merely reflects, and is required by, the
enactment of the Act and will not have an adverse effect on the
interests of any person, this action will be deemed to be effective as
of January 1, 1996.
This action will not significantly affect either the quality of the
human environment or the conservation of energy resources.
List of Subjects in 49 CFR Part 1153
Administrative practice and procedure, Railroads.
Decided: February 15, 1996.
By the Board, Chairman Morgan, Vice Chairman Simmons, and
Commissioner Owen.
Vernon A. Williams,
Secretary.
For the reasons set forth in the preamble and under the authority
of 49 U.S.C. 721(a), title 49, chapter X of the Code of Federal
Regulations is amended by removing part 1153.
[FR Doc. 96-4515 Filed 2-27-96; 8:45 am]
BILLING CODE 4915-00-P
Complete official Federal Register PDF
FR Doc. 96-4514 Removal of Obsolete Rail Tariff Regulations
[Federal Register Volume 61, Number 40 (Wednesday, February 28, 1996)]
[Rules and Regulations]
[Pages 7428-7429]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-4514]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
49 CFR Part 1314
[STB Ex Parte No. 530]
Removal of Obsolete Rail Tariff Regulations
AGENCY: Surface Transportation Board.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Surface Transportation Board (the Board) is removing
obsolete rail tariff regulations from the Code of Federal Regulations.
EFFECTIVE DATE: January 1, 1996.
FOR FURTHER INFORMATION CONTACT: Beryl Gordon (202) 927-5610. [TDD for
the hearing impaired: (202) 927-5721.]
SUPPLEMENTARY INFORMATION: Effective January 1, 1996, the ICC
Termination Act of 1995, Pub. L. No. 104-88, 109 Stat. 803 (the Act),
abolished the Interstate Commerce Commission (the Commission) and
established within the Department of Transportation the Surface
Transportation Board. Section 204 of the Act provides that ``[t]he
Board shall promptly rescind all regulations established by the
[Commission] that are based on provisions of law repealed and not
substantively reenacted by this Act.'' 49 U.S.C. 10761 and 10762, the
statutory bases for the part 1314 rail tariff regulations,1 have
been repealed. Carriers no longer have to file or maintain tariffs. We
are therefore removing the now obsolete part 1314 regulations.2
Tariff regulations at part 1312, which cover other modes of
transportation for which tariff filing requirements were not completely
eliminated, will be separately addressed and revised.3
\1\ These regulations were promulgated in Electronic Filing of
Tariffs, 5 I.C.C.2d 279 (1989), rules stayed, 5 I.C.C.2d 1052
(1989), stay lifted as to rail carrier tariffs, 6 I.C.C.2d 153
(1989). We subsequently amended our regulations to reflect the
status quo for publishing electronic and printed tariffs, and we
terminated the proceeding. Electronic Filing of Tariffs 49 CFR Parts
1312 and 1314, Ex Parte No. 444 (ICC served Mar. 10, 1995).
\2\ While the Act removes the requirement that a tariff be filed
or maintained, rail carriers must establish and maintain rates and
service terms for transportation that are provided under common
carriage. Moreover, under 49 U.S.C. 11101(b), rail carriers must
disclose those rates to any person upon request. For agricultural
products, the rail carrier shall also ``publish, make available, and
retain for public inspection its common carrier rates, schedules of
rates, and other service terms. * * * '' 49 U.S.C. 11101(d). The
Board will separately issue new regulations implementing these
requirements. Under 49 U.S.C. 11101(e), a rail carrier is required
to provide transportation and service according to the rates and
service terms it has published or otherwise made available.
\3\ Parties may inform the Board whether other regulations are
affected by the elimination of Sec. 10761 and Sec. 10762.
---------------------------------------------------------------------------
Because this action merely reflects, and is required by, the
enactment of the
[[Page 7429]]
Act and will not have an adverse effect on the interests of any person,
this action will be deemed to be effective as of January 1, 1996.
This action will not significantly affect either the quality of the
human environment or the conservation of energy resources.
List of Subjects in 49 CFR Part 1314
Railroads, Tariffs.
Decided: February 15, 1996.
By the Board, Chairman Morgan, Vice Chairman Simmons, and
Commissioner Owen.
Vernon A. Williams,
Secretary.
For the reasons set forth in the preamble and under the authority
of 49 U.S.C. 721(a), title 49, chapter X of the Code of Federal
Regulations is amended by removing part 1314.
[FR Doc. 96-4514 Filed 2-27-96; 8:45 am]
BILLING CODE 4915-00-P
Complete official Federal Register PDF
FR Doc. 96-4513 Removal of Obsolete Regulations for Reasonably Expected Costs and Joint Rates Subject to Surcharge or Cancellation
[Federal Register Volume 61, Number 40 (Wednesday, February 28, 1996)]
[Rules and Regulations]
[Page 7427]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-4513]
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DEPARTMENT OF TRANSPORTATION
49 CFR Parts 1039, 1138, 1140
[STB Ex Parte No. 532]
Removal of Obsolete Regulations for Reasonably Expected Costs and
Joint Rates Subject to Surcharge or Cancellation
AGENCY: Surface Transportation Board.
ACTION: Final rule.
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SUMMARY: The Surface Transportation Board (the Board) is removing
obsolete reasonably expected costs and joint rate surcharge and
cancellation regulations from the Code of Federal Regulations.
EFFECTIVE DATE: January 1, 1996.
FOR FURTHER INFORMATION CONTACT: Beryl Gordon (202) 927-5610. [TDD for
the hearing impaired: (202) 927-5721.]
SUPPLEMENTARY INFORMATION: Effective January 1, 1996, the ICC
Termination Act of 1995, Pub. L. No. 104-88, 109 Stat. 803 (the Act),
abolished the Interstate Commerce Commission (the Commission) and
established within the Department of Transportation the Surface
Transportation Board. Section 204 of the Act provides that ``[t]he
Board shall promptly rescind all regulations established by the
[Commission] that are based on provisions of law repealed and not
substantively reenacted by this Act.'' 49 U.S.C. 10705a, the statutory
basis for the part 1138 regulations on requesting variable cost and
revenue determinations from carriers canceling a joint rate 1 and
the part 1140 regulations for reasonably expected costs,2 has been
repealed. This section allowed carriers to apply a surcharge increasing
or reducing a joint rate [Sec. 10705a(a)],3 to apply a surcharge
on their light density lines [Sec. 10705a(b)], or to cancel a joint
rate [Sec. 10705a(c)], without the concurrence of other participating
carriers.4 We are therefore removing the now obsolete parts 1138
and 1140 regulations, as well as another obsolete regulation pertaining
to Sec. 10705a found at 49 CFR 1039.18. These changes are not
necessarily the final revisions in the regulations resulting from the
elimination of 49 U.S.C. 10705a.5 Parties may submit suggested
additional changes to the Code of Federal Regulations in light of the
elimination of Sec. 10705a.
\1\ Regulations were promulgated in Proc. For Rail Variable Cost
And Revenue Determination, 3 I.C.C.2d 703 (1987).
\2\ Regulations were originally promulgated in Reasonably
Expected Costs, 365 I.C.C. 819 (1981), in the proceeding docketed as
Ex Parte No. 402. Subsequent revisions to the reasonably expected
cost regulations were made in the Ex Parte No. 402 decisions at 1
I.C.C.2d 252 (1984), 1 I.C.C.2d 293 (1984), and 5 I.C.C.2d 819
(1988).
\3\ Carriers could also apply negative surcharges under 49
U.S.C. 10705a(a). In Negative Surcharges Tariff-Exemption, Docket
No. 39777 (ICC served Aug. 16, 1985), we granted an exemption to
allow carriers to file rate allowances (``negative surcharges'')
without obtaining concurrences from other carriers participating in
the joint rate. The exemption was codified at 49 CFR 1039.18. The
authority to apply the negative surcharge expired on September 30,
1984. We are also removing section 1039.18 in this notice.
\4\ There was also another provision concerning joint rate
cancellations--former section 10705(e) of title 49. We will consider
this section in another proceeding.
\5\ At this time, we are not removing related matters found in
regulations concerning user fees (Sec. 1002) and tariffs (Sec. 1312)
because we plan to separately address those parts shortly.
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Because this action merely reflects, and is required by, the
enactment of the Act and will not have an adverse effect on the
interests of any person, this action will be deemed to be effective as
of January 1, 1996.
This action will not significantly affect either the quality of the
human environment or the conservation of energy resources.
List of Subjects
49 CFR Part 1039
Agricultural commodities, Intermodal transportation, Manufactured
commodities, Railroads.
49 CFR Part 1138
Administrative practice and procedure, Freight, Railroads.
49 CFR Part 1140
Abandonments and discontinuances, Environmental protection,
National resources, National trail system, Public use conditions,
Railroads, Recreation and recreation areas, Reporting and recordkeeping
requirements, Uniform System of Accounts.
Decided: February 15, 1996.
By the Board, Chairman Morgan, Vice Chairman Simmons,
Commissioner Owen.
Vernon A. Williams,
Secretary.
For the reasons set forth in the preamble and under the authority
of 49 U.S.C. 721(a), title 49, chapter X of the Code of Federal
Regulations is amended as set forth below:
PART 1039--EXEMPTIONS
1. The authority citation for part 1039 is revised to read as
follows:
Authority: 5 U.S.C. 553 and 49 U.S.C. 721 and 10502.
Sec. 1039.18 [Amended]
2. Section 1039.18 is removed.
PART 1138--[REMOVED]
3. Part 1138 is removed.
PART 1140--[REMOVED]
4. Part 1140 is removed.
[FR Doc. 96-4513 Filed 2-27-96; 8:45 am]
BILLING CODE 4915-00-P
Complete official Federal Register PDF
FR Doc. 96-4502 South Texas Onions; Increased Expenses and Establishment of Assessment Rate
[Federal Register Volume 61, Number 40 (Wednesday, February 28, 1996)]
[Rules and Regulations]
[Pages 7407-7408]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-4502]
========================================================================
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. 40 / Wednesday, February 28, 1996 /
Rules and Regulations
[[Page 7407]]
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 959
[Docket No. FV95-959-2FIR]
South Texas Onions; Increased Expenses and Establishment of
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, without change, the provisions of an amended interim final
rule that increased the level of authorized expenses and established an
assessment rate that generated funds to pay those expenses under
Marketing Order No. 959 for the 1995-96 fiscal period. Authorization of
this budget enables the South Texas Onion Committee (Committee) to
incur expenses that are reasonable and necessary to administer the
program. Funds to administer this program are derived from assessments
on handlers.
EFFECTIVE DATE: August 1, 1995, through July 31, 1996.
FOR FURTHER INFORMATION CONTACT: Martha Sue Clark, 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, or Belinda G. Garza, McAllen Marketing Field Office, Fruit and
Vegetable Division, AMS, USDA, 1313 East Hackberry, McAllen, TX 78501,
telephone 210-682-2833.
SUPPLEMENTARY INFORMATION: This rule is issued under Marketing
Agreement No. 143 and Order No. 959, both as amended (7 CFR part 959),
regulating the handling of onions grown in South Texas, 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 12778, Civil
Justice Reform. Under the marketing order provisions now in effect,
South Texas onions are subject to assessments. It is intended that the
assessment rate as issued herein will be applicable to all assessable
onions handled during the 1995-96 fiscal period, which began August 1,
1995, and ends July 31, 1996. 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. A 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 in equity to review the
Secretary's ruling on the petition, provided a bill in equity is filed
not later than 20 days after the date of the entry of the ruling.
Pursuant to the requirements set forth in the Regulatory
Flexibility Act (RFA), the Administrator of the Agricultural Marketing
Service (AMS) has considered the economic impact of this 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 89 producers of South Texas onions under
this marketing order, and approximately 35 handlers. 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 receipts
are less than $5,000,000. The majority of South Texas onion producers
and handlers may be classified as small entities.
The budget of expenses for the 1995-96 fiscal period was prepared
by the South Texas Onion Committee, the agency responsible for local
administration of the marketing order, and submitted to the Department
for approval. The members of the Committee are producers and handlers
of South Texas onions. They are familiar with the Committee's needs and
with the costs of goods and services in their local areas and are thus
in a position to formulate an appropriate budget. The budget was
formulated and discussed in a public meeting. Thus, all directly
affected persons have had an opportunity to participate and provide
input.
The assessment rate recommended by the Committee was derived by
dividing anticipated expenses by expected shipments of South Texas
onions. Because that rate will be applied to actual shipments, it must
be established at a rate that will provide sufficient income to pay the
Committee's expenses.
Committee administrative expenses of $239,250 for personnel,
office, and compliance expenses were recommended in a mail vote. The
assessment rate and funding for the research and promotion projects
were to be recommended at a later Committee meeting. The Committee
administrative expenses of $239,250 were published in the Federal
Register as an interim final rule August 17, 1995 (60 FR 42774). That
interim final rule added Sec. 959.236, authorizing expenses for the
Committee, and provided that interested persons could file comments
through September 18, 1995. No comments were filed.
The Committee subsequently met on November 14, 1995, and
unanimously recommended an increase of $1,000 for insurance in the
recently approved 1995-96 budget. The Committee also unanimously
recommended $246,000 for promotion and $99,000 for onion breeding
research. Budget items for
[[Page 7408]]
1995-96 which have increased compared to those budgeted for 1994-95 (in
parentheses) are: Manager's salary, $19,094 ($15,172), office salaries,
$24,000 ($22,000), payroll taxes, $4,000 ($3,100), insurance, $8,000
($6,250), rent and utilities, $6,500 ($5,000), supplies, $2,000
($1,500), postage, $1,500 ($1,000), telephone and telegraph, $4,000
($2,500), furniture and fixtures, $2,000 ($1,000), equipment rental and
maintenance, $3,500 ($2,500), contingencies, $6,706 ($3,978), manager
travel, $5,000 ($3,000), Canadian onion promotion, $5,000 ($4,450),
$226,000 for promotion ($200,000), onion breeding research, $99,000
($88,028), and $3,750 for deferred compensation (manager's retirement),
and $5,000 for miscellaneous promotion expenses, which were not line
item expenses last year. All other items are budgeted at last year's
amounts.
The initial 1995-96 budget, published on August 17, 1995, did not
establish an assessment rate. Therefore, by a vote of 11 to 1, the
Committee also recommended an assessment rate of $0.10 per 50-pound
container or equivalent of onions, $0.06 more than last year's
assessment rate. The no vote came from a grower who thought increasing
the assessment rate from $0.04 to $0.10 cents was too great an
increase. This rate, when applied to anticipated shipments of
approximately 6,000,000 50-pound containers or equivalents, will yield
$600,000 in assessment income, which will be adequate to cover budgeted
expenses. Funds in the reserve as of December 31, 1995, were $408,314,
which is within the maximum permitted by the order of two fiscal
periods' expenses.
An amended interim final rule was published in the Federal Register
on December 12, 1995 (60 FR 63610). That interim final rule amended
Sec. 959.236 to increase the level of authorized expenses to $585,250
and establish an assessment rate of $0.10 per 50-pound container or
equivalent of onions for the Committee. That rule provided that
interested persons could file comments through January 11, 1996. No
comments were received.
While this action will impose some additional costs on handlers,
the costs are in the form of uniform assessments on handlers. Some of
the additional costs may be passed on to producers. However, these
costs will be offset by the benefits derived from the operation of the
marketing order. Therefore, the Administrator of the AMS has determined
that this action will not have a significant economic impact on a
substantial number of small entities.
After consideration of all relevant matter presented, including the
information and recommendations submitted by the 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.
It is further found that good cause exists for not postponing the
effective date of this action until 30 days after publication in the
Federal Register (5 U.S.C. 553) because the Committee needs to have
sufficient funds to pay its expenses which are incurred on a continuous
basis. The 1995-96 fiscal period began on August 1, 1995, and the
marketing order requires that the rate of assessment for the fiscal
period apply to all assessable onions handled during the fiscal period.
In addition, handlers are aware of this rule which was unanimously
recommended by the Committee at a public meeting and published in the
Federal Register as an amended interim final rule.
List of Subjects in 7 CFR Part 959
Marketing agreements, Onions, Reporting and recordkeeping
requirements.
PART 959--ONIONS GROWN IN SOUTH TEXAS
Accordingly, the interim final rule amending 7 CFR part 959 which
was published at (60 FR 63610) on December 12, 1995, is adopted as a
final rule without change.
Dated: February 22, 1996.
Martha B. Ransom,
Acting Deputy Director, Fruit and Vegetable Division.
[FR Doc. 96-4502 Filed 2-27-96; 8:45 am]
BILLING CODE 3410-02-P
Complete official Federal Register PDF
FR Doc. 96-4501 Melons Grown in South Texas; Change in Cantaloup Container Requirements
[Federal Register Volume 61, Number 40 (Wednesday, February 28, 1996)]
[Rules and Regulations]
[Pages 7408-7409]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-4501]
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DEPARTMENT OF AGRICULTURE
7 CFR Part 979
[Docket No. FV96-979-1IFR]
Melons Grown in South Texas; Change in Cantaloup Container
Requirements
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Interim final rule with request for comments.
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SUMMARY: This interim final rule changes the container requirements for
cantaloups grown in South Texas under Marketing Order No. 979. This
rule increases the depth of cantaloup cartons from 10\3/8\ to 11 \3/8\
inches. The South Texas Melon Committee (committee), the agency that
locally administers the marketing order for melons grown in South
Texas, unanimously recommended this change. This change will allow
handlers to use deeper cartons in shipping larger cantaloups. The use
of deeper cartons is expected to result in less damage during packing
and shipment and foster buyer confidence. This change should be in
effect as soon as possible, to give handlers adequate time to order
cartons, and manufacturers an opportunity to make them, for the 1996
shipping season. This rule also corrects telephone area codes, and
removes out-of-date handler assessment information.
DATES: Effective on February 28, 1996. Comments which are received by
March 29, 1996, will be considered prior to issuance of any final rule.
ADDRESSES: Interested persons are invited to submit written comments
concerning this action. Comments must be sent in triplicate to the
Docket Clerk, Fruit and Vegetable Division, AMS, USDA, room 2523-S,
P.O. Box 96456, Washington, DC 20090-6456, FAX 202-720-5698. All
comments should reference the docket number and the date and page
number of this issue of the Federal Register and will be made available
for public inspection in the Office of the Docket Clerk during regular
business hours.
FOR FURTHER INFORMATION CONTACT: Belinda G. Garza, Marketing Order
Administration Branch, F&V, AMS, USDA, 1313 E. Hackberry, McAllen,
Texas 78501; telephone: 210-682-2833; FAX: 210-682-5942; or Mark
Kreaggor, Marketing Specialist, Marketing Order Administration Branch,
F&V, AMS, USDA, room 2523-S, P.O. Box 96456, Washington, DC 20090-6456;
telephone: 202-720-2431; FAX: 202-720-5698.
SUPPLEMENTARY INFORMATION: This rule is issued under Marketing Order
No. 979 (7 CFR part 979), regulating the handling of melons grown in
South Texas, hereinafter referred to as the ``order.'' This order is
effective under the Agricultural Marketing Agreement Act of 1937, as
amended (7 U.S.C 601-674), hereinafter referred to as the ``Act.''
The Department of Agriculture (Department) is issuing this rule in
conformance with Executive Order 12866.
This interim final rule has been reviewed under Executive Order
12778, Civil Justice Reform. This rule is not intended to have
retroactive effect. This interim final rule will not preempt any State
or local laws, regulations, or policies, unless they present an
irreconcilable conflict with this rule.
The Act provides that administrative proceedings must be exhausted
before parties may file suit in court. Under
[[Page 7409]]
section 608c(15)(A) of the Act, any handler subject to an order may
file with the Secretary a petition stating that the order, any
provision of the order, or any obligation imposed in connection with
the order is not in accordance with law and request a modification of
the order or to be exempted therefrom. A handler is afforded the
opportunity for a hearing on the petition. After the hearing the
Secretary 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 in equity to review the Secretary's ruling
on the petition, provided a bill in equity is filed not later than 20
days after the date of the entry of the ruling.
Pursuant to the requirements set forth in the Regulatory
Flexibility Act (RFA), the Administrator of the Agricultural Marketing
Service (AMS) has considered the economic impact of this action on
small entities.
The purpose of the RFA is to fit regulatory actions to the scale of
business subject to such actions in order that small businesses will
not be unduly or disproportionately burdened. Marketing orders issued
pursuant to the Act, and rules issued thereunder, are unique in that
they are brought about through group action of essentially small
entities acting on their own behalf. Thus, both statutes have small
entity orientation and compatibility.
There are 27 handlers of South Texas melons who are subject to
regulation under the marketing order and 30 producers in the production
area. Small agricultural service firms, which include handlers, have
been defined by the Small Business Administration (13 CFR 121.601) as
those having annual receipts of less than $5,000,000, and small
agricultural producers are defined as those having annual receipts of
less than $500,000. The majority of handlers and producers of South
Texas melons may be classified as small entities.
At a public meeting on December 12, 1995, the committee unanimously
recommended, under the authority of Sec. 979.52 of the order,
increasing the depth of cantaloup cartons. Currently,
Sec. 979.304(b)(1) specifies that the depth of cantaloup cartons may be
not more than 10 \3/8\ nor less than 9 \3/4\ inches. A tolerance of \1/
4\ inch is permitted. The committee recommended an one inch increase in
depth to 11 \3/8\ inches.
In recent years, buyers have requested increased supplies of larger
cantaloups. Handlers have experienced difficulty in packing larger
cantaloups without bruising because the current container depth does
not allow sufficient room for the larger fruit and ice packed with the
cantaloups to keep them cool. Also, without adequate carton space,
proper stacking on pallets is more difficult and compression damage
often occurs to the cantaloups when loading and shipping. Increasing
the depth of cantaloup cartons by one inch to 11 \3/8\ inches will
allow for proper stacking and delivery of cantaloups without bruising
and other damage. This change is expected to foster buyer satisfaction
and confidence. Handlers will not be prevented from using their current
supply of smaller cartons if they desire.
Section 979.304(c)(4) designates inspection stations in Alamo and
Laredo, for handlers who do not have permanent packing facilities
recognized by the committee. The telephone area codes specified for
Alamo and Laredo are not correct. This rule amends Sec. 979.304(c)(4)
to correct those area codes from (502) and (512), respectively, to
(210).
Section 979.304(c)(5) specifies that handlers shall pay assessments
on all assessable melons according to the provisions of Sec. 979.42, at
the rate of \3/4\ cent per carton. The \3/4\ cent per carton rate of
assessment has not been in effect for a number of years. The current
rate of assessment is 7 cents per carton. Also, because the assessment
rate is established by the Department annually in a separate rulemaking
document and handlers are informed of the rate by the committee through
handler notices, the rate of assessment does not need to be referenced
in these provisions. Therefore, the words ``at the rate of \3/4\ cent
per carton'' in Sec. 979.304(c)(5) are removed.
Based on the above, the Administrator of the AMS has determined
that this action will not have a significant economic impact on a
substantial number of small entities.
After consideration of the committee's recommendation and other
relevant information presented, it is found that this interim final
rule will tend to effectuate the declared policy of the Act.
Pursuant to 5 U.S.C. 553, it is also found and determined, upon
good cause, that it is impracticable, unnecessary, and contrary to the
public interest to give preliminary notice prior to putting this rule
into effect, and that good cause exists for not postponing the
effective date of this rule until 30 days after publication in the
Federal Register because: (1) This rule relaxes carton requirements
currently in effect; (2) the committee recommended this rule at a
public meeting; (3) this change should be in effect as soon as
possible, to give handlers adequate time to order cartons, and
manufacturers an opportunity to make them; and (4) this rule provides a
30-day comment period, and any comments received will be considered
prior to finalization of this rule.
List of Subjects in 7 CFR Part 979
Marketing agreements, Melons, Reporting and recordkeeping
requirements.
For the reasons set forth in the preamble, 7 CFR part 979 is
amended as follows:
PART 979--MELONS GROWN IN SOUTH TEXAS
1. The authority citation for 7 CFR part 979 continues to read as
follows:
Authority: 7 U.S.C. 601-674.
2. Section 979.304 is amended by revising the first sentence in
paragraph (b)(1), and paragraphs (c)(4), and (c)(5) to read as follows:
Sec. 979.304 Handling regulation.
* * * * *
(b) Container requirements. (1) Except as provided in paragraphs
(b)(4), (d) or (e) and (f) of this section all cantaloups shall be
packed in fiberboard cartons with inside dimensions of not more than 17
\1/4\ nor less than 16 \3/4\ inches in length, not more than 13 nor
less than 12 \3/4\ inches in width, and not more than 11 \3/8\ nor less
than 9 \3/4\ inches in depth. * * *
* * * * *
(c) * * *
(4) Designated inspection stations will be located at the Texas
Federal Inspection Service office, 1301 W. Expressway, Alamo (Phone
(210) 787-4091 or 6881) and the Matt Dietz Packing Co., 4700 N. Santa
Maria, Laredo (Phone (210) 723-9178 or 9170), to be available for
handlers who do not have permanent packing facilities recognized by the
committee.
(5) Handlers shall pay assessments on all assessable melons
according to the provisions of Sec. 979.42.
* * * * *
Dated: February 22, 1996.
Martha B. Ransom,
Acting Deputy Director, Fruit and Vegetable Division.
[FR Doc. 96-4501 Filed 2-27-96; 8:45 am]
BILLING CODE 3410-02-P
Complete official Federal Register PDF
FR Doc. 96-4498 Loan Guaranty: Limitation on Discount Points Financed in Connection with Interest Rate Reduction Refinancing Loans
[Federal Register Volume 61, Number 40 (Wednesday, February 28, 1996)]
[Rules and Regulations]
[Pages 7414-7415]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-4498]
=======================================================================
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 36
RIN 2900-AH90
Loan Guaranty: Limitation on Discount Points Financed in
Connection with Interest Rate Reduction Refinancing Loans
AGENCY: Department of Veterans Affairs.
ACTION: Interim final rule.
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SUMMARY: This document amends VA's loan guaranty regulations concerning
points allowed to be included in VA-guaranteed Interest Rate Reduction
Refinancing Loans by limiting to two the amount of points that may be
included in the loan. This action is necessary to help ensure that
veterans are not overcharged with excessive points and to protect the
interest of the Government against overinflated loans.
DATES: This rule is effective February 28, 1996. Comments must be
received on or before April 29, 1996.
ADDRESSES: Mail written comments to: Director, Office of Regulations
Management (02D), Department of Veterans Affairs, 810 Vermont Avenue,
NW., Washington, DC 20420; or hand deliver written comments to: Office
of Regulations Management, Room 1176, 801 Eye Street, NW., Washington,
DC 20001. Comments should indicate that they are submitted in response
to ``RIN 2900-AH90.'' All written comments received will be available
for public inspection in the Office of Regulations Management, Room
1176, 801 Eye Street, NW., Washington, DC 20001 between the hours of 8
a.m. and 4:30 p.m., Monday through Friday (except holidays).
FOR FURTHER INFORMATION CONTACT: Ms. Judith Caden, Assistant Director
for Loan Policy (264), Loan Guaranty Service, Veterans Benefits
Administration, Department of Veterans Affairs, Washington, DC 20420,
(202) 273-7368.
SUPPLEMENTARY INFORMATION: Under authority of 38 U.S.C. Chapter 37, VA
guarantees loans made by lenders to eligible veterans to purchase,
construct, improve, or refinance their homes (the term veteran as used
in this document includes any individual defined as a
[[Page 7415]]
veteran under 38 U.S.C. 101 and 3701 for the purpose of housing loans).
This document amends VA's loan guaranty regulations concerning points
allowed to be included in VA-guaranteed Interest Rate Reduction
Refinancing Loans (IRRRLs) by limiting to two the amount of points that
may be included in the loan.
The provisions of 38 U.S.C. 3703(c)(3) and 3710(e)(1)(C) allow for
IRRRLs to include ``reasonable'' points as may be authorized by the
Secretary by regulation. One point equals one percent of the amount of
the loan. Lenders allow a borrower to pay points and thereby reduce the
interest rate.
The regulations in effect prior to the effective date of this
document allowed IRRRLs to include any amount of points negotiated
between the veteran and the lender. This was based on the assumption
that market forces would act to assure that veterans were not charged
excessive points. While this generally has been true, recently a few
lenders have not been constrained by market rates and have been able to
convince veterans to agree to IRRRLs with excessive points. There have
been cases in which IRRRLs include 5 or more points with the lender
representing the loan as having ``at market'' terms even though a true
``at market'' interest rate for such a loan generally would have called
for no more than two points (because of excessive points there have
even been some IRRRLs where the monthly payment increased even though
the interest rate decreased).
In addition to overcharging the veteran, excessive points often
cause other negative impacts. IRRRLs sometime result in loans in excess
of the value of the property. Accordingly, any additional increase in
the amount by which the loan balance exceeds the market value of the
property would further increase VA's loss in the event of default and
payment of a claim under the guaranty. Also, an excessive increase in
the loan amount may cause a veteran to be unable to sell the home for
an amount sufficient to pay off the loan balance.
We believe that limiting to two the amount of points that may be
included in an IRRRL is appropriate. We believe that this will
reasonably protect the veteran and the Government against overinflated
IRRRLs and at the same time avoid unduly hampering veterans' ability to
obtain IRRRLs at favorable terms. The inclusion of two points in
refinanced loans has gained general market acceptance as the typical
number of points included in loans obtained ``at market.'' In our view,
limiting to two the amount of points that may be included in an IRRRL
would not have much of an effect on IRRRLs other than to protect
against the few lenders who are overcharging veterans and increasing
VA's risk with above-market combinations of rates and points.
This change in the regulations only concerns the amount of points
that may be included in an IRRRL. A veteran could pay in excess of two
points if the excess points were paid in cash.
We considered amending the regulations to include a formula
designed to restrict the amount of the loan in comparison with the
value of the property and to ensure that veterans would not get
overcharged. However, we believe such a formula would be too complex
and difficult to enforce. Instead, we believe that we can best help to
ensure that excessive points are not included in IRRRLs by limiting to
two points the amount of points that may be included in the loan.
Administrative Procedure Act
Pursuant to 5 U.S.C. 553, we have found good cause to dispense with
notice and comment on this interim final rule and to dispense with a
30-day delay of its effective date. These findings are based on the
critical need to help ensure that veterans are not overcharged with
excessive points and to protect the interests of the Government against
overinflated loans. Comments are being solicited for 60 days after
publication of this document. VA may modify this rule in response to
comments, if appropriate.
Regulatory Flexibility Act
Because no notice of proposed rulemaking was required in connection
with the adoption of this interim final rule, no regulatory flexibility
analysis is required under the Regulatory Flexibility Act (5 U.S.C. 601
et seq.).
The Catalog of Federal Domestic Assistance Program numbers are
64.114 and 64.119.
List of Subjects in 38 CFR Part 36
Condominiums, Housing, Individuals with disabilities, Loan
programs--housing and community development, Manufactured homes,
Veterans.
Approved: February 13, 1996.
Jesse Brown,
Secretary of Veterans Affairs.
For the reasons set out in the preamble, 38 CFR part 36 is amended
as set forth below.
PART 36--LOAN GUARANTY
1. The authority citation for part 36, Secs. 36.4201 through
36.4287 continues to read as follows:
Authority: Sections 36.4201 through 36.4287 issued under 38
U.S.C. 501, 3701-3704, 3707, 3710-3714, 3719, 3720, 3729, unless
otherwise noted.
2. Section 36.4223 is amended by revising paragraph (a)(3) to read
as follows:
Sec. 36.4223 Interest rate reduction refinancing loan.
(a) * * *
(3) The amount of the refinancing loan may not exceed an amount
equal to the sum of the balance of the loan being refinanced and such
closing costs as authorized in Sec. 36.4232 or Sec. 36.4254, as
appropriate, and a discount not to exceed 2 percent of the loan amount;
(Authority: 38 U.S.C. 3703, 3712)
* * * * *
3. The authority citation for part 36, Secs. 36.4300 through
36.4375 continues to read as follows:
Authority: Sections 36.4300 through 36.4375 issued under 38
U.S.C. 101, 501, 3701-3704, 3710, 3712-3714, 3720, 3279, 3732,
unless otherwise noted.
4. Section 36.4306a is amended by revising paragraph (a)(3)(i) to
read as follows:
Sec. 36.4306a Interest rate reduction refinancing loan.
(a) * * *
(3) * * *
(i) An amount equal to the balance of the loan being refinanced and
such closing costs as authorized by Sec. 36.4312(d) and a discount not
to exceed 2 percent of the loan amount; or
* * * * *
(Authority: 38 U.S.C. 3703, 3710)
[FR Doc. 96-4498 Filed 2-27-96; 8:45 am]
BILLING CODE 8320-01-P
Complete official Federal Register PDF
FR Doc. 96-4472 Cost Accounting Standards Board; Revisions to the Cost Accounting Standards Board Disclosure Statement Form (CASB DS-1)
[Federal Register Volume 61, Number 40 (Wednesday, February 28, 1996)]
[Rules and Regulations]
[Pages 7616-7661]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-4472]
[[Page 7615]]
_______________________________________________________________________
Part IV
Office of Management and Budget
_______________________________________________________________________
Office of Federal Procurement Policy
_______________________________________________________________________
48 CFR Part 9903
Revisions to the Cost Accounting Standards Board Disclosure Statement
Form; Final Rule
Federal Register / Vol. 61, No. 40 / Wednesday, February 28, 1996 /
Rules and Regulations
[[Page 7616]]
OFFICE OF MANAGEMENT AND BUDGET
Office of Federal Procurement Policy
48 CFR Part 9903
Cost Accounting Standards Board; Revisions to the Cost Accounting
Standards Board Disclosure Statement Form (CASB DS-1)
AGENCY: Cost Accounting Standards Board, Office of Federal Procurement
Policy, OMB.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Office of Federal Procurement Policy, Cost Accounting
Standards Board (CASB), is revising its Disclosure Statement Form (CASB
DS-1). Section 26(g)(1) of the Office of Federal Procurement Policy
Act, 41 U.S.C. 422(g)(1), requires that the Board, when promulgating
any new or revised Cost Accounting Standard, publish a final rule. This
final rule incorporates an updated and revised CASB Disclosure
Statement developed by the Board.
EFFECTIVE DATE: February 28, 1996.
FOR FURTHER INFORMATION CONTACT: Rein Abel, Director of Research, Cost
Accounting Standards Board (telephone: 202-395-3254).
SUPPLEMENTARY INFORMATION:
A. Regulatory Process
The CASB's rules, regulations and Standards are codified at 48 CFR
Chapter 99. Section 26(g)(1) of the Office of Federal Procurement
Policy Act, 41 U.S.C. 422(g)(1), requires that the Board, prior to the
establishment of any new or revised CAS, complete a prescribed
rulemaking process. The process generally consists of the following
four steps:
1. Consult with interested persons concerning the advantages,
disadvantages and improvements anticipated in the pricing and
administration of Government contracts as a result of the adoption of a
proposed Standard.
2. Promulgate an Advance Notice of Proposed Rulemaking (ANPRM).
3. Promulgate a Notice of Proposed Rulemaking (NPRM).
4. Promulgate a final rule.
This promulgation completes the four step process.
B. Background
Prior Promulgations
The original Disclosure Statement Form (CASB DS-1) was developed
and promulgated in the early 1970s. No revisions to the document were
made until the Board was reestablished in 1990. In 1992, some minor
revisions were made. 57 FR 14148, 14159 (April 17, 1992). Subsequently,
a project was initiated to revise and update the Disclosure Statement
(CASB DS-1).
On April 2, 1993, a Staff Discussion Paper incorporating a revised
Disclosure Statement was distributed to certain interested parties who
generally possessed actual field experience in submitting and auditing
these Statements. On the basis of the comments received in response to
this Staff Discussion Paper, an Advance Notice of Proposed Rulemaking
(ANPRM) was developed and published in the Federal Register on April 4,
1994 (59 FR 15695).
The majority of the comments received in response to the ANPRM were
generally supportive of the proposed approach, but at the same time,
numerous revisions were suggested that were intended to improve and
streamline the document. Many of these suggested revisions were
incorporated in the Notice of Proposed Rulemaking (NPRM) that was
published in the Federal Register on November 29, 1994 (59 FR 60948).
Public Comments
Nine sets of public comments were received in response to the NPRM
from government contractors, industry associations and Federal
agencies.
Most commenters acknowledged that the NPRM version of the DS-1 was
a significant improvement as compared with the earlier versions of the
Disclosure Statement. Nevertheless, numerous additional revisions were
suggested by commenters in order to further simplify and streamline the
DS-1. Of particular concern to several commenters was the amount and
type of information needed to respond adequately to questions in Part
VII of the Statement.
In general, the Board has tried to be responsive to the suggestions
made by commenters. In particular, a careful reevaluation of Part VII
has been undertaken. In reevaluating this Part, the instructions have
been clarified to make clear that only relevant cost accounting
practices and applicable identifying data need be disclosed. Therefore,
numeric data representing accounting estimates is not required to be
submitted. Also, in most sections of Part VII, the substantive
questions have been limited to items that cover only 80-percent of the
relevant cost groupings.
The commenters overall concerns and suggestions are addressed in
greater detail under Section E., Public Comments.
The Board and the CASB staff express their appreciation for the
constructive suggestions and criticisms provided by the commenters with
regard to the content of the revised Disclosure Statement. Many of the
commenters' suggested improvements have been incorporated into the
final rule being promulgated today.
Benefits
After consideration of the public comments received, the Board
believes that the revised Disclosure Statement, as set forth in this
final rule, will improve the cost accounting practices followed by
contractors when estimating, accumulating and reporting costs deemed
allocable to Federal contracts. Adequate disclosure of cost accounting
practices is essential in order to ensure consistency in cost
measurement as costs are first estimated and then accumulated and
reported. A Disclosure Statement that has not been updated for some two
decades clearly cannot adequately reflect currently prevailing cost
accounting practices and cost elements. Therefore, in order to ensure
that the policies and Standards promulgated by the Board are
implemented in an economical and effective manner, a revised and
updated Disclosure Statement becomes essential. In addition, the Board
has previously expressed the view that an updated Disclosure Statement
should facilitate interaction between contractors and Government
representatives when dealing with contract costing matters.
The introduction of the revised statement should not impose any new
burden on contractors as it merely replaces an existing form which
requires periodic updating of disclosed practices.
To further reduce the possibility of increased costs, the extended
dates for submission of the new Disclosure Statement are designed to
provide an opportunity to delay submission until such time as
contractors would most likely have to file an updated disclosure form
regardless of whether a new Disclosure Statement is introduced or not.
Summary of Amendments
The primary purpose of this revision of the Disclosure Statement is
to bring it up to date and to improve it in light of two decades of
field experience that the government procurement community has had with
this document. The basic characteristics of the Disclosure Statement
have not been changed. However, a multitude of specific changes are
incorporated in the revised Statement. It would be impractical to list
here all the specific
[[Page 7617]]
changes. However, most of these changes can be summarized as follows:
1. The current Disclosure Statement specifies that Parts I through
VII be prepared at the segment or business unit level, while Part VIII
should be prepared at the corporate or group headquarters level. This
revised Statement provides that although Parts V, VI and VII still have
to be submitted by segments, they may be completed either at the
segment or headquarters level depending on where the applicable
practices or procedures are established or where the cost is actually
incurred.
2. In general, various legal references have been updated.
3. As the original Disclosure Statement was in essence prepared
before any Cost Accounting Standards were issued, the revised format
includes references to subsequently issued Standards where appropriate.
In this context, some cost accounting practices described in the
original Disclosure Statement may not be in compliance with the
relevant provisions of a Cost Accounting Standard. The purpose of the
Disclosure Statement is not to elicit noncompliant answers, and
therefore, any references to potentially non-compliant practices have
been eliminated.
4. Requests for certain statistical data have been eliminated as
this information is no longer used.
5. Certain new topical areas have been added to the Disclosure
Statement. These cover items that have become important from a cost
measurement perspective over the last two decades. The topical areas
include cost-of-money, post-retirement health benefits and employee
stock ownership plans. Most of these new topical areas are incorporated
in a significantly revised Part VII.
C. Paperwork Reduction Act
The information collection aspects of this rule have been approved
by the Office of Management and Budget, and assigned Control Number
0348-0051.
D. Executive Order 12866 and the Regulatory Flexibility Act
The economic impact of this final rule on contractors and
subcontractors is expected to be minor. As a result, the Board has
determined that this final rule does not result in the promulgation of
a ``major rule'' under the provisions of Executive Order 12866, and
that a regulatory impact analysis will not be required. Furthermore,
this final rule does not have a significant effect on a substantial
number of small entities because small businesses are exempt from the
application of the Cost Accounting Standards. Therefore, this rule does
not require a regulatory flexibility analysis under the Regulatory
Flexibility Act of 1980.
E. Public Comments
This final rule is based upon the NPRM published in the Federal
Register on November 29, 1994 (59 FR 60948), wherein public comments
were invited. Nine sets of comments were received from government
contractors, industry associations and Federal agencies. The more
significant comments received, and the Board's actions taken in
response thereto, are summarized below. Many other comments that were
more of an editorial nature have been incorporated in the document
where appropriate.
Comment: Two commenters suggested that compliant as well as non-
compliant cost accounting practices should be described in the
Disclosure Statement.
Response: The Board agrees that the actual cost accounting
practices being followed must be described. However, where the
Disclosure Statement provides a list of alternative practices, only
compliant alternatives will be listed. If the contractor's practice is
not one of the listed alternatives, the actual practice must be
described on a continuation sheet. This will not be tantamount to
conceding that the practice is non-compliant since such a determination
can only be made after appropriate analysis and review.
Comment: Several commenters indicated that although the NPRM has
been significantly improved and streamlined, the draft still contains
too many questions of a detailed nature that may, in the future,
increase rather than decrease the opportunities for disputes.
Response: The Board has, once more, consulted with the respondents
to the NPRM and all the concerns have been subjected to additional
review. As a result, some changes have been made to the version
incorporated in the NPRM that should contribute to further streamlining
and clarification of the final document. This comment applies in
particular to Part VII of the Disclosure Statement.
Comment: At least two commenters indicated that, in their opinion
the revised document still contains too many pages.
Response: In the final format there is no substantial difference in
the length of the original and the final Disclosure Statement.
Comment: One commenter stressed that whenever possible, existing
CAS wording or definitions should be used.
Response: The Board agrees with this suggestion and, wherever
appropriate, the Disclosure Statement has accordingly been changed.
Comment: Several contractors indicated that throughout the document
the term ``CAS-covered contracts'' rather than ``Federal contracts''
should be used.
Response: The Disclosure Statement deals with the cost accounting
practices of an entity such as a segment or home office and it is
presumed that cost accounting practices are applied consistently to all
the applicable final cost objectives. Although the dollar amount of
CAS-covered contracts received is crucial in determining whether a
Disclosure Statement has to be filed, once the requirement to file has
been met, the disclosure will cover all of the entity's policies and
practices as they affect cost measurement and allocation to all
contracts. Therefore, a broader term, such as ``Federal contracts'',
seems preferable to a narrower term such as ``CAS-covered contracts''.
Comment: Two commenters suggested a shorter implementation period
than the one proposed in the NPRM.
Response: While the Board encourages early adoption of the new
form, it does not believe that it can adequately envision all the
circumstances that might arise necessitating a delay in the
introduction of the new form. It believes that any deadline imposed for
the introduction of the new form should make ample provision for any
unexpected difficulties that may arise at the implementation stage.
Therefore, the final filing date for existing contractors has not been
changed, although the Board hopes that an earlier adoption is possible
in most cases.
Comment: Several commenters expressed some criticism of the
procedure outlined in General Instructions that allows parts of
contractors' accounting manuals to be incorporated by reference in the
Disclosure Statement.
Response: The wording in the Instructions has been changed to make
it clear that the procedure in question is an optional one--
particularly from the perspective of the contractor.
Comment: Several commenters suggested that the language be
clarified to indicate the appropriate circumstances in which home
offices may be able to complete Parts V, VI, or VII to be filed by
segments reporting to the home office.
Response: The language in the General Instructions has been
clarified. In particular, it has been made clear that where the home
office establishes the applicable cost accounting policies and
[[Page 7618]]
procedures, it may also complete the relevant Parts of the Disclosure
Statement to be submitted by its subordinate segments.
Comment: Several commenters offered suggestions for clarifying the
layout and terminology used on the Cover Sheet.
Response: Certain changes have been made to the Cover Sheet, in
particular to item 0.2, Reporting Unit Classification, in order to
introduce standard CAS terminology and definitions whenever
appropriate.
Comment: Several commenters pointed out that in Part I, General
Information, the wording of several items could be improved in order to
ensure that the questions are more clearly focused and take into
account current practices.
Response: Some changes have been made to Part I to reflect the
suggestions made by several commenters. In particular, the question
dealing with unallowable costs has been reformatted so as to reflect
the basic structure of CAS 9904.405, Accounting for Unallowable Costs.
Comment: A number of comments were received concerning the
formulation of questions in Part II, Direct Costs, dealing with direct
material, direct labor and other direct costs. Some commenters
suggested that the questions included in this part might be more
appropriate elsewhere, such as in Part III, Direct vs. Indirect Costs,
of the Disclosure Statement.
Response: The basic characteristic of Part II, as a section dealing
with direct material, direct labor and other direct costs has been
retained. The purpose here is to obtain information on how certain
elements of cost are treated once it has been determined that they
represent direct costs for government contract costing purposes.
Therefore, items such as the question dealing with employee travel
expenses that are directly charged to contracts have been retained.
On the other hand, as suggested by several commenters, the question
dealing with interorganizational transfers has been eliminated
primarily because it requested information about the cost accounting
practices of the transferor and not of the transferee who is preparing
the Disclosure Statement. It cannot be assumed that such information is
always readily available to the transferee. The transferee's practices
in this area are covered in Part IV, Indirect Costs.
Comment: A few commenters suggested that Part III should be
drastically recast--including a suggestion that instead of long lists
of functions, elements of cost and transactions, the equivalent
information should be described on a continuation sheet.
Response: The existing format has been retained as it seems to be
the most effective way to obtain the relevant information on whether an
item of cost is being treated as a direct cost, as an indirect cost or
as a sometimes direct/sometimes indirect cost. The lists of functions,
elements of cost and transactions have been somewhat modified on the
basis of comments received.
Comment: In Part IV, several commenters pointed out that the
subtitles used to describe various methods of allocating General and
Administrative (G&A) expense did not properly reflect the requirements
of CAS 9904.410, Allocation of Business Unit General and Administrative
Expenses to Final Cost Objectives.
Response: The subtitles in question have been modified to conform
more closely to the requirements of CAS 9904.410.
Comment: A number of commenters were concerned about the amount of
detail required in Part IV dealing with modified allocations from
indirect cost pools using a modified allocation base or a rate that is
either more or less than the normal ``full rate''. Some commenters
indicated that too much detail was requested regarding those modified
allocations whereas others expressed the view that more information
should be made available.
Response: Certain parts of Part IV, in particular the question
dealing with the application of overhead and G&A rates to specified
transactions or costs, have been restated in an attempt to present a
more effective and balanced data gathering instrument. It should, once
more, be remembered that the aim has been to provide a vehicle for a
contractor to disclose its CAS compliant cost accounting practices.
Therefore, the Disclosure Statement should not be regarded as a
substitute for an audit check list. It is for this reason that non-
compliant practices have been expressly excluded from the Disclosure
Statement.
Comment: Several commenters suggested changes in the format in
which questions regarding Independent Research and Development (IR&D)
and Bid and Proposal (B&P) costs were presented in Part IV.
Response: The two questions that previously dealt separately with
IR&D and B&P respectively have been combined to provide a more compact
approach to the topic. In particular, the new approach, unlike the one
in the NPRM, does not presuppose that every contractor who incurs B&P
expense also has incurred IR&D expense--a supposition that does not
necessarily hold for civilian agencies.
Comment: One commenter suggested that the headings in the question
in Part VI, Other Costs and Credits, dealing with charging and
crediting vacation, holiday and sick pay be rearranged.
Response: The column headings have been changed to reflect the fact
that salaried exempt and non-exempt employees (as defined by the Fair
Labor Standards Act) are generally treated differently in this area.
Comment: Regarding Part VII, Deferred Compensation and Insurance
Costs, most commenters representing contractors expressed the view that
too much detailed and possibly superfluous and ambiguous information
was required with respect to the various pension, post-retirement
health, deferred compensation and insurance plans. One commenter had
actually tested the proposed NPRM requirements by using actual plan
data in completing selected parts of the various sections in Part VII.
The estimated time to complete these various sections were clearly
significant and possibly burdensome when extrapolated to cover the
whole of Part VII. Even though the data submitted was not verified on
an overall basis, it did provide valuable insight into the relative
amount of time required to complete the various individual questions.
The data also distinguished between time required on a ``recurring''
basis to keep the Disclosure Statement current, as contrasted with the
initial effort of ``non-recurring'' time required to prepare the
original submission. The general comments regarding time required to
complete Part VII were frequently supplemented by specific suggestions
regarding individual sections or questions.
Response: The Board is grateful to those commenters who spent
significant amounts of time to prepare constructive comments on this
part of the Disclosure Statement. In particular, the Board would like
to express its gratitude to the commenter who actually completed
sections of Part VII and made the relevant data available to the Board.
As a result of the input received from commenters, Part VII has
been substantially redesigned in order to make it more ``user
friendly''. When dealing with pension plans, post-retirement health
benefits, employee group insurance, deferred compensation, and worker's
compensation and property insurance, the amount of detailed information
related to various aspects of cost measurement has been substantially
[[Page 7619]]
reduced. The detailed data is required only for those plans or policies
that account for 80-percent of the relevant category of costs--provided
data on at least three plans is disclosed. Only a limited amount of
general plan information is sought for all the other plans. By
excluding the less significant plans from the more detailed disclosure
requirements, it is anticipated that the paperwork burden will be
significantly eased.
Some commenters also inferred that in certain instances actual
numeric data was requested that would have to be updated annually. It
has been made clear in the final document that when dealing with such
items as actuarial assumptions, only the basis used to determine
numeric values need be disclosed and not the actual values themselves.
This clarification should ensure that no regular annual updates of the
Disclosure Statement are prepared and submitted merely to reflect
changes in the relevant numeric values.
Other, more specific changes to the various sections of Part VII
are summarized below:
Pension Plans. The number of General Plan Information questions has
been reduced from nine in the NPRM to six in the final document.
In the NPRM, the information requested for Defined Contribution
Plans applied to all plans of this type. In the final version, if there
are more than three plans, this information has to be supplied only for
plans that account for 80-percent of the defined contribution plan
costs.
Defined Benefit Plans. The number of questions asked in this area
has not been changed. However, the topics covered and the manner of
presentation have been somewhat changed. In particular, it has been
made clear that regarding actuarial assumptions, no disclosure of
actual numeric values is required. Only the basis for determining these
numeric values need be described.
Post-Retirement Benefits (PRBs). This section has been rearranged
to conform with the pattern established for pension plans in the
previous section. In the NPRM, the questions posed were applicable to
all PRB plans. In the final rule, questions dealing with general plan
information have been separated from questions dealing with more
specific aspects of PRB cost determination. The latter group consists
of five questions and they have to be completed only for those plans
that, in the aggregate, account for at least 80-percent of the total
PRB costs. However, if there are three plans or less, then data on all
the plans must be disclosed.
Employee Group Insurance Programs. Responses to this section of
Part VII of the NPRM indicated that it was the most time consuming
section to complete. Therefore, some significant changes have been made
to the amount of information to be disclosed. First, if there are more
than three policies or self-insurance plans, the applicable information
should be provided only for those policies and self-insurance plans
that, in the aggregate, account for at least 80-percent of the costs of
the program for each category of insured risk. Second, the information
previously requested under three separate questions has been recast as
a single question in a tabular form. Third, a number of specific
questions dealing with treatment of dividends, earned refunds, and
employee contributions have been dropped as these items are largely
covered by the provision of CAS 9904.416, Accounting for Insurance
Costs. It is anticipated that the time needed to complete this section
of Part VII will be significantly reduced as a result of the changes
listed above.
Deferred Compensation Plans. This section has been recast to
conform to the format used in the sections dealing with pension plans
and PRBs. Therefore, the first five questions dealing with general plan
information are applicable to all the plans. Two other questions, of a
more substantive nature, should be completed for all the plans if there
are no more than three plans. If there are more than three plans, the
information should be provided for those plans that in the aggregate
account for at least 80-percent of these deferred compensation costs.
Employee Stock Ownership Plans (ESOPs). Questions in this section
have been reformulated, and, as a result, the total number of these
general plan information questions has been increased by two as
compared with the NPRM. These questions must be completed for all
ESOPs.
Worker's Compensation Liability and Property Insurance. This
section has been rearranged to conform to the format used in dealing
with employee group insurance plans. In addition, the term ``line of
insurance'' has been introduced in an attempt to clarify the nature of
the aggregation of costs for which the relevant cost data has to be
disclosed. In this context, for the purpose of guidance, ``line of
insurance'' has the meaning attributed to it in Generally Accepted
Auditing Standards (GAAS) literature (see AICPA Audit and Accounting
Guide, Audits of Property and Liability Insurance Companies) and
includes groupings such as fire and similar perils, general liability,
marine perils, automobile liability and property damage, worker's
compensation, theft, etc. If there are more than three policies or
self-insurance plans, the applicable information should be provided
only for those policies and plans that in the aggregate account for at
least 80-percent of the applicable costs for a line of insurance. Also,
two separate questions have been combined into a single question in a
tabular form.
Comment: Several comments relating to Part VIII, Corporate or Group
Expenses, dealt with the requirement in the NPRM to ``list all active
segments and groups that are material in size reporting to the home . .
. office''. Suggestions received included deletion of the words
``all'', ``active'', and ``that are material in size'' in the above
quote from the first question in this part. At least one commenter
suggested that if the term ``material'' is used, criteria for
materiality should be developed.
Response: The suggestions regarding deletions have been accepted by
the Board. The restated sentence reads: ``list segments and other
intermediate level home offices reporting to this home office.''
The Board believes that this is an area where the individuals
implementing the Standards and other regulations necessarily must
exercise their own judgment in carrying out their tasks. The objective
of this provision in the Disclosure Statement is to obtain a listing of
segments and other entities to which home office expenses may be
allocated. This allocation is part of the cost determination process
for government contract costing purposes. Furthermore, this cost
determination process, which includes all the relevant pronouncements
of the Board, is subject to the materiality provisions of 9903.305.
Specific reiteration of the materiality provision in each instance is
not needed. Therefore, the requirement in the present instance is to
list all the segments or other entities reporting to the home office
that may have other than immaterial impact on the cost allocation
process from the home office to its subordinate entities.
Comment: Several suggestions were received to improve and
streamline the main section of Part VIII that deals with the pooling
and allocation of home office expenses.
Response: Several of the suggestions received have been adopted. An
addition has been made to the list of allocation base codes used and
one question in the NPRM has been eliminated and its substance combined
with another question.
[[Page 7620]]
List of Subjects in 48 CFR Part 9903
Cost accounting standards, Government procurement.
Richard C. Loeb,
Executive Secretary, Cost Accounting Standards Board.
For the reasons set forth in this preamble, chapter 99 of title 48
of the Code of Federal Regulations is amended as set forth below:
1. The authority citation for Part 9903 continues to read as
follows:
Authority: Public Law 100-679, 102 Stat. 4056, 41 U.S.C. 422.
PART 9903--CONTRACT COVERAGE
Subpart 9903.2--CAS Program Requirements
2. Section 9903.202 is amended by deleting the illustrated CASB DS-
1 and inserting a revised CASB DS-1.
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[FR Doc. 96-4472 Filed 2-27-96; 8:45 am]
BILLING CODE 3110-01-C
Complete official Federal Register PDF
FR Doc. 96-4445 Approval and Promulgation of Air Quality Implementation Plans; DelawareEmission Statement Program
[Federal Register Volume 61, Number 40 (Wednesday, February 28, 1996)]
[Rules and Regulations]
[Pages 7415-7418]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-4445]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[DE013-5915a; FRL-5424-9]
Approval and Promulgation of Air Quality Implementation Plans;
Delaware--Emission Statement Program
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
-----------------------------------------------------------------------
SUMMARY: EPA is approving a State Implementation Plan (SIP) revision
[[Page 7416]]
submitted by the State of Delaware. This revision consists of an
emission statement program for stationary sources that emit volatile
organic compounds (VOCs) and/or nitrogen oxides (NOX) at or above
specified actual emission threshold levels within the state of Delaware
(Kent, New Castle, and Sussex Counties). The intended effect of this
action is to approve a regulation for annual reporting of actual
emissions by sources that emit VOC and/or NOX within the state in
accordance with the 1990 Clean Air Act (CAA). This action is being
taken under section 110 of the CAA.
DATES: This action is effective April 29, 1996, unless notice is
received on or before March 29, 1996, that adverse or critical comments
will be submitted. If the effective date is delayed, timely notice will
be published in the Federal Register.
ADDRESSES: Comments must be mailed to Marcia L. Spink, Associate
Director, Air Programs, Mailcode 3AT00, U.S. Environmental Protection
Agency, Region III, 841 Chestnut Building, Philadelphia, Pennsylvania
19107. Copies of the documents relevant to this action are available
for public inspection during normal business hours at the EPA office
listed above; the Air and Radiation Docket and Information Center, U.S.
Environmental Protection Agency, 401 M Street, SW., Washington, DC
20460; and the Delaware Department of Natural Resources & Environmental
Control, 89 Kings Highway, P.O. Box 1401, Dover, Delaware 19903.
FOR FURTHER INFORMATION CONTACT: Rose Quinto (215) 597-3164, at the EPA
Region III address.
SUPPLEMENTARY INFORMATION: On January 11, 1993, the Delaware Department
of Natural Resources and Environmental Control (DNREC) submitted a SIP
revision to EPA on Emission Statements. This revision would amend
Delaware's Regulations Governing the Control of Air Pollution: section
2 of Regulation 1 (Definitions and Administrative Principles), and
section 1 of Regulation 17 (Source Monitoring, Recordkeeping and
Reporting), and also add a new section 7 of Regulation 17.
I. Background
The air quality planning and SIP requirements for ozone
nonattainment and transport areas are set out in subparts I and II of
part D of title I of the CAA, as amended by the Clean Air Act
Amendments of 1990. EPA published a ``General Preamble'' describing
EPA's preliminary views on how it intends to review SIPs and SIP
revisions submitted under Title I of the CAA, including those state
submittals for ozone transport areas within the states (see 57 FR 13498
(April 16, 1992) (``SIP: General Preamble for the Implementation of
Title I of the Clean Air Act Amendments of 1990''), 57 FR 18070 (April
28, 1992) (``Appendices to the General Preamble''), and 57 FR 55620
(November 25, 1992) (``SIP: NOX Supplement to the General
Preamble'')).
EPA also issued a draft guidance document describing the
requirements for the emission statement programs discussed in this
action, entitled ``Guidance on the Implementation of an Emission
Statement Program'' (July, 1992). EPA is also conducting a rulemaking
process to modify Title 40, Part 51 of the CFR to reflect the
requirements of the emission statement program.
Section 182 of the CAA sets out a graduated control program for
ozone nonattainment areas. Section 182(a) sets out requirements
applicable in marginal ozone nonattainment areas, which are also
applicable by sections 182 (b), (c), (d), and (e) to all other ozone
nonattainment areas. Among the requirements in section 182(a) is a
program for stationary sources to prepare and submit to the state each
year emission statements certifying their actual emissions of VOCs and
NOX. This section of the CAA provides that the states are to
submit a revision to their SIPs by November 15, 1992 establishing this
emission statement program.
If a source emits either VOC or NOX at or above the designated
minimum reporting level, the other pollutant should be included in the
emission statement, even if it is emitted at levels below the specified
cutoffs.
States may waive, with EPA approval, the requirement for an
emission statement for classes or categories of sources with less than
25 tons per year of actual plant-wide NOX or VOC emissions in
nonattainment areas if the class or category is included in the base
year and periodic inventories and emissions are calculated using
emissions factors established by EPA (such as those found in EPA
publication AP-42) or other methods acceptable to EPA.
At minimum, the emission statement data should include:
--Certification of data accuracy;
--Source identification information;
--Operating schedule;
--Emissions information (to include annual and typical ozone season day
emissions);
--Control equipment information; and
--Process data.
EPA developed emission statements data elements to be consistent
with other source and state reporting requirements. This consistency is
essential to assist states with quality assurance for emission
estimates and to facilitate consolidation of all EPA reporting
requirements.
II. EPA's Evaluation of Delaware's Submittal
A. Procedural Background
In accordance with the requirements of 40 CFR 51.102, the State of
Delaware held a public hearing on September 29, 1993 in Dover, Delaware
to solicit public comments on the implementation plan for the state.
The plan was submitted to EPA by the Governor's designee on January 11,
1993.
B. Components of Delaware's Emission Statement Program
There are several key and specific components of an acceptable
emission statement program. Specifically, Delaware must submit a
revision to its SIP consisting of an emission statement program that
meets the minimum requirements for reporting by the sources and the
state. For the emission statement program to be approvable, Delaware's
SIP revision must include, at a minimum, definitions and provisions for
applicability, compliance, and specific source reporting requirements
and reporting forms.
Regulation 1 (Definitions and Administrative Principles), section
2; and Regulation 17 (Source Monitoring, Recordkeeping and Reporting),
section 1, has been revised by amending and adding the definitions of
the following terms: actual emissions, annual fuel process rate,
certifying individual, control efficiency, control equipment
identification code, emission factor, emission statement, estimated
emission method code, estimated emission units, measured emission
method code, measured emission units, peak ozone season, percentage
annual throughput, periodic ozone SIP inventory, point, potential to
emit, process rate, segment, source classification code, and volatile
organic compounds.
Regulation 17, section 7 (Emission Statement) requires a person who
owns and operates any installation, source, or premises located in
areas designated by the CAA as an ozone nonattainment area to report
the levels of emissions from all stationary sources of VOCs and
NOX. The state may, with EPA approval, waive the emission
statement requirements for classes or categories of
[[Page 7417]]
stationary sources with facility-wide actual emissions of less than 25
tons/year of VOC or NOX if the class or category is included in
the base year and periodic ozone inventories, and the actual emissions
are calculated using EPA approved emission factors or other methods
acceptable to EPA. Regulation 17, section 7, also requires emission
statements for all stationary sources located in ozone attainment areas
that emit or have the potential to emit 50 tons/year of VOC and/or
NOX. This section also requires that a certifying official for
each facility provide Delaware with a statement reporting emissions by
April 30 of each year beginning with April 30, 1993 for the emissions
discharged during the previous calendar year. This section also
delineates specific requirements for the content of these annual
emission statements.
C. Enforceability
The State of Delaware has provisions in its SIP which ensure that
the emission statement requirements of section 182(a)(3)(B) and
sections 184(b)(2) and 182(f) of the CAA, as required by section 2 of
Delaware Regulation Number 1 (Definitions and Administrative
Principles) and sections 1 and 7 of Regulation 17 (Source Monitoring,
Recordkeeping and Reporting), are adequately enforced.
EPA has determined that the submittal made by the State of Delaware
satisfies the relevant requirements of the CAA and EPA's guidance
document, ``Guidance on the Implementation of an Emission Statement
Program'' (July 1992). EPA's detailed review of Delaware's Emission
Statement Program is contained in a Technical Support Document (TSD)
which is available, upon request, from the EPA Regional Office listed
in the ADDRESSES section of this document.
III. Final Action
EPA is approving a revision to the Delaware SIP to include an
Emission Statement Program consisting of revisions to section 2,
Regulation 1; and section 1, and a new section 7 of Regulation 17. This
revision was submitted to EPA by the State of Delaware on January 11,
1993.
EPA is approving this SIP revision without prior proposal because
the Agency views this as a noncontroversial amendment 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 become
effective April 29, 1996 unless, by March 29, 1996, adverse or critical
comments are received.
If 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 this action serving as a
proposed rule. 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 April 29, 1996.
Nothing in this action should be construed as permitting or
allowing or establishing a precedent for any future request for
revision of any SIP. Each request for revision to the SIP 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. 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 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, 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 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. EPA, 427
U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).
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
the private sector, of $100 million or more. Under section 205, EPA
must select the most cost-effective and least burdensome alternative
that achieves the objectives of the rule and is consistent with
statutory requirements. Section 203 requires EPA to establish a plan
for informing and advising any small governments that may be
significantly or uniquely impacted by the rule.
EPA has determined that the 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.
This action has been classified as 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.
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by April 29, 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 approving Delaware's Emission Statement Program 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,
Incorporation by reference, Intergovernmental relations, Volatile
organic compounds, Oxides of nitrogen, Ozone, Reporting and
recordkeeping requirements.
Dated: February 2, 1996.
W.T. Wisniewski,
Acting Regional Administrator, Region III.
40 CFR part 52 is amended as follows:
[[Page 7418]]
PART 52--[AMENDED]
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
Subpart I--Delaware
2. Section 52.420 is amended by adding paragraph (c)(52) to read as
follows:
Sec. 52.420 Identification of plan.
* * * * *
(c) * * *
(52) Revisions to the Delaware State Implementation Plan submitted
by the Secretary, Delaware Department of Natural Resources and
Environmental Control, on January 11, 1993.
(i) Incorporation by reference.
(A) Letter dated January 11, 1993 from the Secretary, Delaware
Department of Natural Resources and Environmental Control, submitting a
revision to the Delaware State Implementation Plan.
(B) Amended section 2, Regulation 1 (Definitions and Administrative
Principles). Amended section 1, and added new section 7 of Regulation
17 (Source Monitoring, Recordkeeping and Reporting). The amendments to
Regulations 1 and 17, and the addition of section 7 of Regulation 17,
were effective on January 11, 1993. This revision consists of an
emission statement program for stationary sources which emit volatile
organic compounds (VOC) and/or nitrogen oxides (NOX) at or above
specified actual emission threshold levels. This program is applicable
state-wide.
(ii) Additional material.
(A) Remainder of January 11, 1993 state submittal pertaining to
Delaware Emission Statement Program.
* * * * *
[FR Doc. 96-4445 Filed 2-27-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-4444 Approval and Promulgation of Air Quality Implementation Plans; Maryland; Continuous Emission Monitoring
[Federal Register Volume 61, Number 40 (Wednesday, February 28, 1996)]
[Rules and Regulations]
[Pages 7418-7419]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-4444]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[MD6-1-5626; FRL-5328-5]
Approval and Promulgation of Air Quality Implementation Plans;
Maryland; Continuous Emission Monitoring
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
-----------------------------------------------------------------------
SUMMARY: EPA is approving a State Implementation Plan (SIP) revision
submitted by the State of Maryland. This revision establishes and
requires continuous emission monitoring requirements for certain
sources of air pollution. The regulation applies to operators of fossil
fuel-fired steam generating equipment with a rated heat input capacity
of 250 million BTU per hour or greater. The intended effect of this
action is to approve an amended regulation submitted by the State of
Maryland Department of the Environment as a SIP revision rendering its
monitoring requirements as federally enforceable. This action is being
taken in accordance with section 110 of the Clean Air Act.
DATES: This action is effective April 29, 1996 unless notice is
received on or before March 29, 1996 that adverse or critical comments
will be submitted. If the effective date is delayed, timely notice will
be published in the Federal Register.
ADDRESSES: Comments may be mailed to Marcia Spink, Associate Director,
Air, Radiation, and Toxics Division, U.S. Environmental Protection
Agency, Region III, 841 Chestnut Building, Philadelphia, PA 19107.
Copies of the documents relevant to this action are available for
public inspection during normal business hours at the Air, Radiation,
and Toxics Division, U.S. Environmental Protection Agency, Region III,
841 Chestnut Building, Philadelphia, PA 19107; the Air and Radiation
Docket and Information Center, U.S. Environmental Protection Agency,
401 M Street SW., Washington, D.C. 20460; and State of Maryland
Department of the Environment, Air Management Association, 2500
Broening Highway, Baltimore, Maryland, 21224.
FOR FURTHER INFORMATION CONTACT: Linda Miller, (215) 597-7547.
SUPPLEMENTARY INFORMATION: On September 23, 1991, the State of Maryland
submitted a formal revision to its State Implementation Plan (SIP). The
SIP revision consists of the following regulatory modifications: (1)
Definition amendments to Code of Maryland Administrative Regulations
(COMAR) 26.11.01.01, (2) the addition of regulation COMAR 26.11.01.10
which contains continuous emissions monitoring (CEM) requirements for
opacity and (3) amendments to COMAR 26.11.08.07 which would delete
redundant language in requirements for CEMs for municipal solid waste
incinerators.
Summary of SIP Revision
The revision includes the addition of definitions regarding the
continuous emission monitoring regulations, the continuous emission
monitoring program requirements for opacity.
The new regulations, found at COMAR 26.11.01.10, require continuous
emission monitoring for large fuel burning sources. These new
monitoring requirements will mandate the installation of continuous
emission monitoring for opacity that will provide Maryland direct
access to data for enforcement purposes. Opacity is an indicator of
combustion efficiency and an indirect measure of particulate emissions.
Data collected from the opacity monitoring will be used by Maryland as
an indicator of whether proper operation and maintenance procedures are
being used.
Specifically, the revision adds a new regulation which provides
that fossil fuel-fired steam generating units with a rated heat input
of 250 million Btu per hour or greater shall install and operate a CEM
to measure and record opacity. The new regulation also clearly
stipulates monitoring and installation requirements, certification
schedules, and recordkeeping and reporting requirements.
EPA is approving this SIP revision without prior proposal because
the Agency views this as a noncontroversial amendment 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 on April 29, 1996, unless, by March 29, 1996, adverse or
critical comments are received.
If 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 this action serving as a
proposed rule. 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 April 29, 1996.
Final Action
EPA is approving the amended regulations, COMAR 26.11.01.01
Definitions and COMAR 26.11.01.10 Continuous Emissions Monitoring
Requirements submitted by the State of Maryland Department of the
Environment as a revision to the Maryland SIP. The regulation requires
that the operators of fossil fuel-fired steam generating units,
continuously monitor opacity and report the findings on a specified,
regular basis to the
[[Page 7419]]
Maryland Department of the Environment.
Nothing in this action shall 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 the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA
must prepare a regulatory flexibility analysis assessing the impact of
any proposed 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.
Through submission of this state implementation plan revision, the
State has elected to adopt the program provided for under Section 110.
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).
This action has been classified as a Table 3 action for signature
by the Regional Administrator under the SIP processing guidelines of
the July 10, 1995 memorandum from the Assistant Administrator for Air
and Radiation.
Under Sections 202, 203 and 205 of the Unfunded Mandates Reform Act
of 1995, 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 has elected to adopt the program provided for under section 110
and subchapter I, part D 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
requirement; 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 section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action, pertaining to the State of Maryland--
Continuous Emission Monitoring Regulations, must be filed in the United
States Court of Appeals for the appropriate circuit by April 29, 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, Incorporation by
reference, Intergovernmental relations, Reporting and recordkeeping
requirements.
Dated: October 24, 1995.
Stanley L. Laskowski,
Acting Regional Administrator, Region III.
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 V--Maryland
2. Section 52.1070 is amended by adding paragraph (c)(106) to read
as follows:
Sec. 52.1070 Identification of plan.
* * * * *
(c) * * *
(106) Revisions to the Maryland Regulations submitted on September
18, 1991 by the Maryland Department of the Environment.
(i) Incorporation by reference.
(A) Letter of September 18, 1991 from the Maryland Department of
the Environment transmitting the continuous emission monitoring
revision.
(B) Definition amendments to Code of Maryland Administrative
Regulations (COMAR) 26.11.01.01, excluding paragraph E-1, and new
regulations COMAR 26.11.01.10 Continuous Emission Monitoring
Requirements, concerning continuous opacity monitoring, effective July
22, 1991.
(ii) Additional materials.
(A) Remainder of September 23, 1991 State submittal.
* * * * *
[FR Doc. 96-4444 Filed 2-27-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-4438 Community Development Block Grants for Indian Tribes and Alaskan Native Villages
[Federal Register Volume 61, Number 40 (Wednesday, February 28, 1996)]
[Rules and Regulations]
[Pages 7410-7411]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-4438]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
Office of the Assistant Secretary for Public and Indian Housing
24 CFR Part 953
[Docket No. FR-2880-F-08]
RIN 2577-AB31
Community Development Block Grants for Indian Tribes and Alaskan
Native Villages
AGENCY: Office of the Assistant Secretary for Public and Indian
Housing, HUD.
ACTION: Final rule; Extension of effective period of interim rule.
-----------------------------------------------------------------------
SUMMARY: This rule extends the effective period for the interim rule
for the Community Development Block Grants for Indian Tribes and
Alaskan Native Villages Program (24 CFR part 953) to such time that a
final rule is issued and becomes effective.
EFFECTIVE DATE: This final rule, which extends the effective period of
the interim rule, is effective March 29, 1996.
The effective period for 24 CFR part 953 is extended from April 1,
1996, until the final rule adopting the regulations of part 953 is
published and becomes effective.
FOR FURTHER INFORMATION CONTACT: Dominic Nessi, Director, Office of
Native American Programs, Department of Housing and Urban Development,
room B-133, 451 Seventh Street, SW, Washington, DC 20410. Telephone:
(202) 755-0032; TDD: (202) 708-0850. (These are not toll-free numbers.)
SUPPLEMENTARY INFORMATION:
I. Justification for Final Rulemaking
In general, HUD publishes a rule for public comment before issuing
a rule for effect, in accordance with its own regulations on
rulemaking, 24 CFR part 10. However, part 10 provides for exceptions
from that general rule where the agency finds good cause to omit
advance notice and public participation. The good cause requirement is
satisfied when prior public procedure is ``impracticable, unnecessary,
or contrary to the public interest'' (24 CFR 10.1). HUD finds that good
cause exists to publish this rule for effect without first soliciting
public comment, because prior public procedure is unnecessary.
This final rule is technical, in that it merely extends the
effective period for existing regulations, and it effects no
substantive change to those regulations. The public has had an
opportunity to comment on the substance of the regulations, as the
interim rule for this program was published subject to a 150-day public
comment period, and the interim rule was preceded by an earlier interim
rule which provided for a 225-day public comment period and an even
earlier proposed rule which provided a 60-day public comment period.
II. Background
Section 105 of the Department of Housing and Urban Development
Reform Act of 1989 (Pub. L. 101-235), as amended by the National
Affordable Housing Act, amended Title I of the Housing and Community
Development Act of 1974, by transferring the authority for making
grants to Indian Tribes from the section 107 discretionary fund to the
allocation and distribution of funds provisions of Section 106 of the
1974 Act. Under section 106, as so amended, one percent of the title I
appropriation, excluding the amounts appropriated for use under section
107, is allocated for grants to Indian Tribes. The allocated amount is
to be distributed to Indian Tribes/Villages on a competitive basis in
accordance with selection criteria ``contained in a regulation
promulgated by the Secretary after notice and public comment.''
The Department issued the proposed rule on June 21, 1991, at 56 FR
28666, to comply with the requirement for publication for comment. The
Department issued an interim rule on April 7, 1992, at 57 FR 11832, to
give the public an additional opportunity to comment on the interim
rule after it has been in effect for one round of competition. A second
interim rule was issued on July 27, 1994, at 59 FR 38326, to address
the comments received on the April 7, 1992 interim rule and to allow
the public to see how the interim rule worked in conjunction with the
1995 NOFA.
Section 953.1 of the July 27, 1994 interim rule contains a
``sunset'' provision that provides that the interim rule will expire on
April 1, 1996.
The final rule for part 953 is in its last stages of development
and publication is anticipated in the near future. However, in order to
prevent a period in which the Department will be without effective
regulations, HUD is extending the effective period of the interim rule
until the final rule is published and becomes effective.
III. Other Matters
National Environmental Policy Act
A Finding of No Significant Impact with respect to the environment
has been made in accordance with HUD regulations at 24 CFR part 50
implementing section 102(2)(C) of the National Environmental Policy Act
of 1969, 42 U.S.C. 4332. The Finding of No Significant Impact is
available for public inspection and copying between 7:30 a.m. and 5:30
p.m. weekdays at the Office of Rules Docket Clerk, 451 Seventh Street,
SW, room 10276, Washington, DC 20410-0500.
Regulatory Flexibility Act
The Secretary, in accordance with the Regulatory Flexibility Act (5
U.S.C. 605(b)), has reviewed this rule before publication and by
approving it certifies that the rule does not have a significant
economic impact on a substantial number of small entities. The rule
merely extends the effective period for the interim rule.
[[Page 7411]]
Executive Order 12606, The Family
The General Counsel, as the Designated Official under Executive
Order 12606, The Family, has determined that this rule does not have
the potential to promote family formation, maintenance, and general
well-being and, therefore, is not subject to review under the Order.
Executive Order 12611, Federalism
The General Counsel, as the Designated Official under section 6(a)
of Executive Order 12611, Federalism, has determined that the rule does
not have a substantial, direct effect on the States or on the
relationship between the Federal government and the States, or on the
distribution of power or responsibilities among the various levels of
government and, therefore, is not subject to review under the Order.
List of Subjects in 24 CFR Part 953
Alaska, Community development block grants, Grant programs--housing
and community development, Reporting and recordkeeping requirements.
Catalog of Federal Domestic Assistance
The Catalog of Federal Domestic Assistance program number is
14.223.
In accordance with the reasons set forth in the preamble, 24 CFR
part 953 is amended as follows:
PART 953-COMMUNITY DEVELOPMENT BLOCK GRANTS FOR INDIAN TRIBES AND
ALASKAN NATIVE VILLAGES
1. The authority citation for 24 CFR part 953 continues to read as
follows:
Authority: 42 U.S.C. 3535(d) and 5301 et seq.
2. Section 953.1 is amended to designate the first paragraph as
``(a)'' and to designate the second paragraph as ``(b)'' and to revise
newly designated paragraph (b) to read as follows:
Sec. 953.1 Applicability and scope.
(a) * * *
(b) The regulations of this part will remain in effect until the
date the final rule adopting the regulations of this part with or
without changes is published and becomes effective.
Dated: February 22, 1996.
Kevin Emanuel Marchman,
Acting Assistant Secretary for Public and Indian Housing.
[FR Doc. 96-4438 Filed 2-27-96; 8:45 am]
BILLING CODE 4210-33-P
Complete official Federal Register PDF
FR Doc. 96-4437 Regulatory Reinvention; Certification and Funding of State and Local Fair Housing Enforcement Agencies
[Federal Register Volume 61, Number 40 (Wednesday, February 28, 1996)]
[Rules and Regulations]
[Pages 7674-7682]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-4437]
[[Page 7673]]
_______________________________________________________________________
Part VI
Department of Housing and Urban Development
_______________________________________________________________________
24 CFR Parts 111 and 115
Regulatory Reinvention; Certification and Funding of State and Local
Fair Housing Enforcement Agencies; Interim Rule
Federal Register / Vol. 61, No. 40 / Wednesday, February 28, 1996 /
Rules and Regulations
[[Page 7674]]
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
Office of the Assistant Secretary for Fair Housing and Equal
Opportunity
24 CFR Parts 111 and 115
[Docket No. FR-3322-F-01]
RIN 2529-AA60
Regulatory Reinvention; Certification and Funding of State and
Local Fair Housing Enforcement Agencies
AGENCY: Office of the Assistant Secretary for Fair Housing and Equal
Opportunity, HUD.
ACTION: Interim rule.
-----------------------------------------------------------------------
SUMMARY: This interim rule represents another step in HUD's continuing
efforts to reinvent and streamline its regulations. The Fair Housing
Act provides that the Secretary of HUD shall refer complaints alleging
a discriminatory housing practice to State or local enforcement
agencies certified by the Secretary. Currently, HUD's regulations at 24
CFR part 115 set forth the criteria the Secretary will utilize to
certify such agencies. HUD's regulations at 24 CFR part 111 establish
the requirements for the Fair Housing Assistance Program (FHAP),
through which HUD provides assistance to certified fair housing
enforcement agencies. This interim rule consolidates parts 111 and 115,
thus providing all necessary requirements in a single part and
eliminating unnecessary or repetitive regulatory provisions.
DATES: Effective date: March 29, 1996.
Comments due date: April 29, 1996.
ADDRESSES: Interested persons are invited to submit comments regarding
the interim rule to the Office of the General Counsel, Rules Docket
Clerk, Room 10276, Department of Housing and Urban Development, 451
Seventh Street, SW, Washington, DC 20410-0500. Communications should
refer to the above docket number and title. Facsimile (FAX) comments
are not acceptable. A copy of each communication submitted will be
available for public inspection and copying during regular business
hours (7:30 a.m. to 5:30 p.m. Eastern Time) at the above address.
FOR FURTHER INFORMATION CONTACT: Marcella Brown, Director, Fair Housing
Assistance Program Division, Office of Fair Housing and Equal
Opportunity, Room 5218, Department of Housing and Urban Development,
451 Seventh Street, SW, Washington, DC 20410, telephone (202) 708-0455.
Hearing- or speech-impaired individuals may call HUD's TDD number (202)
708-0113 or 1-800-877-8339 (Federal Information Relay Service TDD).
(Except for the ``800'' number, these are not toll-free numbers.)
SUPPLEMENTARY INFORMATION:
I. Background
The Fair Housing Act (42 U.S.C. 3600-3620) (the Act) provides that
whenever a complaint alleges a discriminatory housing practice, arising
in the jurisdiction of a State or local agency which has been certified
by the Secretary under section 810(f) of the Act, HUD shall refer the
complaint to that State or local agency. HUD has implemented section
810(f) at 24 CFR part 115, which establishes the criteria the Secretary
will utilize to certify State and local fair housing enforcement
agencies.
Section 817 of the Act provides that the Secretary may reimburse
State and local fair housing enforcement agencies which assist the
Secretary in enforcing the Act. HUD has implemented section 817 at 24
CFR part 111, which sets forth the requirements for the Fair Housing
Assistance Program (FHAP). Through the FHAP, HUD provides assistance to
certified State and local fair housing enforcement agencies. This
assistance is designed to provide support for complaint processing,
training, technical assistance, data and information systems, and other
fair housing projects.
Pursuant to President Clinton's memorandum of March 4, 1995,
Regulatory Reinvention, HUD conducted a comprehensive, page-by-page
review of its regulations. This interim rule marks another step in
HUD's continuing efforts to streamline, update and generally improve
its regulations. Specifically, the rule consolidates parts 111 and 115,
thus providing all necessary requirements for certification and FHAP
participation in part 115. This interim rule also eliminates burdensome
or redundant regulatory provisions currently located in parts 111 and
115. The Department welcomes comments on how this interim rule may be
made more understandable and less burdensome.
II. Justification for Interim Rulemaking
It is HUD's policy to publish rules for public comment before their
issuance for effect, in accordance with its own regulations on
rulemaking found at 24 CFR part 10. However, part 10 provides that
prior public comment will be omitted if HUD determines that it is
``impracticable, unnecessary, or contrary to the public interest'' (24
CFR 10.1). HUD finds that in this case prior public comment is contrary
to the public interest, since immediate implementation of this interim
rule will benefit the public. Specifically, this interim rule will
assist FHAP participants by providing all necessary requirements in a
single part and eliminating burdensome and redundant provisions.
Further, the streamlining amendments made by this interim rule will
allow HUD to administer the FHAP in a more efficient manner, thus
strengthening its ability to enforce the Fair Housing Act.
III. Other Matters
A. Environmental Impact
This rulemaking does not have an environmental impact. This
rulemaking simply amends an existing regulation by consolidating and
streamlining provisions and does not alter the environmental effect of
the regulations being amended. A Finding of No Significant Impact with
respect to the environment was made in accordance with HUD regulations
in 24 CFR part 50 that implement section 102(2)(C) of the National
Environmental Policy Act of 1969 (42 U.S.C. 4332) at the time of
development of regulations implementing Section 214 of the Housing and
Community Development Act of 1980. That Finding remains applicable to
this rule, and is available for public inspection between 7:30 a.m. and
5:30 p.m. weekdays in the Office of the Rules Docket Clerk, room 10276,
Department of Housing and Urban Development, 451 Seventh Street, SW,
Washington, DC 20410-0500.
B. Executive Order 12612, Federalism
The General Counsel, as the Designated Official, under section 6(a)
of Executive Order 12612, Federalism, has determined that the policies
contained in this interim rule will not have substantial direct effects
on States or their political subdivisions, or the relationship between
the Federal government and the States, or on the distribution of power
and responsibilities among the various levels of government. This
interim rule merely consolidates in a single part the requirements for
``substantially equivalent'' certification and participation in the
FHAP. It effects no changes in the current relationships between the
Federal government, the States and their political subdivisions in
connection with HUD programs.
C. Executive Order 12606, the Family
The General Counsel, as the Designated Official under Executive
[[Page 7675]]
Order 12606, The Family, has determined that this interim rule will not
have a potential significant impact on family formation, maintenance,
and general well-being and, thus, is not subject to review under the
Order. This interim rule only affects State and local fair housing
enforcement agencies which seek certification under section 810(f) of
the Act and participation in the FHAP. No significant change in
existing HUD policies or programs will result from promulgation of this
interim rule, as those policies and programs relate to family concerns.
D. Regulatory Flexibility Act
The Secretary, in accordance with the Regulatory Flexibility Act (5
U.S.C. 605(b)) has reviewed and approved this interim rule, and in so
doing certifies that this interim rule will not have a significant
economic impact on a substantial number of small entities.
List of Subjects
24 CFR Part 111
Fair housing, Grant programs--housing and community development,
Reporting and recordkeeping requirements.
24 CFR Part 115
Administrative practice and procedure, Aged, Fair housing,
Individuals with disabilities, Intergovernmental relations, Mortgages,
Reporting and recordkeeping requirements.
Accordingly, under the authority at 42 U.S.C. 3535(d) 24 CFR parts
111 and 115 are amended as follows:
PART 111--[REMOVED]
1. Part 111 is removed.
2. Part 115 is revised to read as follows:
PART 115--CERTIFICATION AND FUNDING OF STATE AND LOCAL FAIR HOUSING
ENFORCEMENT AGENCIES
Subpart A--General
Sec.
115.100 Definitions.
115.101 Program administration.
115.102 Public notices.
Subpart B--Certification of Substantially Equivalent Agencies
115.200 Purpose.
115.201 Basis of determination.
115.202 Criteria for Adequacy of Law.
115.203 Performance standards.
115.204 Consequences of Certification.
115.205 Technical assistance.
115.206 Request for certification.
115.207 Procedure for interim certification.
115.208 Suspension of interim certification.
115.209 Denial of interim certification.
115.210 Procedure for certification.
115.211 Suspension of certification.
115.212 Withdrawal of certification.
Subpart C--Fair Housing Assistance Program (FHAP)
115.300 Purpose.
115.301 Agency eligibility criteria.
115.302 Capacity Building Funds.
115.303 Eligible activities for Capacity Building Funds.
115.304 Agencies eligible for contributions funds.
115.305 Special Enforcement Effort (SEE) funds.
115.306 Training funds.
115.307 Additional requirements for participation in the FHAP.
115.308 Standards for FHAP program review.
115.309 Reporting and recordkeeping requirements.
115.310 Subcontracting under the FHAP.
115.311 Corrective and remedial action.
Authority: 42 U.S.C. 3600-3620 and 3535(d).
Subpart A--General
Sec. 115.100 Definitions.
(a) The terms ``Fair Housing Act'' and ``HUD'', as used in this
part, are defined in 24 CFR 5.100.
(b) The terms ``Aggrieved person'', ``Complainant'',
``Conciliation'', ``Conciliation agreement'', ``Discriminatory housing
practice'', ``Dwelling'', ``Handicap'', ``Person'', ``Respondent'',
``Secretary'', and ``State'', as used in this part, are set forth in
section 802 of the Fair Housing Act.
(c) Other definitions. The following definitions also apply to this
part:
Act means the Fair Housing Act, as defined in 24 CFR 5.100.
Assistant Secretary means the Assistant Secretary for Fair Housing
and Equal Opportunity.
Certified Agency is an agency to which the Assistant Secretary for
Fair Housing and Equal Opportunity has granted interim certification or
certification, in accordance with the requirements of this part.
Cooperative Agreement is the assistance instrument HUD will use to
provide funds. The Cooperative Agreement will contain attachments and
appendices establishing requirements relating to the operation or
performance of the agency.
Cooperative Agreement Officer (CAO) is the administrator of the
funds awarded pursuant to this part and is the Director of a Fair
Housing Enforcement Center in the Office of Fair Housing and Equal
Opportunity.
Director of FHEO means a Director of a Fair Housing Enforcement
Center.
Dual-Filed Complaint means a housing discrimination complaint which
has been filed with both the Fair Housing Enforcement Center and the
certified agency.
FHEO means the Office of Fair Housing and Equal Opportunity.
FHAP means the Fair Housing Assistance Program.
Sec. 115.101 Program administration.
(a) Authority and Responsibility. The Secretary has delegated the
authority and responsibility for administering this part to the
Assistant Secretary.
(b) Delegation of Authority. The Assistant Secretary delegates the
authority and responsibility for administering this part to each
Director of a Fair Housing Enforcement Center. However, with respect to
the duties and responsibilities for administering subpart B of this
part, the Assistant Secretary retains the right to make final decisions
concerning the granting and maintenance of substantial equivalency
certification and interim certification.
Sec. 115.102 Public notices.
(a) Periodically, the Assistant Secretary will publish the
following public notices in the Federal Register:
(1) A list of all agencies which have interim certification or
certification; and
(2) A list of agencies to which a notice of denial of interim
certification has been issued or for which withdrawal of certification
is being proposed.
(b) The Assistant Secretary will publish in the Federal Register a
notice soliciting public comment before granting certification to a
State or local agency. The notice will invite the public to comment on
the relevant State and local laws, as well as on the performance of the
agency in enforcing its law. All comments will be considered before a
final decision on certification is made.
Subpart B--Certification of Substantially Equivalent Agencies
Sec. 115.200 Purpose.
This subpart implements section 810(f) of the Fair Housing Act. The
purpose of this subpart is to set forth:
(a) The basis for agency interim certification and certification;
(b) The procedure by which a determination to certify is made by
the Assistant Secretary;
(c) The basis and procedures for denial of interim certification;
(d) The basis and procedures for withdrawal of certification;
(e) The consequences of certification;
(f) The basis and procedures for suspension of interim
certification or certification; and
(g) The funding criteria for interim certified and certified
agencies.
[[Page 7676]]
Sec. 115.201 Basis of determination.
A determination to certify an agency as substantially equivalent
involves a two-phase procedure. The determination requires examination
and an affirmative conclusion by the Assistant Secretary on two
separate inquiries:
(a) Whether the law, administered by the agency, on its face,
satisfies the criteria set forth in section 810(f)(3)(A) of the Act;
and
(b) Whether the current practices and past performance of the
agency demonstrate that, in operation, the law in fact provides rights
and remedies which are substantially equivalent to those provided in
the Act.
Sec. 115.202 Criteria for Adequacy of Law.
(a) In order for a determination to be made that a State or local
fair housing agency administers a law which, on its face, provides
rights and remedies for alleged discriminatory housing practices that
are substantially equivalent to those provided in the Act, the law or
ordinance must:
(1) Provide for an administrative enforcement body to receive and
process complaints and provide that:
(i) Complaints must be in writing;
(ii) Upon the filing of a complaint the agency shall serve notice
upon the complainant acknowledging the filing and advising the
complainant of the time limits and choice of forums provided under the
law;
(iii) Upon the filing of a complaint the agency shall promptly
serve notice on the respondent or person charged with the commission of
a discriminatory housing practice advising of his or her procedural
rights and obligations under the law or ordinance together with a copy
of the complaint;
(iv) A respondent may file an answer to a complaint.
(2) Delegate to the administrative enforcement body comprehensive
authority, including subpoena power, to investigate the allegations of
complaints, and power to conciliate complaints, and require that:
(i) The agency commence proceedings with respect to the complaint
before the end of the 30th day after receipt of the complaint;
(ii) The agency investigate the allegations of the complaint and
complete the investigation within the time-frame established by section
810(a)(1)(B)(iv) of the Act or comply with the notification
requirements of section 810(a)(1)(C) of the Act.
(iii) The agency make final administrative disposition of a
complaint within one year of the date of receipt of a complaint, unless
it is impracticable to do so. If the agency is unable to do so it shall
notify the parties, in writing, of the reasons for not doing so;
(iv) Any conciliation agreement arising out of conciliation efforts
by the agency shall be an agreement between the respondent, the
complainant, and the agency and shall require the approval of the
agency;
(v) Each conciliation agreement shall be made public unless the
complainant and respondent otherwise agree and the agency determines
that disclosure is not required to further the purposes of the law or
ordinance.
(3) Not place any excessive burdens on the complainant that might
discourage the filing of complaints, such as:
(i) A provision that a complaint must be filed within any period of
time less than 180 days after an alleged discriminatory housing
practice has occurred or terminated;
(ii) Anti-testing provisions;
(iii) Provisions that could subject a complainant to costs,
criminal penalties or fees in connection with filing of complaints.
(4) Not contain exemptions that substantially reduce the coverage
of housing accommodations as compared to section 803 of the Act.
(5) Provide the same protections as those afforded by sections 804,
805, 806, and 818 of the Act, consistent with HUD's implementing
regulations found at 24 CFR part 100.--
(i) As used in section 804(f)(3)(C) of the Act, the term ``covered
multifamily dwellings'' means buildings consisting of four or more
units if such buildings have one or more elevators and ground floor
units in other buildings consisting of four or more units.
(ii) The law or ordinance administered by the State or local fair
housing agency may provide that compliance with the appropriate
requirements of the American National Standard for buildings and
facilities providing accessibility and usability for physically
handicapped people (commonly cited as ``ANSI A117.1-1986'') suffices to
satisfy the requirements of section 804(f)(3)(C)(iii) of the Act.
(b) In addition to the factors described in paragraph (a) of this
section, the provisions of the State or local law must afford
administrative and judicial protection and enforcement of the rights
embodied in the law.
(1) The agency must have authority to:
(i) Grant or seek prompt judicial action for appropriate temporary
or preliminary relief pending final disposition of a complaint if such
action is necessary to carry out the purposes of the law or ordinance;
(ii) Issue and seek enforceable subpoenas;
(iii) Grant actual damages in an administrative proceeding or
provide adjudication in court at agency expense to allow the award of
actual damages to an aggrieved person;
(iv) Grant injunctive or other equitable relief, or be specifically
authorized to seek such relief in a court of competent jurisdiction;
(v) Provide an administrative proceeding in which a civil penalty
may be assessed or provide an adjudication in court at agency expense,
allowing the assessment of punitive damages against the respondent.
(2) Agency actions must be subject to judicial review upon
application by any party aggrieved by a final agency order.
(3) Judicial review of a final agency order must be in a court with
authority to grant to the petitioner, or to any other party, such
temporary relief, restraining order, or other order as the court
determines is just and proper; affirm, modify, or set aside, in whole
or in part, the order, or remand the order for further proceedings; and
enforce the order to the extent that the order is affirmed or modified.
(c) The requirement that the state or local law prohibit
discrimination on the basis of familial status does not require that
the state or local law limit the applicability of any reasonable local,
state or Federal restrictions regarding the maximum number of occupants
permitted to occupy a dwelling.
(d) The state or local law may assure that no prohibition based on
discrimination because of familial status applies to housing for older
persons substantially as described in 24 CFR part 100, subpart E.
(e) A determination of the adequacy of a state or local fair
housing law ``on its face'' is intended to focus on the meaning and
intent of the text of the law, as distinguished from the effectiveness
of its administration. Accordingly, this determination is not limited
to an analysis of the literal text of the law but must take into
account all relevant matters of state or local law. Regulations,
directives, rules of procedure, judicial decisions, or interpretations
of the fair housing law by competent authorities will be considered in
making this determination.
(f) A law will be found inadequate ``on its face'' if it permits
any of the agency's decision-making authority to be contracted out or
delegated to a non-governmental authority. For the
[[Page 7677]]
purposes of this paragraph, ``decision-making authority'' shall
include:
(1) Acceptance of the complaint;
(2) Approval of the conciliation agreement;
(3) Dismissal of a complaint;
(4) Any action specified in Secs. 115.202(a)(2)(iii) or
115.202(b)(1); and
(5) Any decision-making regarding whether the matter will or will
not be pursued.
(g) The state or local law must provide for civil enforcement of
the law or ordinance by an aggrieved person by the commencement of an
action in an appropriate court at least one year after the occurrence
or termination of an alleged discriminatory housing practice. The court
must be empowered to:
(1) Award the plaintiff actual and punitive damages;
(2) Grant as relief, as it deems appropriate, any temporary or
permanent injunction, temporary restraining order or other order;
(3) Allow reasonable attorney's fees and costs.
Sec. 115.203 Performance standards.
A state or local fair housing enforcement agency must meet all of
the performance standards listed below in order to obtain or maintain
certification.
(a) Engage in timely, comprehensive and thorough fair housing
complaint investigation, conciliation and enforcement activities. The
performance assessment will consider the following to determine the
effectiveness of an agency's fair housing complaint processing,
consistent with such guidance as may be issued by HUD:
(1) The agency's case processing procedures;
(2) The thoroughness of the agency's case processing;
(3) A review of cause and no cause determinations for quality of
investigations and consistency with appropriate standards;
(4) A review of conciliation agreements and other settlements; and
(5) A review of the agency's administrative closures; and
(6) A review of the agency's enforcement procedures.
(b)(1) Commence proceedings with respect to a complaint:
(i) Before the end of the 30th day after receipt;
(ii) Carry forward such proceedings with reasonable promptness;
(iii) Make final administrative disposition within one year; and
(iv) Within 100 days of receipt of the complaint complete the
identified proceedings.
(2) To meet this standard, the performance assessment will consider
the timeliness of the agency's actions with respect to its complaint
processing, including, but not limited to:
(i) Whether the agency began its processing of fair housing
complaints within 30 days of receipt;
(ii) Whether the agency completes the investigative activities with
respect to a complaint within 100 days from the date of receipt or, if
it is impracticable to do so, notifies the parties in writing of the
reason(s) for the delay;
(iii) Whether the agency administratively disposes of a complaint
within one year from the date of receipt or, if it is impracticable to
do so, notifies the parties in writing of the reasons for the delay;
and
(iv) Whether the agency completed the investigation of the
complaint and prepared a complete final investigative report.
(3) The performance assessment will also consider documented
conciliation attempts and activities and a review of the bases for
administrative disposition of complaints.
(c) Conduct compliance reviews of settlements, conciliation
agreements and orders issued by or entered into to resolve
discriminatory housing practices. The performance assessment will
include, but not be limited to:
(1) An assessment of the agency's procedures for conducting
compliance reviews;
(2) Terms and conditions of agreements and orders issued;
(3) application of its authority to seek actual damages, as
appropriate; and
(4) Application of its authority to seek and assess civil penalties
or punitive damages.
(d) Consistently and affirmatively seek and obtain the type of
relief designed to prevent recurrences of such practices. The
performance assessment will include, but not be limited to:
(1) An assessment of the types of relief sought and obtained by the
agency with consideration of the inclusion of affirmative provisions
designed to protect the public interest;
(2) The adequacy of the disposition of the complaint;
(3) The relief sought and awarded;
(4) The number of complaints closed with relief and the number
closed without relief; and
(5) Whether all the issues and bases were investigated adequately
and appropriately disposed of.
(e) Consistently and affirmatively seek the elimination of all
prohibited practices under its fair housing law. An assessment under
this standard will include, but not be limited to:
(1) A discussion and confirmation of the law or ordinance
administered by the agency;
(2) The identification of any amendments, court decisions or other
rulings or documentation that may affect the agency's ability to carry
out provisions of its fair housing law or ordinance;
(3) Identification of the education and outreach efforts of the
agency; and
(4) Identification and discussion of any special requirements of
the fair housing law or ordinance.
Sec. 115.204 Consequences of Certification.
(a) Whenever a complaint received by the Assistant Secretary
alleges violations of a state or local fair housing law or ordinance
administered by an agency that has been certified as substantially
equivalent, the complaint will be referred to the agency, and no
further action shall be taken by the Assistant Secretary with respect
to such complaint except as provided for by the Act, this part, 24 CFR
part 103, subpart C, and any written agreements executed by the Agency
and the Assistant Secretary.
(b) If HUD determines that a complaint has not been processed in a
timely manner in accordance with the performance standards set forth in
Sec. 115.203, HUD may reactivate the complaint, conduct its own
investigation and conciliation efforts, and make a determination
consistent with 24 CFR part 103.
(c) Notwithstanding paragraph (a) of this section, whenever the
Assistant Secretary has reason to believe that a complaint demonstrates
a basis for the commencement of proceedings against any respondent
under section 814(a) of the Act or for proceedings by any governmental
licensing or supervisory authorities, the Assistant Secretary shall
transmit the information upon which such belief is based to the
Attorney General, Federal financial regulatory agencies, other Federal
agencies, or other appropriate governmental licensing or supervisory
authorities.
Sec. 115.205 Technical assistance.
(a) The Assistant Secretary, through the FHEO Field Office, may
provide technical assistance to the agencies. The agency may request
such technical assistance or the FHEO Field Office may determine the
necessity for technical assistance and require the agency's cooperation
and participation.
(b) The Assistant Secretary, through FHEO Headquarters or Field
staff, will require that the agency participate in training conferences
and seminars that will enhance the agency's ability to process
complaints alleging discriminatory housing practices.
[[Page 7678]]
Sec. 115.206 Request for certification.
(a) A request for certification under this subpart B shall be filed
with the Assistant Secretary by the State or local official having
principal responsibility for administration of the State or local fair
housing law. The request shall be supported by the following materials
and information:
(1) The text of the jurisdiction's fair housing law, the law
creating and empowering the agency, any regulations and directives
issued under the law, and any formal opinions of the State Attorney
General or the chief legal officer of the jurisdiction that pertain to
the jurisdiction's fair housing law.
(2) Organizational information of the agency responsible for
administering and enforcing the law.
(3) Funding and personnel made available to the agency for
administration and enforcement of the fair housing law during the
current operating year, and not less than the preceding three operating
years (or such lesser number during which the law was in effect).
(4) If available, data demonstrating that the agency's current
practices and past performance comply with the performance standards
described in Sec. 115.203.
(5) Any additional information which the submitting official may
wish to be considered.
(b) The request and supporting materials shall be filed with the
Assistant Secretary for Fair Housing and Equal Opportunity, Department
of Housing and Urban Development, 451 7th Street, SW., Washington, DC
20410. A copy of the request and supporting materials will be kept
available for public examination and copying at:
(1) The office of the Assistant Secretary; and
(2) The HUD Field Office in whose jurisdiction the State or local
jurisdiction seeking recognition is located; and
(3) The office of the State or local agency charged with
administration and enforcement of the State or local law.
Sec. 115.207 Procedure for interim certification.
(a) Upon receipt of a request for certification filed under
Sec. 115.206 of this part, the Assistant Secretary may request further
information necessary for a determination to be made under this
section. The Assistant Secretary may consider the relative priority
given to fair housing administration, as compared to the agency's other
duties and responsibilities, as well as the compatibility or potential
conflict of fair housing objectives with these other duties and
responsibilities.
(b) Interim certification. If the Assistant Secretary determines,
after application of the criteria set forth in Sec. 115.202 that the
State or local law or ordinance, on its face, provides substantive
rights, procedures, remedies, and judicial review procedures for
alleged discriminatory housing practices that are substantially
equivalent to those provided in the Act, the Assistant Secretary may
offer to enter into an Agreement for the Interim Referral of Complaints
and Other Utilization of Services (Interim Agreement). The interim
agreement will outline the procedures and authorities upon which the
interim certification is based.
(c) Such interim agreement, after it is signed by all appropriate
signatories, will result in the agency receiving interim certification.
(d)(1) Interim agreements shall be for a term of no more than three
years. The Assistant Secretary, through the FHEO Field Office, will
conduct one or more on-site assessments to determine whether the agency
administers its fair housing law or ordinance in a manner that is
substantially equivalent to the Act.
(2) Performance Improvement Plan. If the agency is not
administering its law or ordinance in a manner that is substantially
equivalent, the Assistant Secretary, may, but need not, offer a
Performance Improvement Plan (PIP) to the agency. The PIP will outline
the agency's deficiencies, identify necessary corrective actions, and
include a timetable for completion.
(3) If the agency receives a PIP, funding under the FHAP may be
suspended for the duration of the PIP. Once the agency has implemented
corrective actions to eliminate the deficiencies, and such corrective
actions are accepted by the Assistant Secretary, funding may be
reinstated.
Sec. 115.208 Suspension of interim certification.
(a)(1) The Assistant Secretary will suspend the agency's interim
certification if the Assistant Secretary has reason to believe that the
State or locality may have limited the effectiveness of the agency's
implementation of the fair housing law or ordinance by:
(i) Amending the fair housing law or ordinance;
(ii) Adopting rules or procedures concerning the fair housing law
or ordinance; or
(iii) Issuing judicial or other authoritative interpretations of
the fair housing law or ordinance.
(2) If the Assistant Secretary suspends interim certification under
paragraph (a)(1) of this section, such suspension will remain in effect
until the Assistant Secretary conducts a review of the changes in
language and/or interpretation and determines whether the law or
ordinance remains substantially equivalent to the Act on its face or in
its operations.
(i) If the Assistant Secretary determines that, notwithstanding the
actions taken by the State or locality as described in paragraph (a)(1)
of this section, the law or ordinance remains substantially equivalent
on its face and in operation to the Act, the Assistant Secretary will
rescind the suspension and reinstate the agency's interim certification
and/or recommend the agency for certification. HUD will provide
reimbursement for cases processed during the period of the suspension.
(ii) If the Assistant Secretary determines that the actions taken
by the State or locality do limit the agency's effectiveness interim
certification will be denied pursuant to Sec. 115.209.
(b)(1) The Assistant Secretary will suspend the interim
certification of an agency charged with the administration of a fair
housing law or ordinance if the Assistant Secretary has reason to
believe that the agency's performance does not comply with the criteria
set forth by this part. Such suspension shall not exceed 180 days.
(2) If the agency is suspended pursuant to paragraph (b) of this
section, the FHEO Field Office will not provide payment for complaints
processed within that period of time unless and until the Assistant
Secretary determines that the agency is fully in compliance with
Sec. 115.203. The FHEO Field Office will provide technical assistance
to the agency during this period of time.--
(i) During the period of a suspension the Assistant Secretary shall
not refer complaints to the agency.
(ii) Suspension under this section also renders the agency
ineligible to receive Fair Housing Assistance Program Funds under
subpart C of this part, pending correction of the deficiencies by the
agency.
(3) Before the end of the suspension, a final performance
assessment will be provided to the Assistant Secretary upon which a
determination will be made as to the adequacy of the agency's
performance.
[[Page 7679]]
Sec. 115.209 Denial of interim certification.
(a) If the Assistant Secretary determines, after application of the
criteria set forth in this Part that the State and local law or
ordinance, on its face or in its operation, does not provide
substantive rights, procedures, remedies, and availability of judicial
review for alleged discriminatory housing practices which are
substantially equivalent to those provided in the Fair Housing Act, the
Assistant Secretary shall inform the State or local official in writing
of the reasons for that determination.
(b) The agency, within 20 days from the date of the receipt of this
notice, may submit, in writing, any opposition to the planned denial of
Interim Certification to the Assistant Secretary. The Assistant
Secretary will evaluate all pertinent written comments, information,
and documentation. If, after reviewing all materials submitted by the
agency, the Assistant Secretary is still of the opinion that interim
certification should be denied, the Assistant Secretary will inform the
agency in writing of that determination.
(c) If the agency does not, within 20 days of receipt of the
Assistant Secretary's notice of denial of interim certification, make a
request of the Assistant Secretary under paragraph (b) of this section
to submit additional data, views, or comments, no further action shall
be required of the Assistant Secretary and denial of interim
certification shall occur.
Sec. 115.210 Procedure for certification.
(a)(1) Certification. If the Assistant Secretary determines, after
application of the criteria set forth in Secs. 115.202, 115.203 and
this section, that the State or local law or ordinance, both ``on its
face'' and ``in operation,'' provides substantive rights, procedures,
remedies, and judicial review procedures for alleged discriminatory
housing practices that are substantially equivalent to those provided
in the Act, the Assistant Secretary may enter into a Memorandum of
Understanding (MOU) with the agency. The MOU is a written agreement
providing for the referral of complaints to the agency and for
communication procedures between the agency and HUD that are adequate
to permit the Assistant Secretary to monitor the agency's continuing
substantial equivalency certification. A MOU, after it is signed by all
appropriate signatories, may authorize an agency to be a certified
agency for a period of not more than five years.
(2) Performance Improvement Plan. If the agency is not
administering its law or ordinance in a manner that is substantially
equivalent, the Assistant Secretary, may, but need not, offer a
Performance Improvement Plan (PIP) to the agency. The PIP will outline
the agency's deficiencies, identify necessary corrective actions, and
include a timetable for completion.
(3) If the agency receives a PIP, funding under the FHAP may be
suspended for the duration of the PIP. Once the agency has implemented
corrective actions to eliminate the deficiencies, and such corrective
actions are accepted by the Assistant Secretary, funding may be
reinstated.
(b) The Assistant Secretary shall annually assess the performance
of an agency to determine whether it continues to qualify for
certification under this part. If the Assistant Secretary affirmatively
concludes that the agency's law and performance have complied with the
requirements of this part in each of the five years, the Assistant
Secretary may offer the agency an updated Memorandum of Understanding.
(c) An agency shall receive interim certification prior to
receiving certification.
Sec. 115.211 Suspension of certification.
(a)(1) The Assistant Secretary will suspend the agency's
certification if the Assistant Secretary has reason to believe that the
State or locality may have limited the effectiveness of the agency's
implementation of the fair housing law or ordinance by:
(i) Amending the fair housing law or ordinance;
(ii) Adopting rules or procedures concerning the fair housing law
or ordinance; or
(iii) Issuing judicial or other authoritative interpretations of
the fair housing law or ordinance.
(2) If the Assistant Secretary suspends certification under
paragraph (a)(1) of this section, such suspension will remain in effect
until the Assistant Secretary conducts a review of the changes in
language and/or interpretation and determines whether the law or
ordinance remains substantially equivalent on its face and in its
operation to the Act.--
(i) If the Assistant Secretary determines that the law or ordinance
remains substantially equivalent on its face and in operation to the
Act, the Assistant Secretary will rescind the suspension and reinstate
the agency's interim certification and/or recommend the agency for
certification. HUD will provide reimbursement for cases processed
during the period of the suspension.
(ii) If the Assistant Secretary determines that the actions taken
by the State or locality do limit the agency's effectiveness,
certification will be withdrawn pursuant to Sec. 115.212.
(b)(1) The Assistant Secretary will suspend the certification of an
agency charged with the administration of a fair housing law or
ordinance, if the Assistant Secretary has reason to believe that the
agency's performance does not comply with the criteria set forth by
this part. Such suspension shall not exceed 180 days.
(2) If the agency is suspended pursuant to paragraph (b) of this
section, the FHEO Field Office will not provide payment for complaints
processed within that period of time unless and until the Assistant
Secretary determines that the agency is fully in compliance with
115.202 of this part. The FHEO Field Office will provide technical
assistance to the agency during this period of time.--
(i) During the period of a suspension the Assistant Secretary shall
not refer complaints to the agency.
(ii) Suspension under this section also renders the agency
ineligible to receive Fair Housing Assistance Program Funds under
subpart C of this part, pending correction of the deficiencies by the
agency.
(3) Before the end of the suspension, a final performance
assessment will be provided to the Assistant Secretary upon which a
determination will be made as to the adequacy of the agency's
performance.
Sec. 115.212 Withdrawal of certification.
(a) If the Assistant Secretary finds, as a result of a review
undertaken in accordance with this part, that the agency's fair housing
law or ordinance no longer meets the requirements of this part, the
Assistant Secretary shall propose to withdraw the certification
previously granted.
(b) The Assistant Secretary will propose withdrawal of
certification under paragraph (a) of this section unless further review
and information or documentation establishes that the current law and/
or the agency's administration of the law meets the criteria set out in
this part.
(c) If the Assistant Secretary determines, after application of the
criteria set forth in this Part, that the state or local law or
ordinance, in operation, does not provide substantive rights,
procedures, remedies, and availability of judicial review for alleged
discriminatory housing practices which are substantially equivalent to
those provided in the Fair Housing Act, the Assistant Secretary shall
inform the
[[Page 7680]]
State or local official in writing of the reasons for that
determination.
Subpart C--Fair Housing Assistance Program (FHAP)
Sec. 115.300 Purpose.
The purpose of the Fair Housing Assistance Program (FHAP) is to
provide assistance to State and local fair housing enforcement
agencies. The intent of this funding program is to build a coordinated
intergovernmental enforcement effort to further fair housing and to
encourage the agencies to assume a greater share of the responsibility
for the administration and enforcement of their fair housing laws and
ordinances. This financial assistance is designed to provide support
for:
(a) The processing of dual-filed complaints;
(b) Training under the Fair Housing Act and the agencies' fair
housing law;
(c) The provision of technical assistance;
(d) The creation and maintenance of data and information systems;
and
(e) The development and enhancement of other fair housing
enforcement projects.
Sec. 115.301 Agency eligibility criteria.
Any agency with certification or interim certification under
subpart A of this part, and which has entered into a MOU or interim
agreement, is eligible to participate in the FHAP.
Sec. 115.302 Capacity Building Funds.
(a) Capacity Building Funds (CBF) are funds that HUD may provide to
an agency with interim certification during the agency's first three
years of participation in the FHAP. Agencies receiving CBF are not
eligible to receive contributions funds under Sec. 115.304.
(b) Capacity Building Funds will be provided in a fixed annual
amount to be utilized for the eligible activities established pursuant
to Sec. 115.303. However, in the second and third year of the agency's
participation in the FHAP, HUD has the option to permit the agency to
receive Capacity Building funding on a per case basis, rather than in a
single annual amount.
(c) In order to receive capacity building funds, agencies will be
required to submit a statement of work which identifies:
(1) The objectives and activities to be carried out with the CBFs
received;
(2) A plan for training all of the agency's employees involved in
the administration of the agency's fair housing law or ordinance;
(3) A statement of the agency's intention to participate in HUD-
sponsored training in accordance with the training requirements set out
in the cooperative agreement;
(4) A description of the agency's complaint processing data and
information system or, alternatively, whether the agency plans to use
capacity building funds to purchase and install a data system; and
(5) A description of any other fair housing activities that the
agency will undertake with its capacity building funds.--
(i) All such activities must address matters affecting fair housing
enforcement which are cognizable under the Fair Housing Act. Any
activities which do not address the implementation of the agency's fair
housing law or ordinance, and which are therefore not cognizable under
the Fair Housing Act, will be disapproved.
(ii) Reserved.
Sec. 115.303 Eligible activities For Capacity Building Funds.
The primary purposes of capacity building funding is to provide for
complaint activities and to support activities that produce increased
awareness of fair housing rights and remedies. All such activities must
support the agency's administration of its fair housing law or
ordinance and address matters affecting fair housing which are
cognizable under the Fair Housing Act. HUD will periodically publish a
list of eligible activities in the Federal Register.
Sec. 115.304 Agencies Eligible for Contributions Funds.
(a) An agency that has received Capacity Building Funds for three
consecutive years is eligible for contributions funding. Contributions
funding consists of three categories:
(1) Complaint Processing (CP) Funds;
(2) Administrative Costs (AC) Funds; and
(3) Special Enforcement Efforts (SEE) Funds (Sec. 115.305 sets
forth the requirements for SEE funding).
(b) Complaint Processing Funds. (1) Agencies receiving CP funds
will receive such support based solely on the number of complaints
processed by the agency and accepted for payment by the Director of
FHEO during a consecutive, specifically identified, 12-month period.
Normally this period will be the previous year's funding cycle.
(2) Funding for agencies in their fourth year of participation in
the FHAP will be based on the number of complaints acceptably processed
by the agency during the agency's third year of participation in the
FHAP.
(c) Administrative Cost (AC) Funds. Agencies which acceptably
process 100 or more cases will receive no less than 10 percent of the
agency's annual FHAP payment amount for the preceding year, in addition
to case processing funds, contingent on fiscal year appropriations.
Agencies that acceptably process fewer than 100 cases will receive a
flat rate contingent on fiscal year appropriations.
(1) Agencies will be required to provide HUD with a statement of
how they intend to use the AC funds. HUD may require that some or all
AC funding be directed to activities designed to create, modify, or
improve local, regional, or national information systems concerning
fair housing matters (including the purchase of state of the art
computer systems and getting on line or internet access, etc.).
(2) [Reserved.]
Sec. 115.305 Special Enforcement Effort (SEE) funds.
(a) SEE funds are funds that HUD will provide to an agency to
enhance enforcement activities of the agency's fair housing law or
ordinance. SEE funds will be a maximum of 20% of the agency's total
FHAP cooperative agreement for the previous contract year, based on
approval of eligible activity or activities, and based on the
appropriation of funds. All agencies receiving contributions funds are
eligible to receive SEE funds if they meet three of the six criteria
set out below:
(1) The agency has taken action to enforce a subpoena or make use
of its prompt judicial action authority within the past year;
(2) The agency has held at least one administrative hearing or has
had at least one case on a court's docket for civil proceedings during
the past year;
(3) At least ten percent of the agency's fair housing caseload
resulted in written conciliation agreements providing monetary relief
for the complainant as well as remedial action, monitoring, reporting
and public interest relief provisions;
(4) The agency has had in the most recent three years, or is
currently handling, at least one major fair housing systemic
investigation requiring an exceptional amount of expenditure of funds;
(5) The agency's administration of its fair housing law or
ordinance received meritorious mention for its complaint processing or
other fair housing activities that were innovative; or
(6) The agency must have fully investigated 10 fair housing
complaints during the previous funding year.
(b) Notwithstanding the eligibility criteria set forth in paragraph
(a) of this section, an agency will be ineligible for
[[Page 7681]]
SEE funds if 20% or more of an agency's fair housing complaints result
in administrative closures.
(c) SEE funding amounts are subject to the FHAP appropriation by
Congress and will be described in writing in the cooperative agreements
annually. HUD will periodically publish a list of activities eligible
for SEE funding in the Federal Register.
Sec. 115.306 Training funds.
(a) All agencies are eligible to receive training funds. Training
funds are fixed amounts based on the number of agency employees to be
trained and shall be allocated based on the FHAP appropriation.
Training funds may be used only for HUD-approved or HUD-sponsored
training. Agency initiated training or other formalized training may be
included in this category. However, such training must first be
approved by the Cooperative Agreement Officer (CAO) and the Government
Technical Representative (GTR). Specifics on the amount of training
funds that an agency will receive and, if applicable, amounts that may
be deducted, will be set out in the cooperative agreement each year.
(b) All staff of the agency responsible for the administration of
the fair housing law or ordinance must participate in mandatory FHAP
training sponsored by HUD at the national and field office levels. If
the agency does not participate in the mandatory national and field
office HUD-sponsored training, training funds will be deducted from
their overall training amount.
Sec. 115.307 Additional requirements for participation in the FHAP.
(a) Agencies which participate in the FHAP must:
(1) Conform to reporting and record maintenance requirements
determined by the Assistant Secretary;
(2) Agree to on-site technical assistance and guidance and
implementation of corrective actions set out by the Department in
response to deficiencies found during the technical assistance or
performance assessment evaluations of the agency's operations;
(3) Agree to implement and adhere to policies and procedures (as
their laws and ordinances will allow) provided to the agencies by the
Assistant Secretary, including but not limited to guidance on
investigative techniques, case file preparation and organization,
implementation of data elements for complaint tracking, etc.;
(4) Spend at least twenty (20) percent of its total annual budget
on fair housing activities; and
(5) Not unilaterally reduce the level of financial resources
currently committed to fair housing complaint processing (budget and
staff reductions or other actions outside the control of the agency
will not, alone, result in a negative determination for the agency's
participation in the FHAP).
(b) The agency's refusal to provide information, assist in
implementation, or carry out the requirements of paragraph (a) of this
section may result in the denial or interruption of its receipt of FHAP
funds.
Sec. 115.308 Standards for FHAP program review.
HUD will conduct reviews of the agency's cooperative agreement
implementation. This review will also identify:
(a) How the agency used the FHAP funds received;
(b) Whether its draw-down of funds was timely;
(c) Whether the agency has been audited and received copies of the
audit reports in accordance with applicable rules and regulations for
State and local governmental entities; and
(d) If the agency complied with all certifications and assurances
required by HUD in the cooperative agreement.
Sec. 115.309 Reporting and recordkeeping requirements.
(a) The agency shall establish and maintain records demonstrating:
(1) Its financial administration of the FHAP funds; and
(2) Its performance under the FHAP.
(b) In accordance with the cooperative agreement in effect between
the agency and HUD, the agency will provide to HUD the agency reports
maintained pursuant to paragraph (a) of this section. The agency will
provide reports to HUD in accordance with the cooperative agreement in
effect between the agency and HUD for frequency and content, regarding
complaint processing, training, data and information systems,
enforcement and other activities explaining how FHAP funds were
expended and used.
(c) The agency will permit reasonable public access to its records,
consistent with the jurisdiction's requirements for release of
information. Documents relevant to the agency's participation in FHAP
must be made available at the agency's office during normal working
hours (except that documents with respect to ongoing fair housing
complaint investigations are exempt from public review consistent with
Federal and/or State law).
(d) The Secretary, the Inspector General of HUD, and the
Comptroller General of the United States, or any of their duly
authorized representatives, shall have access to all pertinent books,
accounts, reports, files, and other payments for surveys, audits,
examinations, excerpts, and transcripts as they relate to the agency's
participation in FHAP.
(e) All files will be kept in such fashion as to permit audits
under applicable procurement regulations and guidelines and the Single
Audit requirements for State and local agencies.
(f) The FHAP financial records and files will be kept at least
three years on-site after any cooperative agreement has terminated.
Sec. 115.310 Subcontracting under the FHAP.
If an agency subcontracts to a public or private agency any
activity for which the subcontractor will receive FHAP funds, the
agency must ensure and certify in writing that the subcontractor is:
(a) Using services and facilities that are accessible in accordance
with the Americans with Disability Act (ADA) (29 U.S.C. 706) and
Section 504 of the 1973 Rehabilitation Act (29 U.S.C. 792);
(b) Complying with the standards of Section 3 of the Housing and
Urban Development Act (12 U.S.C. 1701u); and
(c) Furthering fair housing.
Sec. 115.311 Corrective and remedial action.
(a) If HUD makes a preliminary determination that an agency has not
complied with Sec. 115.309, the agency will be given written notice of
this determination and an opportunity to show, through demonstrable
facts and data, that it has done so within a time prescribed by HUD.
(b) If an agency fails to demonstrate to HUD's satisfaction that it
has met program review standards, HUD will request the agency to submit
and comply with proposals for action to correct, mitigate, or prevent
performance deficiencies, including, but not limited to:
(1) Preparing and/or following a schedule of actions for carrying
out the affected fair housing activities;
(2) Establishing and/or following a management plan that assigns
responsibilities for carrying out the actions required;
(3) Canceling or revising activities likely to be affected by a
performance deficiency before expending FHAP funds for the activities;
and
(4) Redistributing or suspending disbursement of FHAP funds that
have not yet been disbursed.
(c) HUD may condition the use of FHAP award amounts with respect to
an agency's succeeding fiscal year's allocation on the satisfactory
[[Page 7682]]
completion by the agency of appropriate corrective actions. When the
use of funds is so conditioned, HUD will specify the deficiency(ies),
the required corrective action(s), and the time allowed for taking
these actions. Failure of the agency to complete the actions as
specified will result in a reduction or withdrawal of the FHAP
allocation in an amount not to exceed the amount conditionally granted.
Dated: January 31, 1996.
Elizabeth K. Julian,
Acting Assistant Secretary for Fair Housing and Equal Opportunity.
[FR Doc. 96-4437 Filed 2-27-96; 8:45 am]
BILLING CODE 4210-28-P
Complete official Federal Register PDF
FR Doc. 96-4434 Taking and Importing of Marine Mammals; Consolidation of Regulations; Removal of Expired General Permit Requirements
[Federal Register Volume 61, Number 40 (Wednesday, February 28, 1996)]
[Rules and Regulations]
[Pages 7429-7430]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-4434]
=======================================================================
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 216
[Docket No. 960220037-6037-01; I.D. 112895B]
RIN 0648-XX45
Taking and Importing of Marine Mammals; Consolidation of
Regulations; Removal of Expired General Permit Requirements
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule; technical amendment.
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SUMMARY: NMFS issues this technical amendment to remove outdated
regulations governing the issuance of general permits. This technical
amendment is intended to provide uniform, updated, and streamlined
regulations. This action is consistent with the President's Regulatory
Reform Initiative.
EFFECTIVE DATE: This rule is effective February 28, 1996.
FOR FURTHER INFORMATION CONTACT:
Wanda L. Cain, Fishery Biologist; telephone: 301-713-2055, or fax: 301-
713-0376.
SUPPLEMENTARY INFORMATION: On August 30, 1995 (60 FR 45086), NMFS
published a final rule implementing the new management regime for the
taking of marine mammals incidental to commercial fishing operations
established by section 118 of the Marine Mammal Protection Act (MMPA).
The provisions of 50 CFR part 229, rather than 50 CFR Sec. 216.24,
govern the incidental taking of marine mammals in the course of
commercial fishing operations by persons using vessels of the United
States, other than vessels used in the eastern tropical Pacific Ocean
yellowfin tuna purse seine fishery. Because the only general permit for
U.S. vessels operating in the yellowfin tuna purse seine fishery in the
eastern tropical Pacific Ocean is that issued to the American Tunaboat
Association (ATA), NMFS is removing other general permit requirements
from 50 CFR Sec. 216.24. In addition, a correction is made to the
Harmonized Tariff Schedule Item Numbers found at
Sec. 216.24(e)(2)(i)(A). A definition for the Regional Director,
Southwest Region, NMFS, is added to Sec. 216.3. In the reporting
requirements for ATA certificate holders, NMFS is removing the obsolete
requirement that masters of certificated vessels allow observers to
make coded radio reports to NMFS. Finally, minor editorial corrections
are made.
Classification
This final rule is exempt from review under E.O. 12866. Because
this rule only makes technical amendments, the Assistant Administrator
for Fisheries, NOAA, under section 553(b)(B) and (d) of the
Administrative Procedure Act, for good cause finds that it is
unnecessary to provide prior notice and opportunity for public comment
on this rule or to delay for 30 days its effective date. Because this
rule is being issued without prior notice and opportunity for public
comment, a regulatory flexibility analysis is not required under the
Regulatory Flexibility Act, and none has been prepared.
This action is categorically excluded from the requirement to
prepare an environmental assessment by section 6.02b.3(b)(ii)(aa) of
NOAA Administrative Order 216-6 as revised.
List of Subjects in 50 CFR Part 216
Administrative practice and procedure, Imports, Indians, Marine
mammals, Penalties, Reporting and recordkeeping requirements,
Transportation.
Dated: February 21, 1996.
Gary C. Matlock,
Program Management Officer, National Marine Fisheries Service.
For the reasons set out in the preamble, 50 CFR part 216 is amended
as follows:
PART 216--REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE
MAMMALS
1. The authority citation for part 216 continues to read as
follows:
Authority: 16 U.S.C. 1361 et seq., unless otherwise noted.
Sec. 216.3 [Amended]
2. In Sec. 216.3, a definition for ``Regional Director'' is added
in alphabetical order to read as follows:
* * * * *
Regional Director means the Director, Southwest Region, NMFS, 501
W. Ocean Blvd., Long Beach, CA 90802, or his/her designee.
* * * * *
3. In Sec. 216.24, paragraphs (b), (d)(l), (d)(2)(i)(A)(l) through
(d)(2)(i)(A)(2), (d)(2)(iii)(B), and (e)(7) are removed and reserved,
and paragraphs (c), (d)(2)(ii)(C), (d)(2)(iii)(A), the second sentence
of paragraph (d)(2)(v)(B), (e)(2)(i)(A), and (e)(5)(v)(B) are revised
to read as follows:
Sec. 216.24
Taking and related acts incidental to commercial fishing operations.
* * * * *
(c) Certificates of inclusion--(1) Vessel certificates of
inclusion. The owner or managing owner of a vessel that participates in
commercial fishing operations under the ATA permit must hold a valid
vessel certificate of inclusion. Such certificates are not transferable
and must be renewed annually. If a vessel certificate holder surrenders
his/her certificate to the Regional Director, the certificate shall not
be returned nor shall a new certificate be issued before the end of the
calendar year. This provision does not apply when a change of vessel
ownership occurs.
(2) Operator's certificate of inclusion. The person in charge of
and actually controlling fishing operations (hereinafter referred to as
the operator) on a vessel engaged in commercial fishing operations
under the ATA permit, must hold a valid operator's certificate of
inclusion. Such certificates are not transferable, and must be renewed
annually. In order to receive a certification of inclusion, the
operator must have satisfactorily completed all required training.
(3) A vessel certificate issued pursuant to paragraph (c)(1) of
this
[[Page 7430]]
section must be on board the vessel while it is engaged in fishing
operations and the operator's certificate issued pursuant to paragraph
(c)(2) of this section must be in the possession of the operator to
whom it was issued. Certificates must be shown upon request to an
enforcement agent or other National Marine Fisheries Service (NMFS)
designated agent. Vessels and operators at sea on a fishing trip on the
expiration date of their certificate of inclusion, to whom or to which
a certificate of inclusion for the next year has been issued, may take
marine mammals under the terms of the new certificate. A vessel owner
or operator is obligated to obtain or place the new certificate on
board, as appropriate, when the vessel next returns to port.
(4) Applications. Owners or managing owners of purse seine vessels
should make application for vessel certificates of inclusion to the
Regional Director. Applications for vessel certificates of inclusion
must contain:
(i) The name of the vessel that is to appear on the certificate(s)
of inclusion;
(ii) The category of the general permit under which the applicant
wishes to be included;
(iii) The species of fish sought and general area of operations;
(iv) The identity of state and local commercial fishing licenses,
if applicable, under which vessel operations are conducted, and dates
of expiration;
(v) The name of the operator and date of training, if applicable;
and
(vi) The name and signature of the applicant, whether owner or
managing owner, address, and if applicable, the organization acting on
behalf of the vessel.
(5) Fees. (i) Applications for certificates of inclusion under
paragraph (c)(1) of this section must include a fee of $200.00 for each
vessel named in the application, unless the applicant's income is below
Federal poverty guidelines and the applicant shows in the application
that his/her income is below such guidelines, in which case a fee of
$20.00 must be included.
(ii) The Assistant Administrator may change the amount of the fee
required at any time a different fee is determined to be reasonable,
and notification of such change shall be published in the Federal
Register.
(6) The Regional Director shall determine the adequacy and
completeness of applications, and upon said determination that such
applications are adequate and complete, shall approve such applications
and issue the certificate(s).
(7) Failure to comply with provisions of the ATA permit,
certificates of inclusion, or these regulations may lead to suspension,
revocation, modification, or denial of a certificate of inclusion. It
may also subject the certificate holder, vessel, vessel owner,
operator, or master to the penalties provided under the MMPA.
Procedures governing permit sanctions and denials are found at subpart
D of 15 CFR part 904.
(8) By using an operator or vessel certificate of inclusion under
the ATA permit, the certificate holder authorizes the release to NMFS
of all data collected by observers aboard purse seine vessels during
fishing trips under the Inter-American Tropical Tuna Commission
observer program or any other international observer program in which
the United States may participate. The certificate holder must furnish
the international observer program all release forms required to
provide the observer data to NMFS. Data obtained under such releases
will be used for the same purposes as data collected directly by
observers placed by the NMFS and will be subject to the same standards
of confidentiality.
(d) * * *
(2) * * *
(ii) * * *
(C) The vessel certificate holder shall notify the Regional
Director of any change of vessel operator within at least 48 hours
prior to departing on the next scheduled trip.
(iii) * * *
(A) The vessel certificate holder of each certificated vessel, who
has been notified via certified letter from NMFS that his/her vessel is
required to carry an observer, shall notify the Regional Director at
least 5 days in advance of the vessel's departure on a fishing voyage
to allow for observer placement. After a fishing voyage is initiated,
the vessel is obligated to carry an observer until the vessel returns
to port and one of the following conditions is met:
* * * * *
(v) * * *
(B)* * * The vessel certificate holder shall notify the Regional
Director of any net modification at least 5 days prior to departure of
the vessel in order to determine whether a reinspection or trial set is
required.
* * * * *
(e) * * *
(2) * * *
(i) * * *
(A) Tuna, frozen whole or in the round:
0303.42.00.20.0 Tuna, yellowfin, whole frozen.
0303.42.00.40.6 Tuna, yellowfin, eviscerated head-on, frozen.
0303.42.00.60.1 Tuna, yellowfin, eviscerated head-off, frozen.
0303.49.00.40.9 Tuna, non-specific, frozen.
* * * * *
(5) * * *
(v) * * *
(B) The nation's regulatory program is comparable to the regulatory
program of the United States as described in paragraphs (a), (c),
(d)(2), and (f) of this section and the nation has incorporated into
its regulatory program such additional prohibitions as the United
States may apply to its own vessels within 180 days after the
prohibition applies to U.S. vessels;
* * * * *
[FR Doc. 96-4434 Filed 2-27-96; 8:45 am]
BILLING CODE 3510-22-F-M
Complete official Federal Register PDF
FR Doc. 96-4429 Ohio Regulatory Program
[Federal Register Volume 61, Number 40 (Wednesday, February 28, 1996)]
[Rules and Regulations]
[Pages 7411-7413]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-4429]
=======================================================================
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 935
[OH-229-FOR #66]
Ohio Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Final rule; approval of amendment.
-----------------------------------------------------------------------
SUMMARY: OSM is approving a proposed amendment to the Ohio regulatory
program (hereinafter referred to as the ``Ohio program'') under the
Surface Mining Control and Reclamation Act of 1977 (SMCRA). Ohio
proposed revisions to rules and directives pertaining to premining
water quality samples for previously mined permit sites. The amendment
is intended to make the Ohio program as effective as the corresponding
Federal regulations.
EFFECTIVE DATE: February 28, 1996.
FOR FURTHER INFORMATION CONTACT:
George Rieger, Program Manager, OSM, Appalachian Regional Coordinating
Center, 10 Parkway Center, Pittsburgh, PA 15220, Telephone: (412) 937-
2849.
SUPPLEMENTARY INFORMATION:
I. Background on the Ohio Program.
II. Submission of the Proposed Amendment.
III. Director's Findings.
IV. Summary and Disposition of Comments.
V. Director's Decision.
VI. Procedural Determinations.
I. Background on the Ohio Program
On August 16, 1982, the Secretary of the Interior conditionally
approved the Ohio program. Background information on the Ohio program,
including the Secretary's findings, the disposition of comments, and
the conditions of approval can be found in the August 10, 1982, Federal
Register (47 FR 34688). Subsequent actions concerning conditions of
approval and program amendments can be found at 30 CFR 935.11, 935.12,
935.15, and 935.16.
II. Submission of the Proposed Amendment
By letter dated July 3, 1995 (Administrative Record No. OH-2143),
Ohio submitted a proposed amendment to its program pursuant to SMCRA at
its own initiative. Ohio proposed to revise one rule at Ohio
Administrative Code (OAC) section 1501:13-4-15 concerning the number
and frequency of premining water samples required for previously mined
permit areas. Ohio also proposed to revise two of its Policy/Procedures
Directives (PPD)--PPD Permitting 92-3 and PPD Regulatory 93-4, to
reflect the rule change.
OSM announced receipt of the proposed amendment in the July 25,
1995, Federal Register (60 FR 37972), and in the same document opened
the public comment period and provided an opportunity for a public
hearing on the adequacy of the proposed amendment. The public comment
period closed on August 24, 1995.
During its review of the amendment, OSM identified concerns
relating to pollution abatement areas. OSM notified Ohio of these
concerns by letter dated September 8, 1995 (Administrative Record No.
OH-2156).
By letter dated September 27, 1995 (Administrative Record No. OH-
2157), Ohio responded to OSM's concerns by submitting revisions to its
proposed program amendment. Ohio proposed two additional revisions to
PPD Regulatory 93-4. The first revision deletes the earlier proposed
provision which would have allowed the inclusion of ``contiguous
undisturbed areas'' within pollution abatement areas. The second
revision requires that the operator make an additional written
notification pertaining to the demonstration of untreated pre-existing
discharges.
Based on the revisions to the proposed program amendment submitted
by Ohio, OSM reopened the public comment period in the October 25,
1995, Federal Register (60 FR 54619) and provided an opportunity for a
public hearing on the adequacy of the amendment. The public comment
period closed on November 9, 1995.
III. Director's Findings
Set forth below, pursuant to SMCRA and the Federal regulations at
30 CFR 732.15 and 732.17, are the Director's findings concerning the
proposed amendment.
Revisions not specifically discussed below concern nonsubstantive
wording changes, or revised cross-references and paragraph notations to
reflect organizational changes resulting from this amendment.
15 OAC 1501:13-4-15(D)(2)--Authorization to Conduct Coal Mining on
Previously Mined Areas. Ohio is proposing to amend its regulations
pertaining to water quality to require that a permit applicant submit
data from a minimum of 12 samples taken at regular intervals at each
sampling location and collected over a period of at least 12 months or
longer, as determined by the regulatory authority. The Federal
regulations at 30 CFR 780.21(b) establish baseline hydrologic
[[Page 7412]]
information requirements. The regulatory authority may require
additional information as warranted. The Director finds that the
proposed revision at 15 OAC 1501.13-4-15(d)(2) is not inconsistent with
the Federal regulations at 30 CFR 780.21(b).
Policy/Procedure Directive (PPD) 93-4. Ohio is proposing to revise
the bond release provisions of PPD 93-4 to clarify that as part of the
demonstration that the untreated pre-existing discharges from the
pollution abatement area have not exceeded the modified effluent
limitations for the required 12 months, the operator must notify the
Division's district office in writing at the beginning of the 12-month
period prior to the Phase II bond release. The name of Ohio's Remining
Program's contact person is changed to Bob Baker. The Federal
regulations at 30 CFR 800.40(c) authorize the regulatory authority to
release all or part of a bond if the regulatory authority is satisfied
that certain conditions have been met. The Director finds that the
proposed revisions to PPD 93-4 are no less effective than the Federal
regulations at 30 CFR 800.40(c).
Policy/Procedure Directive (PPD) 92-3. Ohio is proposing to revise
the sampling procedures for pre-existing discharge sites. The permit
applicant is required to submit a minimum of 12 samples for each pre-
existing discharge site to be collected over a period of at least 12
months and the samples must be collected over a period of 12 months or
longer. Sites are to be sampled no more frequently than once a month.
There is no statutory provision for a variance of the sampling
requirements.
The Federal regulations at 30 CFR 780.21(b) establish baseline
hydrologic information requirements. The regulatory authority may
require additional information as warranted. The Director finds that
the proposed revisions to PPD 92-3 are not inconsistent with the
Federal regulations at 30 CFR 780.21(b).
IV. Summary and Disposition of Comments
Public Comments
The Director solicited public comments on July 25, 1995, and
October 25, 1995, and provided an opportunity for public hearings on
the proposed amendment. No public comments were received, and because
no one requested an opportunity to speak at a public hearing, no
hearings were held.
Federal Agency Comments
Pursuant to 30 CFR 732.17(h)(11)(i), the Director solicited
comments on the proposed amendment from various Federal agencies with
an actual or potential interest in the Ohio program. The U.S.
Department of Labor, Mine Safety and Health Administration, concurred
without comment.
Environmental Protection Agency (EPA)
Pursuant to 732.17(h)(11)(i), OSM solicited comments on the
proposed amendment from EPA (Administrative Record No. OH-2144). It did
not respond to OSM's request.
V. Director's Decision
Based on the above findings, the Director approves the proposed
amendment as submitted by Ohio on July 3, 1995, and as revised on
September 27, 1995.
The Federal regulations at 30 CFR part 935, codifying decisions
concerning the Ohio program, are being amended to implement this
decision. This final rule is being made effective immediately to
expedite the State program amendment process and to encourage States to
bring their programs into conformity with the Federal standards without
undue delay. Consistency of State and Federal standards is required by
SMCRA.
VI. Procedural Determinations
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).
Executive Order 12778
The Department of the Interior has conducted the reviews required
by section 2 of Executive Order 12778 (Civil Justice Reform) and has
determined that, to the extent allowed by law, 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 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.
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)).
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.).
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 which is the subject of this rule is based upon
corresponding 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 corresponding Federal regulations.
List of Subjects in 30 CFR Part 935
Intergovernmental relations, Surface mining, Underground mining.
Dated: February 16, 1996.
Allen D. Klein,
Assistant Director, Appalachian Regional Coordinating Center.
For the reasons set out in the preamble, Title 30, Chapter VII,
Subchapter T of the Code of Federal Regulations is amended as set forth
below:
PART 935--OHIO
1. The authority citation for Part 935 continues to read as
follows:
Authority: 30 U.S.C. 1201 et seq.
2. Section 935.15 is amended by adding paragraph (aaaa) to read as
follows:
Sec. 935.15 Approval of regulatory program amendments.
* * * * *
(aaaa) The amendments to the following rules and directives, as
submitted to OSM on July 3, 1995, and
[[Page 7413]]
revised on September 27, 1995, are approved effective February 28,
1996:
15 OAC 1501:13-4-15(D)(2)--Authorization to Conduct Coal Mining on
Previously Mined Areas
Policy/Procedure Directive 93-4--Remining Enforcement Procedure
Policy/Procedure Directive 92-3--Remining Process
[FR Doc. 96-4429 Filed 2-27-96; 8:45 am]
BILLING CODE 4310-05-M
Complete official Federal Register PDF
FR Doc. 96-4386 Oil Discharge Program; Editorial Revision of Rules
[Federal Register Volume 61, Number 40 (Wednesday, February 28, 1996)]
[Rules and Regulations]
[Pages 7419-7421]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-4386]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 110
[FRL-5430-6]
Oil Discharge Program; Editorial Revision of Rules
AGENCY: Environmental Protection Agency.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA or the Agency) is
removing text from the Code of Federal Regulations (CFR), specifically
40 CFR part 110, which is unnecessary because it simply repeats
language already set out in section 311 of the Federal Water Pollution
Control Act (the Clean Water Act or the Act). EPA is also making other
editorial revisions in 40 CFR part 110. Neither the removal of text nor
the editorial revisions effect any substantive changes to the revised
rules.
EFFECTIVE DATE: February 28, 1996.
FOR FURTHER INFORMATION CONTACT: Hugo Paul Fleischman, Office of
Emergency and Remedial Response, U.S. Environmental Protection Agency,
401 M St., SW, Washington, DC 20460, mail code 5203G, phone (703) 603-
8769; or the RCRA/Superfund Hotline, phone (800) 424-9346 or (703) 603-
9232 in the Washington, DC, metropolitan area.
SUPPLEMENTARY INFORMATION:
I. Introduction
On March 4, 1995, The President directed all Federal agencies and
departments to conduct a comprehensive review of the regulations they
administer, and by June 1, 1995, to identify those rules that are
obsolete or unduly burdensome. EPA has
[[Page 7420]]
conducted that review and, on June 29, 1995, published a final rule
eliminating legally obsolete rules. See 60 FR 33912. Now EPA is taking
another step in the ongoing review of its rules. EPA has reviewed 40
CFR part 110, and is removing text which unnecessarily repeats section
311 of the Act. EPA is also revising regulatory text: to make it more
concise, to conform more closely to statutory language, or to eliminate
text which is legally obsolete. All of these changes are editorial.
None effect any changes to the substance of the revised rules. EPA is
also redesignating affected sections as necessary.
II. Provisions Which Largely Track the Clean Water Act
EPA is removing the following provisions, or parts thereof, which
either track the language of the Act precisely, or closely paraphrase
it. These changes either make the regulatory text more concise or
remove legally obsolete language.
40 CFR 110.1 Definitions
EPA is revising the introductory text to Sec. 110.1 to provide that
words not defined therein have the same meaning as in section 311(a) of
the Act. Therefore, EPA is removing the following definitions in
Sec. 110.1 which track language in section 311 of the Act. The
definitions are: ``contiguous zone;'' ``Deepwater port;''
``discharge;'' ``oil;'' ``offshore facility;'' ``onshore facility;''
``person;'' ``public vessel;'' and, ``vessel.'' ``Deepwater port'' is a
term no longer appearing in part 110, therefore the definition is no
longer necessary. See 60 FR 33912.``Oil,'' as defined in relation to
section 18 of the Deepwater Port Act of 1974, is also being removed.
Section 18 was repealed by section 2003(a) of the Oil Pollution Act of
1990, Public Law 202-380, August 18, 1990. Therefore, that part of the
definition is legally obsolete.
40 CFR 110.2 Applicability
EPA is removing the second and third sentences of the paragraph
comprising this section. The second sentence of the paragraph describes
the scope of discharge prohibited by section 311(b)(3) of the Act, and
closely tracks the language of that section. Removal of this sentence
will have no effect on the scope of prohibited discharges. The rule and
section 311(b)(3) of the Act will continue to prohibit illegal
discharges. EPA is also removing the third sentence of the paragraph
because it merely references a removed section, i.e., Sec. 110.11. That
section was removed from the CFR on June 29, 1995 (60 FR 33912) because
it was legally obsolete.
40 CFR 110.9 [sic] Discharge Prohibited
EPA is removing this section because it merely paraphrases the
statutory language of section 311(b)(3) of the Act. This section should
have been designated Sec. 110.6, but due to error was designated as
Sec. 110.9.
III. Editorial Changes
EPA is revising the text in the sections described below in order
to make them more concise, and to consolidate similar text now in
multiple sections into one section where possible. In one case, EPA is
revising regulatory text to conform more closely to statutory language.
The revisions to or redesignation of affected sections is explained
below.
40 CFR 110.3 Discharge Into Navigable Waters of Such Quantities as May
Be Harmful
Revised Sec. 110.3 consolidates regulations from old Secs. 110.3,
110.4, and 110.5. The section heading is being revised to read
``Discharge of oil in such quantities as `may be harmful' pursuant to
section 311(b)(4) of the Act,'' in order to reflect the consolidation
of the regulations under that section. The new name of the section
describes its enlarged scope. Revised Sec. 110.3 now includes
discharges of oil: into navigable waters formerly included within the
scope of old Sec. 110.3, into the contiguous zone formerly included
within the scope of old Sec. 110.4, and beyond the contiguous zone
formerly included within the scope of old Sec. 110.5. EPA is removing
old Secs. 110.4 and 110.5 because the text of revised Sec. 110.3 now
includes all discharges of oil, whether in navigable waters, the
contiguous zone, or beyond the contiguous zone. EPA is also revising
the text of Sec. 110.3 to make clear that discharges affecting the
environment, as provided in section 311(b)(4) of the Act, are included
within the scope of prohibited discharges.
40 CFR 110.4 Discharge Into Contiguous Zone of Such Quantities as May
be Harmful
EPA is removing this section because its provisions have been
incorporated into revised Sec. 110.3.
40 CFR 110.5 Discharge Beyond Contiguous Zone of Such Quantities as
May be Harmful
EPA is removing this section because its provisions have been
incorporated into revised Sec. 110.3. In its place, EPA is revising and
renaming Sec. 110.5. The renamed section describes those discharges
which have been determined not to be harmful, combining the text from
old Secs. 110.7 and 110.9.
40 CFR 110.7 Exception for Vessel Engines
EPA is removing this section because the exception is now included
within revised Sec. 110.5.
40 CFR 110.8 Dispersants
This section is being redesignated as Sec. 110.4.
40 CFR 110.9 Demonstration Projects
EPA is removing this section because discharges permitted in
connection with research, demonstration projects, or studies relating
to the prevention, control, or abatement of oil pollution are now
included in revised Sec. 110.5.
40 CFR 110.10 Notice
EPA is redesignating this section as Sec. 110.6. EPA is also
removing the reference to Sec. 110.6 in the first sentence of the
section, and substituting Sec. 311 (b) (3) of the Act in its place.
This change is necessary because former Sec. 110.6, ``Discharges
prohibited,'' is being removed. The revision is strictly editorial and
does not change the scope of prohibited discharges.
IV. Differentiation Between Classes of Oils
Pursuant to Public Law 104-55 (109 Stat. 546), enacted November 20,
1995, most Federal agencies (including EPA) must, in the issuance or
enforcement of any regulation or the establishment of any
interpretation or guideline relating to the transportation, storage,
discharge, release, emission, or disposal of a fat, oil, or grease,
differentiate between and establish separate classes for animal fats
and oils and greases, fish and marine mammal oils, and oils of
vegetable origin (as opposed to petroleum and other oils and greases).
EPA has considered whether differentiation between and establishment of
separate classes of oils is appropriate for this rule, and concluded
that it is not. This conclusion is based on the fact that the instant
revisions are merely editorial and do not change any substantive
aspects of the oil discharge program, thereby vitiating any need for
differentiation.
V. Good Cause Exemption From Notice and Comment Rulemaking
Procedures
The Administrative Procedure Act generally requires agencies to
provide prior notice and opportunity for public comment before issuing
a final rule. 5 U.S.C. 553(b). Rules are exempt from this requirement
if the issuing agency finds for good cause that notice and
[[Page 7421]]
comment are unnecessary. 5 U.S.C. 553(b)(3)(B).
EPA has determined that providing prior notice and opportunity for
comment on the removal and revision of these Regulatory provisions from
the CFR is unnecessary. The removals and revisions contained in this
final rule are merely editorial and do not affect any substantive
aspects of the oil discharge program.
For the same reasons, EPA believes there is good cause for making
the removal and revision of these regulatory provisions from the CFR
effective immediately. See 5 U.S.C. 553(d).
VI. Analyses Under E.O. 12866, the Unfunded Mandates Reform Act of
1995, the Regulatory Flexibility Act and the Paperwork Reduction
Act
Because the revision or removal of these rules from the CFR is
merely editorial and thus has no regulatory impact, this action is not
a ``significant'' regulatory action within the meaning of E.O. 12866,
and does not impose any Federal mandate on State, local, or tribal
governments or the private sector within the meaning of the Unfunded
Mandates Reform Act of 1995. For the same reasons, pursuant to the
Regulatory Flexibility Act, I certify that this action would not have a
significant economic impact on a substantial number of small entities.
Finally, because these revisions and removals are merely editorial,
they do not affect requirements under the Paperwork Reduction Act.
List of Subjects in 40 CFR Part 110
Environmental protection, Deepwater ports, Oil pollution.
Dated: February 15, 1996.
Elliott P. Laws,
Assistant Administrator, Office of Solid Waste and Emergency Response.
For the reasons set out in the preamble, title 40, chapter I of the
Code of Federal Regulations is amended as follows:
PART 110--[AMENDED]
1. The authority citation for part 110 continues to read as
follows:
Authority: 33 U.S.C. 1321(b)(3) and (b)(4) and 1361(a); E.O.
11735, 38 FR 21243, 3 CFR Parts 1971-1975 Comp., p. 793.
2. In section 110.1 the introductory text is revised and the
definitions of ``contiguous zone,'' ``Deepwater port,'' ``discharge,''
``offshore facility,'' ``oil,'' ``onshore facility,'' ``person,''
``public vessel,'' and ``vessel'' are removed; to read as follows:
Sec. 110.1 Definitions.
Terms not defined in this section have the same meaning given by
the Section 311 of the Act. As used in this part, the following terms
shall have the meaning indicated below:
* * * * *
3. Section 110.2 is revised to read as follows:
Sec. 110.2 Applicability.
The regulations of this part apply to the discharge of oil
prohibited by section 311(b)(3) of the Act.
4. Section 110.3 is revised to read as follows:
Sec. 110.3 Discharge of oil in such quantities as ``may be harmful''
pursuant to section 311(b)(4) of the Act.
For purposes of section 311(b)(4) of the Act, discharges of oil in
such quantities that the Administrator has determined may be harmful to
the public health or welfare or the environment of the United States
include discharges of oil that:
(a) Violate applicable water quality standards; or
(b) Cause a film or sheen upon or discoloration of the surface of
the water or adjoining shorelines or cause a sludge or emulsion to be
deposited beneath the surface of the water or upon adjoining
shorelines.
Sec. 110.4 [Removed and Reserved]
5. Section 110.4 is removed and reserved.
6. Section 110.5 is revised to read as follows:
Sec. 110.5 Discharges of oil not determined ``as may be harmful''
pursuant to Section 311(b)(3) of the Act.
Notwithstanding any other provisions of this part, the
Administrator has not determined the following discharges of oil ``as
may be harmful'' for purposes of section 311(b) of the Act:
(a) Discharges of oil from a properly functioning vessel engine
(including an engine on a public vessel) and any discharges of such oil
accumulated in the bilges of a vessel discharged in compliance with
MARPOL 73/78, Annex I, as provided in 33 CFR part 151, subpart A;
(b) Other discharges of oil permitted under MARPOL 73/78, Annex I,
as provided in 33 CFR part 151, subpart A; and
(c) Any discharge of oil explicitly permitted by the Administrator
in connection with research, demonstration projects, or studies
relating to the prevention, control, or abatement of oil pollution.
Sec. 110.9 [Removed]
7. Section 110.9 ``Discharge prohibited'', appearing between
Sec. 110.5 and 110.7, is removed.
Sec. 110.7 [Removed]
8. Section 110.7 is removed.
Sec. 110.8 [Redesignated as Sec. 110.4]
9. Section 110.8 is redesignated as Sec. 110.4.
Sec. 110.9 [Removed]
10. Section 110.9 is removed.
Sec. 110.10 [Redesignated as Sec. 110.6]
11. Section 110.10 is redesignated as Sec. 110.6, and the newly
designated Sec. 110.6 is further amended by revising the first sentence
to read as follows:
Sec. 110.6 Notice.
Any person in charge of a vessel or of an onshore or offshore
facility shall, as soon as he or she has knowledge of any discharge of
oil from such vessel or facility in violation of section 311(b)(3) of
the Act, immediately notify the National Response Center (NRC) (800-
424-8802; in the Washington, DC metropolitan area, 202-462-2675). * * *
[FR Doc. 96-4386 Filed 2-27-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-4169 Low-Income Public and Indian HousingVacancy Rule
[Federal Register Volume 61, Number 40 (Wednesday, February 28, 1996)]
[Rules and Regulations]
[Pages 7586-7593]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-4169]
[[Page 7585]]
_______________________________________________________________________
Part II
Department of Housing and Urban Development
_______________________________________________________________________
Office of the Assistant Secretary for Public and Indian Housing
_______________________________________________________________________
24 CFR Parts 950 and 990
Low-Income Public and Indian Housing--Vacancy Rule; Final Rule
Federal Register / Vol. 61, No. 40 / Wednesday, February 28, 1996 /
Rules and Regulations
[[Page 7586]]
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
Office of the Assistant Secretary for Public and Indian Housing
24 CFR Parts 950 and 990
[Docket No. FR-3647-F-01]
RIN 2577-AB44
Low-Income Public and Indian Housing--Vacancy Rule
AGENCY: Office of the Assistant Secretary for Public and Indian
Housing, HUD.
ACTION: Final rule.
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SUMMARY: This final rule establishes new conditions under which a
Public Housing Agency (PHA), an Indian Housing Authority (IHA), or
Resident Management Corporation may include vacant units in its
computation of eligibility under the Performance Funding System (PFS).
(The term housing authority (HA) is used throughout this final rule
when referring to both PHAs and IHAs.) The final rule gives greater
recognition to units that are vacant for reasons beyond the HA's
control, makes changes in the current treatment of vacant units that
are part of a modernization program, and, under certain circumstances,
has HAs exclude long-term vacant units from their inventory of units
available for occupancy.
DATES: April 1, 1996. Applicability date: Operating subsidy eligibility
will first be determined under the new provisions of this rule by PHAs
and IHAs having fiscal years beginning July 1, 1996.
FOR FURTHER INFORMATION CONTACT: MaryAnn Russ, General Deputy Assistant
Secretary, Public and Assisted Housing Operations, Room 4210, U.S.
Department of Housing and Urban Development, 451 Seventh Street, SW.,
Washington, DC 20410, telephone (202) 708-1380 [this telephone number
is not toll-free]. For hearing- and speech-impaired persons, this
number may be accessed via TDD by calling the Federal Information Relay
Service at 1-800-877-8339.
SUPPLEMENTARY INFORMATION:
Paperwork Reduction Act Statement
The information collection requirements contained in Secs. 950.725,
950.760, 990.109, and 990.117 of this rule have been approved by the
Office of Management and Budget, in accordance with the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501-3520), and assigned OMB control
number 2577-0066. An agency may not conduct or sponsor, and a person is
not required to respond to, a collection of information unless the
collection displays a valid control number.
Background
On July 19, 1995, the Department published a proposed rule (60 FR
37294) that would establish new conditions under which an HA may use a
Projected Occupancy Percentage of less than 97 percent in computing its
Dwelling Rental Income under the Performance Funding System (PFS). The
proposed rule incorporated the recommendations of a regulatory
negotiation advisory committee composed of persons who represent the
interests affected by the current vacancy rule.
Discussion of Public Comments
The Department received eight public comments in response to the
proposed rule, including comments from five PHAs, two national HA
associations, and one IHA. One of the PHA commenters was a member of
the advisory committee.
The Department received very favorable comments for using a
negotiated rulemaking process to develop the proposed rule. This was
the first use of negotiated rulemaking by the Department and
consideration is being and will be given to using this model for other
rulemaking efforts in the future. The IHA commenter expressed regrets
that there was no IHA representative on the advisory committee. The
Department notes that the National American Indian Housing Council was
invited to join the committee, but declined membership.
The IHA commenter recommended that the definition of ``Units vacant
due to circumstances and actions beyond the IHA's control''
(Sec. 950.102) be expanded to include cultural, social, or religious
circumstances. The commenter notes that ``[i]n many Indian communities
* * * unexpected death, suicide, or violent act'' in a unit may
``affect the re-occupancy of [that] unit.'' The Department appreciates
the comment, but does not believe that this type of circumstance
seriously affects the ability of a significant number of IHAs to
maintain an overall acceptable occupancy level. The Department has
found that IHAs generally have high levels of occupancy and, thus,
would not be adversely affected by the provisions of the vacancy rule.
If such a circumstance did arise that caused the IHA to project an
occupancy percentage of less than 97 percent and to have more than 5
vacant units, a waiver request could be made and considered on the
merits of the case.
One commenter requested that reduced Comprehensive Grant Program
(CGP) funds be added to the list of acceptable ``beyond control''
circumstances. This rule does address the situation of a reduction in
CGP funding which occurs as a result of a rescission of appropriated
funds, although not as a ``beyond control'' circumstance. If such an
action results in an HA not being able to complete all the vacant unit
rehabilitation in its approved Annual Statement, the HA may seek a
waiver to permit full PFS eligibility for those units approved but not
funded. While the advisory committee discussed the need to mitigate the
consequences of a rescission, the only procedural process mentioned to
obtain relief was through a waiver. The specific waiver provision in
the proposed rule is omitted in the final rule, because waiver
authority already exists (see 24 CFR 990.101). Since the objective of
the commenter is being met, the Department does not feel it necessary
to overturn the decision of the committee.
One commenter noted that insufficient funding for otherwise
approvable applications for Comprehensive Improvement Assistance
Program (CIAP) funds was an acceptable ``beyond control'' circumstance
and asked why insufficient CGP funding could not also be an acceptable
reason. This rule does provide that the failure of an HA to fund an
otherwise approvable Resident Management Corporation (RMC) request for
CGP funds from its HA would be treated as an acceptable ``beyond
control'' circumstance that the RMC could use to justify using a
projected occupancy percentage of less than 97 percent. The advisory
committee agreed on this relief because both the HA application to the
Department for CIAP funds and a RMC request for CGP funds from its HA
could be denied because of insufficient funds. The CGP, however, is not
a competition program and the concept of insufficient funds as
described above does not apply. Funds are provided to eligible HAs on a
formula basis, and the HA knows what its resources are at the time it
develops its Annual Statement.
Two commenters addressed that portion of the proposed rule dealing
with vacant units undergoing modernization. One commenter stated that
the requirement that an HA place its vacant units under construction
within two Federal Fiscal Years (FFY) after the FFY in which the funds
are approved was very stringent. Another
[[Page 7587]]
commenter believed that the 2-year requirement should be extended if
HUD approves extensions to the modernization implementation schedule.
The committee had addressed this issue and reached a consensus that the
2-year provision would not be extended.
It should be noted that the 2-year time period does not include the
FFY in which the funds were received. Depending on when the HA received
its modernization funding, it could actually have up to 3 years to
place the vacant units under a construction contract. Also, if an HA
initially fails to place its vacant units under a construction contract
within the 2-year period, the HA would still be able to regain special
treatment at the time it did place the units under a construction
contract, although not retroactively.
The Department was part of the consensus on this issue and
continues to support the committee decision.
The Department received three comments regarding the process for
requesting a waiver. One commenter stated that if there were a
rescission of appropriated funds for the CGP, the HA should not have to
bear the burden of requesting a waiver. The Department appreciates the
comment, but because the impact of a rescission will vary widely, the
Department needs to know on a case-by-case basis what that impact will
be in order to provide relief; that information can only come from the
HA. The same commenter asked that procedures for requesting a waiver be
provided to HAs before the rule becomes final, and another commenter
requested that the rule include the conditions under which a waiver
will be approved. The proposed rule provided general guidance in
Sec. 990.121 (the PHA would have had to document that it has made best
efforts to correct the underlying problems and that it could not
correct the problems in a cost-effective manner), but the specific
documentation that the HA will have to submit cannot be determined in
advance because a waiver by its nature involves a special circumstance.
The final rule has omitted the separate waiver language from this part,
because of the waiver authority already provided in Sec. 999.101;
repetition of this authority is contrary to the Department's ongoing
efforts to streamline its regulations.
One commenter requested that the Department provide a 2-year
extension to any HA, instead of 1 year, if a rescission of appropriated
funds for the CGP occurs that prevents the HA from completing the
modernization of all of the vacant units that were in the HA's approved
Annual Statement. The committee did recognize that relief should be
given to an HA that had to change its approved Annual Statement in
order to reflect a rescission of funds. Because the relief provided
should relate back to the severity of the rescission and that severity
is not known in advance, it was difficult to develop an appropriate
measure of relief. The Department was part of the consensus to provide
this relief and believes that, until there has been some experience
with this type of unusual situation, the 1-year extension is
appropriate.
The Department received one comment on the transition provisions of
the proposed rule. The commenter believed that the rule would eliminate
Comprehensive Occupancy Plans (COPs), even for those HAs that are still
under a HUD-approved COP. This is not the case. An HA with a HUD-
approved COP at the time the final rule becomes effective may continue
to determine its PFS eligibility using the provisions of Sec. 990.118,
as that section exists before this final rule becomes effective. The
Department will not approve new COPs, however, after the effective date
of this rule, and after the time period of the COP has expired, the HA
will determine its projected occupancy percentage using the provisions
of this rule.
One commenter proposed that a lower standard of occupancy--of
between 93 percent to 95 percent, rather than 97 percent--would be more
reasonable for HAs. The appropriateness of the 97 percent occupancy
standard was discussed at length by the committee, and the members
concluded that, given current budget constraints, it was not feasible
to redefine the standard. The provisions of the proposed rule developed
by the committee, therefore, were based on an assumption that the 97
percent standard would remain in place; this final rule also continues
the 97 percent standard.
Other Matters
Environmental Impact
In accordance with 40 CFR 1508.4 of the regulations of the Council
on Environmental Quality and 24 CFR 50.20(o) of the HUD regulations,
the policies and procedures contained in this rule relate only to
operating costs that do not affect a physical structure or property
and, therefore, are categorically excluded from the requirements of the
National Environmental Policy Act.
Regulatory Flexibility Act
The Secretary, in accordance with the Regulatory Flexibility Act (5
U.S.C. 605(b)), has reviewed this rule before publication and by
approving it certifies that this rule will not have a significant
economic impact on a substantial number of small entities. The rule
sets out eligibility criteria for low-income public and Indian housing
operating subsidies that may impact those HAs with large numbers of
long-term vacant units. However, HUD's data incident to establishing
the Vacancy Reduction Program indicates that high-vacancy PHAs are
relatively few in number (and high-vacancy IHAs virtually nonexistent),
and that a preponderance of the program's vacancies are in a very
limited number of the larger PHAs. Most HAs will be unaffected by this
rule.
Executive Order 12612, Federalism
The General Counsel, as the Designated Official under section 6(a)
of Executive Order 12612, Federalism, has determined that the policies
contained in this rule will not have substantial direct effects on
States or their political subdivisions, or the relationship between the
Federal government and the States, or on the distribution of power and
responsibilities among the various levels of government. As a result,
the rule is not subject to review under the Order. The rule refines the
criteria under which operating subsidies are paid on HUD-assisted
housing owned and operated by HAs, but will not interfere with State or
local government functions.
Executive Order 12606, The Family
The General Counsel, as the Designated Official under Executive
Order 12606, The Family, has determined that this rule does not have
potential for significant impact on family formation, maintenance, and
general well-being, and, thus, is not subject to review under the
Order. No significant change in existing HUD policies or programs
results from promulgation of this rule, as those policies and programs
relate to family concerns. The rule merely involves the amount of
funding that an HA should receive under a refinement of an existing
procedure.
The Catalog of Federal Domestic Assistance Program numbers for this
rule are 14.145, 14.146, and 14.147.
List of Subjects
24 CFR Part 950
Aged, Grant programs--housing and community development, Grant
programs--Indians, Indians, Individuals with disabilities, Low and
moderate income housing, Public housing, Reporting and recordkeeping
requirements.
[[Page 7588]]
24 CFR Part 990
Grant programs--housing and community development, Public housing,
Reporting and recordkeeping requirements.
For the reasons set out in the preamble, parts 950 and 990 of title
24 of the Code of Federal Regulations are amended as follows.
PART 950--INDIAN HOUSING PROGRAMS
1. The authority citation for part 950 continues to read as
follows:
Authority: 25 U.S.C. 450e(b); 42 U.S.C. 1437aa-1437ee and
3535(d).
2. Section 950.102 is amended by adding in alphabetical order
definitions for ``Long-term vacancy'', ``Units vacant due to
circumstances and actions beyond the IHA's control'', and ``Vacant unit
undergoing modernization'', and by revising the definition for ``Unit
months available'', to read as follows:
Sec. 950.102 Definitions
* * * * *
Long-term Vacancy. This term means the same as it is used in the
definition of ``Unit Months Available'' in this section.
* * * * *
Unit Months Available. Project Units multiplied by the number of
months the Project Units are available for occupancy during a given IHA
fiscal year. For purposes of this subpart, a unit is considered
available for occupancy from the date established as the End of the
Initial Operating Period for the Project until the time the unit is
approved by HUD for deprogramming and is vacated or is approved for
nondwelling use. In the case of an IHA development involving the
acquisition of scattered site housing, see also Sec. 950.705(b). A unit
will be considered a long-term vacancy and will not be considered
available for occupancy in any given IHA Requested Budget Year if the
IHA determines that:
(1) The unit has been vacant for more than 12 months at the time
the IHA determines its Actual Occupancy Percentage;
(2) The unit is not either: (i) a vacant unit undergoing
modernization; or (ii) a unit vacant for circumstances and actions
beyond the IHA's control, as these terms are defined in this section;
and
(3) The IHA determines that it will have a vacancy percentage of
more than 3 percent and will have more than five vacant units, for its
Requested Budget Year, even after adjusting for vacant units undergoing
modernization and units that are vacant for circumstances and actions
beyond the IHA's control, as defined in this section. (Reference in
this subpart to ``more than five units'' or ``fewer than five units''
shall refer to a circumstance in which 5 units equals or exceeds 3
percent of the number of units to which the 3 percent threshold is
applicable.)
Units Vacant Due to Circumstances and Actions Beyond the IHA's
Control. Dwelling units that are vacant due to circumstances and
actions that prohibit the IHA from occupying, selling, demolishing,
rehabilitating, reconstructing, consolidating or modernizing vacant
units and are beyond the IHA's control. For purposes of this
definition, circumstances and actions beyond the IHA's control are
limited to:
(1) Litigation. The effect of court litigation such as a court
order or settlement agreement that is legally enforceable. An example
would be units that are being held vacant as part of a court-ordered or
HUD-approved desegregation plan.
(2) Laws. Federal, Tribal, or State laws of general applicability,
or their implementing regulations. Units vacant only because they do
not meet minimum standards pertaining to construction or habitability
under Federal, State, or local laws or regulations will not be
considered vacant due to circumstances and actions beyond the IHA's
control.
(3) Changing market conditions. For example, small IHAs that are
located in areas experiencing population loss or economic dislocations
may face a lack of demand in the foreseeable future, even after the IHA
has taken aggressive marketing and outreach measures.
(4) Natural disasters.
(5) Insufficient funding for otherwise approvable applications made
for Comprehensive Improvement Assistance Program (CIAP) funds.
(6) Resident Management Corporation funding. The failure of an IHA
to fund an otherwise approvable RMC request for Federal modernization
funding;
(7) Casualty Losses. Delays in repairing damage to vacant units due
to the time needed for settlement of insurance claims.
* * * * *
Vacant Unit Undergoing Modernization. Except as provided in
Sec. 950.775(a), a vacant unit in a project not considered to be
obsolete (as determined using the indicia in Sec. 970.6 of this
chapter), when the project is undergoing modernization that includes
work that is necessary to reoccupy the vacant unit, and in which one of
the following conditions is met:
(1) The unit is under construction (i.e., the construction contract
has been awarded or force account work has started); or
(2) The treatment of the vacant unit is included in a HUD-approved
modernization budget (e.g., the Annual Statement for the Comprehensive
Grant Program (CGP) (Form HUD-52837 or its successor), or the
Comprehensive Improvement Assistance Program (CIAP) Budget (Form HUD-
52825 or its successor)), but the time period for placing the vacant
unit under construction has not yet expired. The IHA must place the
vacant unit under construction within two Federal Fiscal Years (FFYs)
after the FFY in which the modernization funds are approved.
* * * * *
Sec. 950.705 [Amended]
3. Section 950.705(b) is amended by removing the first sentence.
4. Section 950.720 is amended by revising paragraph (b), to read as
follows:
Sec. 950.720 Other costs.
* * * * *
(b) (1) Costs attributable to units approved for deprogramming and
vacant may be eligible for inclusion, but must be limited to the
minimum services and protection necessary to protect and preserve the
units until the units are deprogrammed. Costs attributable to units
temporarily unavailable for occupancy because the units are utilized
for IHA-related activities are not eligible for inclusion. In
determining the PFS operating subsidy, these units shall not be
included in the calculation of Unit Months Available. Units approved
for deprogramming shall be listed by the IHA, and supporting
documentation regarding direct costs attributable to such units shall
be included as a part of the Performance Funding System calculation in
which the IHA requests operating subsidy for these units. If the IHA
requires assistance in this matter, the IHA should contact the HUD
Field Office.
(2) Units approved for nondwelling use to promote economic self-
sufficiency services and anti-drug activities are eligible for
operating subsidy under the conditions provided in this paragraph
(b)(2), and the costs attributable to these units are to be included in
the operating budget. If a unit satisfies the conditions stated below,
it will be eligible for subsidy at the rate of the AEL for the number
of months the unit is devoted to such use. Approval will be given for a
period of no more than 3 years. HUD may renew
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the approval to allow payments after that period only if the IHA can
demonstrate that no other sources for paying the non-utility operating
costs of the unit are available. The conditions the unit must satisfy
are:
(i) The unit must be used for either economic self-sufficiency
activities directly related to maximizing the number of employed
residents or for anti-drug programs directly related to ridding the
development of illegal drugs and drug-related crime. The activities
must be directed toward and for the benefit of residents of the
development.
(ii) The IHA must demonstrate that space for the service or program
is not available elsewhere in the locality and that the space used is
safe and suitable for its intended use or that the resources are
committed to make the space safe and suitable.
(iii) The IHA must demonstrate satisfactorily that other funding is
not available to pay for the non-utility operating costs. All rental
income generated as a result of the activity must be reported as income
in the operating subsidy calculation.
(iv) Operating subsidy may be approved for only one site (involving
one or more contiguous units) per public housing development for
economic self-sufficiency services or anti-drug programs, and the
number of units involved should be the minimum necessary to support the
service or program. Operating subsidy for any additional sites per
development can only be approved by HUD Headquarters.
(v) The IHA must submit a certification with its Performance
Funding System Calculation that the units are being used for the
purpose for which they were approved and that any rental income
generated as a result of the activity is reported as income in the
operating subsidy calculation. The IHA must maintain specific
documentation of the units covered. Such documentation should include a
listing of the units, the street addresses, and project/management
control numbers.
(3) Long-term vacant units that are not included in the calculation
of Unit Months Available are eligible for operating subsidy in the
Requested Budget Year at the rate of 20 percent of the AEL. Allowable
utility costs for long term vacant units will continue to be funded in
accordance with Sec. 950.715.
* * * * *
5. In Sec. 950.725, paragraph (b)(3) is revised and the OMB
approval number is added at the end of the section, to read as follows:
Sec. 950.725 Projected operating income level.
(b) * * *
(3) Projected Occupancy Percentage. The IHA shall determine its
projected percentage of occupancy for all Project Units (Projected
Occupancy Percentage), as follows:
(i) General. Using actual occupancy data collected before the start
of the budget year as a beginning point, the IHA will develop estimates
for its Requested Budget Year (RBY) of: how many units the IHA will
have available for occupancy; how many of the available units will be
occupied and how many will be vacant, and what the average occupancy
percentage will be for the RBY. The conditions under which the RBY
occupancy percentage will be used as the projected occupancy percentage
for purposes of determining operating subsidy eligibility are described
below.
(ii) High Occupancy IHA--No Adjustments Necessary. If the IHA's RBY
Occupancy Percentage, calculated in accordance with Sec. 950.760, is
equal to or greater than 97%, the IHA's Projected Occupancy Percentage
is 97%. If the IHA's RBY Occupancy Percentage is less than 97%, but the
IHA demonstrates that it will have an average of five or fewer vacant
units in the requested budget year, the IHA will use its RBY Occupancy
Percentage as its projected occupancy percentage.
(iii) Adjustments in Determining Occupancy. If the IHA's RBY
Occupancy Percentage is less than 97% and the IHA has more than 5
vacant units, the IHA will adjust its estimate of vacant units to
exclude vacant units undergoing modernization and units that are vacant
due to circumstances and actions beyond the IHA's control. After making
this adjustment, the IHA will recalculate its estimated vacancy
percentage for the RBY.
(A) High Occupancy IHA after adjustment. If the recalculated
vacancy percentage is 3% or less (or the IHA would have five or fewer
vacant units), the IHA will use its RBY Occupancy Percentage as its
projected occupancy percentage.
(B) Low Occupancy IHA--adjustment for long-term vacancies. If the
recalculated vacancy percentage is greater than 3% (or more than 5
vacant units), the IHA will then further adjust its RBY Occupancy
Percentage by excluding from its calculation of Unit Months Available
(UMAs), all units that have been vacant for longer than 12 months that
are not vacant units undergoing modernization or are not units vacant
due to circumstances and actions beyond the IHA's control.
(iv) Low Occupancy IHA after all adjustments. An IHA that has
determined its RBY Occupancy Percentage in accordance with paragraph
(b)(iii)(B) of this section will be eligible for operating subsidy as
follows:
(A) Long-term vacancies removed from the calculation of UMAs will
be eligible to receive a reduced operating subsidy calculated at 20% of
the IHA's AEL.
(B) If the recalculated RBY Occupancy Percentage is 97% or higher,
the IHA will use 97%.
(C) If the recalculated RBY Occupancy Percentage is less than 97%,
but the vacancy rate after adjusting for vacant units undergoing
modernization and units that are vacant due to circumstances and
actions beyond the IHA's control is 3% or less (or the IHA has five or
fewer vacant units), the IHA may use its recalculated RBY Occupancy
Percentage as its projected occupancy percentage.
(D) If the recalculated RBY Occupancy Percentage is less than 97%
and the vacancy percentage is greater than 3% (or the IHA has more than
five vacant units) after adjusting for vacant units undergoing
modernization and units that are vacant due to circumstances and
actions beyond the IHA's control, the IHA will use 97% as its projected
occupancy percentage, but will be allowed to adjust the 97% by the
number of vacant units undergoing modernization and units that are
vacant due to circumstances and actions beyond the IHA's control. For a
small IHA using five vacant units as its occupancy objective for the
RBY, the IHA will determine what percentage five units represents as a
portion of its units available for occupancy and subtract that
percentage from 100%. The result will be used as the IHA's projected
occupancy percentage, but the IHA will be allowed to adjust the
projected occupancy percentage by vacant units undergoing modernization
and units that are vacant for circumstances and actions beyond the
IHA's control.
* * * * *
(Approved by the Office of Management and Budget under control
number 2577-0066.)
6. Section 950.760 is revised to read as follows:
Sec. 950.760 Determining Actual and Requested Budget Year Occupancy
Percentages.
(a) Actual Occupancy Percentage. When submitting Performance
Funding System Calculations for Requested Budget Years beginning on or
after July 1, 1996, the IHA shall determine an
[[Page 7590]]
Actual Occupancy Percentage for all Project Units included in the Unit
Months Available. The IHA shall have the option of basing this option
on either:
(1) The number of units occupied on the last day of the month that
ends 6 months before the beginning of the Requested Budget Year; or
(2) The average occupancy during the month ending 6 months before
the beginning of the Requested Budget Year. If the IHA elects to use an
average occupancy under this paragraph (a)(2), the IHA shall maintain a
record of its computation of its Actual Occupancy Percentage.
(b) Requested Budget Year Occupancy Percentage. The IHA will
develop a Requested Budget Year Occupancy Percentage by taking the
Actual Occupancy Percentage and adjusting it to reflect changes up or
down in occupancy during the Requested Budget Year due to HUD-approved
activities such as units undergoing modernization, new development,
demolition, or disposition. If after the submission and approval of the
Performance Funding System Calculations for the Requested Budget Year,
there are changes up or down in occupancy because of modernization, new
development, demolition or disposition that are not reflected in the
Requested Budget Year Occupancy Percentage, the IHA may submit a
revision to reflect the actual change in occupancy due to these
activities.
(c) Documentation Required to be Maintained. The IHA must maintain,
and upon HUD's request, make available to HUD specific documentation of
the occupancy status of all units, including long-term vacancies,
vacant units undergoing modernization, and units vacant due to
circumstances and actions beyond the IHA's control. This documentation
shall include a listing of the units, street addresses, and project/
management control numbers.
(Approved by the Office of Management and Budget under control
number 2577-0066.)
Sec. 950.770 [Removed and Reserved]
7. Section 950.770, Comprehensive Occupancy Plan (COP)
Requirements, is removed and reserved.
8. A new Sec. 950.775 is added, to read as follows:
Sec. 950.775 Transition Provisions.
(a) Treatment of units already under an approved modernization
budget Vacant units to be rehabilitated under modernization budgets
approved in FFY 1995 or prior are subject to the modernization
implementation schedule, without extension, previously approved by HUD.
It is the intent of HUD not to penalize IHAs that have longer
construction schedules in an approved modernization budget.
(b) Treatment of Existing COPs. (1) An IHA operating under a
Comprehensive Occupancy Plan (COP) approved by HUD under Sec. 950.770,
as that section existed immediately before April 1, 1996, may, until
the expiration of its COP, continue to determine its PFS eligibility
under the provisions of part 950 as that part existed immediately
before April 1, 1996. If the IHA does not elect to continue to
determine its PFS eligibility using its COP, the IHA's PFS eligibility
will be calculated in accordance with this part.
(2) HUD will not approve any extensions of COPs.
9. A new Sec. 950.777 is added, to read as follows:
Sec. 950.777 Effect of rescission.
If there is a rescission of appropriated funds that reduces the
level of Comprehensive Grant Program funding in an approved Annual
Statement under the CGP, to the extent that the IHA can document that
it is not possible to complete all the vacant unit rehabilitation in
the IHA's approved Annual Statement, the IHA may seek and HUD may grant
a waiver for 1 fiscal year to permit full PFS eligibility for those
units approved but not funded.
PART 990--ANNUAL CONTRIBUTIONS FOR OPERATING SUBSIDY
10. The authority citation for part 990 continues to read as
follows:
Authority: 42 U.S.C. 1437g and 3535(d).
11. Section 990.102 is amended by adding in alphabetical order
definitions for ``Long-term vacancy'', ``Units vacant due to
circumstances and actions beyond the PHA's control'', and ``Vacant unit
undergoing modernization''; by revising the definition for ``Unit
months available''; and by removing the definition for ``Vacant, On-
Schedule Modernization Units'', to read as follows:
Sec. 990.102 Definitions
* * * * *
Long-term vacancy. This term means the same as it is used in the
definition of ``Unit Months Available'' in this section.
* * * * *
Unit months available. Project Units multiplied by the number of
months the Project Units are available for occupancy during a given PHA
fiscal year. For purposes of this part, a unit is considered available
for occupancy from the date established as the End of the Initial
Operating Period for the Project until the time the unit is approved by
HUD for deprogramming and is vacated or is approved for nondwelling
use. In the case of a PHA development involving the acquisition of
scattered site housing, see also Sec. 990.104(b). A unit will be
considered a long-term vacancy and will not be considered available for
occupancy in any given PHA Requested Budget Year if the PHA determines
that:
(1) The unit has been vacant for more than 12 months at the time
the PHA determines its Actual Occupancy Percentage;
(2) The unit is not either: (i) A vacant unit undergoing
modernization; or (ii) A unit vacant for circumstances and actions
beyond the PHA's control, as these terms are defined in this section;
and
(3) The PHA determines that it will have a vacancy percentage of
more than 3 percent and will have more than five vacant units, for its
Requested Budget Year, even after adjusting for vacant units undergoing
modernization and units that are vacant for circumstances and actions
beyond the PHA's control, as defined in this section. (Reference in
this part to ``more than five units'' or ``fewer than five units''
shall refer to a circumstance in which five units equals or exceeds 3
percent of the number of units to which the 3 percent threshold is
applicable.)
Units vacant due to circumstances and actions beyond the PHA's
control. Dwelling units that are vacant due to circumstances and
actions that prohibit the PHA from occupying, selling, demolishing,
rehabilitating, reconstructing, consolidating or modernizing vacant
units and are beyond the PHA's control. For purposes of this
definition, circumstances and actions beyond the PHA's control are
limited to:
(1) Litigation. The effect of court litigation such as a court
order or settlement agreement that is legally enforceable. An example
would be units that are being held vacant as part of a court-ordered or
HUD-approved desegregation plan.
(2) Laws. Federal or State laws of general applicability, or their
implementing regulations. Units vacant only because they do not meet
minimum standards pertaining to construction or habitability under
Federal, State, or local laws or regulations will not be considered
vacant due to circumstances and actions beyond the PHA's control.
(3) Changing market conditions. For example, small PHAs that are
located in areas experiencing population loss or
[[Page 7591]]
economic dislocations may face a lack of demand in the foreseeable
future, even after the PHA has taken aggressive marketing and outreach
measures.
(4) Natural disasters.
(5) Insufficient funding for otherwise approvable applications made
for Comprehensive Improvement Assistance Program (CIAP) funds.
(6) RMC Funding. The failure of a PHA to fund an otherwise
approvable RMC request for Federal modernization funding;
(7) Casualty Losses. Delays in repairing damage to vacant units due
to the time needed for settlement of insurance claims.
* * * * *
Vacant unit undergoing modernization. Except as provided in
Sec. 990.119(a), a vacant unit in a project not considered to be
obsolete (as determined using the indicia in Sec. 970.6 of this
chapter), when the project is undergoing modernization that includes
work that is necessary to reoccupy the vacant unit, and in which one of
the following conditions is met:
(1) The unit is under construction (i.e., the construction contract
has been awarded or force account work has started); or
(2) The treatment of the vacant unit is included in a HUD-approved
modernization budget (e.g., the Annual Statement for the Comprehensive
Grant Program (CGP) (Form HUD-52837 or its successor), or the
Comprehensive Improvement Assistance Program (CIAP) Budget (Form HUD-
52825 or its successor)), but the time period for placing the vacant
unit under construction has not yet expired. The PHA must place the
vacant unit under construction within two Federal Fiscal Years (FFYs)
after the FFY in which the modernization funds are approved.
Sec. 990.104 [Amended]
12. Section 990.104(b) is amended by removing the first sentence.
13. Section 990.108 is amended by revising paragraph (b), to read
as follows:
Sec. 990.108 Other costs.
* * * * *
(b)(1) Costs attributable to units approved for deprogramming and
vacant may be eligible for inclusion, but must be limited to the
minimum services and protection necessary to protect and preserve the
units until the units are deprogrammed. Costs attributable to units
temporarily unavailable for occupancy because the units are utilized
for PHA-related activities are not eligible for inclusion. In
determining the PFS operating subsidy, these units shall not be
included in the calculation of Unit Months Available. Units approved
for deprogramming shall be listed by the PHA, and supporting
documentation regarding direct costs attributable to such units shall
be included as a part of the Performance Funding System calculation in
which the PHA requests operating subsidy for these units. If the PHA
requires assistance in this matter, the PHA should contact the HUD
Field Office.
(2) Units approved for nondwelling use to promote economic self-
sufficiency services and anti-drug activities are eligible for
operating subsidy under the conditions provided in this paragraph
(b)(2), and the costs attributable to these units are to be included in
the operating budget. If a unit satisfies the conditions stated below,
it will be eligible for subsidy at the rate of the AEL for the number
of months the unit is devoted to such use. Approval will be given for a
period of no more than 3 years. HUD may renew the approval to allow
payments after that period only if the PHA can demonstrate that no
other sources for paying the non-utility operating costs of the unit
are available. The conditions the unit must satisfy are:
(i) The unit must be used for either economic self-sufficiency
activities directly related to maximizing the number of employed
residents or for anti-drug programs directly related to ridding the
development of illegal drugs and drug-related crime. The activities
must be directed toward and for the benefit of residents of the
development.
(ii) The PHA must demonstrate that space for the service or program
is not available elsewhere in the locality and that the space used is
safe and suitable for its intended use or that the resources are
committed to make the space safe and suitable.
(iii) The PHA must demonstrate satisfactorily that other funding is
not available to pay for the non-utility operating costs. All rental
income generated as a result of the activity must be reported as income
in the operating subsidy calculation.
(iv) Operating subsidy may be approved for only one site
(involving one or more contiguous units) per public housing development
for economic self-sufficiency services or anti-drug programs, and the
number of units involved should be the minimum necessary to support the
service or program. Operating subsidy for any additional sites per
development can only be approved by HUD Headquarters.
(v) The PHA must submit a certification with its Performance
Funding System Calculation that the units are being used for the
purpose for which they were approved and that any rental income
generated as a result of the activity is reported as income in the
operating subsidy calculation. The PHA must maintain specific
documentation of the units covered. Such documentation should include a
listing of the units, the street addresses, and project/management
control numbers.
(3) Long-term vacant units that are not included in the calculation
of Unit Months Available are eligible for operating subsidy in the
Requested Budget Year at the rate of 20 percent of the AEL. Allowable
utility costs for long term vacant units will continue to be funded in
accordance with Sec. 990.107.
* * * * *
14. In Sec. 990.109, paragraph (b)(3) and the parenthetical
statement containing the OMB approval number at the end of the section
are revised to read as follows:
Sec. 990.109 Projected operating income level.
(b) * * *
(3) Projected Occupancy Percentage. The PHA shall determine its
projected percentage of occupancy for all Project Units (Projected
Occupancy Percentage), as follows:
(i) General. Using actual occupancy data collected before the start
of the budget year as a beginning point, the PHA will develop estimates
for its Requested Budget Year (RBY) of: how many units the PHA will
have available for occupancy; how many of the available units will be
occupied and how many will be vacant, and what the average occupancy
percentage will be for the RBY. The conditions under which the RBY
occupancy percentage will be used as the projected occupancy percentage
for purposes of determining operating subsidy eligibility are described
below.
(ii) High Occupancy PHA--No Adjustments Necessary. If the PHA's RBY
Occupancy Percentage, calculated in accordance with Sec. 990.117, is
equal to or greater than 97%, the PHA's Projected Occupancy Percentage
is 97%. If the PHA's RBY Occupancy Percentage is less than 97%, but the
PHA demonstrates that it will have an average of five or fewer vacant
units in the requested budget year, the PHA will use its RBY Occupancy
Percentage as its projected occupancy percentage.
(iii) Adjustments in Determining Occupancy. If the PHA's RBY
Occupancy Percentage is less than 97% and the PHA has more than 5
vacant units, the PHA will adjust its estimate of vacant units to
exclude vacant units
[[Page 7592]]
undergoing modernization and units that are vacant due to circumstances
and actions beyond the PHA's control. After making this adjustment, the
PHA will recalculate its estimated vacancy percentage for the RBY.
(A) High Occupancy PHA after adjustment. If the recalculated
vacancy percentage is 3% or less (or the PHA would have five or fewer
vacant units), the PHA will use its RBY Occupancy Percentage as its
projected occupancy percentage.
(B) Low Occupancy PHA--adjustment for long-term vacancies. If the
recalculated vacancy percentage is greater than 3% (or more than 5
vacant units), the PHA will then further adjust its RBY Occupancy
Percentage by excluding from its calculation of Unit Months Available
(UMAs), all units that have been vacant for longer than 12 months that
are not vacant units undergoing modernization or are not units vacant
due to circumstances and actions beyond the PHA's control.
(iv) Low Occupancy PHA after all adjustments. A PHA that has
determined its RBY Occupancy Percentage in accordance with paragraph
(b)(iii)(B) of this section will be eligible for operating subsidy as
follows:
(A) Long-term vacancies removed from the calculation of UMAs will
be eligible to receive a reduced operating subsidy calculated at 20% of
the PHA's AEL.
(B) If the recalculated RBY Occupancy Percentage is 97% or higher,
the PHA will use 97%.
(C) If the recalculated RBY Occupancy Percentage is less than 97%,
but the vacancy rate after adjusting for vacant units undergoing
modernization and units that are vacant due to circumstances and
actions beyond the PHA's control is 3% or less (or the PHA has five or
fewer vacant units), the PHA may use its recalculated RBY Occupancy
Percentage as its projected occupancy percentage.
(D) If the recalculated RBY Occupancy Percentage is less than 97%
and the vacancy percentage is greater than 3% (or the PHA has more than
five vacant units) after adjusting for vacant units undergoing
modernization and units that are vacant due to circumstances and
actions beyond the PHA's control, the PHA will use 97% as its projected
occupancy percentage, but will be allowed to adjust the 97% by the
number of vacant units undergoing modernization and units that are
vacant due to circumstances and actions beyond the PHA's control. For a
small PHA using five vacant units as its occupancy objective for the
RBY, the PHA will determine what percentage five units represents as a
portion of its units available for occupancy and subtract that
percentage from 100%. The result will be used as the PHA's projected
occupancy percentage, but the PHA will be allowed to adjust the
projected occupancy percentage by vacant units undergoing modernization
and units that are vacant for circumstances and actions beyond the
PHA's control.
* * * * *
(Approved by the Office of Management and Budget under control
number 2577-0066. Paragraphs (e) and (f) have been approved by the
Office of Management and Budget under control number 2577-007.)
15. Section 990.117 is revised to read as follows:
Sec. 990.117 Determining Actual and Requested Budget Year Occupancy
Percentages.
(a) Actual Occupancy Percentage. When submitting Performance
Funding System Calculations for Requested Budget Years beginning on or
after July 1, 1996, the PHA shall determine an Actual Occupancy
Percentage for all Project Units included in the Unit Months Available.
The PHA shall have the option of basing this option on either:
(1) The number of units occupied on the last day of the month that
ends 6 months before the beginning of the Requested Budget Year; or
(2) The average occupancy during the month ending 6 months before
the beginning of the Requested Budget Year. If the PHA elects to use an
average occupancy under this paragraph (a)(2), the PHA shall maintain a
record of its computation of its Actual Occupancy Percentage.
(b) Requested Budget Year Occupancy Percentage. The PHA will
develop a Requested Budget Year Occupancy Percentage by taking the
Actual Occupancy Percentage and adjusting it to reflect changes up or
down in occupancy during the Requested Budget Year due to HUD-approved
activities such as units undergoing modernization, new development,
demolition, or disposition. If after the submission and approval of the
Performance Funding System Calculations for the Requested Budget Year,
there are changes up or down in occupancy because of modernization, new
development, demolition or disposition that are not reflected in the
Requested Budget Year Occupancy Percentage, the PHA may submit a
revision to reflect the actual change in occupancy due to these
activities.
(c) Documentation Required to be Maintained. The PHA must maintain,
and upon HUD's request, make available to HUD specific documentation of
the occupancy status of all units, including long-term vacancies,
vacant units undergoing modernization, and units vacant due to
circumstances and actions beyond the PHA's control. This documentation
shall include a listing of the units, street addresses, and project/
management control numbers.
(Approved by the Office of Management and Budget under control
number 2577-0066.)
Sec. 990.118 [Removed and Reserved]
16. Section 990.118, Comprehensive Occupancy Plan Requirements, is
removed and reserved.
17. Section 990.119 is revised, to read as follows:
Sec. 990.119 Transition Provisions.
(a) Treatment of units already under an approved modernization
budget. Vacant units to be rehabilitated under modernization budgets
approved in FY 1995 or prior are subject to the modernization
implementation schedule, without extension, previously approved by HUD.
It is the intent of HUD not to penalize PHAs that have longer
construction schedules in an approved modernization budget.
(b) Treatment of Existing COPs. (1) A PHA that is operating under a
Comprehensive Occupancy Plan (COP) approved by HUD under Sec. 990.118,
as that section existed immediately before April 1, 1996, may, until
the expiration of its COP, continue to determine its PFS eligibility
under the provisions of part 990 as that part existed immediately
before April 1, 1996. If the PHA does not elect to continue to
determine its PFS eligibility using its COP, the PHA's PFS eligibility
will be calculated in accordance with this part.
(2) HUD will not approve any extensions of COPs.
18. A new Sec. 990.121 is added, to read as follows:
Sec. 990.121 Effect of rescission.
If there is a rescission of appropriated funds that reduces the
level of Comprehensive Grant Program funding in an approved Annual
Statement under the CGP, to the extent that the PHA can document that
it is not possible to complete all the vacant unit rehabilitation in
the PHA's approved Annual Statement, the PHA may seek and HUD may grant
a waiver for 1 fiscal year to permit full PFS eligibility for those
units approved but not funded.
[[Page 7593]]
Dated: February 14, 1996.
Kevin E. Marchman,
Deputy Assistant Secretary for Distressed and Troubled Housing
Recovery.
[FR Doc. 96-4169 Filed 2-27-96; 8:45 am]
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