issue-1996-07-09•Federal Register final rules — 1996-07-09
Federal Register final rules — 1996-07-09
issue-1996-07-09Federal Register final rules — 1996-07-09Regulation
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. 96-17461 Extension of Great Lakes Load Line Certificate
[Federal Register Volume 61, Number 132 (Tuesday, July 9, 1996)]
[Rules and Regulations]
[Pages 35963-35964]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-17461]
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DEPARTMENT OF TRANSPORTATION
Coast Guard
46 CFR Part 42
[CGD 96-006]
RIN 2115-AF29
Extension of Great Lakes Load Line Certificate
AGENCY: Coast Guard, DOT.
ACTION: Direct final rule.
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SUMMARY: By this direct final rule, the Coast Guard is revising the
limit on the number of days that a Great Lakes Load Line Certificate
extension may be granted from 90 days to 365 days. This action is taken
to extend the Great Lakes load line certificate interval from the
current 5 years and 90 days maximum interval to a 6-year maximum
interval.
DATES: This rule is effective on October 7, 1996, unless the Coast
Guard receives written adverse comments or written notice of intent to
submit adverse comments on or before September 9, 1996. If such
comments or notice are received, the Coast Guard will withdraw this
direct final rule, and a timely notice of withdrawal will be published
in the Federal Register.
ADDRESSES: Comments may be mailed to the Executive Secretary, Marine
Safety Council (G-LRA/3406) (CGD 96-006), U.S. Coast Guard
Headquarters, 2100 Second Street SW., Washington, DC 20593-0001, or may
be delivered to room 3406 at the same address between 9:30 a.m. and 2
p.m., Monday through Friday, except Federal holidays. The telephone
number is (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, between 9:30 a.m. and 2 p.m., Monday through Friday,
except Federal holidays.
FOR FURTHER INFORMATION CONTACT:
LCDR Mark R. DeVries, G-MOC, (202) 267-0009.
SUPPLEMENTARY INFORMATION:
Request for Comments
Any comments must identify the names and address of the person
submitting the comment, specify the rulemaking docket (CGD 96-006) and
the specific section of this rule to which each comment applies, and
give the reason for each specific comment. Please submit two copies of
all comments and attachments in an unbound format, no larger than 8+ by
11 inches, suitable for copying and electronic filing. Persons wanting
acknowledgment of receipt of comments should enclose stamped, self-
addressed postcards or envelopes.
Regulatory Information
The Coast Guard is publishing a direct final rule, the procedures
of which are outlined in 33 CFR 1.05-55, because no adverse comments
are anticipated. If no adverse comments or any written notice of intent
to submit adverse comment are received within the specified comment
period, this rule will become effective as stated in the DATES section.
In that case, approximately 30 days prior to the effective date, the
Coast Guard will publish a notice in the Federal Register stating that
no adverse comment was received and confirming that this rule will
become effective as scheduled. However, if the Coast Guard receives
written adverse comment or written notice of intent to submit adverse
comment, the Coast Guard will publish a notice in the final rule
section of the Federal Register to announce withdrawal of all or part
of this direct final rule. If adverse comments apply to only part of
this rule, and it is possible to remove that part without defeating the
purpose of this rule, the Coast Guard may adopt as final those parts of
this rule on which no adverse comments were received. The part of this
rule that was the subject of adverse comment will be withdrawn. If the
Coast Guard decides to proceed with a rulemaking following receipt of
adverse comments, a separate notice of proposed rulemaking (NPRM) will
be published and a new opportunity for comment provided.
A comment is considered ``adverse'' if the comment explains why
this rule would be inappropriate, including a challenge to the rule's
underlying premise or approach, or would be ineffective or unacceptable
without a change.
Background and Purpose
Before 1973, the load line intervals for vessels operating on the
Great Lakes was 6 years in length. In 1973, the load line regulations
were revised and the 6-year interval was reduced to 5 years with a
provision to allow for a 90-day extension. The reduction in the
interval was because of the higher frequency and shorter length of
Great Lakes voyages, the presumed safety risks resulting from the
increased amount of dockings, and the Great Lakes climatic conditions.
This assumption has proven to be incorrect. The Lake Carriers'
Association, whose membership includes the operators of 59 U.S.-Flag
freightships on the Great Lakes, has
[[Page 35964]]
been able to provide 20 years of data to dispute the additional risk
assumption. The Coast Guard agrees that the data does not support the
presumption of higher safety risks.
Instead, the reduction in the Great Lakes load line certificate
interval caused an unnecessary increased financial burden on the
industry without the benefit of an increase in the level of safety. It
created this increase in costs by causing more frequent drydockings and
reducing the number of days available to carry cargo. This rule will
avoid unnecessary costs to the industry by providing for extensions of
Great Lakes load line certificate intervals up to 365 days for
qualifying Great Lakes vessels.
Discussion of Rules
This rule revises 46 CFR Part 42 by changing the limit on the
number of days that a Great Lakes load line certificate may be extended
from 90 days to 365 days. This expands the Great Lakes load line
certificate interval to a maximum interval of 6 years, including
allowable extensions.
Regualtory 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.
This rule impacts only vessel owners and operators in possession of a
Great Lakes Load Line Certificate, and will result in cost savings to
vessels receiving an extension of this certificate by allowing vessel
owners and operators greater flexibility in the coordination and
scheduling of required examinations.
Small Entities
Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), the
Coast Guard must consider the economic impact on small entities of a
rule for which a general notice of proposed rulemaking is required.
``Small entities'' may include (1) Small businesses and not-for-profit
organizations that are independently owned and operated and are not
dominant in their fields and (2) governmental jurisdictions with
populations of less than 50,000.
This rule will create cost savings for vessel owners and operators
in possession of a great Lakes load line certificate without additional
costs to other small entities. Therefore, the Coast Guard finds that
this rule will not have a significant economic impact on a substantial
number of small entities. Any comments submitted in response to this
finding will be evaluated under the criteria described earlier in the
preamble for comments.
Collection of Information
This rule contains no collection-of-information 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.
Section 2.B.2.e(34)(d) of that instruction excludes ``regulations
concerning manning, documentation, admeasurement, inspection, and
equipping of vessels.'' A ``Categorical Exclusion Determination'' is
available in the docket for inspection or copying where indicated under
ADDRESSES.
List of Subjects in 46 CFR Part 42
Penalties, Reporting and record keeping requirements, Vessels.
For the reasons set out in the preamble, the Coast Guard amends 46
CFR part 42 as follows:
PART 42--DOMESTIC AND FOREIGN VOYAGES BY SEA
1. The authority citation for part 42 continues to read as follows:
Authority: 46 U.S.C. 2103; 49 CFR 1.45, 1.46; section 42.01-5
also issued under the authority of 44 U.S.C. 3507.
2. In Sec. 42.07-45, paragraph (d)(2) introductory text is revised
to read as follows:
Sec. 42.07-45 Loan line certificates.
* * * * *
(d) * * *
(2) A Great Lakes certificate is issued for 5 years and may be
extended by the Commander, Ninth Coast Guard District, up to 365 days
from date of the--
* * * * *
Dated: July 2, 1996.
J.C. Card,
Rear Admiral, U.S. Coast Guard, Chief, Marine Safety and Environmental
Protection.
[FR Doc. 96-17461 Filed 7-8-96; 8:45 am]
BILLING CODE 4910-14-M
Complete official Federal Register PDF
FR Doc. 96-17450 Supplemental Standards of Ethical Conduct for Employees of the Department of Housing and Urban Development
[Federal Register Volume 61, Number 132 (Tuesday, July 9, 1996)]
[Rules and Regulations]
[Pages 36246-36251]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-17450]
[[Page 36245]]
_______________________________________________________________________
Part V
Department of Housing and Urban Development
_______________________________________________________________________
5 CFR Chapter LXV
24 CFR Part 0
Supplemental Standards of Ethical Conduct for Employees of the
Department of Housing and Urban Development; Final Rule
Federal Register / Vol. 61, No. 132 / Tuesday, July 9, 1996 / Rules
and Regulations
[[Page 36246]]
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
5 CFR Chapter LXV
24 CFR Part 0
[Docket No. FR-3331-F-01]
RIN 2501-AB55, 3209-AA15
Supplemental Standards of Ethical Conduct for Employees of the
Department of Housing and Urban Development
AGENCY: Office of the Secretary, Department of Housing and Urban
Development (HUD or Department).
ACTION: Final rule.
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SUMMARY: The Department of Housing and Urban Development, with the
concurrence of the Office of Government Ethics (OGE), is issuing a
final rule establishing uniform standards of ethical conduct for
employees of the Department to supplement the Standards of Ethical
Conduct for Employees of the Executive Branch issued by OGE. The final
rule is a necessary supplement to the executive branch-wide Standards
because it addresses ethical issues unique to the Department. The final
rule will become effective 30 days after the date of publication, and
will establish regulations prohibiting certain financial interests and
restricting certain outside employment.
EFFECTIVE DATE: This rule is effective on August 8, 1996.
FOR FURTHER INFORMATION CONTACT: Aaron Santa Anna, Assistant General
Counsel, Ethics Law Division, 202-708-3815; or Sam E. Hutchinson,
Associate General Counsel, Office of Human Resources Law, 202-708-0888.
Hearing or speech-impaired individuals may call HUD's TDD number 202-
708-3259. (Telephone numbers are not toll-free.)
SUPPLEMENTARY INFORMATION:
I. Background
On June 30, 1995, the Department, with OGE's concurrence, published
for comment a proposed rule to establish supplemental standards of
ethical conduct for HUD employees (60 FR 34420-34426). The proposed
rule was intended to supplement the Standards of Ethical Conduct for
Employees of the Executive Branch (Standards) published by OGE on
August 7, 1992, and effective February 3, 1993 (57 FR 35006-35067, as
corrected at 57 FR 48557, 57 FR 52583, and 60 FR 51667, with additional
grace period extensions for certain exisiting agency standards of
conduct at 59 FR 4779-4780, 60 FR 6390-6391, and 60 FR 66857-66858).
The executive branch-wide Standards, codified at 5 CFR part 2635,
establish uniform standards of ethical conduct for executive branch
employees. The proposed rule was issued pursuant to 5 CFR 2635.105,
which authorizes executive branch agencies to publish agency-specific
supplemental regulations necessary to implement their respective ethics
programs. The Department, with OGE's concurrence, determined that the
supplemental regulations contained in the proposed rule were necessary
to implement the Department's ethics program successfully, in light of
the Department's unique programs and operations.
The proposed rule prescribed a 60-day comment period and invited
comments from all interested parties. The Department received one
public comment, and after careful consideration of it, has made
appropriate modifications to the rule. In addition, the Department has
made appropriate modifications to the rule based on various intra-
departmental comments. The Department, with OGE's concurrence, is now
publishing as a final rule the Supplemental Standards of Ethical
Conduct for Employees of the Department of Housing and Urban
Development, to be codified in a new chapter LXV of 5 CFR, consisting
of part 7501.
II. Summary of the Comments
The Department received one public comment; it was from the Federal
Home Loan Mortgage Corporation (``Freddie Mac''). The Department also
received six intra-departmental comments. Freddie Mac's comments
focused primarily on three distinct areas under the proposed rule:
scope of coverage, ownership interests, and outside employment. The
intra-departmental comments contained both requests for substantive
changes and for additional clarification regarding the application of
the rule in general or specific sections.
III. Analysis of the Comments
Section 7501.102 Definitions
One commenter within the Department recommended that one portion of
the definition of ``security'' be modified to read that the term
``includes'' any right to acquire or dispose of any long or short term
position in securites. The Department agrees that the suggested
language is more reflective of the Department's intent than the
originally proposed language and has, therefore, implemented this
revision to the definition of ``security'' in Sec. 7501.102 of the
final rule.
Freddie Mac suggested that the Department include definitions for
``employee'' and ``special Government employee.'' The Department has
not adopted this recommendation because the definitions of those terms
in the executive branch-wide Standards, at 5 CFR 2635.102 (h) and (l),
apply to supplemental regulations unless otherwise specified.
Section 7501.104 Prohibited Financial Interests
One commenter within the Department recommended that special
Government employees assigned to work in one of the program offices
listed in Sec. 7501.106(b)(1) not be excluded from the coverage of the
financial interest prohibitions in Sec. 7501.104 of the rule, since
such employees would have access to the same types of confidential
information as would other employees in those officies. The Department
has adopted this recommendation to protect against the appearance that
any HUD employee is using confidential information for private gain.
The proposed exclusion of special Government employees from the
coverage of this section has been eliminated.
Another commenter within the Department recommended that the first
sentence of the description of prohibited financial interests in real
estate, at Sec. 7501.104(a)(4), be amended to read: ``Stock or another
financial interest in a multifamily project or single family dwelling,
cooperative unit or condominium unit, which is owned or subsidized by
the Department, or which is subject to a note and mortgage or other
security instrument insured by the Secretary, except to the extent that
the stock or other interest represents the employee's principal
residence.'' The Department has decided to adopt this language as a
better characterization of the Department's interest in various real
estate interests covered by the final rule.
Section 7501.105 Outside Employment
One commenter within the Department recommended that the Department
include a provision regarding an employee's service on the board of a
non-Federal organization in an official capacity, similar to prior 24
CFR 0.735-210 of HUD's old departmental standards of conduct. In
response, a Note has been added to this section to clarify that while
service in an official capacity on the Board of a non-Federal
organization is not outside employment or other activity subject to
[[Page 36247]]
this section, employees need to be aware that such service is subject
to other applicable laws.
While generally supportive of the outside employment provisions in
this section, Freddie Mac wanted the requirements in the section to
extend to any type of writing by employees. The Department has included
within the coverage of this section those types of outside employment
which the Department believes pose the greatest potential for employees
to engage in conduct which might violate applicable laws or
regulations, and is not convinced that the suggested extension of
coverage is warranted.
In addition, Freddie Mac suggested that the public impact of an
outside activity in relation to the employee's official position be
taken into consideration when deciding whether to grant a waiver, under
Sec. 7501.103 of the rule, from the prohibitions in this section. The
specific inclusion of the suggested factors in the final rule is
uncalled for, because the factors are largely covered by the terms of
the waiver standard at Sec. 7501.103, i.e., that application of the
prohibition is not necessary to ensure public confidence in the
impartiality and objectivity with which the Department's programs are
administered.
Section 7501.106 Additional Rules for Certain Department Employees
Involved in the Regulation or Oversight of Government Sponsored
Enterprises
Freddie Mac noted that the supplemental regulation is not
specifically applicable to individuals who serve pursuant to a
consulting agreement with the Department. The Department has decided
not to make the regulation specifically applicable to consultants,
since the generic term ``consultants'' may include individuals who are
independent contractors as well as those who are deemed employees of
the Department. Whether a consultant will be deemed an employee of the
Department for these purposes depends on various factors, including the
type of functions or activities being performed by the consultant for
the Department, and the extent of the consultant's supervision by an
officer or employee of the Department. A consultant deemed an employee
of the Department would be subject to the executive branch-wide
Standards and these rules.
Freddie Mac also recommended that the description of prohibited
financial interests in Sec. 7501.106(c)(ii) be amended to parallel the
description of prohibited financial interests in Sec. 7501.104(a), by
adding the terms ``issued'' and ``collateralized'' in the description
of prohibited securities in a mortgage institution, a certain
percentage of whose originated mortgages involve the Federal National
Mortgage Association or Freddie Mac in various specified capacities.
This recommendation was adopted to attain uniformity.
A commenter within the Department suggested that employees of the
Office of Inspector General and all employees of the Office of Federal
Housing Enterprise Oversight be included in the list at
Sec. 7501.106(b)(1) of employees covered by the prohibition in this
section. The Department has adopted this recommendation to make the
prohibitions contained in Sec. 7501.106 uniformly applicable to all
employees whose official duties require that they have access to
information regarding a Government sponsored enterprise (GSE).
Similarly, another commenter within the Department recommended that the
Department's Office of Lead-Based Paint and Poisoning Prevention be
excluded from coverage under Sec. 7501.106(b)(1), since it is not
involved in the regulation or oversight of GSEs. This recommendation
was adopted for the reason asserted by the commenter.
This same commenter also recommended that the definition of
mortgage institution be amended to include entities that insure
mortgages. The Department has adopted this recommendation as a more
specific reflection of its intent. In addition, the Department has
adopted this commenter's recommendation that an institution's most
recent annual financial statement be used to determine whether it
exceeds the thresholds contained in Sec. 7501.106(c)(1).
This same commenter also expressed concern that the definition of
covered employee in Sec. 7501.106(b)(1), which encompasses only
employees who are required to file financial disclosure reports,
excludes many employees whose primary job responsibilities
significantly include the regulation or oversight of GSEs. To address
this concern, the Department has modified proposed
Sec. 7501.106(b)(1)(viii) to include the DAEO in the list of those
individuals who may designate an employee as a ``covered employee'' to
ensure compliance with the principles set forth in 5 CFR 2635.403. To
ensure that the prohibition in this section is not unnecessarily
burdensome, the Department has also added a new Sec. 7501.106(b)(2)
(the prior proposed paragraph (b)(2) has been redesignated paragraph
(b)(3)), which permits the DAEO, upon recommendation of the appropriate
individual of Assistant Secretary rank, to exclude in writing an
employee otherwise designated as a ``covered employee'' if the
employee's official duties do not substantially involve the regulation
or oversight of GSEs and ownership of the interests prohibited by
Sec. 7501.106(c) would not cause a reasonable person to question the
impartiality and objectivity with which the Department's programs are
administered.
In response to another comment from within the Department, the
Department has specifically included the Federal National Mortgage
Association and the Federal Home Loan Mortgage Corporation under
Sec. 7501.106(e) to make clear that special Government employees who
are covered employees under Sec. 7501.106(b)(1) cannot be employed by
any of these organizations or their affiliates. This modification is
required to ensure compliance with 5 CFR 2635.403 and because special
Government employees are not otherwise subject to the outside
employment and other activities provisions of Sec. 7501.105.
IV. Other Changes
An exception is being added to the prohibition in
Sec. 7501.104(a)(5) against an employee receiving any Department
subsidy provided pursuant to Section 8 of the United States Housing Act
of 1937, as amended (42 U.S.C. 1437f). Under new
Sec. 7501.104(a)(5)(iii), an employee may receive such a subsidy if the
tenant of the subsidized unit is the parent, child, grandchild, or
sibling of the employee, but only if there is no increase in that
tenant's rent upon the commencement of subsidy payments other than
normal annual adjustments. This change from the proposed rule reflects
current Departmental practice.
In addition, the Department has decided to exclude special
Government employees (SGEs) from the prior approval requirement at
Sec. 7501.105(c) of the final rule. Proposed Sec. 7501.105(c)(1) would
have required all employees of the Department to obtain approval before
engaging in certain types of outside employment or activities. Special
Government Employees have been subject to this requirement because they
are included within the meaning of ``employee,'' as used in the
supplemental regulation. However, SGEs were not required to obtain
prior approval for outside employment under the Department's old
Standards of Conduct. Moreover, SGEs are excluded from the outside
employment prohibitions at Sec. 7501.105(a) of the final rule.
Accordingly, the Department has concluded that it would be unreasonable
to apply the prior approval requirement to SGEs, and is providing in
Sec. 7501.103(c)(1) of the final
[[Page 36248]]
rule that the prior approval requirement therein applies to employees
of the Department, ``except special Government employees.''
Finally, the Department has decided not to exclude employees who
file public or confidential financial disclosure reports in the Office
of Housing's Office of Deputy Assistant Secretary for Operations from
the list of ``covered employees'' in Sec. 7501.106(b)(1). Section
7501.106 sets forth additional rules for certain employees involved in
the regulation or oversight of the Government sponsored enterprises.
The reason for this change is that the Office of Housing has been
reorganized since the publication of the proposed rule to give the
Deputy Assistant Secretary for Operations programmatic responsibility
over matters that affect the Government sponsored enterprises.
Accordingly, the exclusionary clause ``with the exception of the Office
of Deputy Assistant Secretary for Operations'' has been deleted from
paragraph (b)(1)(ii) containing the definition of ``covered employee''
for purposes of Sec. 7501.106.
V. Removal of Old Department Standards of Conduct Regulations and
Revision of the Residual Cross-Reference Provision
On April 5, 1996, the Department published a final rule that
provided for removal of all of the then existing provisions in the
Department's old Standards of Conduct regulation at 24 CFR part 0, and
their replacement with a single section that provides a cross-reference
to 5 CFR parts 2634 and 2635, effective May 6, 1996 (61 FR 15350). To
prevent an untimely lapse in enforcement authority for the two sections
of 24 CFR part 0 that had temporarily remained in effect pursuant to
the extended grace periods in the Standards--Sec. 0.735-203 regarding
outside employment and other activities, and Sec. 0.735-204 regarding
financial interests--the Department published a correction to the final
rule on May 1, 1996, effective May 6, 1996, preserving those two
sections at 24 CFR 0.2 and 0.3. (61 FR 19187-19188). Upon the effective
date of the Department's supplemental standards of ethical conduct as a
final rule, the Department is amending 24 CFR part 0 to remove the
temporarily preserved sections regarding outside employment and
financial interests, and to include in the residual cross-reference
provision a notation of the Department's newly issued supplemental
standards of ethical conduct at 5 CFR part 7501.
VI. Matters of Regulatory Procedure
Regulatory Flexibility Act
It is hereby certified that this rule will not have significant
economic impact on a substantial number of small entities. This rule
affects only Federal employees and their immediate families.
Environmental Impact
In accordance with 40 CFR 1508.4 of the regulations of the Council
on Environmental Quality and 24 CFR 50.20(k) of the HUD regulations,
the policies and procedures contained in this rule relate only to
internal administrative procedures whose content does not constitute a
development decision nor affect the physical condition of project areas
or building sites, and therefore, are categorically excluded from the
requirements of the National Environmental Policy Act.
Executive Order 12612, Federalism
The General Counsel, as the Designated Official under section 6(a)
of Executive Order 12612, Federalism, has determined that the policies
contained in this rule will not have substantial direct effects on
States or their political subdivisions, or the relationship between the
Federal Government and the States, or on the distribution of power and
responsibilities among the various levels of government. Specifically,
this rule is only directed toward Federal employees and would not alter
the established roles of HUD and the States and local governments. As a
result, the rule is not subject to review under the order.
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 would
result from promulgation of this rule, as those policies and programs
relate to family concerns.
List of Subjects
5 CFR Part 7501
Conflict of interests, Government employees.
24 CFR Part 0
Administrative practice and procedure, Conflict of interests.
Dated: July 2, 1996.
Henry G. Cisneros,
Secretary of the Department of Housing and Urban Development.
Approved: July 2, 1996.
Stephen D. Potts,
Director, Office of Government Ethics.
For the reasons set forth in the preamble, the Department of
Housing and Urban Development, with the concurrence of the Office of
Government Ethics, is amending title 5 and title 24, subtitle A, of the
Code of Federal Regulations as follows:
TITLE 5--[AMENDED]
1. A new chapter LXV, consisting of part 7501, is added to 5 CFR to
read as follows:
CHAPTER LXV--DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
PART 7501--SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES
OF THE DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
Sec.
7501.101 Purpose.
7501.102 Definitions.
7501.103 Waivers.
7501.104 Prohibited financial interests.
7501.105 Outside employment.
7501.106 Additional rules for certain Department employees involved
in the regulation or oversight of Government sponsored enterprises.
Authority: 5 U.S.C. 301, 7301, 7351, 7353; 5 U.S.C. App. (Ethics
in Government Act of 1978); E.O. 12674, 54 FR 15159, 3 CFR, 1989
Comp., p. 215, as modified by E.O. 12731, 55 FR 42547, 3 CFR, 1990
Comp., p. 306; 5 CFR 2635.105, 2635.203(a), 2635.403(a), 2635.803,
2635.807.
Sec. 7501.101 Purpose.
In accordance with 5 CFR 2635.105, the regulations in this part
apply to employees of the Department of Housing and Urban Development
(HUD or Department) and supplement the Standards of Ethical Conduct for
Employees of the Executive Branch contained in 5 CFR part 2635.
Employees are required to comply with 5 CFR part 2635, this part, and
any additional rules of conduct that the Department is authorized to
issue.
Sec. 7501.102 Definitions.
For purposes of this part, and otherwise as indicated, the
following definitions shall apply:
Affiliate means any entity that controls, is controlled by, or is
under common control with another entity.
Agency designee, as used also in 5 CFR part 2635, means the
Associate General Counsel for Human Resources Law, the Assistant
General Counsel,
[[Page 36249]]
Ethics Law Division, and the HUD Field Office Assistant General
Counsels; the Inspector General, for employees assigned to the Office
of the Inspector General; and the General Counsel, Office of Federal
Housing Enterprise Oversight, for employees assigned to the Office of
Federal Housing Enterprise Oversight.
Agency ethics official, as used also in 5 CFR part 2635, means the
agency designees as specified above.
Assistance means any contract, grant, loan, subsidy, guarantee,
cooperative agreement or other financial assistance under a program
administered by the HUD Secretary, and includes ``assistance'' awarded
by the Department that is competitively redistributed to a second tier
of applicants or awardees. The term does not include single family
mortgage insurance provided under a program administered by the
Secretary.
Designated Agency Ethics Official (DAEO) means the General Counsel
of HUD or the Deputy General Counsel (Operations) in the absence of the
General Counsel.
Employment means any compensated or uncompensated form of non-
Federal employment or business relationship, including self employment,
involving the provision of personal services by the employee. It
includes, but is not limited to, personal services as an officer,
director, employee, agent, attorney, consultant, contractor, general
partner, trustee, teacher or speaker. It includes writing when done
under an arrangement with another person for production or publication
of the written product.
Security means all interests in debt or equity instruments. The
term includes, without limitation, secured and unsecured bonds,
debentures, notes, securitized assets and commercial paper including
loans securitized by mortgages or deeds of trust and securities backed
by such instruments, as well as all types of preferred and common
stock. The term encompasses current and contingent ownership interests
including any beneficial or legal interest derived from a trust. Such
interest includes any right to acquire or dispose of any long or short
position in such securities and also includes, without limit, interests
convertible into such securities, as well as options, rights, warrants,
puts, calls and straddles with respect thereto. The term shall not,
however, be construed to include deposit accounts.
Sec. 7501.103 Waivers.
The Designated Agency Ethics Official may waive any provision of
this part upon finding that the waiver will not result in conduct
inconsistent with 5 CFR part 2635 or otherwise prohibited by law and
that application of the provision is not necessary to ensure public
confidence in the impartiality and objectivity with which the
Department's programs are administered. Each waiver shall be in writing
and supported by a statement of the facts and findings upon which it is
based and may impose appropriate conditions, such as requiring the
employee's execution of a written disqualification statement.
Sec. 7501.104 Prohibited financial interests.
(a) General requirement. This section applies to all HUD employees
except special Government employees who are not ``covered employees''
as defined in Sec. 7501.106(b)(1) of this part. Except as provided in
paragraph (b) of this section, an employee, or an employee's spouse or
minor child, shall not directly or indirectly receive, acquire or own:
(1) Securities issued by the Federal National Mortgage Association
(FNMA) or securities collateralized by FNMA securities;
(2) Securities issued by the Federal Home Loan Mortgage Corporation
(FHLMC) or securities collateralized by FHLMC securities;
(3) Federal Housing Administration debentures or certificates of
claim;
(4) Stock or another financial interest in a multifamily project or
single family dwelling, cooperative unit, or condominium unit, which is
owned or subsidized by the Department, or which is subject to a note or
mortgage or other security interest insured by the Department, except
to the extent that the stock or other interest represents the
employee's principal residence. Employees who wish to purchase a
Department-held property as a principal residence must adhere to the
procedures established by the Assistant Secretary for Housing for the
administration of the property disposition program set forth in HUD
Handbook 4310.5;
(5) Any Department subsidy provided pursuant to Section 8 of the
United States Housing Act of 1937, as amended, (42 U.S.C. 1437f) to or
on behalf of a tenant of property owned by the employee. However, an
employee may receive such a subsidy when:
(i) The employee acquires without specific intent, as through gift
or inheritance, a property which at the time of acquisition has a
tenant receiving such a subsidy, but only as long as that tenant
continues to reside in the property;
(ii) An incumbent tenant who has not previously received such a
subsidy becomes the beneficiary thereof, but only if there is no
increase in that tenant's rent upon the commencement of subsidy
payments other than normal annual adjustments; or
(iii) The tenant is the parent, child, grandchild, or sibling of
the employee, but only if there is no increase in that tenant's rent
upon the commencement of subsidy payments other than normal annual
adjustments; or
(6) Any direct creditor interest in a mortgage insured by the
Department.
(b) Exception to prohibition for certain interests. Nothing in this
section prohibits an employee, or the spouse or minor child of an
employee, from acquiring, owning, or controlling:
(1) An interest in a publicly traded or publicly available
investment fund which, in its prospectus, does not indicate the
objective or practice of concentrating its investments in resi dential
mortgages or securities backed by residential mortgages, except those
of the Government National Mortgage Association (GNMA), and the
employee neither exercises control nor has the ability to exercise
control over the financial interests held in the fund;
(2) A limited partnership interest in a partnership which has at
least 5,000 partnership interests, and no more than 25% of the gross
value of the partnership interest constitutes projects subject to HUD
held or insured mortgages or projects currently receiving the benefit
of HUD subsidies; or
(3) Mortgage insurance provided pursuant to section 203 of the
National Housing Act (12 U.S.C. 1709) on the employee's principal
residence and any one other single family residence.
(c) Reporting and divestiture. An employee must report, in writing,
to the appropriate agency ethics official, any interest prohibited
under paragraph (a) of this section acquired prior to the commencement
of employment with the Department or without specific intent, as
through gift, inheritance, or marriage, within 30 days from the start
of employment or acquisition of such interest. Such interest must be
divested within 90 days from the date reported unless waived by the
Designated Agency Ethics Official in accordance with Sec. 7501.103.
Sec. 7501.105 Outside employment.
(a) Prohibited outside employment. Subject to the exceptions set
forth in paragraph (b) of this section, HUD employees, except special
Government employees, shall not engage in:
(1) Employment involving active participation in a business dealing
with or related to real estate or manufactured
[[Page 36250]]
housing including but not limited to real estate brokerage, management
and sales, architecture, engineering, mortgage lending, property
insurance, appraisal services, construction, construction financing,
land planning, or real estate development;
(2) Employment with a person, other than a State or local
government, who engages in lobbying activities concerning Department
programs or who is required to report expenditures for lobbying
activities or register as a lobbyist under 42 U.S.C. 3537b or similar
statutes which require the registration of persons who attempt to
influence the decisions of officers or employees of the Department;
(3) Employment as an officer or director of a person who is a
Department-approved mortgagee, a lending institution or an organization
which services securities for the Department; or
(4) Employment with the Federal National Mortgage Association, the
Federal Home Loan Mortgage Corporation, the Federal Home Loan Bank
System or any affiliate thereof.
(b) Exceptions to employment prohibitions. The prohibitions set
forth in paragraph (a) of this section do not apply to serving as an
officer or a member of the Board of Directors of:
(1) A Federal Credit Union;
(2) A cooperative or condominium association for a housing project
which is not subject to regulation by the Department or, if so
regulated, in which the employee personally resides; or
(3) An entity designated in writing by the Designated Agency Ethics
Official.
(c) Prior approval requirement. (1) Employees, except special
Government employees, shall obtain the prior written approval of an
Agency Ethics Official before accepting compensated or uncompensated
employment:
(i) As an officer, director, trustee, or general partner of, or in
any other position of authority with, either a for-profit or non profit
organization which directly or indirectly receives assistance from the
Department.
(ii) With a State or local government; or
(iii) In the same professional field as that of the employee's
official position.
(2) Approval shall be granted unless the conduct is inconsisent
with 5 CFR part 2635 or this part.
(d) Voluntary services. Subject to the restrictions and
requirements contained in the conflict of interest laws, 5 CFR part
2635, and this part, employees are encouraged to volunteer their
personal time to nonprofit organizations.
Note to Sec. 75.105: An employee assigned to serve in an
official capacity as the Department's liaison representative to an
outside organization is not engaged in an outside activity to which
this section applies. Notwithstanding, an employee may be assigned
to serve as the Department's liaison representative only as
authorized by law, and as approved by the Department under
applicable procedures.
Sec. 7501.106 Additional rules for certain Department employees
involved in the regulation or oversight of Government sponsored
enterprises.
(a) The following rules apply to certain Department employees whose
duties involve the regulation or oversight of Government Sponsored
Enterprises, specifically the Federal National Mortgage Association
(FNMA) and the Federal Home Loan Mortgage Corporation (FHLMC). This
section is in addition to Secs. 7501.101 to 7501.105.
(b) Definitions. For purposes of this section, the following
definitions are applicable:
(1) Except as provided in paragraph (b)(2) of this section,
``covered employee'' means all employees in the Office of Federal
Housing Enterprise Oversight and employees required to file a public or
confidential financial disclosure report under 5 CFR part 2634 in:
(i) The Office of the HUD Secretary, with the exception of the
Office of Lead-Based Paint Abatement and Poisoning Prevention;
(ii) The Office of the Assistant Secretary for Housing--Federal
Housing Commissioner;
(iii) The Office of Financial Institutions Regulation in the Office
of the Assistant Secretary for Policy Development and Research;
(iv) The Offices of Investigation, Program Standards and
Evaluation, and Regulatory Initiatives and Federal Coordination within
the Office of the Assistant Secretary for Fair Housing and Equal
Opportunity;
(v) The Office of General Counsel's Offices of Insured Housing,
Government Sponsored Enterprises/Real Estate Settlement and Procedures
Act Division in Finance and Regulatory Enforcement, Legislation and
Regulations, and the Fair Housing Enforcement Division;
(vi) The Office of Inspector General;
(vii) The official superiors of the employees listed in paragraphs
(b)(1)(iii), (b)(1)(iv) and (b)(1)(v) of this section;
(viii) Any other employee who is designated in writing by the
Secretary, the Designated Agency Ethics Official, or the appropriate
individual of Assistant Secretary rank, or his or her designee, to
ensure compliance with the principles set forth in 5 CFR 2635.403 and
who receives notice of such designation.
(2) The DAEO, upon recommendation of the appropriate individual of
Assistant Secretary rank, may exclude in writing an employee otherwise
designated as a ``covered employee'' under Sec. 7501.106(b)(1)(i)-(vii)
of this part if the employee's official duties do not substantially
involve the regulation or oversight of Government sponsored enterprises
and ownership of interests prohibited by Sec. 7501.106(c) would not
cause a reasonable person to question the impartiality and objectivity
with which the Department's programs are administered.
(3) Mortgage institution means mortgage bankers, mortgage brokers,
banks, savings and loans, and other institutions or entities that
originate, insure, or service mortgages that are owned or guaranteed by
the Federal National Mortgage Association (FNMA) or the Federal Home
Loan Mortgage Corporation (FHLMC).
(c) Prohibited financial interests. (1) Except as provided in
paragraph (c)(2) of this section, a covered employee, or a spouse or
minor child of a covered employee, shall not receive, acquire, or own
securities of:
(i) A mortgage institution if more than 20 percent of the
institution's assets consist of mortgages;
(ii) A mortgage institution in which 20 percent or less of the
institution's assets consist of mortgages and more than 40 percent of
the mortgages originated by the institution are issued, collateralized,
sold or guaranteed by FNMA and/or FHLMC; or
(iii) A mortgage institution which services or insures mortgages if
more than 20 percent of the gross income of such institution is derived
from either or both of these activities.
(2) The prohibitions in paragraph (c)(1) of this section do not
apply to ownership of securities held in a publicly traded or publicly
available investment fund, or profit-sharing, retirement, or similar
plan which in its prospectus or governing documents does not indicate
the objective or practice of concentrating its investments in the
financial services sector, and the employee neither exercises control
nor has the ability to exercise control over the financial interests
held in the fund.
(3) The mortgage institution's most recent annual financial
statement shall be used in determining the applicability of the
prohibitions in paragraph (c)(1) of this section.
(d) Restrictions arising from third party relationships. If any of
the entities listed below has securities that a covered employee would
be prohibited from owning by paragraph (c) of this section, the
employee shall report such
[[Page 36251]]
interest to the appropriate Agency Ethics Official. The Agency Ethics
Official may require the employee to terminate the third party
relationship, undertake an appropriate disqualification, or take other
appropriate action determined to be necessary consistent with 5 CFR
part 2635 and this part. This paragraph applies to a:
(1) Partnership in which the covered employee, or a spouse or minor
child of the employee is a general partner;
(2) Partnership in which the covered employee, or spouse or minor
child of the employee, individually or jointly holds more than a 10
percent limited partnership interest;
(3) Closely held corporation in which the covered employee, or
spouse or minor child of the employee, individually or jointly holds
more than a 10 percent equity interest;
(4) Trust in which the covered employee, or spouse or minor child
of the employee, has a legal or beneficial interest;
(5) Investment club or similar informal investment arrangement
between the covered employee, or spouse or minor child of the employee,
and others; or
(6) Other entity in which the covered employee, or spouse or minor
child of the employee, individually or jointly holds more than a 10
percent equity interest.
(e) Prohibited outside employment. Covered employees shall not
engage in employment with or on behalf of the Federal National Mortgage
Association, the Federal Home Loan Mortgage Corporation, a mortgage
institution, or any of their affiliates.
(f) Prohibited recommendations. Covered employees shall not make
any recommendation or suggestion, directly or indirectly, concerning
the acquisition, sale, or divestiture of securities of FHLMC or FNMA.
(g) Prohibited purchase of assets. Covered employees, their spouses
or minor children shall not purchase, directly or indirectly, any real
or personal property from FHLMC or FNMA, unless it is sold at public
auction or by other means which would assure that the selling price is
the asset's fair market value.
(h) Pre-existing interests. Covered employees must report, in
writing, to the appropriate Agency Ethics Official, any interest
prohibited under paragraph (c) of this section acquired prior to either
the commencement of employment as a covered employee or the effective
date of this part, or acquired without specific intent, as through
gift, inheritance, or marriage, within 30 days from the start of
covered employment or acquisition of such interest. Such interest must
be divested within 90 days from the date it is reported unless waived
by the Designated Agency Ethics Official in accordance with
Sec. 7501.103.
TITLE 24--[AMENDED]
SUBTITLE A--OFFICE OF THE SECRETARY, DEPARTMENT OF HOUSING AND URBAN
DEVELOPMENT
PART O--STANDARDS OF CONDUCT
2. In Part 0 of 24 CFR subtitle A, Sec. 0.1 is revised to read as
follows:
Sec. 0.1 Cross-reference to employees ethical conduct standards and
financial disclosure regulations.
Employees of the Department of Housing and Urban Development
(Department) are subject to the executive branch-wide standards of
ethical conduct at 5 CFR part 2635, the Department's regulation at 5
CFR part 7501 which supplements the executive branch-wide standards,
and the executive branch-wide financial disclosure regulation at 5 CFR
part 2634.
Authority: 5 U.S.C. 301, 7301; 42 U.S.C. 3535(d).
[FR Doc. 96-17450 Filed 7-8-96; 8:45 am]
BILLING CODE 4210-32-P
Complete official Federal Register PDF
FR Doc. 96-17447 Removal of 10 CFR Part 53Criteria and Procedures for Determining the Adequacy of Available Spent Nuclear Fuel Storage Capacity
[Federal Register Volume 61, Number 132 (Tuesday, July 9, 1996)]
[Rules and Regulations]
[Pages 35935-35936]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-17447]
=======================================================================
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NUCLEAR REGULATORY COMMISSION
10 CFR Part 53
RIN 3150-AF47
Removal of 10 CFR Part 53--Criteria and Procedures for
Determining the Adequacy of Available Spent Nuclear Fuel Storage
Capacity
AGENCY: Nuclear Regulatory Commission.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Nuclear Regulatory Commission (NRC) is amending its
regulations to remove provisions concerning the ``Criteria and
Procedures for Determining the Adequacy of Available Spent Nuclear Fuel
Storage Capacity'' from the Code of Federal Regulations. This Part of
the Commission's regulations is no longer applicable because the
statutory timeframe for its implementation has expired.
DATE: This final rule is effective on August 8, 1996.
FOR FURTHER INFORMATION CONTACT: Gordon Gundersen, Office of Nuclear
Regulatory Research, U.S. Nuclear Regulatory Commission, Washington, DC
20555-0001, telephone (301) 415-6195.
SUPPLEMENTARY INFORMATION:
Background
10 CFR Part 53 established procedures for nuclear power plant
owners to follow for obtaining a determination from the NRC that the
plant can not provide adequate spent nuclear fuel storage capacity. The
regulations in this part established procedures and criteria for making
the determination required by section 135(b) of the Nuclear Waste
Policy Act of 1982 (96 Stat. 2201 and 2233) that an owner or operator
of a civilian nuclear power reactor could not reasonably provide
adequate spent nuclear fuel storage capacity at the reactor site, or at
any other reactor it operates, when needed to ensure the continued
orderly operation of the reactor. These regulations also required that
the owner or operator diligently pursue licensed alternatives to the
use of Federal storage capacity for the storage of spent nuclear fuel
expected to be generated in the future.
Civilian nuclear power reactor operators who wanted the Commission
to make a determination under 10 CFR Part 53 had to file a request by
June 30, 1989. The Commission was to process the request and make a
determination before January 1, 1990. Section 53.11(b) placed a time
limitation of June 30, 1989 (with an outside date of January 1, 1990
for special circumstances), on the filing of requests for a Commission
determination on the adequacy of available spent fuel storage capacity.
This was based on the January 1, 1990, limitation in Section 136(a) of
the Nuclear Waste Policy Act on the ability of Department of Energy to
enter into contracts for the interim storage of spent fuel based on a
Commission determination. These dates have long passed and this Part of
the Commission's regulations is no longer applicable because the
statutory timeframe for its implementation has expired.
The storage of spent nuclear fuel at NRC licensed nuclear power
plants is not affected by removing 10 CFR Part 53 because 10 CFR Part
50 provides the regulatory basis for licensing both wet and dry modes
of spent fuel storage at nuclear power reactors. 10 CFR Part 72
provides the regulatory basis for licensing spent nuclear fuel storage
in Independent Spent Fuel Storage Installations or Monitored
Retrievable Storage Installations. These regulations are not affected
by the removal of 10 CFR Part 53.
In accordance with 10 CFR 2.804(d)(2) of the Commission's
regulations, the Commission is issuing a final rule withdrawing 10 CFR
Part 53, rather than using the normal notice and comment process for
agency rulemakings. In this case, the Commission finds that there is
good cause to dispense with notice and public comment as unnecessary.
As noted above, the statutory time period within which Federal interim
storage under this rule could be implemented has long passed, and the
Commission has no discretion to entertain any requests for Federal
interim storage under this rule. Furthermore, little interest has been
shown in the interim
[[Page 35936]]
storage procedures in 10 CFR Part 53, and the Commission received no
requests for interim storage since its promulgation in 1985. Under
these circumstances, the Commission believes that public comment is
unnecessary. The action will become effective on August 8, 1996.
Environmental Impact: Categorical Exclusion
The NRC has determined that this final rule is the type of action
described in categorical exclusion 10 CFR 51.22(c)(2). Therefore,
neither an environmental impact statement nor an environmental
assessment has been prepared for this final rule.
Paperwork Reduction Act Statement
This final rule contains no information collection requirements
and, therefore, is not subject to the requirements of the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501 et seq.). Existing requirements,
which are being discontinued, were approved by the Office of Management
and Budget, approval number 3150-0126.
Public Protection Notification
The NRC may not conduct or sponsor, and a person is not required to
respond to, a collection of information unless it displays a currently
valid OMB control number.
Regulatory Analysis
A regulatory analysis has not been prepared for this final rule
because this final rule is considered a minor, non-substantive
amendment and has no economic impact on NRC licensees or the public.
Small Business Regulatory Enforcement Act
In accordance with the Small Business Regulatory Enforcement
Fairness Act of 1996, the NRC has determined that this action is not a
major rule and has verified this determination with the Office of
Information and Regulatory Affairs of OMB.
Backfit Analysis
The NRC has determined that the backfit rule, 10 CFR 50.109 does
not apply to this final rule because these amendments do not involve
any provisions which would impose backfits as defined in 10 CFR
50.109(a)(1). Therefore, a backfit analysis is not required for this
final rule.
List of Subjects in 10 CFR Part 53
Administrative practice and procedure, High-level waste, Nuclear
materials, Nuclear power plants and reactors, Reporting and
recordkeeping requirements, Spent fuel, Waste treatment and disposal.
PART 53--[REMOVED]
For the reasons set out in the preamble and under the authority of
the Atomic Energy Act of 1954 (42 U.S.C. 2201), as amended; the Energy
Reorganization Act of 1974 (42 U.S.C. 5841), as amended; and 5 U.S.C.
552 and 553; the NRC is removing 10 CFR Part 53.
Dated at Rockville, Maryland, this 25th day of June 1996.
For the Nuclear Regulatory Commission.
James M. Taylor,
Executive Director for Operations.
[FR Doc. 96-17447 Filed 7-8-96; 8:45 am]
BILLING CODE 7590-01-P
Complete official Federal Register PDF
FR Doc. 96-17444 Management of Wild Free-Roaming Horses and Burros
[Federal Register Volume 61, Number 132 (Tuesday, July 9, 1996)]
[Rules and Regulations]
[Pages 35959-35960]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-17444]
=======================================================================
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DEPARTMENT OF AGRICULTURE
Forest Service
36 CFR Part 222
Management of Wild Free-Roaming Horses and Burros
AGENCY: Forest Service, USDA.
ACTION: Correction.
-----------------------------------------------------------------------
SUMMARY: The Forest Service is amending regulations for management of
wild free-roaming horses and burros to correct a citation that was
redesignated when the agency amended regulations for impoundment and
disposal of unauthorized livestock. This rulemaking is identified as an
agency action under the USDA Regulatory Reform initiative.
EFFECTIVE DATE: This rule is effective July 9, 1996.
FOR FURTHER INFORMATION CONTACT:
Ralph Giffen, Range Management Staff, Forest Service, USDA, P.O. 96090,
Washington, D.C. 20090-6090, (202) 205-1460.
SUPPLEMENTARY INFORMATION: While reviewing current regulations as part
of the President's Regulatory Reform Initiative, an agency review team
identified an incorrect citation in the wild horse and burro management
regulations. This technical amendment corrects that citation.
On April 9, 1980, at 45 FR 24135, the Secretary of Agriculture
established final regulations for the Management of Wild and Free-
Roaming Horses and Burros at 36 CFR Part 222, Subpart B. Section 222.23
of that rule cited Sec. 262.2 of the same Title as the authority for
the impoundment and removal of unauthorized livestock on National
Forest System lands. By issuance of final regulations on June 9, 1983
(48 FR 26605), Sec. 262.2 was redesignated Sec. 262.10. Currently
regulations at Sec. 262.10 of Title 36 provide for impoundment and
disposal of unauthorized livestock on National Forest System lands. The
Forest Service is correcting this citation by amending Title 36 of the
Code of Federal Regulations, Part 222, Subpart B.
As a technical amendment, this final rule is not subject to review
under Executive Orders 12630, 12778, or 12866.
List of Subjects in 36 CFR Part 222
Grazing lands, Livestock, National forests, National grasslands,
Range management, and Wildlife.
Therefore, for the reasons set forth in the preamble, Part 222 of
Title 36 of the Code of Federal Regulations is hereby amended as
follows:
PART 222--[AMENDED]
Subpart B--Management of Wild Free-Roaming Horses and Burros
1. The authority citation for Subpart B of Part 222 continues to
read as follows:
Authority: 85 Stat. 649, as amended 16 U.S.C. 1331-1340); sec.
1, 30 Stat. 35, as amended (16 U.S.C. 551); sec. 32, 50 Stat. 522,
as amended (7 U.S.C. 1011); 92 Stat. 1803 (43 U.S.C. 1901 note).
2. Revise section 222.23 to read as follows:
Sec. 222.23 Removal of other horses and burros.
Horses and burros not within the definition in Sec. 222.20(b)(13)
which are
[[Page 35960]]
introduced onto Wild Horse and Burro Territories or ranges after
December 15, 1971, by accident, negligence, or willful disregard of
private ownership, and which do not become intermingled with wild free-
roaming horses or burros shall be considered as unauthorized livestock
and treated in accordance with provisions in 36 CFR 261.7 and 262.10.
Dated: June 28, 1996.
David G. Unger,
Associate Chief.
[FR Doc. 96-17444 Filed 7-8-96; 8:45 am]
BILLING CODE 3410-11-M
Complete official Federal Register PDF
FR Doc. 96-17443 Sale and Disposal of National Forest System Timber; Subpart E Federal Timber Contract Payment Modification Program
[Federal Register Volume 61, Number 132 (Tuesday, July 9, 1996)]
[Rules and Regulations]
[Page 35960]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-17443]
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DEPARTMENT OF AGRICULTURE
36 CFR Part 223
Sale and Disposal of National Forest System Timber; Subpart E--
Federal Timber Contract Payment Modification Program
AGENCY: Forest Service, USDA.
ACTION: Final rule; technical amendment.
-----------------------------------------------------------------------
SUMMARY: The Forest Service is amending its regulations on timber sale
contracts to remove the subpart on Federal timber contract payment
modification program. Originally required to implement the Federal
Timber Contract Payment Modification Act of 1984, these regulations
were reviewed during the regulatory reform phase II initiative of the
National Performance Review and determined to be obsolete.
EFFECTIVE DATE: July 9, 1996.
FOR FURTHER INFORMATION CONTACT:
Jim Naylor, Timber Management Staff, Forest Service, USDA, P.O. Box
96090, Washington, D.C. 20090-6090, (202) 205-0858.
SUPPLEMENTARY INFORMATION:
Background
The Federal Timber Contract Payment Modification Act of October 16,
1984, (16 U.S.C. 618) authorized and directed the Secretaries of
Agriculture and the Interior to release a timber sale purchaser from
specified contractual obligations thereby returning to the Government
certain timber sale contracts.
Speculative bidding in the early 1980's, followed by a substantial
drop in the forest products market, left may timber purchasers in high
risk of defaulting timber sale contracts and having to declare
bankruptcy.
The Act allowed purchasers of national forest timber to return to
the Government a certain number of timber sale contracts upon payment
of a ``buy-out charge.''
The final rule to implement the Federal Timber Contract Payment
Modification Act was published in the Federal Register on June 27,
1985, at 50 FR 26666. Under this regulation, purchasers were required
to apply for contract buyout within 90 days of the published date of
the rule. All of the contracts governed by this regulation are closed.
Also, the emergency rate redetermination in Alaska rules, which were
part of Subpart E, are no longer applicable. Therefore, these rules are
no longer needed and by this amendment are removed from the Code of
Federal Regulations. Because of the narrow scope and limited effect of
this action, the Agency has determined that this amendment is a
technical amendment for which notice and comment pursuant to the
Administrative Procedures Act (5 U.S.C. 553) is neither practical nor
necessary.
Regulatory Impact
This rule is a technical amendment to remove obsolete regulations
and, as such, has no substantive effect nor is it subject to review
under USDA procedures and Executive Order 12866 on Regulatory Planning
and Review. Accordingly, this rule is not subject to OMB review under
Executive Order 12866.
Moreover, good cause exists to exempt this rule from notice and
comment pursuant to 5 U.S.C. 553 and, therefore, this rule is exempt
from further analysis under the Unfunded Mandates Reform Act of 1995;
Executive Order 12778, Civil Justice Reform; Executive Order 12630,
Takings Implications; or The Paperwork Reduction Act of 1995.
Environmental Impact
This action falls within a category of actions excluded from
documentation in an Environmental Impact Statement and an Environmental
Assessment. Section 31.1b of Forest Service Handbook 1909.15 (57 FR
43180; September 18, 1992) excludes from documentation in an
environmental assessment or impact statement ``rules, regulations, or
policies to establish Service-wide administrative procedures, program
processes, or instructions.'' The agency's assessment is that this
final technical rule falls within this category of actions and that no
extraordinary circumstances exist which would require preparation of an
environmental assessment or environmental impact statement.
List of Subjects in 36 CFR Part 223
Exports, Government contracts, National forests, Reporting
requirements, and Timber sales.
Therefore, for the reasons set forth in the preamble, Part 223 of
Title 36 of the Code of Federal Regulations is hereby amended as
follows:
PART 223--SALE AND DISPOSAL OF NATIONAL FOREST SYSTEM TIMBER
1. The authority citation for part 223 continues to read as
follows:
Authority: 90 Stat. 2958, 16 U.S.C. 472a; 98 Stat. 2213, 16
U.S.C. 618; 104 Stat. 714-726, 16 U.S.C. 620-620h, unless otherwise
noted.
Subpart E--[Removed and Reserved]
2. Remove and reserve Subpart E consisting of sections 223.170-
223.183.
Dated: June 28, 1996.
David G. Unger,
Associate Chief.
[FR Doc. 96-17443 Filed 7-8-96; 8:45 am]
BILLING CODE 3410-11-M
Complete official Federal Register PDF
FR Doc. 96-17404 Bell Operating Company Provision of Out-of-Region Interstate, Interexchange Services
[Federal Register Volume 61, Number 132 (Tuesday, July 9, 1996)]
[Rules and Regulations]
[Pages 35964-35971]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-17404]
=======================================================================
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Chapter I
[CC Docket No. 96-21, FCC 96-288]
Bell Operating Company Provision of Out-of-Region Interstate,
Interexchange Services
AGENCY: Federal Communications Commission.
ACTION: Interim rule.
-----------------------------------------------------------------------
SUMMARY: In this Report and Order, the Commission facilitates the
efficient and rapid provision of out-of-region, domestic, interstate,
interexchange services by the BOCs, as contemplated by the
Telecommunications Act of 1996 (1996 Act), while still protecting
ratepayers and competition in the interexchange market, by removing
dominant regulation for BOCs that provide such services through an
affiliate that complies with certain safeguards. These safeguards are
the same as those that have applied for more than ten years to
affiliates of independent local exchange companies (LECs) (i.e.,
exchange telephone companies, including GTE, other than the BOCs) that
are regulated as non-dominant interexchange carriers under the rules
established in the Competitive Carrier proceeding. These rules will
permit the rapid entry by the BOCs into the provision of out-of-region
interstate, interexchange services while providing protection against
anticompetitive conduct.
EFFECTIVE DATE: August 8, 1996.
FOR FURTHER INFORMATION CONTACT: Michael Pryor (202) 418-0495 or
Melissa Waksman (202) 418-0913, Common Carrier Bureau, Policy and
Program Planning Division.
SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's
Report and Order adopted on June 28, 1996, and released on July 1,
1996, FCC 96-288. The full text of this Report and Order is available
for inspection and copying during normal business hours in the FCC
Reference Center (Room
[[Page 35965]]
239), 1919 M St., N.W., Washington, DC. The complete text also may be
purchased from the Commission's copy contractor, International
Transcription Service, Inc., (202) 857-3800, 2100 M St., NW., Suite
140, Washington, DC 20037.
Paperwork Reduction: Public burden for this recordkeeping
requirement is estimated to average 6056 hours per response, including
the time for reviewing instructions, searching existing data sources,
gathering and maintaining the data needed, and completing and reviewing
the collection of information. Send comments regarding this burden
estimate or any other aspect of this recordkeeping requirement,
including suggestions for reducing the burden, to the Federal
Communications Commission, Records Management Branch, Paperwork
Reduction Project, Washington, D.C. 20554 and to the Office of
Management and Budget, Paperwork Reduction Project, Washington, D.C.
20503.
Synopsis of Notice of Proposed Rulemaking
I. Introduction
1. In enacting the Telecommunications Act of 1996 (1996 Act), Pub.
L. No. 104-104, 110 Stat. 56 (1996) codified at 47 U.S.C. Secs. 151 et
seq, Congress sought to establish ``a pro-competitive, de-regulatory
national policy framework'' for the United States telecommunications
industry. The 1996 Act, among other things, provided that upon
enactment the Bell Operating Companies (BOCs) could provide interLATA
telecommunications services originating outside of their in-region
states. In response to the new legislation, the Commission released, on
February 14, 1996, a Notice of Proposed Rulemaking, 61 FR 6607 (Feb.
21, 1996), in which the Commission proposed an interim regime to govern
the BOCs' provision of out-of-region domestic, interstate,
interexchange service. The Notice addressed all ``out-of-region''
interstate, interexchange services (including interLATA and intraLATA
services). Eighteen parties filed comments and thirteen parties filed
reply comments.
2. Under our existing rules, BOC provision of out-of-region,
interstate, interexchange services is subject to dominant carrier
regulation. In order to facilitate the efficient and rapid provision of
out-of-region, domestic, interstate, interexchange services by the
BOCs, as contemplated by the 1996 Act, while still protecting
ratepayers and competition in the interexchange market, we remove
dominant regulation for BOCs that provide out-of-region, interstate,
interexchange services through an affiliate that complies with certain
safeguards. These safeguards are the same as those that have applied
for more than ten years to affiliates of independent local exchange
companies (LECs) that are regulated as non-dominant interexchange
carriers under the rules established in the Competitive Carrier
proceeding. The safeguards require that the affiliate: (1) maintain
separate books of account from the LEC; (2) not jointly own
transmission or switching facilities with the LEC; and (3) take any
tariffed services from the affiliated LEC pursuant to the terms and
conditions of the LEC's generally applicable tariff. We also conclude
that a BOC affiliate providing out-of-region, domestic, interstate,
interexchange services should be treated, for purposes of the BOCs'
accounting, as a nonregulated affiliate under the Commission's joint
cost and affiliate transactions rules, just as independent LEC
affiliates are now treated.
3. The regime adopted in this Report and Order is expressly
designed as an interim measure to facilitate the BOCs' prompt provision
of out-of-region, domestic, interstate, interexchange services. In
March 1996, the Commission sought comment in the Interexchange NPRM, on
whether to modify or eliminate these affiliate requirements as a
condition for non-dominant treatment of independent LEC provision of
out-of-region, interstate, interexchange services. We also sought
comment on whether, if we modify or eliminate these requirements for
independent LECs, we should also eliminate or modify our treatment of
BOC out-of-region, interstate, interexchange services. We will
establish final rules for BOC out-of-region, interstate, interexchange
services in that proceeding.
II. Background
A. The Competitive Carrier Proceeding
4. Between 1979 and 1985, the Commission conducted the Competitive
Carrier proceeding, in which it examined how its regulations should be
adapted to reflect and facilitate the increasing competition in
telecommunications markets. In a series of orders, the Commission
distinguished between carriers with market power (dominant carriers)
and those without market power (non-dominant carriers). The Commission
gradually relaxed its regulation of non-dominant carriers because it
concluded that non-dominant carriers lacked the incentive and ability
to engage in conduct that might be anticompetitive or otherwise
inconsistent with the public interest.
5. In its First Report and Order, 45 FR 52453, November 18, 1980,
the Commission classified AT&T and its then-affiliated local exchange
companies as well as independent local exchange companies as dominant
carriers and concluded that these dominant carriers should be subject
to the ``full panoply'' of Title II regulation. Recently, in light of
increasing competition in the interstate, domestic, interexchange
telecommunications market, and evidence that AT&T no longer possesses
the ability to control prices unilaterally, the Commission reclassified
AT&T as a non-dominant carrier in that market.
6. In its Fourth Report and Order, 48 FR 52452, November 1983, the
Commission considered how it should regulate the provision of
interstate, interexchange services by independent LECs. Because the
Modification of Final Judgment, United States v. Western Elec. Co., 552
F. Supp. 131 (D.D.C. 1982), aff'd. sub nom., Maryland v. United States,
460 U.S. 1001 (1983), prohibited BOCs from offering interLATA services,
the Fourth Report and Order addressed only the interstate,
interexchange offerings of independent LECs. The Commission determined
that interexchange carriers affiliated with independent LECs would be
regulated as non-dominant carriers. In the Fifth Report and Order, 49
FR 34824, September 4, 1984, the Commission explained its definition of
the term ``affiliate'' as ``a carrier that is owned (in whole or in
part) or controlled by, or under common ownership (in whole or in part)
or control with, an exchange telephone company,'' and identified three
separation requirements that the affiliate must meet in order to
qualify for non-dominant treatment. These requirements are that the
affiliate: (1) maintain separate books of account; (2) not jointly own
transmission or switching facilities with the LEC; and (3) if it uses
the LEC's services, it should acquire them via the LEC's tariffs. The
Commission further concluded that, if the LEC provided interstate,
interexchange services directly, rather than through an affiliate,
those services would be subject to dominant carrier regulation.
7. The Fifth Report and Order also addressed the regulation of the
BOCs' provision of interLATA services:
The BOCs currently are barred by the [Modification of Final
Judgment] from providing interLATA services. . . . If this bar is
lifted in the future, we would regulate the BOCs' interstate,
interLATA services as dominant until we determined what degree
[[Page 35966]]
of separation, if any, would be necessary for the BOCs or their
affiliates to qualify for nondominant regulation.
B. The 1996 Act and the BOC Out-of-Region Notice of Proposed Rulemaking
10. Section 271(b)(2), added by the 1996 Act, provides:
A Bell operating company, or any affiliate of that Bell
operating company, may provide interLATA services originating
outside its in-region States after the date of enactment of the
Telecommunications Act of 1996, subject to subsection (j).
Thus, the 1996 Act does not require a BOC to obtain Commission
authorization prior to offering out-of-region, interstate, interLATA
services. The 1996 Act, however, does not modify the Commission's
determination in the Fifth Report and Order that BOC provision of
interstate, interLATA services initially would be subject to dominant
carrier regulation.
11. Immediately after the 1996 Act became law, we issued the BOC
Out-of-Region NPRM, in which we proposed, under certain conditions, to
remove dominant carrier regulation of the BOCs' provision of out-of-
region, interstate, interexchange services. In our Notice, we
tentatively concluded that, as an interim measure, if a BOC creates an
affiliate to provide out-of-region, interstate, interexchange services
(including interLATA and intraLATA services), and if the affiliate
satisfies the minimal separation requirements set forth in the Fifth
Report and Order that apply to the interexchange affiliates of
independent LECs, then the BOC affiliate's provision of those
interexchange services would be regulated on a non-dominant basis. We
also noted that LECs providing interexchange services through
affiliates pursuant to the Fifth Report and Order treat those
affiliates as nonregulated affiliates under the Commission's joint cost
rules and affiliate transactions rules for exchange carrier accounting
purposes. In our Notice, we sought comment on whether a BOC affiliate
providing out-of-region, interstate, interexchange services also should
be treated as a nonregulated affiliate for BOC accounting purposes.
Finally, we tentatively concluded that, at least for now, if a BOC
provides out-of-region, interstate, interexchange services directly, or
through an affiliate that fails to comply with these minimal separation
requirements, then dominant carrier regulation would be retained for
those services.
III. Discussion
A. The Purpose of the Interim Rules
12. This proceeding is necessary to enable the BOCs to begin
competing in an out-of-region area in the interexchange market on a
non-dominant basis. Currently, BOC provision of interstate,
interexchange service is subject to dominant carrier regulation until
we determine the degree of separation, if any, necessary for non-
dominant treatment. Thus, BOC out-of-region services would be subject
to dominant regulation, whether those services were offered directly by
the BOC or through another entity, no matter how structurally separate
from the BOC. We take no position in this proceeding on whether the
structural separation requirements, other safeguards established by the
1996 Act, and our existing regulations that would apply to BOC
provision of in-region services are sufficient to allow us to relax
dominant carrier regulation for the separate subsidiaries through which
the BOCs must provide in-region, interLATA services. See 47 U.S.C.
Sec. 272. We will address that issue in a separate proceeding.
13. In our Notice, we tentatively concluded that we could remove
dominant carrier regulation of BOC out-of-region, interstate,
interexchange services by applying to the BOCs the same rules that have
worked well for independent LECs. These rules were specifically
designed to impose minimal burdens on the smaller, independent LECs,
and thus are less stringent than the structural separation required
under our Computer II regime, and contain fewer restrictions than
imposed by the 1996 Act for BOC provision of in-region, interLATA
services. At the same time, the Commission found in the Fifth Report
and Order that these separation requirements provided some protection
against anticompetitive abuses that could arise from the LECs' control
over local bottleneck facilities.
14. Because we believe that we should move expeditiously in order
to advance the goals of the 1996 Act, we specifically stated in the
Notice that the actions we take in this proceeding would be interim. By
applying the well-established rules applicable to independent LECs as
an interim measure, we are able to: remove dominant carrier regulation
for BOC out-of-region, interstate, interexchange services, thereby
facilitating prompt and competitive entry by the BOCs into those
services; have the same level of assurance of protecting competition
and ratepayers as we have with independent LECs and their interexchange
affiliates; and avoid engaging in a protracted proceeding. We have
already issued a Notice in which we initiate a more comprehensive
review of the rules that are applicable to both independent LECs and
the BOCs in the provision of out-of-region, interstate, interexchange
services. In the Interexchange NPRM, we sought comment on whether it
may be appropriate to modify or eliminate the minimal separation
requirements applied to independent LEC affiliates providing
interstate, interexchange services originating outside of their local
exchange areas. We also sought comment on whether, if we do modify or
eliminate such requirements for independent LECs, we should apply the
same requirements to BOC provision of out-of-region, interstate,
interexchange services. We will finalize our rules governing both BOC
and independent LEC provision of out-of-region, interstate,
interexchange services in that proceeding.
B. Non-dominant Classification for BOC Affiliates
15. The record does not dissuade us from proceeding on an interim
basis as proposed in the Notice. NYNEX and Pactel support, as an
interim measure, adoption of the BOC Out-of-Region NPRM's tentative
conclusions, including use of the Commission's joint cost and affiliate
transactions rules. NYNEX contends that the proposed rules are ``an
excellent first regulatory step that the Commission can take promptly
to enable BOC entry into the long distance service markets.'' Pactel
supports the rules as a method of ensuring regulatory parity among all
exchange companies, BOCs and independent LECs, even though Pactel
disputes that the BOCs have market power in the interexchange market.
16. The remaining BOCs object to removing dominant regulation only
for affiliates meeting the Fifth Report and Order requirements and
contend that out-of-region, interstate, interexchange services should
be regulated as non-dominant even if provided on an unseparated basis.
These commenters raise essentially three arguments: (1) BOCs do not
have market power in the interexchange market under the criteria, such
as market share, established in the Competitive Carrier proceeding and
those applied in reclassifying AT&T as a non-dominant interexchange
carrier; (2) BOCs have neither the ability nor the incentive to
leverage their control over local facilities to impede competition in
the interexchange market, especially given current regulations and the
provisions of the 1996 Act that are designed to open the local market
to
[[Page 35967]]
competition; and (3) the proposed separation requirements for out-of-
region interexchange services are inconsistent with the 1996 Act.
17. BellSouth additionally argues that, by proposing to regulate
BOCs as dominant if they directly provide out-of-region, interexchange
services based on their market power in the provision of local
services, we are resurrecting the ``all services'' approach. BellSouth
states that, in the Competitive Carrier orders, the Commission adopted
an ``all services'' approach under which a finding that a carrier was
dominant in the provision of one service subjected a carrier to
dominant regulation of all services. BellSouth argues that, under this
``all services'' approach, the Commission ruled that bottleneck
facilities were prima facie evidence of dominance in all markets.
BellSouth maintains that the Commission rejected this approach in the
AT&T Reclassification Order. We reject this analysis. The ``all
services'' question addressed in the AT&T Reclassification Order was
whether the Commission could find AT&T non-dominant only if ``AT&T
lacks the ability to control the price of every tariffed service in the
relevant market.'' A very different question is posed by the BOCs entry
into out-of-region, interstate, interexchange services: whether a firm
with market power in one relevant market (the local exchange and
exchange access market) can leverage that power to gain market power or
an unfair advantage in another, related market (the interexchange
market).
18. As for the non-BOC commenters, MCI and TRA argue that, given
the potential for the BOCs to engage in anticompetitive conduct, the
BOC affiliate should be regulated as dominant. Almost all of the other
non-BOC commenters support non-dominant regulation of BOC out-of-region
services if provided through a separate affiliate, but contend that the
safeguards proposed in the Notice are insufficient to protect against
abuses by the BOCs. Specifically, these parties claim that without
these additional safeguards the BOCs could use their control over local
exchange facilities to unfairly discriminate in pricing or service
quality against competing interexchange carriers or could cross-
subsidize their long distance operations by shifting costs to the local
exchange and exchange access operations. They urge the Commission,
therefore, to impose full structural separation on the out-of-region
affiliate, including the separations imposed by section 272 on the in-
region interexchange affiliate. They also seek to bar joint marketing
of local and out-of-region services or, at least, require that
marketing personnel and operations be separated. Some ask the
Commission to require that the BOC provide all Title II services to its
affiliate at the generally applicable tariffed rates and that all non-
Title II services and access to information obtained by the BOC by
virtue of its provision of local exchange service be provided on a non-
discriminatory basis or that such information not be shared at all.
Finally, non-BOC commenters dispute claims that the Notice's proposals
are inconsistent with the 1996 Act.
19. We adopt here the interim rules proposed in the Notice, at
least until completion of our broader rulemaking proceeding, the
Interexchange NPRM. The Fifth Report and Order safeguards we adopt
herein on an interim basis have worked relatively well since 1984 to
protect against potential abuses by the independent LECs in their
provision of interexchange services and we believe that they will
provide adequate interim protection as the BOCs begin providing out-of-
region interexchange services. As the Commission noted in the Fifth
Report and Order, these safeguards provide some protection against
``cost-shifting and anticompetitive conduct.'' These safeguards have
been applied to independent LEC provision of interexchange services
originating in and out of their regions and should provide sufficient
interim safeguards for BOC provision of solely out-of-region services.
Additionally, these safeguards will be supplemented with the
application of our cost allocation and affiliate transaction rules, as
explained below, which provide further protection against cost
misallocations. Moreover, no party has presented persuasive evidence to
show that, at this time, these rules will not be effective interim
measures.
20. At the same time, we believe that these minimal requirements
should be in place pending further analysis of these issues. Not only
has the Commission adopted an NPRM to address these specific issues,
but we also have launched various proceedings, and are in the process
of issuing further rulemakings, relating to the implementation of
various aspects of the 1996 Act. These proceedings touch upon issues
raised in this proceeding, such as the proper market definition and the
scope of various safeguards. We believe it is prudent to assess the
record in those proceedings in order to assist us in adopting a
comprehensive and cohesive framework that addresses the myriad issues
involving BOC provision of services that the BOCs previously have been
barred from offering.
21. Thus we reject AT&T's argument that the proposed rules should
not be adopted because, AT&T contends, they improperly depart from the
use of a single, nationwide, interexchange market without submarkets
without providing a reasoned explanation. The Notice proposed to apply,
on an interim basis, the same rules to BOC out-of-region services that
we apply to independent LECs. We do not find that AT&T has presented
persuasive reasons to depart from this prior precedent for purposes of
these interim rules. Moreover, in the Notice, we explicitly proposed to
address only BOC provision of out-of-region, interstate, interexchange
services. At the same time, we made clear that we were planning to
adopt these rules on an interim basis, pending a future proceeding to
consider more fully the long-term issues raised by BOC entry into out-
of-region, interstate, interexchange services. We note that on March
25, 1996, we released the Interexchange NPRM initiating that
proceeding. In proposing to look only at BOC provision of out-of-
region, interstate, interexchange service here, we sought to balance
the goal of the 1996 Act to allow swift BOC entry into the
interexchange market, subject to interim safeguards, with the need for
a comprehensive review of our rules. We believe it is within our
discretion to conduct our proceedings in such a manner as to
accommodate these twin purposes.
22. We find that our interim plan of removing dominant carrier
regulation for BOC affiliates meeting the Fifth Report and Order
separation requirements and retaining dominant regulation for BOCs that
provide out-of-region services directly will not impose an unreasonable
burden on the BOCs. Initially, we believe it is important to clarify
the scope of the Fifth Report and Order separation requirements. Most
commenters refer to the Fifth Report and Order requirements as
structural separation. This is true only in the sense that the BOC or
LEC non-dominant interexchange affiliate is a separate legal entity. In
no other sense do we require ``structural separation.'' Indeed, in the
Fifth Report and Order, the Commission specifically rejected arguments
that structural separation requirements should be imposed between an
independent LEC and its interexchange affiliate because the Commission
found that structural separation would impose unreasonable burdens on
smaller, independent LECs. The Commission specifically sought to avoid
imposing
[[Page 35968]]
excessive burdens and noted that the LEC affiliate qualifying for non-
dominant treatment ``is not necessarily structurally separated from the
exchange telephone company in the sense ordered in the Second Computer
Inquiry * * * (e.g., fully-separated personnel and marketing are not
necessary for nondominant treatment).'' Thus, except for the ban on
joint ownership of transmission and switching facilities, a restriction
which we believe should pose little, if any, burden on the provision of
out-of-region, interstate, interexchange services, the BOC and the
interexchange affiliate will be able to share personnel and other
resources or assets. The affiliate may be staffed by BOC personnel,
housed in existing BOC offices, and use BOC marketing or other
services. Providing interexchange services through such an affiliate
will not impede the BOCs' ability to realize efficiencies gained
through the use of joint resources. To help ensure that the BOCs
properly allocate the costs of any services provided to the
interexchange affiliate, however, we require that the BOC treat this
affiliate for accounting purposes as a nonregulated affiliate and
therefore subject to our cost allocation and affiliate transactions
rules.
23. Additionally, we clarify the separate books of account
requirement and the requirement that to the extent the affiliate
obtains BOC services it do so under the terms of the BOC's tariff. We
do not require that the interexchange affiliate maintain separate books
of account that comply with our Part 32 rules. Instead, the separate
books of account requirement refers to the fact that, as a separate
legal entity, the affiliate must maintain its own books of account as a
matter of course. This is consistent with the current accounting
treatment of the interexchange affiliates of independent LECs. Books of
account refer to the financial accounting system a company uses to
record, in monetary terms, the basic transactions of a company. These
books of account reflect the company's assets, liabilities, and equity,
and the revenues and expenses from operations. Each company has its own
separate books of account. The Commission's Part 32 rules, the Uniform
System of Accounts (USOA), prescribe the books of account for the
telephone companies. The Part 32 USOA, however, is not required to be
kept by affiliates of a telephone company. These affiliates maintain
their own separate books of account. We note that, if a telephone
company decides to conduct out-of-region, interstate, interexchange
service within the telephone company without using a separate
affiliate, this activity would be reflected in the telephone company's
USOA accounts, because the USOA reflects the telephone company's total
operations. As to the tariff requirement, we clarify that this
provision applies only to services for which the BOC is required to
file a tariff, not to detariffed services such as billing and
collection. The provision also only applies when the affiliate obtains
tariffed services from its affiliated BOC.
24. Parties have offered no credible evidence to support
contentions that the Fifth Report and Order separation requirements
constitute burdensome regulation. Indeed, the entry of interexchange
carriers affiliated with independent LECs over the past decade serves
as evidence that these conditions will not prevent the BOCs from
competing effectively. Moreover, we note that several BOCs have already
established, or plan to establish, subsidiaries through which they will
provide interexchange services that meet or exceed these separation
requirements. We believe that separation requirements designed to
accommodate the resources of small independent LECs will not impose an
unreasonable burden on the much larger regional Bell companies,
particularly on an interim basis.
25. Finally, we conclude, as an interim measure, that if a BOC
chooses to offer out-of-region interstate interexchange services
directly, it will be subject to dominant carrier regulation and to
price cap regulation. Specifically, we require that the BOCs include
such services in the price cap Basket for interexchange services. See
47 CFR Sec. 61.42(d)(4).
C. Consistency With the 1996 Act
26. Several BOC commenters argue that the separate affiliate
requirement, even as an interim measure, is inconsistent with the
provisions of the 1996 Act. They contend that the 1996 Act specifically
excluded out-of-region services from the separate affiliate requirement
contained in new section 272. Some further argue that, because dominant
regulation is so onerous, conditioning non-dominant treatment on
complying with the separation requirements effectively requires BOCs to
establish a separate affiliate to provide out-of-region interstate,
interexchange services in contravention of the 1996 Act. They also
argue, more generally, that the proposed rules are inconsistent with
the overall deregulatory emphasis of the new legislation.
27. Bell Atlantic contends that the proposed separation
requirements are inconsistent with the 1996 Act for two reasons: (1)
section 272(f) contains a sunset provision for the in-region affiliate
whereas the proposed separation requirements are open-ended; and (2) a
BOC interexchange affiliate providing out-of-region services would be
barred from jointly owning transmission and switching facilities with
its operating company affiliate, whereas Section 272 contains no such
restriction for the in-region separate affiliate. Bell Atlantic
concludes that it would have to establish two subsidiaries, one for in-
region and one for out-of-region services.
28. Non-BOC commenters dispute these arguments. Some argue that,
because the 1996 Act is silent as to the type of regulatory regime that
the Commission should impose on the BOCs' provision of out-of-region
interexchange services, the statute contemplates that the Commission
may apply its existing dominant/nondominant regulatory regime. These
parties further point out that the separate subsidiary provisions of
the 1996 Act contain a savings clause which states that ``[n]othing in
this subsection shall be construed to limit the authority of the
Commission under any other section of this Act to prescribe safeguards
consistent with the public interest, convenience and necessity.''
Vanguard contends that the BOCs are essentially arguing that the 1996
Act repealed the Commission's existing statutory authority to apply its
dominant carrier rules to BOC interexchange affiliates by implication.
Vanguard asserts that a statutory construction that would repeal an
agency's authority by implication is ``highly disfavored'' by the
courts except where there is an irreconcilable conflict between the two
statutes or where there is compelling evidence that Congress intended
to repeal the prior statute. Sprint and others contend that the
proposed safeguards are less burdensome than the statutory separate
subsidiary requirement and note that, while the 1996 Act mandates a
separate subsidiary to provide in-region services, the Commission's
proposal permits the BOCs to offer out-of-region services through an
affiliate or directly.
29. We reject the contention that section 272(a)(2) prohibits us
from retaining the dominant/non-dominant regulatory framework which the
Commission has applied to interexchange carriers prior to passage of
the 1996 Act for BOC provision of out-of-region, interstate,
interexchange services. More specifically, we do not
[[Page 35969]]
agree that, by excluding out-of-region services from those services
that a BOC must provide through a structurally separate affiliate,
section 272(a)(2) bars the Commission from according non-dominant
regulation of BOC out-of-region, interstate, interexchange services
only to BOC affiliates that comply with the separation requirements we
adopt in this Order. Section 272(a)(2), relied upon by the BOC
commenters, provides in pertinent part that:
The services for which a separate affiliate is required by
paragraph (1) are:
* * * * *
(B) Origination of interLATA telecommunications services, other
than--
* * * * *
(ii) out-of-region services described in section 271(b)(2).
As noted by MCI, the legislation is silent on the issue of dominant/
non-dominant regulation of BOC interLATA services. We conclude that
Congress did not intend by implication to repeal our authority to
impose dominant or non-dominant regulatory treatment as we deem
necessary to protect the public interest consistent with our statutory
mandates. To the contrary, Section 601(c) of the 1996 Act provides that
we are not to presume that Congress intended to supersede our existing
regulations unless expressly so provided.
30. Nor is there any inconsistency between the separation
requirements we adopt by this Order as an interim measure and the 1996
Act. We do not mandate that the BOCs provide out-of-region, interstate,
interexchange services through a separate affiliate. Instead, this
Order concludes that, on an interim basis, BOCs will continue to be
subject to dominant carrier treatment if they offer out-of-region
interstate, interexchange services directly. The same requirement has
applied to all independent LECs since 1984. This order, in effect,
offers the BOCs a choice of providing out-of-region, interstate,
interexchange services under dominant regulation if they wish to
furnish those services directly or under non-dominant regulation if
they wish to offer those services through a separate affiliate that
meets the separation requirements.
31. We also note that the 1996 Act's provisions for the
structurally separate in-region subsidiary contain more restrictions
than those that will apply to the BOC affiliates' provision of out-of-
region, interstate, interexchange services as a non-dominant carrier.
For example, the 1996 Act requires that the separate subsidiary that
must be established to provide in-region interLATA services must have
separate officers, directors, and employees, and may not obtain credit
under any arrangement that would permit recourse to the BOC. See 47
U.S.C. Sec. 272(b). None of these requirements applies to the BOCs'
out-of-region affiliate.
32. Bell Atlantic contends, however, that our proposed separation
conditions are, in fact, more rigorous than those established by the
1996 Act for in-region services because we have not suggested a sunset
date and have barred joint ownership of transmission and switching
facilities. We are seeking comment in the Interexchange NPRM on whether
to modify or eliminate the separation requirements for independent LECs
in their provision of out-of-region, interstate, interexchange service
as a condition for non-dominant treatment. We are also seeking comments
on whether, if we modify or eliminate these separation requirements for
independent LECs, we should apply the same treatment to BOC provision
of out-of-region, interstate, interexchange service. Bell Atlantic's
argument is more appropriately addressed in that proceeding. During the
interim period that will be covered by the rules we promulgate today, a
prohibition on joint ownership of switching and transmission facilities
should cause no hardship on the BOC provision of out-of-region services
because, as the BOCs maintain, they initially will be using other
carriers' facilities and because of the geographic separation of in-
region facilities and out-of-region services. Additionally, the fact
that the 1996 Act contains a sunset provision for certain restrictions
is not a basis for concluding that our interim rules for BOC out-of-
region, interstate, interexchange services are inconsistent with the
1996 Act.
D. Proposed Mergers
33. After the record in this proceeding closed, SBC Communications
Inc., and Pacific Telesis Group announced, on April 1, 1996, an
agreement to merge their operations. Three weeks later, on April 21,
1996, Bell Atlantic and NYNEX announced that they had reached an
agreement to merge. We believe that mergers such as these raise
concerns with respect to the provision of out-of-region services during
the pendency of the merger. Specifically, they raise the concern that,
in the period prior to a merger's consummation, one partner to the
merger may act in ways to favor those out-of-region services of its
merger partner that originate in the first partner's service territory.
For example, BOC A may favor BOC B's long distance services originating
in BOC A's territory because BOC A may eventually share in BOC B's
profits. We do not believe that the record in this proceeding provides
an adequate basis on which to address the specific concerns raised by
such pending mergers. Accordingly, we exclude from the services covered
by this Order, those out-of-region services that originate in the in-
region states of a merger partner during the period prior to the
consummation of the merger. Given the interim nature of the rules we
are establishing in this Order, and the fact that we are not aware of
plans by any of the potential merger partners to provide out-of-region
services originating in their respective partners' service territories,
we believe that this approach likely will not impose any burdens on the
affected parties. Should such parties determine, however, to provide
such services, those parties should request the Commission, on an
individual case basis, for a determination of whether such services can
be provided on a non-dominant basis. Because our concern relates to the
incentives of one party to favor the operations of the other party
during the pendency of the merger, should an announced merger not be
consummated, the interim rules established in this Order for out-of-
region services shall apply to all out-of-region services provided by
the parties to the proposed merger.
34. Nothing in this section on proposed mergers should be construed
as indicating the Commission's position with respect to mergers in
other sectors of the telecommunications industry or outside of this
particular and unusual context. A unique confluence of circumstances
lead us to conclude that it is both reasonable and prudent to postpone
our determination of the appropriate regulatory treatment for BOC out-
of-region services originating in a potential merger partner's
territory. These unique circumstances include: (1) The announcement of
mergers, following the closure of the record in this proceeding,
involving four of the seven regional Bell companies that would be
subject to the rules established in this proceeding; (2) the concern
that a BOC, through its position in the local telephone exchange market
and its bottleneck control over inputs into the interexchange market,
may have the ability, along with the incentive, to favor the out-of-
region interexchange services operations of a potential merger partner;
(3) the interim nature of these rules; and (4) the 1996 Act's
authorization for BOCs to begin providing out-of-region services upon
enactment. Given these unique circumstances, we emphasize that this
[[Page 35970]]
action is limited to the facts and circumstances set forth in this
discussion of proposed mergers.
E. Joint Cost and Affiliate Transactions Rules
35. In the BOC Out-of-Region NPRM, we stated that independent LECs
providing interexchange services through affiliates pursuant to the
Fifth Report and Order treat those affiliates as nonregulated
affiliates under the Commission's joint cost and affiliate transactions
rules for exchange carrier accounting purposes. The BOC Out-of-Region
NPRM sought comment on whether BOC out-of-region, interstate,
interexchange services should be treated as nonregulated services for
BOC accounting purposes.
36. AT&T, Pactel, NYNEX, Comptel and Vanguard support the treatment
of BOC out-of-region affiliates as non-regulated for accounting
purposes. AT&T and Comptel believe such rules are necessary to
constrain the BOCs' ability to cross-subsidize and to ensure that local
monopoly assets are not used unfairly to advantage long distance
operations. Vanguard asserts that the rules would not impose a burden
because BOCs account for certain services on this basis already and
because such treatment would merely entail setting up the initial
account for service, not changing existing procedures. NYNEX states
that these rules have been effective as applied to independent LECs,
and thus would not be unreasonable to apply to BOCs providing similar
services. AT&T and Comptel also contend that some type of independent
audit should be performed periodically to certify that long distance
affiliates retain their financial independence. Pactel supports
application of the affiliate transaction rules as an interim measure.
37. Ameritech opposes application of the affiliate transactions
rules to BOC interexchange affiliates. It contends that the joint cost
and affiliate transactions rules are designed to allocate costs between
regulated and nonregulated activities, not between two regulated
services and that, in any event, application of those rules would be
unnecessary because the Part 69 rules already require BOCs to identify
separately interexchange costs. At a minimum, Ameritech argues that the
rules should not apply to any BOC subject to pure price cap regulation
at the state and federal level. The Public Utilities Commission of Ohio
(PUCO) also opposes treating the affiliate as nonregulated because they
contend that accounting abuses are better detected by treating the
affiliate's services as regulated.
38. Our existing accounting safeguards for affiliate transactions
were developed in the Joint Cost Order and are codified in Parts 32 and
64 of our Rules. The Part 64 cost allocation rules prescribe how
carriers separate the costs of regulated activities from the costs of
nonregulated activities, where the nonregulated activities are
performed directly by the carrier rather than through an affiliate. The
Part 32 affiliate transactions rules prescribe the way costs are
recorded, for Title II accounting purposes, when a regulated carrier
does business with its nonregulated affiliates. These rules are
designed to prevent local exchange carriers from imposing the costs and
risks of their competitive ventures on local telephone ratepayers.
These rules do not require carriers or their affiliates to charge any
particular prices for assets transferred or services provided; rather,
they require carriers to use certain specified valuation methods in
determining the amounts to record in their Part 32 accounts, regardless
of the prices charged.
39. Because the cost allocation and affiliate transactions rules
are an important component of our accounting safeguards, we find that
these rules should apply to BOCs providing out-of-region, interstate,
interexchange services through a separate affiliate. Even though
interLATA services are regulated services under Title II, under the
rules we adopt herein, the BOCs, for accounting purposes, will treat
the services as nonregulated, so as to make applicable our cost
allocation and affiliate transaction rules. The fact that interLATA
services are regulated services in and of itself does not eliminate the
potential for cost misallocation between the BOCs competitive
(interLATA) and noncompetitive (local exchange and exchange access)
services. Thus, we believe that application of our cost allocation and
affiliate transaction rules is necessary to minimize the possibility
that a BOC could improperly shift the costs of its interstate,
interexchange operations to its regulated local exchange and exchange
access ratepayers. We also note that this requirement is consistent
with the current practice of independent LECs that treat their
affiliates providing interexchange services as nonregulated for
exchange carrier accounting purposes.
40. We find that requiring BOCs to treat affiliates providing out-
of-region services as nonregulated will not be unduly burdensome. BOCs
currently have systems in place to account for transactions between
their nonregulated affiliates (i.e., for transactions between a BOC and
any of its information services which are not regulated under Title
II). Such a requirement will not entail extensive modification of
existing company procedures for the provision of interexchange services
because, prior to the passage of the 1996 Act, BOCs were prohibited
from providing interstate, interexchange services.
IV. Additional Issues
A. Regulation of CMRS-Related InterLATA Services
41. The BOC Out-of-Region NPRM stated that ``BOC provision to
commercial mobile radio service customers, of interstate, interLATA
services originating outside any of the BOC's in-region states, is
included in the out-of-region services addressed in this proceeding.''
42. BellSouth argues that the language in the Notice is susceptible
to two interpretations. According to BellSouth, it may apply to: (1)
The sale of out-of-region, interexchange service by a BOC to
unaffiliated commercial mobile radio service (CMRS) customers; or (2)
the provision of out-of-region, interexchange CMRS service by a BOC.
BellSouth believes that the Commission intended the first of these
interpretations--BOCs offering out-of-region long distance to
unaffiliated CMRS customers on a stand alone basis, not in conjunction
with the BOC's provision of CMRS--and BellSouth opposes applying the
Notice's proposed rules to this service for all of the same reasons it
opposes any separation requirements for out-of-region services.
BellSouth contends that the other interpretation--BOC's offering
interexchange, CMRS--constitutes ``incidental'' CMRS interLATA services
and is beyond the scope of this proceeding. To the extent that a CMRS
provider offers interexchange services in conjunction with its
provision of CMRS, the interexchange service is itself incidental CMRS,
and thus exempted from section 272 separate affiliate requirements,
according to BellSouth. Bell Atlantic and SBC also oppose any
restrictions on BOC provision of incidental interLATA services,
including CMRS, because most of these services were excluded from the
separate subsidiary requirement of 272.
43. MCI contends that the scope of Section 272 is irrelevant
because the 1996 Act does not prevent the Commission from imposing its
own separation requirements. Vanguard supports the proposed separation
[[Page 35971]]
requirements on the assumption that they will be applied to BOC
provision of interLATA services to the customers of its affiliated
cellular companies. Vanguard argues that the interest that a BOC has in
its cellular operations increases the incentives to engage in
anticompetitive conduct because such conduct can benefit both its long
distance operations and its cellular operations. Comptel urges the
Commission to apply to all incidental interLATA services the same rules
applied to out-of-region interexchange services because they raise the
same concerns about discrimination and cross-subsidization.
44. BellSouth's interpretation of our reference to CMRS in footnote
two of the BOC Out-of-Region NPRM is correct. Our statement in the BOC
Out-of-Region NPRM was intended to clarify that a BOC offering out-of-
region long distance service to unaffiliated CMRS customers on a stand
alone basis would be considered ``out-of-region'' services for purposes
of this rulemaking. BOC provision of interexchange services to its
affiliated CMRS customers is beyond the scope of this proceeding. We
also reject as beyond the scope of this proceeding Comptel's request to
apply the separation requirements to all ``incidental'' services
established under section 272(g).
B. Definition of Certain Services as In-Region Services
45. Section 271(j) provides that certain calls that originate out-
of-region will be deemed in-region traffic. Specifically, this section
provides that ``a [BOC] application to provide 800 service, private
line service, or their equivalents that terminate in an in-region State
of that [BOC], and allow the called party to determine the interLATA
carrier, shall be considered an in-region service subject to the
requirements of subsection (b)(1).''
46. Comptel argues that the Commission should declare collect and
third party billed calls to numbers terminating in the BOC's region and
BOC calling card calls to in-region numbers as ``equivalent'' services
and thus be deemed in-region services. Comptel's rationale is that,
like 800 number and private line services, the party paying for the
call selects the interLATA carrier and thus is subject to the BOCs'
local power. Comptel states that the Commission should therefore
prohibit the BOC out-of-region affiliate from completing collect calls,
third-party billed calls, or BOC calling card calls to terminating
numbers located within the BOC's region. Ameritech opposes Comptel's
interpretation, and asserts that calling card, collect and third party
calls that are placed from out-of-region do not fall within 271(j)
because the calling party, not the called party, determines the long
distance carrier. Ameritech states that the calling party decides
whether to complete the call on a 0+ basis or use access codes, and if
access codes are used, the calling party decides which carrier to use.
47. The key factor in determining whether a service falls within
the scope of section 271(j) as ``equivalent'' to 800 or private line
service is whether the called party determines the interLATA carrier
that is used. As Ameritech notes, calling card, collect and third party
billed calls that originate out-of-region and terminate in-region do
not fall within the scope of section 271(j) because it is the calling
party, not the called party, that determines the interLATA carrier.
Because the called party does not determine the interLATA carrier that
is used, there is no justification for treating such calls as in-region
services. Thus, we reject Comptel's proposal that we add calling card,
collect and third party calls to those services classified as ``in-
region'' under section 271(j).
V. Procedural Issues
A. Regulatory Flexibility Act Analysis
48. We certify that the Regulatory Flexibility Act is not
applicable to the interim rules we are adopting in this proceeding.
These interim rules will not result in a significant economic impact on
a substantial number of small business entities, as defined by Section
601(3) of the Regulatory Flexibility Act. Entities subject to the rule
changes are generally large corporations, affiliates of large
corporations, or are dominant in their fields of operation, and, thus,
are not ``small entities'' as defined by the Act. See 15 U.S.C.
Sec. 632(a)(1). We are nevertheless committed to reducing the
regulatory burdens on small communications services companies whenever
possible, consistent with our other public interest responsibilities.
The Secretary shall send a copy of this Report and Order to the Chief
Counsel for Advocacy of the Small Business Administration in accordance
with Section 605(b) of the Regulatory Flexibility Act, 5 U.S.C.
Secs. 601, et seq. (1981).
B. Paperwork Reduction Act
49. The recordkeeping requirements in this item are contingent upon
approval of the Office of Management and Budget.
VI. Ordering Clause
50. Accordingly, it is ordered that, pursuant to Sections 1, 4,
201-205, 215, 218, 220, and 271 of the Communications Act of 1934, as
amended, 47 U.S.C. Secs. 151, 154, 201-205, 215, 218 and 220, the
REPORT AND ORDER is hereby ADOPTED. The requirements adopted in this
Report and Order shall be effective 30 days after publication in the
Federal Register.
Federal Communications Commission.
William F. Caton,
Acting Secretary.
[FR Doc. 96-17404 Filed 7-8-96; 8:45 am]
BILLING CODE 6712-01-P
Complete official Federal Register PDF
FR Doc. 96-17350 Atlantic Swordfish Fishery; Drift Gillnet Closure
[Federal Register Volume 61, Number 132 (Tuesday, July 9, 1996)]
[Rules and Regulations]
[Pages 35971-35972]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-17350]
=======================================================================
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 630
[I.D. 062796B]
Atlantic Swordfish Fishery; Drift Gillnet Closure
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration, Commerce.
ACTION: Closure.
-----------------------------------------------------------------------
SUMMARY: NMFS closes the drift gillnet fishery for swordfish in the
Atlantic Ocean, including the Gulf of Mexico and Caribbean Sea. NMFS
has determined that the adjusted second semiannual subquota for
swordfish that may be harvested by drift gillnet will be reached on or
before July 17, 1996. This closure is necessary to prevent exceeding
the quota of swordfish caught by drift gillnet vessels.
EFFECTIVE DATE: 2330 hours, local time, July 17, 1996, through 2400
hours, local time, November 30, 1996.
FOR FURTHER INFORMATION CONTACT: Ronald G. Rinaldo, 301-713- 2347.
SUPPLEMENTARY INFORMATION: The Atlantic swordfish fishery is managed
under the authority of the Magnuson Fishery Conservation and Management
Act (16 U.S.C. 1801 et seq.) and the Atlantic Tunas Convention Act (16
U.S.C. 971 et seq.).
The implementing regulations at 50 CFR 630.24(b)(3)(ii) establish a
quota of swordfish that may be harvested by drift gillnet during the
period July 1 through November 30, each year. Under 50 CFR 630.25(a),
NMFS is required to close the drift gillnet fishery for swordfish when
its quota is reached, or is projected to be reached, by filing a
closure
[[Page 35972]]
announcement with the Office of the Federal Register at least 14 days
before the closure is to become effective.
The 1996 swordfish Total Allowable Catch (TAC) allows for an
Atlantic swordfish drift gillnet subquota of 22.5 mt dressed weight
(49,603.5 lb) for the January 1 to June 30 period, and a subquota of
23.45 mt dressed weight (51,697.8 lb) for the July 1 to November 30
period. Our estimates indicate that only approximately 18,000 lb (8.164
mt) was caught during the first period subquota. The remaining portion
of the first period subquota will be rolled over to the second period,
for an adjusted second period subquota of 37.785 mt dressed weight, or
83,301.3 lb.
Based on the current level of swordfish catch by drift gillnets and
historic data on catch per set for July, NMFS has determined that the
drift gillnet quota for the July 1 through November 30 period will be
reached on or before July 17, 1996. Hence, the drift gillnet fishery
for Atlantic swordfish is closed effective 2330 hours, local time, July
17, 1996, through 2400 hours, local time, November 30, 1996.
During this closure of the drift gillnet fishery: 1) no one aboard
a vessel using or having onboard a drift gillnet may fish for swordfish
from the North Atlantic swordfish stock; 2) no more than two swordfish
per trip may be possessed on board vessel using or having onboard a
drift gill net in the North Atlantic Ocean, including the Gulf of
Mexico and Caribbean Sea, north of 5 deg. N. lat., or landed in an
Atlantic, Gulf of Mexico, or Caribbean coastal state.
Classification
This action is required by 50 CFR 630.25(a) and is exempt from
review under E.O. 12866.
Dated: July 2, 1995.
Richard W. Surdi,
Acting Director, Office of Fisheries Conservation and Management,
National Marine Fisheries Service.
[FR Doc. 96-17350 Filed 7-03-96; 11:47 am]
BILLING CODE 3510-22-F
Complete official Federal Register PDF
FR Doc. 96-17322 National Oil and Hazardous Substances Contingency Plan; National Priorities List Update
[Federal Register Volume 61, Number 132 (Tuesday, July 9, 1996)]
[Rules and Regulations]
[Pages 35962-35963]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-17322]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 300
[FRL-5533-1]
National Oil and Hazardous Substances Contingency Plan; National
Priorities List Update
AGENCY: Environmental Protection Agency.
ACTION: Notice of Deletion of the Carter Lee Lumber Company Superfund
Site from the National Priorities List (NPL).
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) announces the
deletion of the Carter Lee Lumber Company Site in Indiana from the
National Priorities List (NPL). The NPL is Appendix B of 40 CFR Part
300 which is the National Oil and Hazardous Substances Contingency Plan
(NCP), which EPA promulgated pursuant to Section 105 of the
Comprehensive Environmental Response, Compensation, and Liability Act
of 1980 (CERCLA), as amended. This action is being taken by EPA and the
State of Indiana, because it has been determined that Responsible
Parties have implemented all appropriate response actions required.
Moreover, EPA and the State of Indiana have determined that remedial
actions conducted at the site to date remain protective of public
health, welfare, and the environment.
EFFECTIVE DATE: July 9, 1996.
FOR FURTHER INFORMATION CONTACT: Deborah Orr at (312) 886-7576 (SR-6J),
Remedial Project Manager, Superfund Division, U.S. EPA--Region V, 77
West Jackson Blvd., Chicago, IL 60604. Information on the site is
available at the local information repository located at: Hawthorn
Community Center, 2440 West Ohio Street, Indianapolis, IN and the
offices of the Indiana Department of Environmental management, 100 N.
Senate Avenue, N1255, Indianapolis, IN. Requests for comprehensive
copies of documents should be directed formally to the Regional Docket
Office. The contact for the Regional Docket Office is Jan Pfundheller
(H-7J), U.S.
[[Page 35963]]
EPA, Region V, 77 W. Jackson Blvd., Chicago, IL 60604, (312) 353-5821.
SUPPLEMENTARY INFORMATION: The site to be deleted from the NPL is
Carter Lee Lumber Company Site located in Indianapolis, Indiana. A
Notice of Intent to Delete for this site was published May 8, 1996 (61
FR 20785). The closing date for comments on the Notice of Intent to
Delete was June 7, 1996. EPA received no comments and therefore no
Responsiveness Summary was prepared.
The EPA identifies sites which appear to present a significant risk
to public health, welfare, or the environment and it maintains the NPL
as the list of those sites. Sites on the NPL may be the subject of
Hazardous Substance Response Trust Fund (Fund-) financed remedial
actions. Section 300.425(e)(3) of the NCP states that Fund-financed
actions may be taken at sites deleted from the NPL in the unlikely
event that conditions at the site warrant such action. Deletion of a
site from the NPL does not affect responsible party liability or impede
agency efforts to recover costs associated with response efforts.
List of Subjects in 40 CFR Part 300
Environmental protection, Air pollution control, Chemicals,
Hazardous substances, Hazardous Waste, Intergovernmental relations,
Penalties, Reporting and recordkeeping requirements, Superfund, Water
pollution control, Water supply.
Dated: June 24, 1996.
David A. Ullrich,
Acting Regional Administrator, U.S. EPA, Region V.
40 CFR part 300 is amended as follows:
PART 300--[AMENDED]
1. The authority citation for part 300 continues to read as
follows:
Authority: 33 U.S.C. 1321(c)(2); 42 U.S.C. 9601-9657; E.O.
12777, 56 FR 54757, 3 CFR, 1991 Comp.; p.351; E.O. 12580, 52 FR
2923, 3 CFR, 1987 Comp.; p. 193.
Appendix B--[Amended]
2. Table 1 of Appendix B to part 300 is amended by removing the
Site ``Carter Lee Lumber Company Site, Indianapolis, Indiana''.
[FR Doc. 96-17322 Filed 7-8-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-17318 Regulation of Fuels and Fuel Additives; Standards for Reformulated Gasoline
[Federal Register Volume 61, Number 132 (Tuesday, July 9, 1996)]
[Rules and Regulations]
[Pages 35960-35962]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-17318]
=======================================================================
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 80
[FRL-5532-6]
RIN 2060-AD27
Regulation of Fuels and Fuel Additives; Standards for
Reformulated Gasoline
AGENCY: Environmental Protection Agency (EPA).
ACTION: Petition for reconsideration; request for comment.
-----------------------------------------------------------------------
SUMMARY: EPA requests comment on a petition submitted to EPA by the
American Petroleum Institute (API). The petition, submitted pursuant to
section 553(e) of the Administrative Procedure Act, requests
reconsideration of the Phase II reformulated gasoline reduction
standard for oxides of nitrogen (NOX).
DATES: Comments must be received on or before September 9, 1996.
ADDRESSES: Interested parties may submit written comments (in
triplicate, if possible) to: EPA Air and Radiation Docket, Attention
Docket No. A-96-27, room M-1500 (mail code 6102), 401 M St., SW,
Washington, D.C. 20460. The docket may be inspected at this location
from 8:30 a.m. until 5:30 p.m. weekdays. The docket may also be reached
by telephone at (202) 260-7548. As provided in 40 CFR part 2, a
reasonable fee may be charged by EPA for photocopying.
FOR FURTHER INFORMATION CONTACT: Debbie Wood, Office of Mobile Sources,
Fuels and Energy Division, (202) 233-9000.
[[Page 35961]]
SUPPLEMENTARY INFORMATION:
I. Introduction and Background
On February 16, 1994, EPA published a final rule establishing
emission reduction and other performance standards for reformulated
gasoline (RFG), including provisions for the certification of RFG and
enforcement of RFG standards, and establishing certain requirements
regarding unreformulated or conventional gasoline (59 FR 7716). The
purpose of the RFG program is to improve air quality by requiring that
gasoline be reformulated to reduce emissions from motor vehicles of
toxics and tropospheric ozone-forming compounds, as specified by
section 211(k)(1) of the Clean Air Act (CAA or the Act). Section 211(k)
mandates that RFG be sold in the nine largest metropolitan areas with
the most severe summertime ozone levels; RFG must also be sold in other
ozone nonattainment areas that choose to participate or ``opt in'' to
the program. The Act further prohibits conventional gasoline sold in
the rest of the country from becoming any more polluting than it was in
1990 by requiring that each refiner's and importer's gasoline be as
clean, on average, as it was in 1990; this statutory prohibition has
resulted in requirements referred to as the ``anti-dumping'' program.
The Act mandates certain requirements for the RFG program. Section
211(k)(1) directs EPA to issue regulations that:
* * * require the greatest reduction in emissions of ozone forming
volatile organic compounds (during the high ozone season) and
emissions of toxic air pollutants (during the entire year)
achievable through the reformulation of conventional gasoline,
taking into consideration the cost of achieving such emission
reductions, any nonair-quality and other air-quality related health
and environmental impacts and energy requirements.
Section 211(k)(3) specifies the minimum requirement for reduction of
volatile organic compounds (VOC) and toxics for 1995 through 1999, or
Phase I of the RFG program; the section specifies that EPA must require
the more stringent of a formula fuel or an emission reduction
performance standard, measured on a mass basis, equal to 15 percent of
baseline emissions. Baseline emissions are the emissions of 1990 model
year technology vehicles operated on a specified baseline gasoline.
Section 211(k)(2) compositional specifications for RFG include a 2.0
weight percent oxygen minimum and a 1.0 volume percent benzene maximum.
Section 211(k)(2) also specifies that NOX emissions may not
increase in RFG.
For the year 2000 and beyond, or Phase II of the RFG program, the
Act specifies that the VOC and toxics performance standards must be no
less than either a formula fuel or a 25 percent reduction from baseline
emissions, whichever is more stringent. EPA can adjust these standards
upward or downward taking into account such factors as feasibility and
cost, but in no case can they be less than 20 percent.
Shortly after passage of the CAA Amendments in 1990, EPA entered
into a regulatory negotiation with interested parties to develop
specific proposals for implementing both the RFG and anti-dumping
programs. In August 1991, the negotiating committee reached consensus
on a program outline, addressing emission content standards for Phase I
(1995-2000), emission models, certification, use of averaging and
credits, and other important program elements.
The regulatory negotiation conducted by EPA did not, however,
address Phase II VOC and toxics standards, nor did it address a
reduction in NOX emissions beyond the statutory cap imposed under
section 211(k)(2)(A). The final rule promulgated by EPA closely
followed the outline agreed to in the negotiated rulemaking. The final
rule also adopted a NOX reduction performance standard for Phase
II RFG, relying on authority under section 211(c)(1)(A).
In proposing and promulgating a NOX reduction standard, EPA
analyzed the costs and benefits, along with other relevant factors,
including EPA's view that NOX reductions are important to achieve
attainment of the ozone National Ambient Air Quality Standard (NAAQS)
in many nonattainment areas. In the final rule, EPA discussed recent
studies which indicate that NOX control is an effective ozone
control strategy for the northeast as well as the Lake Michigan area
(59 FR 7751). EPA also noted that there are non-ozone benefits from
NOX control, such as reduced acid rain and improved visibility (59
FR 7751). In considering the feasibility of section 202 motor vehicle
controls prior to regulating fuels, EPA cited several reasons for the
promulgation of a NOX reduction standard (59 FR 7752): (1)
Significant emission reductions would be achieved right away, in the
summer of 2000, with no delay based on fleet turnover time. (2) A
NOX reduction standard for gasoline would act to reduce emissions
from all mobile sources that use gasoline, whether on-highway or
nonroad. (3) The fuel control is specifically aimed at areas of the
country that are in nonattainment for ozone, and is limited in time to
that part of the year when ozone is of most concern. (4) The expected
increase in vehicle miles traveled over time leads EPA to believe that
this fuel control is needed to continue to achieve the in-use NOX
emission reductions necessary for many areas of the country to reach
attainment for ozone. (5) The performance standard adopted minimizes
any concern that a fuel control could interfere in the production
process by directing refiners on how to make their product.
EPA estimates that the Phase II NOX emission reduction
standard of 6.8 percent on average will reduce summertime NOX
emissions from gasoline-powered mobile sources by approximately 22,000
tons annually. Cost-effectiveness is estimated at $5,000 per ton of
NOX reduction.
In December 1995, API submitted a petition to EPA requesting
reconsideration of the Phase II RFG NOX standard or, at a minimum,
suspension of the effective date of the standard. API bases its request
for reconsideration on three arguments: (1) The standard is
inconsistent with the CAA Amendments of 1990 and the 1991 negotiated
rulemaking. (2) Air quality benefits of the standard are overstated.
(3) The standard is not a cost-effective strategy for ozone control.
These arguments were also submitted to EPA by API as comments during
the RFG rulemaking; the final rule preamble discusses these arguments
and explains EPA's reasons for promulgating the NOX reduction
standard (see 59 FR 7716, 7744-7756).
An initial review of the API petition indicates that it presents no
compelling new evidence or argument that would warrant revisiting the
decision made in promulgating the Phase II NOX reduction standard.
However, to ensure that our conclusions on the appropriateness of the
NOX reduction standard remain well-founded, EPA will review any
relevant and available new information on costs and benefits that has
been developed since promulgation of the final rule. EPA solicits
comment on the issues raised in the petition. The arguments presented
in the API petition are summarized below. A complete copy of the API
petition may be found in the docket for this notice.
II. Summary of API Petition
A. Consistency With CAA and Negotiated Rulemaking
API's first argument is that EPA's Phase II RFG NOG5X standard is
inconsistent with the CAA Amendments of 1990 and the 1991 negotiated
rulemaking. API cites provisions of the Act that specifically require
reductions in various pollutants, and contrasts that
[[Page 35962]]
with the ``no NOX increase'' approach taken toward RFG in section
211(k). API also notes that the 1991 negotiated rulemaking agreement
does not address a Phase II NOX reduction, and that the focus of
debate was whether de minimis increases in NOX would satisfy the
no NOX increase standard. For discussion of these arguments in the
RFG final rule, see, for example, 59 FR 7744-7745.
B. Air Quality Benefits
API's second argument is that the ozone benefits of the Phase II
RFG NOX standard are overstated. API argues that the primary basis
for the Phase II NOX standard is ozone attainment, and cites data
from EPA's Trends Report (U.S. EPA, National Air Quality and Emissions
Trends Report 1993, EPA 454/R-94-026, October 1994 at 6.) that progress
toward ozone attainment has been made. API also notes that the Act
imposes substantial obligations on states to attain ozone standards.
API claims that in promulgating the Phase II RFG NOX standard,
EPA emphasized those parts of studies (such as Rethinking the Ozone
Problem in Urban and Regional Air Pollution, National Research Council,
National Academy Press, Washington, D.C. 1991) that showed NOX to
be an effective ozone control strategy, while discounting those which
indicate that NOX control can be counterproductive.
API discusses EPA's authority under CAA section 182 to grant
waivers from certain CAA local NOX reduction requirements. The
petition states that the section 182(f) waiver requirement recognizes
that local NOX reductions may not be necessary or helpful to
attainment of the ozone standard. Although the overwhelming majority of
section 182(f) waivers have been granted because additional NOX
reductions are not needed for attainment of the ozone NAAQS, the
petition notes that, in a few cases, photochemical modeling has
indicated that increased NOX reductions may exacerbate peak ozone
in an urban core. The petition cites three cases where modeling has
shown that increased NOX reductions may exacerbate peak ozone
concentrations: Chicago, Milwaukee, and Houston, three of the nine
cities required to use RFG. API notes the conditional nature of section
182(f) waivers.
API argues that given continued progress toward ozone NAAQS
attainment, imposition of Phase II NOX reductions applicable in
all RFG areas is ``plainly incongruous'' with the granting of waivers
under section 182(f). API also argues that EPA's claim that air quality
benefits in addition to reduced ozone will result from the Phase II
NOX standard (e.g., less acid rain, reduced nitrate deposition,
and improved visibility), is speculative. These arguments are discussed
in the RFG final rule at, for example, 59 FR 7746 and 7751.
C. Cost-effectiveness
API argues that EPA has understated the impact of the Phase II
NOX reduction standard on costs and refiner flexibility. API
claims that if more accurate sulfur removal (``desulfurization'') costs
were employed, EPA's cost per ton of NOX removed would increase to
over $10,000. Moreover, API argues that EPA's cost effectiveness
analysis does not take into account that NOX reductions in some
areas do not contribute to ozone attainment; API claims that if the
benefit of NOX reductions in Chicago, Milwaukee and Houston, which
have been granted conditional section 182(f) waivers, is reduced to
zero or less, EPA's cost-effectiveness estimate would rise from $5,000
to $7,500 per ton.
API also argues that EPA should have included a more extensive
array of stationary source NOX control measures that compare
favorably to EPA's cost-effectiveness estimate, particularly if that
estimate is changed in light of API's arguments on desulfurization
costs and reduced ozone benefits.
Finally, API argues that major stationary sources offer more
potential for overall reduction in air pollution, and that the cost-
effectiveness of Phase II NOX controls is higher than stationary
combustion sources with lower potential for overall NOX reduction.
API argues that, unlike mobile source control, major stationary source
control can be targeted to avoid the cost of NOX control where it
is not needed and any adverse effect on ozone because of atmospheric
chemistry. API's arguments are discussed in the RFG final rule at, for
example, 59 FR 7752-7754.
III. Request for Comment
EPA requests comment on all the issues raised in API's petition for
reconsideration. EPA is also interested in the potential impact of a
delay in implementation or elimination of the Phase II RFG NOX
standard on state implementation plans for attaining compliance with
the ozone NAAQS. EPA solicits new information on costs and air quality
benefits associated with the Phase II RFG NOX reduction standard,
including non-ozone air quality benefits.
IV. Conclusion
After considering all public comments and any other relevant
information available to EPA, the agency will make a decision regarding
API's petition for reconsideration.
Dated: June 28, 1996.
Mary D. Nichols,
Assistant Administrator, Office of Air and Radiation.
[FR Doc. 96-17318 Filed 7-8-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-17305 Office of the Assistant Secretary for Housing-Federal Housing Commissioner; Single Family Miscellaneous Amendments, Clarifications, and Corrections
[Federal Register Volume 61, Number 132 (Tuesday, July 9, 1996)]
[Rules and Regulations]
[Pages 36260-36268]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-17305]
[[Page 36259]]
_______________________________________________________________________
Part VII
Department of Housing and Urban Development
_______________________________________________________________________
24 CFR Part 200, et al.
Single Family Miscellaneous Amendments, Clarifications, and
Corrections; Final Rule
Federal Register / Vol. 61, No. 132 / Tuesday, July 9, 1996 / Rules
and Regulations
[[Page 36260]]
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
24 CFR Parts 200, 201, 202, 203, 206, 221, 233, 234, 280 and 291
[Docket No. FR-3977-F-01]
RIN 2501-AG61
Office of the Assistant Secretary for Housing-Federal Housing
Commissioner; Single Family Miscellaneous Amendments, Clarifications,
and Corrections
AGENCY: Office of the Assistant Secretary for Housing-Federal Housing
Commissioner, HUD.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This final rule makes a variety of technical amendments,
clarifications and corrections to regulations for the single family
mortgage insurance programs. None of the amendments or clarifications
add to the regulatory burden for mortgagors or mortgagees.
EFFECTIVE DATE: August 8, 1996.
FOR FURTHER INFORMATION CONTACT: John J. Coonts, Director, Office of
Insured Single Family Housing, Department of Housing and Urban
Development, Room 9266, 451 Seventh Street, SW, Washington, DC 20410.
Telephone: (202) 708-3046; TTY: (202) 4594. (These are not toll-free
telephone numbers.)
SUPPLEMENTARY INFORMATION: This rule is designed to make a large number
of technical improvements to the regulations for single family
programs. The changes will not add to the regulatory burden for
mortgagors or mortgagees. Some of the changes are corrections of small
errors in the current regulations that will have no substantive change
on the way the rules have been applied in practice. Other changes will
offer relief from unnecessary requirements.
Following is an explanation of changes made by the rule.
Part 200
A technical change is made to part 200 to remove a reference to
part 267 which has been removed from the Code of Federal Regulations.
Part 201
The rule makes a typographical correction to the table of contents
and to Sec. 201.18.
Part 202
Section 202.3 is amended to revise paragraph (j) to provide that
the Secretary may identify classes or groups of lenders that are exempt
from one or more of these fees. This provides more flexibility to the
program by allowing additional groups to be exempted.
``Origination approval agreement'' is included in the heading of
Sec. 202.11.
The rule deletes Sec. 202.12(d). That paragraph indicates that
approval of a supervised mortgagee that is a banking institution or a
trust company included approval of the mortgagee when acting in a
fiduciary capacity. The Department considers that the paragraph may be
misleading by implying that only supervised mortgagees that are banking
institutions or trust companies may hold mortgages in a trust or other
fiduciary capacity. Subject to any limitations that may appear in
regulations for particular programs, such as Sec. 203.434, regarding a
declaration of trust for a pool of single family mortgages, the
Department does not restrict mortgagees from holding mortgages in a
trust or other fiduciary capacity. The Department eliminated trusts as
eligible mortgagees through a 1992 revision of part 202 but there was
no intent to prevent FHA-insured mortgages from being held as trust
assets by an approved mortgagee. The Department will deal only with the
mortgagee, rather than others who may have interests in the mortgages,
and will hold the mortgagee solely responsible for complying with
obligations imposed on mortgagees.
The provisions regarding approval and recertification fees for
Title I lenders and Title II mortgagees are amended by adding a new
sentence permitting the Secretary to identify classes or groups of
lenders or mortgagees that are exempt from one or more of the fees. The
current exemption for governmental lenders and mortgagees is left
intact.
Part 203
The rule eliminates the requirement in Sec. 203.17(b) (and
corresponding requirements in Secs. 221.45 and 234.25(b)) that
mortgages involve a principal obligation in multiples of $50 if the
mortgage does not include financing of a one-time mortgage insurance
premium (MIP) payable pursuant to Sec. 203.280. One time MIP has been
replaced by the up-front segment of risk-based mortgage insurance
premiums under Secs. 203.284 and 203.285. Rather than substitute the
up-front segment of risk-based MIP for the one time MIP, however, the
Department has determined that there is no longer any reason for the
general requirement that other mortgages without a financed premium be
in multiples of $50. All mortgages may now be in multiples of $1.
Corresponding changes are made to Secs. 221.45 and 234.52.
Two changes are made to Sec. 203.18 which explain how the maximum
mortgage amount is calculated. A parenthetical phrase is removed from
Sec. 203.18(a)(1)(ii) to reflect the 1994 legislative change that set
the maximum dollar amount for an area at 75% of the current Freddie Mac
limit, instead of 75% of the 1992 Freddie Mac limit. A new
Sec. 203.18(i) is added to recognize that the maximum mortgage amount
for an energy efficient mortgage may exceed the area dollar limit that
would otherwise apply, under conditions prescribed by the Secretary in
accordance with section 106 of the Energy Policy Act of 1992.
Section 203.19(c) which applied to the now-repealed section 203(m)
program for mortgage insurance for seasonal homes is deleted as
obsolete.
Language is added in Sec. 203.22(a) to clarify that the mortgage
provision providing for payment of mortgage insurance premium
installments by the mortgagor does not require payment for any longer
than the period during which mortgage insurance premiums are payable by
the mortgagee to HUD. Obsolete language regarding payment of annual
charges on ``open-end'' advances is deleted.
Sections 203.24(a)(i) and 203.44, and related provisions in other
parts such as 234.70, are amended by deleting references to open-end
advances.
Section 203.30 is amended to add a new paragraph (d) regarding
compliance, for buildings having four (4) or more units which were
built for first occupancy after March 13, 1991, with the Fair Housing
Act new contruction requirements at 24 CFR 100.205.
Sections 203.36 and 234.67 are deleted as unnecessary. See sections
203.16 and 234.15 regarding the use of a dwelling for transient or
hotel purposes.
The language in section 203.38 is amended by changing the two
references to ``unit'' to ``one or more dwellings.''
In Secs. 203.40, 203.251(s), and 234.1(n), ``Commonwealth of the
Northern Mariana Islands'' is substituted for the ``Trust Territory of
the Pacific Islands'' because the Commonwealth of the Northern Mariana
Islands is the only portion of the former Trust Territory of the
Pacific Islands in which FHA single family programs are currently
authorized.
The ``rule of seven'' in Sec. 203.42 currently prohibits mortgage
insurance when a mortgagor is purchasing a property to be rented that
is ``part of, or adjacent or contiguous to, a project, subdivision or
group of similar rental
[[Page 36261]]
properties'' in which the mortgagor will have a financial interest in
more than seven dwelling units. This rule removes ``subdivision'' from
the quoted language. Denial of mortgage insurance simply because a
mortgagor has a financial interest in eight units in a very large
subdivision does not further the purpose of the ``rule of seven,''
which is to avoid insuring single family mortgages on rental units that
are in such close geographical proximity with other similar rental
units that they could logically be considered part of one multifamily
project rather than unrelated single family units. In practice, current
departmental policy in applying the ``rule of seven'' has been directed
to properties within a two-block radius from one another. Continued
reference to a subdivision would cause confusion regarding the intent
of Sec. 203.42.
Section 203.43(c)(3) and the corresponding Sec. 234.52(c) are
amended to permit a $50 increase in the monthly payment for refinancing
to a shorter term, to reflect the prevailing policy that has been
applied to date on a waiver basis.
Section 203.43b regarding mortgage insurance on seasonal occupancy
homes under now-repealed section 203(m) is deleted as obsolete.
Section 203.43f(b) is amended by deleting the last sentence which
refers to section 203.17(e). Section 203.17(e) was completely revised
and the current cross-reference is not meaningful.
The introductory paragraph of Sec. 203.43h is revised to clarify
that a mortgage covering a one- to four-family residence located on
Indian land is eligible for insurance pursuant to section 248 of the
National Housing Act, if the mortgage is made (1) by an Indian Tribe or
(2) on a leasehold estate, by an Indian who will occupy it as a
principal residence. Tribes are already recognized as eligible non-
occupant mortgagors under Sec. 203.18(f)(3). This amendment to
Sec. 203.43h reconciles the two sections. In addition, a statement has
been added to the definition of an ``Indian tribe,'' in
Sec. 203.43h(g), to note that, for purposes of engaging in section 248
insured mortgage transactions, an Indian tribe may act through its duly
authorized representative.
The reference to Sec. 203.50 contained in Sec. 203.43i is deleted
to allow rehabilitation loan mortgages under section 203(k) on section
247 Hawaiian home lands. This would have been permitted by a proposed
rule published on July 23, 1986, but the provision was omitted from a
final rule on the Hawaiian home lands program published on March 16,
1987, because of the difficulty of operating the Hawaiian home lands
program for the General Insurance Fund (as required for section 203(k)
loans) in addition to the Mutual Mortgage Fund. This difficulty no
longer exists as a result of a subsequent statutory change that
provides for all Hawaiian home land mortgages to be in the General
Insurance Fund.
Section 225 of the National Housing Act authorizes FHA insurance
for open-end mortgages under which the mortgagee could advance
additional funds under the mortgage to finance later improvements or
repairs that would substantially protect or improve the basic
livability or utility of the property. Although mentioned in the
regulations, FHA does not have administrative procedures for the
processing of open-end mortgages; they are not provided for in HUD's
instructions for mortgage forms, and GNMA has no programs for the
pooling of open-end mortgages. Various provisions in parts 203 and 234,
including Secs. 203.44 and 234.70, are amended to make clear that FHA
is not insuring open-end mortgages.
The introductory paragraph of Sec. 203.49 is amended by including a
reference to section 203(h) in the second sentence to permit adjustable
rate mortgages (ARMs) in disaster situations. Section 203(h) mortgages
generally meet all requirements of section 203(b) mortgages except that
a higher loan-to-value ratio is permitted. The Department has
determined that ARMs should be available on the same terms as for
section 203(b) mortgages.
Some issuers of 10-year warranty plans that have been approved by
HUD and used to support high-ratio mortgages for new construction have
read HUD's warranty plan requirements as permitting plans that impose
the requirement that homeowners submit warranty claims to arbitration.
This has never been HUD's intention under the warranty plan final rule.
Although arbitration must be available to a dissatisfied homeowner,
judicial resolution of disputes must also be available to homeowners.
HUD has modified the wording of Sec. 203.204(g) to make this clear.
Section 203.255(b)(2) is amended by replacing ``upon a form'' with
``in a form'' since application information may now be collected
electronically through CHUMS.
Section 203.281(b)(1) is amended by deleting the language following
the first comma to simplify the procedures for calculating the MIP
amount for the small number of cases for which one-time MIP is still
used.
Sections 203.356 and 203.402 regarding the notice of foreclosure
are amended to provide a more consistent application of the rules for
curtailment of debenture interest included in insurance benefits paid
to mortgagees. Section 203.356 is divided into subsection (a) for the
requirements to provide the notice of foreclosure, and subsection (b)
for exercising reasonable diligence in prosecuting the foreclosure.
Section 203.402(k)(1) is also subdivided. New subsection
203.402(k)(1)(ii) limits the amount of debenture interest that the
Secretary may curtail if the mortgagee does not provide the Secretary
the notice of foreclosure. This change will reduce the debenture
interest curtailment when the mortgagee proceeded to foreclose with
reasonable diligence, despite its failure to forward the initial notice
of foreclosure. The specific cap on debenture interest curtailment will
be set by administrative issuances, but the curtailment will not exceed
what is currently being assessed.
Sections 203.378, 203.379, and 203.380 regarding property condition
and adjustments for damage are amended to clarify that tornado damage
includes damage by hurricanes. Both storm systems are defined as
violent whirlwinds and historically have been treated the same by the
Department in this regard.
Section 203.502(b) regarding notification of transfer of servicing
is amended to change the responsibility for notifying the Secretary
from the transferor mortgagee to the transferee. This change will
enhance HUD's ability to coordinate the change in servicer with the
collection of mortgage insurance premiums from the new servicer.
Section 203.670 addresses conveyance of occupied property.
Paragraph (a) states HUD's property disposition policy, which is also
stated in Sec. 291.1 in part 291, Disposition of HUD-Acquired Single
Family Property. However, Sec. 291.1 was amended to reflect a revised
policy in a September 20, 1993 Interim Rule, made final on September
22, 1994. Therefore, Sec. 203.670(a) is being amended to reflect the
revised policy.
Section 203.685 is removed. It authorized waivers of single family
servicing regulations, but such waivers are now authorized by the
Department-wide waiver authority in 24 CFR 5.100.
Part 206
Section 206.13 is removed because it addresses the terminated
single family co-insurance program. Section 206.17 is amended to
recognize that the basic payment term and tenure payment
[[Page 36262]]
options for HECMs can be combined with lines of credit.
Part 234
Sections 234.11 and 234.54 are added to conform to corresponding
provisions in part 203.
Section 234.16 is amended to add a new paragraph (d) regarding
compliance, for buildings having four (4) or more units which were
built for first occupancy after March 13, 1991, with the Fair Housing
Act new construction requirements at 24 CFR 100.205.
Part 280
Section 280.330(c)(2) is amended by adding the following language:
``. . . remaining balance of the . . .''. The way this section is
currently written, it appears that the entire original mortgage amount
is cancelled. In addition, the spelling of ``cancelled'' is corrected.
Part 291
Section 291.105(h)(2) is amended to give the Secretary more
flexibility in determining what form of cash equivalents will be
acceptable for earnest money deposits in the sale of HUD-acquired
single family properties, given rapidly changing banking industry
practices. For example, the amendment permits HUD to accept teller's
checks that are currently excluded.
Section 291.115(b)(2) of the regulations on HUD property
disposition is amended to clarify that section 203(k) insured financing
for investors is available for eligible properties without increased
down-payment requirements. Section 291.110(e) already provides for
section 203(k) financing in property disposition sales. As a general
rule, investors are precluded from obtaining FHA-insured mortgage
financing. HUD-acquired properties may be sold to investors with FHA-
insured financing but, in order to protect the insurance funds, based
upon past experiences, the property disposition regulations were
drafted to require higher down-payments for investors. A 25 percent
down-payment is required for investors who purchase a one-unit single
family dwelling with insured mortgage financing.
The section 203(k) program specifically makes investors eligible to
obtain mortgage financing with a 15 percent down-payment based upon the
lesser of the estimated value of the property plus the cost of
rehabilitation, or 110 percent of the estimate of value after
rehabilitation. The availability of the section 203(k) program for
property disposition sales, as provided by Sec. 291.110(e),
incorporates the 15 percent down-payment requirement for investors
through the regulations that implement section 203(k). In order to make
it clear that the 25 percent down-payment provision of
Sec. 291.115(b)(2) does not apply to section 203(k) investor mortgages,
a technical amendment is being made to that section.
Typographical and Technical Errors, and Cross Reference Corrections
This rule corrects several typographical and technical errors and
also corrects and adds cross references and removes cross references
that are no longer applicable. Also, Sec. 203.390 is amended to insert
language inadvertently omitted when that section was last amended on
July 1, 1993, at 58 FR 35369.
Other Matters
Justification for Final Rulemaking
In general, the Department publishes a rule for public comment
before issuing a rule for effect, in accordance with its own
regulations on rulemaking, 24 CFR part 10. However, part 10 does
provide 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) The Department finds that good cause exists to publish this
rule for effect without first soliciting public comment, in that prior
public procedure is unnecessary and contrary to public interest because
the amendments made by this rule give greater clarity and accuracy to
the provisions. They do not substantively affect the rights and duties
of participants in the programs.
Environmental Impact
A Finding of No Significant Impact with respect to the environment
has been made in accordance with HUD regulations at 24 CFR part 50,
which implements section 102(2)(C) of the National Environmental Policy
Act of 1969 (NEPA). This Finding of No Significant Impact is available
for public inspection between 7:30 a.m. and 5:30 p.m. weekdays in the
Office of the Rules Docket Clerk, Office of the General Counsel,
Department of Housing and Urban Development Room 10276, 451 Seventh
Street, SW, Washington, DC 20410.
Regulatory Flexibility Act
The Secretary, in accordance with the Regulatory Flexibility Act (5
U.S.C. 605(b)), has reviewed this rule before publication and by
approving it certifies that this rule does not have a significant
economic impact on a substantial number of small entities. This final
rule makes a variety of technical amendments, clarifications and
corrections to regulations for the single family mortgage insurance
programs. None of the amendments or clarifications add to the
regulatory burden for mortgagors or mortgagees.
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.
Executive Order 12606, The Family
The General Counsel, as the Designated Official under Executive
Order 12606, The Family, has determined that this rule does not have
potential for significant impact on family formation, maintenance, and
general well-being, and, thus, is not subject to review under the
order. No significant change in existing HUD policies or programs will
result from promulgation of this rule, as those policies and programs
relate to family concerns.
List of Subjects
24 CFR Part 200
Administrative practice and procedure, Claims, Equal employment
opportunity, Fair housing, Home improvement, Housing standards,
Incorporation by reference, Lead poisoning, Loan programs--housing and
community development, Minimum property standards, Mortgage insurance,
Organization and functions (Government agencies), Penalties, Reporting
and recordkeeping requirements, Social security, Unemployment
compensation, Wages.
24 CFR Part 201
Health facilities, Historic preservation, Home improvement, Loan
programs--housing and community development, Manufactured homes,
Mortgage insurance, Reporting and recordkeeping requirements.
24 CFR Part 202
Administrative practice and procedure, Home improvement,
Manufactured homes, Mortgage
[[Page 36263]]
insurance, Reporting and recordkeeping requirements.
24 CFR Part 203
Hawaiian Natives, Home improvement, Indians--lands, Loan programs--
housing and community development, Mortgage insurance, Reporting and
recordkeeping requirements, Solar energy.
24 CFR Part 206
Aged, Condominiums, Loan programs--housing and community
development, Mortgage insurance, Reporting and recordkeeping
requirements.
24 CFR Part 221
Low and moderate income housing, Mortgage insurance, Reporting and
recordkeeping requirements.
24 CFR Part 233
Home improvement, Loan programs--housing and community development,
Mortgage insurance, Reporting and recordkeeping requirements.
24 CFR Part 234
Condominiums, Mortgage insurance, Reporting and recordkeeping
requirements.
24 CFR Part 280
Community development, Grant programs--housing and community
development, Loan programs--housing and community development, Low and
moderate income housing, Nonprofit organizations, Reporting and
recordkeeping requirements.
24 CFR Part 291
Community facilities, Conflict of interests, Homeless, Lead
poisoning, Low and moderate income housing, Mortgages, Reporting and
recordkeeping requirements, Surplus government property.
Accordingly, in title 24 of the Code of Federal Regulations, parts
200, 201, 202, 203, 206, 221, 233, 234, 280, and 291 are amended as
follows:
PART 200--INTRODUCTION
1. The authority citation for 24 CFR part 200 continues to read as
follows:
Authority: 12 U.S.C. 1701-1715z-18; 42 U.S.C. 3535(d).
Sec. 200.810 [Amended]
2. Section 200.810(b) is amended to remove the phrase ``, who shall
be listed on the HUD Appraiser Roster under Sec. 267.8(d)(2) of the
chapter,''.
PART 201--TITLE I PROPERTY IMPROVEMENT AND MANUFACTURED HOME LOANS
3. The authority citation for 24 CFR part 201 continues to read as
follows:
Authority: 12 U.S.C. 1703; 42 U.S.C. 1436a and 3535(d).
Sec. 201.18 [Amended]
4. Section 201.18 is amended by revising the section heading to
read, ``Modification agreement or repayment plan.''
PART 202--APPROVAL OF LENDING INSTITUTIONS AND MORTGAGEES
5. The authority citation for 24 CFR part 202 continues to read as
follows:
Authority: 12 U.S.C. 1703, 1709, and 1715b; 42 U.S.C. 3535(d).
6. Section 202.3(j) is amended to add at the end the following
sentence:
Sec. 202.3 General approval requirements.
* * * * *
(j) * * * The Secretary may identify classes or groups of lenders
that are exempt from one or more of these fees.
* * * * *
7. Section 202.11 is amended by revising the section heading to
read as follows:
Sec. 202.11 Approval, origination approval agreement, recertification,
withdrawal of approval and termination of approval agreement.
* * * * *
8. Section 202.12(k) is amended to add at the end the following
sentence:
Sec. 202.12 General approval requirements.
* * * * *
(k) * * * The Secretary may identify classes or groups of
mortgagees that are exempt from one or more of these fees.
* * * * *
Sec. 202.13 [Amended]
9. Section 202.13 is amended by removing paragraph (d) and
redesignating paragraph (e) as paragraph (d).
PART 203--SINGLE FAMILY MORTGAGE INSURANCE
10. The authority citation for 24 CFR part 203 continues to read as
follows:
Authority: 12 U.S.C. 1709, 1710, 1715b, and 1715u; 42 U.S.C.
3535(d).
11. Section 203.5 is amended by revising paragraph (e) to read as
follows:
Sec. 203.5 Direct Endorsement process.
* * * * *
(e) Appraisal. (1) A mortgagee shall have the property appraised in
accordance with such standards and requirements as the Secretary may
prescribe.
(2) The mortgagee shall not discriminate on the basis of race,
color, religion, national origin, sex, age, or disability in the
selection of an appraiser.
12. Section 203.17 is amended by revising paragraph (b) to read as
follows:
Sec. 203.17 Mortgage provisions.
* * * * *
(b) Mortgage multiples. A mortgage shall involve a principal
obligation in a multiple of $1.
* * * * *
13. Section 203.18 is amended to remove the parenthetical phrase
``(as in effect on September 30, 1992)'' in paragraph (a)(1)(ii) and to
add a new paragraph (i) to read as follows:
Sec. 203.18 Maximum mortgage amounts.
* * * * *
(i) Energy efficient mortgages. The principal amount of energy
efficient mortgages may exceed the maximum amounts determined under
paragraph (a)(1) of this section under conditions prescribed by the
Secretary in accordance with section 106 of the Energy Policy Act of
1992.
Sec. 203.19 [Amended]
Sec. 203.19 [Amended]
14. Section 203.19 is amended by removing paragraph (c).
15. Section 203.22 is amended by revising paragraph (a) to read as
follows:
Sec. 203.22 Payment of insurance premiums or charges; prepayment
privileges.
(a) Payment of periodic insurance premiums or charges. Except with
respect to mortgages for which a one-time mortgage insurance premium is
paid pursuant to Sec. 203.280, the mortgage may provide for monthly
payments by the mortgagor to the mortgagee of an amount equal to one-
twelfth of the annual mortgage insurance premium payable by the
mortgagee to the Commissioner. Such payments continue only so long as
the contract of insurance shall remain in effect or for such shorter
period as mortgage insurance premiums are payable by the mortgagee to
the Commissioner.
* * * * *
16. Section 203.24 is amended by revising paragraph (a)(1) to read
as follows:
Sec. 203.24 Application of payments.
(a) * * *
(1) Premium charges under the contract of insurance (other than a
one-time or up-front mortgage insurance
[[Page 36264]]
premium paid in accordance with Secs. 203.280, 203.284 and 203.285),
charges for ground rents, taxes, special assessments, flood insurance
premiums, if required, and fire and other hazard insurance premiums;
* * * * *
17. Section 203.30 is amended by adding a new paragraph (d) to read
as follows:
Sec. 203.30 Certificate of nondiscrimination by the mortgagor.
* * * * *
(d) That buildings having four (4) or more units, which were built
for first occupancy after March 13, 1991, were constructed in
compliance with the Fair Housing Act new construction requirements in
24 CFR 100.205.
Sec. 203.36 [Removed and reserved]
18. Section 203.36 is removed and reserved.
19. Section 203.38 is revised to read as follows:
Sec. 203.38 Location of dwelling.
At the time a mortgage is insured there must be located on the
mortgaged property one or more dwellings designed principally for
residential use for not more than four families.
20. Section 203.40 is amended by revising the first sentence to
read as follows:
Sec. 203.40 Location of property.
The mortgaged property shall be located within the United States,
Puerto Rico, Guam, the Virgin Islands, the Commonwealth of the Northern
Mariana Islands, and American Samoa. * * *
21. Section 203.42 is amended by revising paragraph (a) to read as
follows:
Sec. 203.42 Rental properties.
(a) A mortgage on property upon which there is a dwelling to be
rented by the mortgagor shall not be eligible for insurance if the
property is a part of, or adjacent or contiguous to, a project, or
group of similar rental properties, in which the mortgagor has a
financial interest in eight or more dwelling units.
* * * * *
22. Section 203.43 is amended by revising paragraph (c)(3) to read
as follows:
Sec. 203.43 Eligibility of miscellaneous type mortgages.
* * * * *
(c) * * *
(3) The mortgage must result in a reduction in regular monthly
payments by the mortgagor, except:
(i) When a fixed rate mortgage is given to refinance an adjustable
rate mortgage held by a mortgagor who is to occupy the dwelling as a
principal residence or secondary residence, as these terms are defined
in Sec. 203.18(f); or
(ii) When refinancing a mortgage for a shorter term will result in
an increase in the mortgagor's regular monthly payments of no more than
$50. In the case of a graduated payment mortgage, the reduction in
regular monthly payments means a reduction from the payment due under
the existing mortgage for the month in which the refinancing mortgage
is executed.
* * * * *
Sec. 203.43b [Removed and reserved]
23. Section 203.43b is removed and reserved.
Sec. 203.43f [Amended]
24. Section 203.43f(b) is amended to remove the last sentence.
25. Section 203.43h is amended by revising the introductory text,
revising paragraph (b), and revising paragraph (g)(3), to read as
follows:
Sec. 203.43h Eligibility of mortgages on Indian land insured pursuant
to section 248 of the National Housing Act.
A mortgage covering a one- to four-family residence located on
Indian land shall be eligible for insurance pursuant to section 248 of
the National Housing Act (12 U.S.C. 1715z-13), notwithstanding
otherwise applicable requirements related to marketability of title, if
the mortgage meets the requirements of this subpart as modified by this
section and is made by an Indian Tribe or on a leasehold estate, by an
Indian who will occupy it as a principal residence. Mortgage insurance
on cooperative shares is not authorized under this section.
* * * * *
(b) Eviction procedures. Before HUD will insure a mortgage on
Indian land, the tribe having jurisdiction over such property must
certify to the HUD Field Office that it has adopted and will enforce
procedures for eviction of defaulted mortgagors where the insured
mortgage has been foreclosed.
* * * * *
(g) * * *
(3) ``Indian tribe'' means any Indian or Alaska native tribe, band,
nation, or other organized group or community of Indians or Alaskan
natives recognized as eligible for the services provided to Indians or
Alaska natives by the Secretary of the Interior because of its status
as such an entity, or that is an eligible recipient under chapter 67 of
title 31, United States Code. For purposes of engaging in section 248
insured mortgage transactions under this section, an Indian tribe may
act through its duly authorized representative.
* * * * *
26. Section 203.43i is amended by revising paragraph (a) to read as
follows:
Sec. 203.43i Eligibility of mortgages on Hawaiian Home Lands insured
pursuant to section 247 of the National Housing Act.
(a) Eligibility. A mortgage on a homestead lease granted by the
Department of Hawaiian Home Lands covering a one- to four-family
residence located on Hawaiian home lands is eligible for insurance
pursuant to section 247 of the National Housing Act (12 U.S.C. 1715z-
12) if the mortgagor is a native Hawaiian who will occupy it as a
principal residence, and if the mortgage meets the requirements of this
subpart as modified by this section. Mortgage insurance on cooperative
shares under Sec. 203.43c on homes in federally impacted areas under
Sec. 203.43e is not authorized under this section.
* * * * *
27. Section 203.44 is revised to read as follows:
Sec. 203.44 Eligibility of advances.
Mortgagees may not make open-end advances under section 225 of the
National Housing Act (12 U.S.C. 1715p) in connection with the mortgages
insured under this chapter.
28. Section 203.49 is amended by revising the second sentence of
the introductory text and by removing the second sentence of paragraph
(a) beginning with ``The weekly average * * *'', to read as follows:
Sec. 203.49 Eligibility of adjustable rate mortgages.
* * * This section shall apply only to mortgage loans described
under sections 203(b), 203(h) and 203(k) of the National Housing Act.
* * * * *
29. Section 203.204 is amended by revising paragraph (a) and by
revising the third sentence of paragraph (g), to read as follows:
Sec. 203.204 Requirements and limitations of a plan.
(a) A Plan must assure timely resolution of homeowners' complaints
or claims covered under Sec. 203.205. Warranties set forth in a Plan
must comply with section 2301(a)(1)-(13) of the Magnuson-Mass Warranty-
Federal Trade Commission Improvement Act (15 U.S.C. 2301-2312) along
with the requirements and criteria set out in this section.
* * * * *
[[Page 36265]]
(g) * * * A Plan must contain pre-arbitration conciliation
provisions at no cost to the homeowner, and provision for judicial
resolution of disputes, but arbitration, which must be available to a
homeowner during the entire term of the coverage contract, must be an
assured recourse for a dissatisfied homeowner.
* * * * *
30. Section 203.251 is amended by revising paragraph (s) to read as
follows:
Sec. 203.251 Definitions.
* * * * *
(s) State includes the several States, Puerto Rico, the District of
Columbia, Guam, the Commonwealth of the Northern Mariana Islands,
American Samoa, and the Virgin Islands.
* * * * *
31. Section 203.255 is amended by revising paragraph (b)(2) to read
as follows:
Sec. 203.255 Insurance of mortgage.
(b) * * *
(2) An application for insurance of the mortgage in a form
prescribed by the Secretary;
* * * * *
Sec. 203.265 [Amended]
32. Section 203.265(b) is amended in the last sentence to remove
the phrase ``Treasury Fiscal Requirements Manual'' and add in its place
the phrase ``Treasury Financial Manual.''
33. Section 203.281 is amended by revising paragraph (b)(1) to read
as follows:
Sec. 203.281 Calculation of one-time MIP.
* * * * *
(b)(1) The Commissioner shall determine the applicable premium
percentage in accordance with sound financial and actuarial practice.
* * * * *
Sec. 203.284 [Amended]
34. Section 203.284 is amended by:
a. Removing the second sentence in paragraph (a)(1);
b. Removing the phrase ``pursuant to paragraph (b)(1)(i) or
(b)(2)(i) of this section,'' in paragraph (c); and
c. Removing the phrase ``Treasury Fiscal Requirements Manual'' in
the last sentence of paragaph (e), and adding in its place the phrase
``Treasury Financial Manual.''
35. Section 203.285 is amended by revising the second sentence of
paragraph (c) to read as follows:
Sec. 203.285 Fifteen-year mortgages: Calculation of up-front and
annual MIP on or after December 26, 1992.
* * * * *
(c) Applicability of certain provisions. * * * The provisions of
paragraphs (c), (d), (e), and (g) of Sec. 203.284 also shall be
applicable to mortgages subject to premiums under this section.
* * * * *
36. Section 203.346 is amended by revising the first sentence to
read as follows:
Sec. 203.346 Postponement of foreclosure--mortgagors in military
service.
If at any time during default the mortgagor is a ``Person in
military service,'' as such term is defined in the Soldiers' and
Sailors' Civil Relief Act of 1940, the period during which the
mortgagor is in such service shall be excluded in computing the period
within which the mortgagee shall commence foreclosure or acquire the
property by other means as provided in Sec. 203.355 of this subpart. *
* *
37. Section 203.356 is revised to read as follows:
Sec. 203.356 Notice of foreclosure and pre-foreclosure sale;
reasonable diligence requirements.
(a) Notice of foreclosure and pre-foreclosure sale. The mortgagee
must give notice to the Secretary, in a format prescribed by the
Secretary, within 30 days after the institution of foreclosure
proceedings. The mortgagee must give notice to the Secretary, in a
format prescribed by the Secretary, within the time-frame prescribed by
the Secretary, of the acceptance of any mortgagor into the pre-
foreclosure sale procedure.
(b) Reasonable diligence. The mortgagee must exercise reasonable
diligence in prosecuting the foreclosure proceedings to completion and
in acquiring title to and possession of the property. A time frame that
is determined by the Secretary to constitute ``reasonable diligence''
for each State is made available to mortgagees.
38. Section 203.378 is amended by revising paragraph (c)(1) to read
as follows:
Sec. 203.378 Property condition.
* * * * *
(c) * * *
(1) Damage by fire, flood, earthquake, hurricane, or tornado;
* * * * *
39. Section 203.379 is amended by revising paragraph (a),
introductory text, and paragraph (b), introductory text, to read as
follows:
Sec. 203.379 Adjustment for damage or neglect.
(a) If the property has been damaged by fire, flood, earthquake,
hurricane, or tornado, or, for mortgages insured on or after January 1,
1977, the property has suffered damage because of the mortgagee's
failure to take action as required by Sec. 203.377, the damage must be
repaired before conveyance of the property or assignment of the
mortgage to the Secretary, except under the following conditions:
* * * * *
(b) For mortgages insured under firm commitments issued on or after
November 19, 1992, or under direct endorsement processing where the
credit worksheet was signed by the mortgagee's underwriter on or after
November 19, 1992, the provisions of paragraph (a) of this section
apply and, in addition, if the property has been damaged during the
time of the mortgagee's possession by events other than fire, flood,
earthquake, hurricane, or tornado, or if it was damaged notwithstanding
reasonable action by the mortgagee as required by Sec. 203.377 of this
part, the mortgagee must provide notice of such damage to the Secretary
and may not convey until directed to do so by the Secretary. The
Secretary will either:
* * * * *
40. Section 203.380 is amended by revising paragraph (a)(1)(i) to
read as follows:
Sec. 203.380 Certificate of property condition.
(a) * * *
(1) * * *
(i) Undamaged by fire, flood, earthquake, hurricane or tornado; and
* * * * *
41. Section 203.390 is amended by revising paragraph (b)(1) to read
as follows:
Sec. 203.390 Waiver of title--mortgages or property formerly held by
the Secretary.
* * * * *
(b) * * *
(1) If a property held by the Secretary is sold by the Secretary
who also insures a mortgage financing the sale, and the mortgage is
later reassigned to the Secretary or the property covered by the
mortgage is later conveyed to the Secretary, the Secretary will not
object to title by reason of any lien or other adverse interest that
was senior to the mortgage on the date the mortgage was filed for
record, except where the lien or other adverse interest arose from a
lien or interest that had already been recorded against the mortgagor.
* * * * *
42. Section 203.402 is amended by revising paragraphs (b), (c) and
(k)(1) to read as follows:
[[Page 36266]]
Sec. 203.402 Items included in payment--conveyed and non-conveyed
properties.
* * * * *
(b) Special assessments, which are noted on the application for
insurance or which become liens after the insurance of the mortgage.
(c) Hazard insurance premiums on the mortgaged property not in
excess of a reasonable rate as defined in Sec. 203.379(a)(4).
* * * * *
(k)(1) For properties conveyed to the Secretary, an amount
equivalent to the debenture interest which would have been earned, as
of the date such payment is made, on the portion of the insurance
benefits paid in cash, if such portion had been paid in debentures,
except that:
(i) When the mortgagee fails to meet any one of the applicable
requirements of Secs. 203.355, 203.356(b), 203.359, 203.360, 203.365,
203.606(b)(1), or 203.366 within the specified time and in a manner
satisfactory to the Secretary (or within such further time as the
Secretary may approve in writing), the interest allowance in such cash
payment shall be computed only to the date on which the particular
required action should have been taken or to which it was extended;
(ii) When the mortgagee fails to meet the requirements of
Sec. 203.356(a) of this part within the specified time and in a manner
satisfactory to the Secretary (or within such further time as the
Secretary may approve in writing), the interest allowance in such cash
payment shall be computed to a date set administratively by the
Secretary.
* * * * *
43. An undesignated center heading ``GRADUATED PAYMENT MORTGAGES''
is added after Sec. 203.435 and before Sec. 203.436.
44. Section 203.502 is amended to revise the first sentence of
paragraph (a) and all of paragraph (b) to read as follows:
Sec. 203.502 Responsibility for servicing.
(a) After January 10, 1994, servicing of insured mortgages must be
performed by a mortgagee that is approved by HUD to service insured
mortgages. * * *
* * * * *
(b) Whenever servicing of any mortgage is transferred from one
mortgagee or servicer to another, notice of the transfer of service
shall be delivered:
(1) By the transferor mortgagee or servicer to the mortgagor. The
notification shall be delivered not less than 15 days before the
effective date of the transfer and shall contain the information
required in Sec. 3500.21(e)(2) of this title; and
(2) By the transferee mortgagee or servicer:
(i) To the mortgagor. The notification shall be delivered not less
than 15 days before the effective date of the transfer and shall
contain the information required in Sec. 3500.21(e)(2) of this title;
and
(ii) To the Secretary. This notification shall be delivered within
15 days of the transfer, in a format prescribed by the Secretary.
* * * * *
45. Section 203.604 is amended by revising the second sentence of
paragraph (b) to read as follows:
Sec. 203.604 Contact with the mortgagor.
* * * * *
(b) * * * If default occurs in a repayment plan arranged other than
during a personal interview, the mortgagee must have a face-to-face
meeting with the mortgagor, or make a reasonable attempt to arrange
such a meeting within 30 days after such default and at least 30 days
before foreclosure is commenced, or at least 30 days before assignment
is requested if the mortgage is insured on Hawaiian home land pursuant
to section 247 or Indian land pursuant to section 248 or if assignment
is requested under Sec. 203.350(d) for mortgages authorized by section
203(q) of the National Housing Act.
* * * * *
46. Section 203.670 is amended by revising paragraph (a) to read as
follows:
Sec. 203.670 Conveyance of occupied property.
(a) It is HUD's policy to reduce the inventory of acquired
properties in a manner that expands homeownership opportunities,
strengthens neighborhoods and communities, and ensures a maximum return
to the mortgage insurance fund.
* * * * *
47. Section 203.679 is amended by revising paragraph (b)(4) to read
as follows:
Sec. 203.679 Continued occupancy after conveyance.
* * * * *
(b) * * *
(4) Assignment of the property by the Secretary to a different use
or program.
Sec. 203.685 [Removed]
48. Section 203.685 is removed.
PART 206--HOME EQUITY CONVERSION MORTGAGE INSURANCE
49. The authority citation for 24 CFR part 206 continues to read as
follows:
Authority: 12 U.S.C. 1715b, 1715z-1720; 42 U.S.C. 3535(d).
Sec. 206.3 [Amended]
50. Section 206.3 is amended by removing the last sentence of the
definition of ``Maximum claim amount''.
51. Section 206.9 is amended by revising the paragraph heading of
paragraph (b) to read as follows:
Sec. 206.9 Eligible mortgagees.
* * * * *
(b) HUD approved mortgagees.
Sec. 206.13 [Removed and reserved]
52. Section 206.13 is removed and reserved.
53. Section 206.17 is amended by revising paragraph (a) to read as
follows:
Sec. 206.17 General.
(a) Payment options. A mortgage shall initially provide for the
tenure payment option (Sec. 206.19(a)), the term payment option
(Sec. 206.19(b)), or the line of credit payment option
(Sec. 206.19(c)), or a combination as provided in Sec. 206.25(d),
subject to later change in accordance with Sec. 206.26.
* * * * *
Sec. 206.45 [Amended]
54. Section 206.45(b) is amended to remove the second sentence.
Sec. 206.121 [Amended]
55. Section 206.121(c) is amended to remove the citation
``Sec. 206.27(e)'' and to add in its place the citation
``Sec. 206.27(d).''
PART 221--LOW COST AND MODERATE INCOME MORTGAGE INSURANCE
56. The authority citation for part 221 continues to read as
follows:
Authority: 12 U.S.C. 1707(a), 1715b, and 1715l; 42 U.S.C.
3535(d).
57. Section 221.45 is revised to read as follows:
Sec. 221.45 Mortgage obligation in multiples.
The mortgage shall involve a principal obligation in multiples of
$1.
PART 233--EXPERIMENTAL HOUSING MORTGAGE INSURANCE
58. The authority citation for part 233 is revised to read as
follows:
Authority: 12 U.S.C. 1715b, 1715x; 42 U.S.C. 3535(d).
[[Page 36267]]
59. Section 233.5 is amended by revising paragraph (a) introductory
text and paragraph (b) to read as follows:
Sec. 233.5 Cross-reference.
(a) To be eligible for insurance under this subpart, a mortgage or
home improvement loan shall meet the eligibility requirements for
insurance under Sec. 203.1 et seq. (part 203, subpart A); Sec. 213.501
et seq. (part 213, subpart C); Sec. 220.1 et seq. (part 220, subpart
A); Sec. 221.1 et seq. (part 221, subpart A); Sec. 226.1 et seq. (part
226, subpart A); Sec. 234.1 et seq. (part 234, subpart A); Sec. 235.1
et seq. (part 235, subpart A); or Sec. 237.1 et seq. (part 237, subpart
A) of this chapter, except that:
* * * * *
(b) For the purposes of this subpart, all references in parts 203,
213, 220, 221, 226, 234, 235, and 237 of this chapter to sections 203,
213, 220, 221, 809, 234, 235, and 237 of the National Housing Act shall
be construed to refer to section 233 of the Act.
PART 234--CONDOMINIUM OWNERSHIP MORTGAGE INSURANCE
60. The authority for part 234 continues to read as follows:
Authority: 12 U.S.C. 1715qb and 1715y; 42 U.S.C. 3535(d).
Section 234.520(a)(2)(ii) is also issued under 12 U.S.C. 1707(a).
61. Section 234.1 is amended by revising paragraph (n) to read as
follows:
Sec. 234.1 Definitions used in this subpart.
* * * * *
(n) State includes the several States, Puerto Rico, the District of
Columbia, Guam, the Commonwealth of the Northern Mariana Islands,
American Samoa, and the Virgin Islands.
* * * * *
62. Section 234.11 is added to read as follows:
Sec. 234.11 Disclosure regarding interest due upon mortgage
prepayment.
Each mortgagee with respect to a mortgage under this part shall, at
or before closing with respect to any such mortgage, provide the
mortgagor with written notice in a form prescribed by the Commissioner
describing any requirements the mortgagor must fulfill upon prepayment
of the principal amount of the mortgage to prevent the accrual of any
interest on the principal amount after the date of such prepayment.
63. Section 234.16 is amended by adding a new paragraph (d) to read
as follows:
Sec. 234.16 Certificate of nondiscrimination by mortgagor.
* * * * *
(d) That buildings having four (4) or more units, which were built
for first occupancy after March 13, 1991, were constructed in
compliance with the Fair Housing Act new construction requirements in
24 CFR 100.205.
64. Section 234.25 is amended by revising paragraph (b) to read as
follows:
Sec. 234.25 Mortgage provisions.
* * * * *
(b) Mortgage multiples. The mortgage shall involve a principal
obligation in a multiple of $1.
* * * * *
65. Section 234.52 is amended by revising paragraph (c) to read as
follows:
Sec. 234.52 Refinancing of existing mortgages.
* * * * *
(c) The mortgage must result in a reduction in regular monthly
payments by the mortgagor, except:
(1) When a fixed rate mortgage is given to refinance an adjustable
rate mortgage held by a mortgagor who is to occupy the dwelling as a
principal residence or secondary residence, as these terms are defined
in Sec. 237.27(e); or
(2) When refinancing a mortgage for a shorter term will result in
an increase in the mortgagor's regular monthly payments of no more than
$50. In the case of a graduated payment mortgage, the reduction in
regular monthly payments means a reduction from the payment due under
the existing mortgage for the month in which the refinancing mortgage
is executed;
* * * * *
66. Section 234.54 is added, under the undesignated center heading
``ELIGIBLE MORTGAGES,'' to read as follows:
Sec. 234.54 Eligibility of assigned mortgages and mortgages covering
acquired property.
The Commissioner may insure under this part, without regard to any
limitation upon eligibility contained in this subpart, any mortgage
assigned to the Commissioner in connection with payment under a
contract of mortgage insurance, or executed in connection with a sale
by the Commissioner of any property acquired in the settlement of an
insurance claim under any section or title of the National Housing Act.
Sec. 234.67 [Removed and reserved]
67. Section 234.67 is removed and reserved.
68. The undesignated center heading ``OPEN-END ADVANCES''
immediately preceding Sec. 234.70 is removed.
69. Section 234.70 is revised to read as follows:
Sec. 234.70 Eligibility of open-end advances.
Mortgagees may not make open-end advances under section 255 of the
National Housing Act in connection with mortgages insured under this
chapter.
PART 280--NEHEMIAH HOUSING OPPORTUNITY GRANTS PROGRAM
70. The authority citation for 24 CFR part 280 continues to read as
follows:
Authority: 12 U.S.C. 1715l note; 42 U.S.C. 3535(d).
71. Section 280.330 is amended by revising the section heading and
paragraph (c)(2) to read as follows:
Sec. 280.330 Loan and Profit.
* * * * *
(c) * * *
(2) Loan and Profit--Any amounts remaining after distribution of
the down payment shall be shared equally between the Secretary and the
family, but only to the extent that the Secretary recovers an amount
equal to the amount of the loan originally made to the family under
this section. If such remaining amounts are insufficient for the
Secretary to recover the full amount of the loan made under this
section, the remaining balance of the second mortgage shall be
cancelled and shall not be transferred to a subsequent purchaser.
* * * * *
PART 291--DISPOSITION OF HUD-ACQUIRED SINGLE FAMILY PROPERTY
72. The authority for 24 CFR part 291 continues to read as follows:
Authority: 12 U.S.C. 1790 and 1715(b); 42 U.S.C. 1441, 1441a,
1551a, and 3535(d).
73. Section 291.100 is amended by revising the first sentence of
paragraph (a)(3) and the introductory text in paragraph (a)(4) to read
as follows:
Sec. 291.100 General policy.
(a) * * *
(3) Except as provided in paragraph (a)(4) of this section, tenants
in occupancy will not be offered the right of first refusal to purchase
the property. * * *
(4) HUD tenants in occupancy will be offered the right of first
refusal to purchase property where:
* * * * *
74. Section 291.105 is amended by revising the first sentence of
paragraph (e) and the first sentence of paragraph (h)(2), to read as
follows:
Sec. 291.105 Competitive sales procedure.
* * * * *
[[Page 36268]]
(e) Full price offers. HUD field offices that operate under a
``full price offer'' program open offers at specified times during the
10-day bidding period. * * *
* * * * *
(h) * * *
(2) All bids must be accompanied by earnest money deposits in the
form of a cash equivalent as prescribed by the Secretary, or a
certification from the real estate broker that the earnest money has
been deposited in the broker's escrow account. * * *
* * * * *
75. Section 291.110 is amended by revising the first sentence of
paragraph (b)(1) to read as follows:
Sec. 291.110 Other sales procedures.
* * * * *
(b) Direct sales to displaced persons. (1) At the discretion of the
Field Office, properties eligible for insured financing are offered for
direct sale, at a discount of 10 percent off the list price, to
displaced persons who will occupy the properties. * * *
* * * * *
76. Section 291.115 is amended by revising paragraph (b)(2) to read
as follows:
Sec. 291.115 Insured sales.
* * * * *
(b) * * *
(2) For an owner-occupant purchaser, the mortgage amount is based
on the bid price plus any allowable pre-paids (e.g., taxes) and
financing or closing costs, up to local maximum mortgage amounts. For
investor purchasers without rehabilitation loans insured under
Sec. 203.50 of this chapter, the mortgage amount is limited to 75
percent of the bid price for one-unit properties, and 85 percent for
two- to four-unit properties, up to local maximum mortgage amounts.
Pre-paids, financing or closing costs may not be included in the
mortgage amount for such investor purchasers. For investor purchasers
with rehabilitation loans insured under Sec. 203.50 of this chapter,
the mortgage amount is calculated as provided in Sec. 203.50(f) of this
chapter and the bid price is used as the Commissioner's estimate of the
value of the property before rehabilitation.
Dated: June 13, 1996.
Nicolas P. Retsinas,
Assistant Secretary for Housing-Federal Housing Commissioner.
[FR Doc. 96-17305 Filed 7-8-96; 8:45 am]
BILLING CODE 4210-27-P
Complete official Federal Register PDF
FR Doc. 96-17304 Supplemental Standards of Ethical Conduct for Employees of the Federal Deposit Insurance Corporation
[Federal Register Volume 61, Number 132 (Tuesday, July 9, 1996)]
[Rules and Regulations]
[Pages 35915-35916]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-17304]
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Federal Register / Vol. 61, No. 132 / Tuesday, July 9, 1996 / Rules
and Regulations
[[Page 35915]]
FEDERAL DEPOSIT INSURANCE CORPORATION
5 CFR Part 3201
RIN 3064-AA08, 3209-AA15
Supplemental Standards of Ethical Conduct for Employees of the
Federal Deposit Insurance Corporation
AGENCY: Federal Deposit Insurance Corporation (FDIC).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Federal Deposit Insurance Corporation, with the
concurrence of the Office of Government Ethics (OGE), is amending the
Supplemental Standards of Ethical Conduct for Employees of the Federal
Deposit Insurance Corporation in order to allow employees' spouses and
minor children to acquire otherwise prohibited securities when they are
acquired as part of compensation packages in connection with their
employment. The amendment is being made retroactively effective as of
the effective date of the FDIC's supplemental standards.
EFFECTIVE DATE: May 25, 1995.
FOR FURTHER INFORMATION CONTACT: Richard M. Handy, Assistant Executive
Secretary (Ethics), (202) 898-7271, in the Office of the Executive
Secretary of the FDIC.
SUPPLEMENTARY INFORMATION:
I. Background
On April 25, 1995, with the concurrence of OGE, the FDIC published
as a final rule the Supplemental Standards of Ethical Conduct for
Employees of the Federal Deposit Insurance Corporation which were
effective May 25, 1995 (codified at 5 CFR part 3201). The final rule
was issued to supplement OGE's Standards of Ethical Conduct for
Employees of the Executive Branch that established uniform standards of
ethical conduct for executive branch employees (effective February 3,
1993, and codified at 5 CFR part 2635).
Upon the determination of the Board of Directors and with the
concurrence of OGE, part 3201 is being amended to provide an additional
exception to the prohibitions on the ownership of securities of FDIC-
insured depository institutions. The amendment allows spouses and minor
children of employees to acquire otherwise prohibited securities when
they are acquired as part of compensation packages in connection with
their employment. The Board of Directors determined that the provision,
without the revised language, was unnecessarily restrictive.
This rule is being issued as a final rule since it reduces the
restrictions placed on employees and their families by the existing
rule. Further, the amended rule will be made retroactively effective to
May 25, 1995.
II. Matters of Regulatory Procedure
Administrative Procedure Act
Pursuant to 5 U.S.C. 553 (a)(2), (b) and (d), the Board of
Directors has found that good cause exists for waiving the regular
notice of proposed rulemaking and 30-day delayed effective date as to
this final rule amendment, and further making it retroactively
effective to May 25, 1995, the effective date of the overall part 3201.
This action is being taken because it is in the public interest that
this rule, which concerns matters of agency organization, practice and
procedure and which relieves certain restrictions placed on FDIC
employees and their families, become effective retroactively on the
effective date of the original final rule.
Regulatory Flexibility Act
The Board of Directors has concluded that the amendment to the rule
will not impose a significant economic hardship on small institutions.
Therefore, the Board of Directors hereby certifies pursuant to section
605 of the Regulatory Flexibility Act (5 U.S.C. 605) that the amended
regulation will not have a significant economic impact on a substantial
number of small business entities within the meaning of the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.).
Paperwork Reduction Act
The Board of Directors has determined that the amended regulation
does not contain any information collection requirements that require
the approval of the Office of Management and Budget pursuant to the
Paperwork Reduction Act (44 U.S.C. 3501 et seq.).
List of Subjects in 5 CFR Part 3201
Administrative practice and procedure, Conflict of interests,
Government employees, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, the Federal Deposit
Insurance Corporation, with the concurrence of the Office of Government
Ethics, is amending 5 CFR part 3201 as follows:
PART 3201--SUPPLEMENTAL STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES
OF THE FEDERAL DEPOSIT INSURANCE CORPORATION
1. The authority citation for part 3201 continues to read as
follows:
Authority: 5 U.S.C. 7301; 5 U.S.C. App. (Ethics in Government
Act of 1978); 12 U.S.C. 1819(a), 1822; 26 U.S.C. 1043; E.O. 12674,
54 FR 15159, 3 CFR, 1989 Comp., p. 215, as modified by E.O. 12731,
55 FR 42547, 3 CFR, 1990 Comp., p. 306; 5 CFR 2635.105, 2635.403,
2635.502, and 2635.803.
2. In Sec. 3201.103, paragraph (b)(4) is amended by revising the
first sentence to read as follows:
Sec. 3201.103 Prohibitions on ownership of securities of FDIC-insured
depository institutions.
* * * * *
(b) * * *
(4) Acquiring, owning, or controlling a security of an FDIC-insured
depository institution or the affiliate of an FDIC-insured depository
institution where the security was acquired by inheritance, gift, stock
split, involuntary stock dividend, merger, acquisition, or other change
in corporate ownership, exercise of preemptive right, or otherwise
without specific intent to acquire the security, or, by an employee's
spouse or minor child as part of a compensation package in connection
with his or her employment. * * *
* * * * *
Dated at Washington, D.C. this 17th day of June 1996.
By Order of the Board of Directors.
[[Page 35916]]
Federal Deposit Insurance Corporation.
Robert E. Feldman,
Deputy Executive Secretary.
Concurred in this 1st day of July 1996.
Stephen D. Potts,
Director, Office of Government Ethics.
[FR Doc. 96-17304 Filed 7-8-96; 8:45 am]
BILLING CODE 6714-01-P
Complete official Federal Register PDF
FR Doc. 96-17294 Airworthiness Directives; Aviat Aircraft Inc. Models S-2A, S-2B, and S-2S Airplanes (formerly Pitts Models S-2A, S-2B, and S-2S airplanes)
[Federal Register Volume 61, Number 132 (Tuesday, July 9, 1996)]
[Rules and Regulations]
[Pages 35936-35938]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-17294]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 39
[Docket No. 95-CE-101-AD; Amendment 39-9690; AD 96-09-08 R1]
RIN 2120-AA64
Airworthiness Directives; Aviat Aircraft Inc. Models S-2A, S-2B,
and S-2S Airplanes (formerly Pitts Models S-2A, S-2B, and S-2S
airplanes)
AGENCY: Federal Aviation Administration, DOT.
ACTION: Final rule; request for comments.
-----------------------------------------------------------------------
SUMMARY: This amendment revises Airworthiness Directive (AD) 96-09-08,
which currently requires inspecting the longerons aft of the rear
cabane struts for cracks, and if cracked, prior to further flight,
repairing the cracks. The current AD is applicable to Aviat Aircraft
Inc. (Aviat), Models S-2A, S-2B, and S-2S airplanes (formerly Pitts
Models S-2A, S-2B, and S-2S airplanes). This action requires the same
action as AD 96-09-08; however, after AD 96-09-08 was issued, the FAA
was notified by the manufacturer that the compliance time in the
service bulletin was changed, and as a result, the issue date for the
service bulletin was changed. This revision will ensure that the owner
and operators are using the most up-to-date service bulletin applicable
to the required actions in this AD. The actions specified by this AD
are intended to prevent cracking and subsequent failure of the
longerons resulting in possible loss of control of the airplane.
DATES: Effective July 26, 1996.
The original Aviat Service Bulletin No. 24, dated February 8, 1996
was incorporated by reference and approved by the Director of the
Federal Register to become effective May 20, 1996 (61 FR 19540, May 2,
1996). The incorporation by reference of Aviat Service Bulletin No. 24,
dated March 20, 1996 that is applicable to this revised AD and listed
in the regulations is approved by the Director of the Federal Register
as of July 26, 1996.
Comments for inclusion in the Rules Docket must be received on or
before August 30, 1996.
ADDRESSES: Submit comments in triplicate to the Federal Aviation
Administration (FAA), Central Region, Office of the Assistant Chief
Counsel, Attention: Rules Docket 95-CE-101-AD, Room 1558, 601 E. 12th
Street, Kansas City, Missouri 64106.
Service information that applies to this AD may be obtained from
Aviat Aircraft Inc., The Airport-Box No. 1240, 672 South Washington
Street, Afton, Wyoming, 83110; telephone (307) 886-3151; facsimile
(307) 886-9674. This information may also be examined at the Federal
Aviation Administration (FAA), Central Region, Office of the Assistant
Chief Counsel, Attention: Rules Docket 95-CE-101-AD, Room 1558, 601 E.
12th Street, Kansas City, Missouri 64106; or at the Office of the
Federal Register, 800 North Capitol Street, NW., suite 700, Washington,
DC.
FOR FURTHER INFORMATION CONTACT: Roger Caldwell, Project Engineer, FAA,
Denver Aircraft Certification Office, 5440 Roslyn St., suite 133,
Denver, Colorado 80216; telephone (303) 286-5683; facsimile (303) 286-
5689.
SUPPLEMENTARY INFORMATION: Airworthiness Directive 96-09-08, Amendment
39-9584, (61 FR 19540, May 2, 1996) is applicable to Aviat Aircraft
Inc., Models S-2A, S-2B, and S-2S airplanes (formerly Pitts Models S-
2A, S-2B, and S-2S airplanes) and currently requires inspecting the
longerons around the rear cabane struts for cracks, and if no cracks
are found, continue repetitively inspecting the airplane. If cracks are
found during any inspection, prior to further flight, repair any cracks
found according to the approved repair scheme provided by the Denver
ACO manager.
Accomplishment of the actions of AD 96-09-08 is required in
accordance with Aviat Aircraft Inc. Service Bulletin (SB) No. 24, dated
February 8, 1996, which has been revised and replaced by Aviat SB No.
24, dated March 20, 1996.
[[Page 35937]]
Explanation of the Need for the Revision
The service bulletin incorporated into AD 96-09-08 contains
identical requirements as this revised AD, except for the change in the
date to March 20, 1996 and the change to the compliance time.
The FAA determined that the revised service bulletin should be
incorporated because the previous service bulletin dated February 8,
1996 was not made available to the owners and operators by the
manufacturer until after the service bulletin was changed. The FAA
cannot determine if some of the owners/operators of the affected
airplanes may have already complied with AD 96-09-08 in accordance with
Aviat SB No. 24, dated February 8, 1996.
Since the service bulletin must be available in order for the
owners/operators to comply with this action, this AD revises AD 96-09-
08 by (1) retaining the initial inspection, the repetitive inspection,
and repair required by AD 96-09-08; and (2) incorporating the revised
service bulletin to require accomplishment of the actions in accordance
with Aviat SB No. 24, dated March 20, 1996.
Since it was found that immediate corrective action was required,
notice and opportunity for prior public comment thereon were
impracticable and contrary to the public interest, and good cause
existed to make AD 96-09-08 effective in less than 30 days to all known
U.S. operators of Aviat Models S-2A, S-2B, and S-2S airplanes. These
conditions still exist, and the AD revision is hereby published in the
Federal Register as an amendment to section 39.13 of the Federal
Aviation Regulations (14 CFR 39.13) to make it effective to all
persons. The actions are to be done in accordance with the instructions
in Aviat SB No. 24, dated March 20, 1996.
Comments Invited
Although this action is in the form of a final rule that involves
requirements affecting immediate flight safety and, thus, was not
preceded by notice and opportunity to comment, comments are invited on
this rule. Interested persons are invited to comment on this rule by
submitting such written data, views, or arguments as they may desire.
Communications should identify the Rules Docket number and be submitted
in triplicate to the address specified above. All communications
received on or before the closing date for comments will be considered,
and this rule may be amended in light of the comments received. Factual
information that supports the commenters ideas and suggestions is
extremely helpful in evaluating the effectiveness of the AD action and
determining whether additional rulemaking action would be needed.
Comments are specifically invited on the overall regulatory,
economic, environmental, and energy aspects of the rule that might
suggest a need to modify the rule. All comments submitted will be
available, both before and after the closing date for comments, in the
Rules Docket for examination by interested persons. A report that
summarizes each FAA-public contact concerned with the substance of this
AD will be filed in the Rules Docket.
Commenters wishing the FAA to acknowledge receipt of their comments
submitted in response to this notice must submit a self-addressed,
stamped postcard on which the following statement is made: ``Comments
to Docket No. 95-CE-101-AD.'' The postcard will be date stamped and
returned to the commenter.
Regulatory Impact
The regulations adopted herein will not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this final
rule does not have sufficient federalism implications to warrant the
preparation of a Federalism Assessment.
The FAA has determined that this regulation is an emergency
regulation and that must be issued immediately to correct an unsafe
condition in aircraft, and is not a ``significant regulatory action''
under Executive Order 12866. It has been determined further that this
action involves an emergency regulation under DOT Regulatory Policies
and Procedures (44 FR 11034, February 26, 1979). If it is determined
that this emergency regulation otherwise would be significant under DOT
Regulatory Policies and Procedures, a final regulatory evaluation will
be prepared and placed in the Rules Docket (otherwise, an evaluation is
not required). A copy of it, if filed, may be obtained from the Rules
Docket.
List of Subjects in 14 CFR Part 39
Air transportation, Aircraft, Aviation safety, Incorporation by
reference, Safety.
Adoption of the Amendment
Accordingly, pursuant to the authority delegated to me by the
Administrator, the Federal Aviation Administration amends part 39 of
the Federal Aviation Regulations (14 CFR part 39) as follows:
PART 39--AIRWORTHINESS DIRECTIVES
1. The authority citation for part 39 continues to read as follows:
Authority: 49 USC 106(g), 40113, 44701.
Sec. 39.13 [Amended]
2. Section 39.13, Amendment 39-9584, (61 FR 19540, May 2, 1996), is
revised to read as follows:
96-09-08 R1. Aviat Aircraft Inc.: Amendment 39-9690; Docket No. 95-
CE-101-AD R1. Revises AD 96-09-08, Amendment 39- 9584.
Applicability: Models S-2A, S-2B, and S-2S Airplanes (formerly
Pitts Models S-2A, S-2B, and S-2S airplanes), all serial numbers,
certificated in any category.
Note 1: This AD applies to each airplane identified in the
preceding applicability provision, regardless of whether it has been
modified, altered, or repaired in the area subject to the
requirements of this AD. For airplanes that have been modified,
altered, or repaired so that the performance of the requirements of
this AD is affected, the owner/operator must use the authority
provided in paragraph (d) of this AD to request approval from the
FAA. This approval may address either no action, if the current
configuration eliminates the unsafe condition, or different actions
necessary to address the unsafe condition described in this AD. Such
a request should include an assessment of the effect of the changed
configuration on the unsafe condition addressed by this AD. In no
case does the presence of any modification, alteration, or repair
remove any airplane from the applicability of this AD.
Compliance: Required at the accumulation of 300 hours total
time-in-service (TIS), or within the next 25 hours TIS, whichever
occurs later, and thereafter at intervals not to exceed 25 hours
TIS, unless already accomplished in accordance with AD 96-09-08,
effective date May 20, 1996 and corresponding Aviat Service Bulletin
(SB) No. 24, dated February 8, 1996.
Note 2: The compliance time of this revised AD takes precedence
over the compliance time stated in Aviat SB No. 24, dated March 20,
1996.
To prevent cracking and subsequent failure of the longerons
resulting in possible loss of control of the airplane, accomplish
the following:
(a) Inspect (using a 10x magnifying glass) the longerons aft of
the rear cabane struts for cracks in accordance with paragraphs 1.)
through 5.) in the Aviat Service Bulletin (SB) No. 24, dated March
20, 1996. If cracks are found during any inspection required by this
AD, prior to further flight, contact the Manager of the Denver
Aircraft Certification Office (ACO) for an approved repair scheme.
(b) Prior to further flight, repair any cracks found in
accordance with the approved
[[Page 35938]]
repair scheme provided by the Denver ACO Manager.
(c) Report the results of the initial inspection to the Manager
of the Denver Aircraft Certification Office (ACO), FAA, Denver
Aircraft Certification Office, 5440 Roslyn St., suite 133, Denver,
Colorado, 80216, within 10 days of the inspection. The information
provided should include airplane model number, serial number,
registration number, location of cracks found, number of cracks, and
total TIS. Reporting requirements have been approved by the Office
of Management and Budget and assigned OMB control number 2120-0056.
(d) An alternative method of compliance or adjustment of the
initial or repetitive compliance times that provides an equivalent
level of safety, may be approved by the Manager, Roger Caldwell,
Project Engineer, FAA, Denver Aircraft Certification Office, 5440
Roslyn St., suite 133, Denver, Colorado, 80216. The request shall be
forwarded through an appropriate FAA Maintenance Inspector, who may
add comments and then send it to the Manager, Denver Aircraft
Certification Office.
Note 3: Information concerning the existence of approved
alternative methods of compliance with this AD, if any, may be
obtained from the Denver Aircraft Certification Office.
(e) The inspections and repairs required by this AD shall be
done in accordance with Aviat Aircraft Inc. Service Bulletin No. 24,
dated March 20, 1996, or in accordance with Aviat Aircraft Inc.
Service Bulletin No. 24, dated February 8, 1996, previously
incorporated by reference in the Federal Register (61 FR 19540, May
2, 1996) and applicable to AD 96-09-08. This incorporation by
reference was approved by the Director of the Federal Register in
accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies may be
obtained from Aviat Aircraft Inc., The Airport-Box No. 1240, 672
South Washington Street, Afton, Wyoming, 83110. Copies may be
inspected at the FAA, Central Region, Office of the Assistant Chief
Counsel, Room 1558, 601 E. 12th Street, Kansas City, Missouri, or at
the Office of the Federal Register, 800 North Capitol Street, NW.,
suite 700, Washington, DC.
(f) This amendment (39-9690) revises AD 96-09-08, Amendment 39-
9584.
(g) This amendment (39-9690) becomes effective on July 26, 1996.
Issued in Kansas City, Missouri, on June 25, 1996.
James E. Jackson,
Acting Manager, Small Airplane Directorate, Aircraft Certification
Service.
[FR Doc. 96-17294 Filed 7-8-96; 8:45 am]
BILLING CODE 4910-13-P
Complete official Federal Register PDF
FR Doc. 96-17285 National Environmental Policy Act Implementing Procedures
[Federal Register Volume 61, Number 132 (Tuesday, July 9, 1996)]
[Rules and Regulations]
[Pages 36222-36243]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-17285]
[[Page 36221]]
_______________________________________________________________________
Part IV
Department of Energy
_______________________________________________________________________
10 CFR Part 1021
National Environmental Policy Act Implementing Procedures; Final Rule
Federal Register / Vol. 61, No. 132 / Tuesday, July 9, 1996 / Rules
and Regulations
[[Page 36222]]
DEPARTMENT OF ENERGY
10 CFR Part 1021
RIN 1901-AA67
National Environmental Policy Act Implementing Procedures
AGENCY: Department of Energy.
ACTION: Final rule.
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SUMMARY: The Department of Energy (DOE) is amending its existing
regulations governing compliance with the National Environmental Policy
Act (NEPA). The amendments incorporate changes that improve DOE's
efficiency in implementing NEPA requirements by reducing costs and
preparation time while maintaining quality, consistent with the DOE
Secretarial Policy Statement on NEPA issued in June 1994. These
amendments also incorporate changes necessary to conform to recent
changes in DOE's missions, programs, and policies that have evolved in
response to changing national priorities since the current regulations
were issued in 1992.
EFFECTIVE DATE: These amendments to the rule will become effective
August 8, 1996.
FOR FURTHER INFORMATION CONTACT: Carol Borgstrom, Director, Office of
NEPA Policy and Assistance, EH-42, U.S. Department of Energy, 1000
Independence Avenue, SW., Washington, DC 20585-0119, (202) 586-4600 or
leave a message at (800) 472-2756.
SUPPLEMENTARY INFORMATION:
I. Background
The National Environmental Policy Act of 1969 (42 USC 4321 et seq.)
requires that Federal agencies prepare environmental impact statements
for major Federal actions that may ``significantly affect the quality
of the human environment.'' NEPA also created the President's Council
on Environmental Quality (CEQ), which issued regulations in 1978
implementing the procedural provisions of NEPA. Among other
requirements, the CEQ NEPA regulations (40 CFR parts 1500-1508) require
Federal agencies to adopt their own implementing procedures to
supplement the Council's regulations. DOE's current NEPA implementing
regulations were promulgated in 1992 (57 FR 15122, April 24, 1992) and
are codified at 10 CFR part 1021.
On February 20, 1996, DOE published a proposed rulemaking that
would revise its existing NEPA implementing regulations (61 FR 6414).
Publication of the Notice of Proposed Rulemaking began a 45-day public
comment period that originally ended on April 5, 1996. In response to
requests, the comment period was subsequently reopened on April 19,
1996 (61 FR 17257), and extended until May 10, 1996. As part of the
notice and comment process and also in response to requests, DOE held a
public hearing on the proposed amendments on May 6, 1996. Comments were
received from approximately 39 sources, including Federal and state
agencies, public interest groups, other organizations, and individuals.
Seven commenters also spoke at the public hearing. Copies of all
written comments and the transcript of the public hearing have been
provided to CEQ and are available for public inspection at the DOE
Freedom of Information Reading Room, Room 1E-190, Forrestal Building,
1000 Independence Avenue, SW., Washington, DC 20585, (202) 586-6020.
The amendments revise subparts A, C and D of the existing
regulations. Among the changes are various revisions to the lists of
``typical classes of actions'' (appendices A, B, C, and D to subpart
D), including the addition of new categorical exclusions, modifications
that expand or remove existing categorical exclusions, and
clarifications. Other changes pertain to the DOE requirement for an
implementation plan for each environmental impact statement and DOE's
required content for findings of no significant impact. DOE is also
clarifying its public notification requirements for records of
decisions.
DOE is continuing to consider its proposed amendments to subpart D
that relate to the Federal power marketing administrations.
Accordingly, as described in a separate Notice published elsewhere in
this issue, DOE will reopen the public comment period on the proposed
amendments to subpart D that apply primarily to power marketing
activities (B4.1, B4.2, B4.3, B4.6, B4.10, B4.11, B4.12, B4.13, C4, C7,
and D7). This final rule addresses the remainder of the proposed
amendments.
This Notice adopts the amendments proposed in the Notice of
Proposed Rulemaking (except for the power marketing classes of actions
listed above), with certain changes discussed below, and amends the
existing regulations at 10 CFR Part 1021. Copies of the final
amendments to the rule are available upon request from the information
contact listed above.
In accordance with the CEQ NEPA regulations, 40 CFR 1507.3, DOE has
consulted with CEQ regarding these final amendments to the DOE NEPA
rule. CEQ has found that the amendments conform with NEPA and the CEQ
regulations and has no objection to their promulgation.
II. Statement of Purpose
The amendments to the DOE NEPA regulations are intended to improve
the efficiency of DOE's implementation of NEPA by clarifying and
streamlining certain DOE requirements, thereby reducing implementation
costs and time. This goal is consistent with the DOE Secretarial Policy
Statement on NEPA (June 1994), which encourages actions to streamline
the NEPA process without sacrificing quality and to make the process
more useful to decision makers and the public. Full compliance with the
letter and spirit of NEPA is an essential priority for DOE. In
addition, DOE's missions, programs, and policies have evolved in
response to changing national priorities since the current DOE NEPA
regulations were issued in 1992, and DOE needs to make conforming
changes in its NEPA regulations, e.g., to provide efficient NEPA
procedures for waste management and property transfer actions, which
are occurring with increasing frequency.
III. Comments Received and DOE's Responses
DOE has considered and evaluated the comments received during the
public comment period. Many revisions suggested in these comments have
been incorporated into the final amendments to the rule. The following
discussion describes the comments received, provides DOE's responses to
the comments, and describes any resulting changes to the proposed
amendments. As a result of changes made in response to comments,
several number designations of classes of actions have been changed in
the final rule; section references, unless otherwise indicated, are to
those in the proposed amendments.
Several commenters expressed overall support for DOE's efforts to
increase efficiency and reduce NEPA compliance costs. One Federal
agency (the Food and Drug Administration) and one state agency (the
Virginia Department of Environmental Quality) stated that they had no
objections to DOE's proposed amendments. No comments or only positive
comments were received on the following proposed amendments to subpart
D of the rule: Integral element B(1), B1.8, B1.18, B1.21, B1.31, B3.3,
and D1. These proposed amendments, therefore, remain unchanged in the
final rulemaking, and are not discussed further.
[[Page 36223]]
A. Procedural Comments
A few commenters addressed procedural aspects of this rulemaking.
Specifically, one commenter stated that public Notice of Proposed
Rulemaking was inadequate. DOE notes that the Notice of Proposed
Rulemaking was published in the Federal Register on February 20, 1996.
In addition, the Notice was mailed to more than 400 stakeholders and
was made available for review and comment through the World Wide Web at
DOE's NEPA Web Site. DOE believes that its effort to notify the public
of its proposed rulemaking was sufficient.
In addition, two commenters requested that DOE hold public hearings
on the proposed rulemaking at locations in close proximity to various
DOE facilities and a reopening of the comment period until 90 days
after publication of the schedule for public hearings. Other commenters
also asked that the comment period be reopened.
In response, DOE reopened the comment period from April 19, 1996,
through May 10, 1996. Further, as described in a separate Notice
published elsewhere in this issue, DOE will again reopen the comment
period, but only on the proposals to modify the typical classes of
actions pertaining primarily to power marketing activities. DOE also
held a public hearing in Washington, DC., on May 6, 1996, with
accommodations for commenters who wished to present their views by
conference telephone call from DOE regional offices throughout the
United States.
DOE has fully considered all oral and written comments received
through May 10, 1996. DOE believes that it has provided sufficient and
appropriate public participation opportunities in its proposed
rulemaking, and does not believe that additional hearings or an
additional 90-day comment period on the entire proposed rulemaking is
necessary.
Two commenters questioned the procedures DOE followed in
determining that the proposed new and modified categorical exclusions
would result in no significant impact, and indicated the need for
documentation of this finding for each categorical exclusion in
addition to the statement that appears in the preamble to the proposed
rulemaking. In accordance with the CEQ regulations (40 CFR 1508.4), DOE
initiated this rulemaking, in part, to define those classes of actions
that DOE has found to have no significant effect on the human
environment, either individually or cumulatively. DOE is not required
by the CEQ regulations to set forth in the preamble a detailed,
individualized explanation for its finding of no significant impact for
each of the classes of actions in appendices A and B, but provides an
overall finding in Section III.F, below.
One commenter requested that DOE prepare an environmental impact
statement addressing the cumulative impacts of the proposed amendments.
Two other commenters stated that an environmental assessment was
necessary to determine whether the proposed amendments constituted a
major Federal action.
DOE believes that its proposal to amend its NEPA implementing
regulations falls within the categorical exclusion for procedural
rulemaking (10 CFR part 1021, appendix A to subpart D, categorical
exclusion A6). DOE's NEPA regulations prescribe the process under which
the Department examines the environmental impacts of its proposed
actions. The regulations do not set out substantive criteria for
reaching a decision on a particular action, and thus are procedural
only. For this reason, these amendments to the DOE NEPA regulations are
properly excluded from NEPA documentation requirements. See also
Section IV.A.
One commenter requested that DOE impose a moratorium on
privatization pending completion of public hearings and an
environmental impact statement on the proposed amendments. This request
is outside the scope of this rulemaking, and DOE does not believe that
the scope, which is restricted to DOE's proposed changes to 10 CFR part
1021, should be expanded. Any moratorium on privatization activities
should be determined on the basis of the particular facts and
circumstances and not in this rulemaking.
A commenter disagreed with DOE's statement in the preamble to the
proposed rule that a review under the Unfunded Mandates Reform Act was
not required because the DOE NEPA regulations affect only DOE. The
commenter stated that many DOE facilities and actions have profound
effects on other government agencies and the private sector. While DOE
recognizes that its activities do affect other government agencies and
the private sector, its regulations to implement the procedural
provisions of NEPA impose obligations only on DOE, not on any state,
local, or tribal government or on the private sector. Thus, further
review by DOE under the Unfunded Mandates Reform Act is not required,
and DOE is reiterating in this final rule its previous finding in the
proposed rule. See Section IV.G.
B. General Comments on Proposed Amendments
Comments on Public Involvement Opportunities
Many commenters stated that the proposals regarding implementation
plans, records of decision, and additions and modifications to the list
of categorical exclusions would have the effect of reducing the
public's knowledge of, and opportunities to participate in, DOE's
decision making process. One commenter expressed concern that new and
modified categorical exclusions would reduce the range of DOE actions
subject to meaningful environmental review.
In proposing certain streamlining amendments to subpart C, DOE
carefully weighed the benefits of improved efficiency against the
acknowledged reduction in public information. DOE has reconsidered each
such proposal in light of public comments and made some adjustments, as
described below in Section III.D.
However, with regard to categorical exclusions, while the CEQ
regulations encourage public participation in the NEPA process, they
also direct agencies to use categorical exclusions (which, by
definition, have no significant impact on the environment, either
individually or cumulatively) to reduce paperwork (40 CFR 1500.4(p))
and delays (40 CFR 1500.5(k)). Consistent with this streamlining
approach, the CEQ regulations do not provide for public participation
in an agency's determination that a particular proposed action is
categorically excluded.
DOE is amending its list of categorical exclusions by adding
certain DOE classes of actions and modifying or clarifying other
classes of actions currently on its list of categorical exclusions. In
doing so, DOE has determined that these classes of actions do not have
significant impacts on the environment, either individually or
cumulatively. See Section III.F below. Thus, for these particular
classes of actions, the environmental review that the commenter
requested would not be meaningful in terms of evaluating significant
impacts to the environment. DOE believes that it will serve
environmental concerns and the public's interest best by focusing its
efforts on the careful analysis of those actions that actually have the
potential for significant impact.
DOE has considered comments on the merits of each proposed
categorical exclusion amendment as discussed in Section III.F, but has
decided generally to proceed with listing and modifying categorical
exclusions, with the
[[Page 36224]]
knowledge that in some respects doing so would diminish opportunities
for public involvement or information sharing.
Comments Outside the Scope of Proposed Rulemaking
DOE proposed changes to specific sections of its NEPA implementing
procedures. DOE considers any comments received regarding the proposed
changes to be within the scope of this rulemaking and has addressed
such comments in this final rulemaking.
DOE received several comments that it considers to be outside the
scope of this rulemaking. These include suggested modifications to
provisions of the existing DOE NEPA regulations other than those DOE is
proposing to modify or expand, suggestions for additional categorical
exclusions, suggestions for broad changes to the DOE NEPA process, and
comments on particular DOE proposed actions and DOE policies or
procedures not related to DOE's NEPA regulations. Such comments are
briefly discussed below.
Suggested Changes to Other Provisions of Existing DOE NEPA Regulations
Some commenters suggested changes to provisions of existing DOE
NEPA regulations in addition to provisions that DOE proposed to modify
or expand. These commenters sought changes to Secs. 1021.216
(Procurement, financial assistance, and joint ventures), 1021.301
(Agency review and public participation), 1021.410 (Application of
categorical exclusions (classes of actions that normally do not require
EAs or EISs)), and B3.11 (Outdoor tests and experiments on materials
and equipment components). While DOE is not considering such changes to
its NEPA regulations at this time, DOE is taking these suggestions
under advisement and may address them in a future rulemaking.
Suggestions for Additional Categorical Exclusions
A few commenters offered suggestions for additional categorical
exclusions to cover facility deactivation activities; onsite
transportation of packaged spent nuclear fuel or transuranic waste;
onsite transportation of hazardous, mixed, and radioactive waste;
relocation or reconfiguration of existing facilities, buildings, and
operations within and between DOE sites; replacement of existing
facilities in kind and in place; and treatment or disposal of hazardous
waste at an existing offsite permitted facility. To the extent that
these suggestions were not addressed in DOE's proposed additions and
modifications to its list of typical classes of action, DOE considers
them to be outside the scope of this rulemaking. DOE is taking these
suggestions under advisement and may address them in a future
rulemaking.
Suggested Changes to DOE's NEPA Process
Other commenters offered general suggestions for what they
considered to be improvements to the DOE NEPA process; topics included
the codification of DOE's enhanced public involvement procedures,
improvement of DOE's notification procedures, the timing of NEPA
actions, page limits for DOE environmental impact statements,
coordination with state historic preservation officers, actions taken
under consent orders, defining when the choice of reasonable
alternatives becomes limited, use of ``worst case'' scenarios in NEPA
documents, and delegation of decision making authority. One commenter
requested that DOE ensure that its implementing rules and related
policies, orders, and procedures are not applied unnecessarily to
actions that are not ``major Federal actions.'' Although these comments
are outside the scope of DOE's proposed rulemaking, DOE may consider
these suggestions in a future rulemaking.
Comments Not Related to NEPA Regulations
A few commenters offered comments that are related to particular
DOE proposed actions or other DOE policies and procedures. These
include comments regarding whistleblower protection, privatization of
DOE facilities, hearings on the Multi-Purpose Canister Environmental
Impact Statement, management of spent nuclear fuel, cleanup of
contaminated sites, Federal Acquisition Regulations, the Waste
Management Programmatic Environmental Impact Statement, and contractor
oversight. Because these comments relate to specific DOE actions and
not to DOE's procedures for NEPA compliance, DOE finds these comments
to be outside the scope of this rulemaking. Accordingly, they were not
considered in developing the final rule.
Other Comments
One commenter stated that DOE should provide language in the rule
that requires all DOE NEPA documents to substantiate compliance with
all applicable environmental laws, Executive Orders, and other similar
requirements. DOE notes that it must comply with all applicable
environmental laws, Executive Orders, and similar requirements. With
respect to the application of the categorical exclusions in appendix B
to subpart D, DOE's NEPA regulations currently require that a proposed
action must be one that would not ``[t]hreaten a violation of
applicable statutory, regulatory, or permit requirements for
environment, safety, and health'' in order to fit within a categorical
exclusion (appendix B to subpart D, integral element B(1)).
One commenter objected to documenting the application of
categorical exclusions to each and every activity that DOE undertakes;
on the other hand, several commenters suggested the need for
documentation to ensure that the integral elements (appendix B, B (1)
through B(4) to subpart D of DOE's NEPA regulations) were properly
considered and cumulative impacts would not result. DOE notes that
neither the CEQ nor DOE NEPA regulations, nor DOE's internal NEPA
procedures, require documenting the application of categorical
exclusions (DOE Order 451.1, Section 5(d)(2)). The appropriate NEPA
Compliance Officer is responsible for the proper application of
categorical exclusions.
Another commenter stated that DOE should regularly prepare a list
of the actions to which categorical exclusions were applied and make
that list available to the public. DOE recognizes the value in
informing the interested and affected public around DOE sites of its
activities at those sites. However, a requirement for the periodic
publication of a list of activities that have been categorically
excluded would tend to undermine CEQ's strategy of using categorical
exclusions to streamline the NEPA process.
One commenter stated that DOE's environmental review processes for
compliance with NEPA and the Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA) should be integrated. Another
commenter expressed concern that the proposed amendments did not
adequately address DOE's current policy on compliance with NEPA for
CERCLA actions, as set forth in the Secretarial Policy Statement on
NEPA (June 1994).
Under the current policy, DOE will rely on the CERCLA process for
review of actions to be taken under CERCLA and will address NEPA values
and public involvement procedures in its CERCLA processes to the extent
practicable. DOE may choose, however, after consultation with
stakeholders and as a matter of policy, to integrate the NEPA and
CERCLA processes for specific proposed actions. The CERCLA/NEPA policy
is applied on a case-by-
[[Page 36225]]
case basis, and DOE is satisfied that the new approach is clear and
working adequately as a matter of policy that does not warrant
codification in the regulations.
One commenter asked whether DOE should consider NEPA to be
sufficiently specific and detailed to warrant the commitment to the
``letter'' of NEPA that DOE stated in its preamble to the proposed
amendments. The commenter stated that such a commitment can create
unnecessary concerns about the degree to which the responsibility for
decision making can be delegated and justify unnecessarily restrictive
and arbitrary decisions. While DOE agrees that the statute itself
imposes few specific requirements, DOE believes that it is important to
stress its commitment to complying with the express requirements, as
well as with the intent of the statute to preserve, protect, and
enhance the environment.
C. Comments on Amendments to Subpart A--General
Section 1021.105 Oversight of Agency NEPA Activities
One commenter expressed concern that the Office of NEPA Policy and
Assistance was being eliminated and that the amendment proposed that
oversight of DOE NEPA activities would be assumed by the Assistant
Secretary for Environment, Safety and Health.
The oversight of DOE's NEPA activities has been and continues to be
conducted by the Assistant Secretary for Environment, Safety and
Health. On December 18, 1994, the office under the Assistant Secretary
with specific responsibility for NEPA activities was renamed the Office
of NEPA Policy and Assistance (formerly the Office of NEPA Oversight).
The only modification to this section is a conforming change to
incorporate the new name for the office.
D. Comments on Amendments to Subpart C--Implementing Procedures
Section 1021.312 EIS Implementation Plan
DOE received several comments supporting and several comments
opposing the proposal to eliminate the requirement to prepare an
implementation plan for every environmental impact statement.
Several commenters expressed concern that the public's opportunity
for involvement would be reduced if an implementation plan were not
prepared for every environmental impact statement. They stated that
implementation plans provide an opportunity for the public to see how
scoping comments will be addressed in the environmental impact
statement, to formulate options and comments, to review contractor
disclosure statements, and to keep the environmental impact statement
on track. One commenter stated that the public has valuable insight to
provide. Another commenter suggested that implementation plans are
useful educational tools and an excellent introduction to the DOE NEPA
process.
As discussed above in Section III.B, DOE weighed the benefits of
improved efficiency from eliminating the implementation plan
requirement against the acknowledged reduction in publicly available
information. After considering all the comments received, DOE
determined that because the public has the opportunity to provide
comments on the scope of an environmental impact statement and can see
how scoping comments were addressed and considered in the draft
environmental impact statement, the value to the public and DOE of
continuing the requirement for an implementation plan does not justify
the cost, time, and resources required in preparing an implementation
plan for every environmental impact statement.
With respect to contractor disclosure statements, DOE stated in the
preamble to the proposed amendments that it would continue to prepare
and require the execution of such statements by contractors, as
required by 40 CFR 1506.5(c) of the CEQ regulations. In response to
comments, however, DOE will include the contractor disclosure
statements in draft and final environmental impact statements, and has
modified 10 CFR 1021.310 accordingly.
One commenter stated that eliminating the implementation plan
requirement will preclude requests from interested parties for
environmental assessments and environmental impact statements before
the agency proceeds with actions. Because an implementation plan is
prepared after a decision has been made to prepare an environmental
impact statement, and is not prepared at all for environmental
assessments, DOE believes that eliminating the implementation plan
requirement will not have any effect on the public's ability to request
an environmental impact statement or an environmental assessment.
While some commenters supported eliminating the implementation plan
requirement, they requested that notes from public scoping meetings be
made available in public reading rooms or that DOE prepare a detailed
administrative record of the disposition of public scoping comments and
make it available to the public upon request. Another commenter,
although supportive of the proposed amendment, suggested that DOE
include a response to public scoping comments in the draft
environmental impact statement.
DOE believes that the purpose in eliminating the implementation
plan requirement (i.e., to achieve cost and time savings without
meaningfully reducing public involvement in the DOE environmental
impact statement process) would not be served by adopting the
alternative suggestions (preparing a detailed administrative record or
including a response to public scoping comments in a draft
environmental impact statement) in place of the implementation plan
requirement. The public scoping process under DOE's amended rule fully
complies with the CEQ NEPA regulations, which require only that draft
environmental impact statements be prepared in accordance with the
scope decided upon in the scoping process (40 CFR 1502.9(a)).
One commenter stated that the environmental impact statement
implementation plan should be optional. DOE agrees and intends for the
elimination of the implementation plan requirement to have the effect
of making such plans optional.
Finally, in its proposal to eliminate the requirement to prepare an
implementation plan for an environmental impact statement, DOE
inadvertently omitted making a corresponding change to
Sec. 1021.311(f), which included a reference to the EIS implementation
plan. Section 1021.311(f) has now been removed from the final rule;
paragraph (g) has been redesignated accordingly.
Section 1021.315 Records of Decision
Section 1021.315(c). Commenters opposed two aspects of this
proposed amendment. First, some commenters expressed concern that DOE's
proposal to allow publication in the Federal Register of a brief
summary and notice of availability of a record of decision, rather than
the full text, would shift to the public the cost of obtaining copies
of a record of decision, and would not assure timely availability of
the record of decision. Another commenter suggested that any savings
achieved from not publishing the full text of a record of decision in
the Federal Register would not be sufficient to justify the public's
increased burden in seeking a record of decision. DOE has reconsidered
the proposal in light of the commenters' concerns, and has decided that
the cost-savings do not justify the burden associated with the proposed
[[Page 36226]]
change. Therefore, DOE will continue to publish the full text of
records of decision in the Federal Register.
Second, commenters also expressed concern about the proposed
clarification to Sec. 1021.315(c) that, if a decision has been
publicized by other means (e.g., press release or announcement in local
media), DOE need not defer taking action until its record of decision
has been published in the Federal Register. The commenters suggested
that these other means of communication were not as reliable, accurate,
easily available, or effective as the Federal Register.
This amendment is a clarification, not a substantive change, to
DOE's regulations. Section 1021.315(b) currently states that ``No
action shall be taken until the decision has been made public.'' One
way to make a decision public is to publish the record of decision in
the Federal Register, but decisions can be made public in other ways,
such as through press releases or announcements in local media. DOE's
proposed amendment merely clarifies the practice that DOE has followed
previously under which DOE may proceed with an action after its
decision has been made public but before that decision is published in
the Federal Register. DOE needs to retain the ability to implement an
action after making the record of decision public, but before
publication of that decision in the Federal Register, in those
instances when timing is critical.
One commenter questioned whether DOE was proposing to implement an
action before the decision is articulated in writing and signed. DOE is
not making such a proposal. To clarify this point, DOE has modified the
final language in a new Sec. 1021.315(d) by indicating that DOE may
implement a decision if the record of decision has been signed and the
decision and the availability of the record of decision have been made
public.
Another commenter indicated confusion over DOE's proposal to modify
Sec. 1021.315(c) rather than Sec. 1021.315(b). In response, and to
provide further clarification, DOE has moved the second sentence from
current Sec. 1021.315(b) to begin a new Sec. 1021.315(d), and added to
the new subsection (d) the language previously proposed for
Sec. 1021.315(c), as modified above. Section 1021.315(c) remains as in
the current regulation, and current Sec. 1021.315(d) is now
Sec. 1021.315(e). Pertinent sections of Sec. 1021.315 are now changed
as follows:
(a) (no change)
(b) If DOE decides to take action on a proposal covered by an EIS,
a ROD shall be prepared as provided at 40 CFR 1505.2 (except as
provided at 40 CFR 1506.1 and Sec. 1021.211 of this part).
(c) (no change)
(d) No action shall be taken until the decision has been made
public. DOE may implement the decision before the ROD is published in
the Federal Register if the ROD has been signed and the decision and
the availability of the ROD have been made public by other means (e.g.,
press release, announcement in local media).
(e) DOE may revise a ROD at any time, so long as the revised
decision is adequately supported by an existing EIS. A revised ROD is
subject to the provisions of paragraphs (b), (c), and (d) of this
section.
Section 1021.322 Findings of No Significant Impact
Section 1021.322(b)(1). Under the proposed amendment, and in
accordance with 40 CFR 1508.13, DOE would either incorporate the
environmental assessment by reference in a finding of no significant
impact and attach the environmental assessment, or summarize the
environmental assessment in the finding. A few commenters supported the
proposal to remove the requirement to summarize the environmental
assessment in the finding of no significant impact in all cases. Others
expressed concern that DOE was proposing to eliminate information that
is currently being provided to the public.
This proposal is intended to eliminate redundancy by requiring
either the attachment of an environmental assessment to the related
finding of no significant impact or the inclusion of a summary of an
environmental assessment in the related finding of no significant
impact, but not both. This would change DOE's current practice of
summarizing the environmental assessment in each finding of no
significant impact and also attaching the environmental assessment to
the finding of no significant impact. For a finding of no significant
impact published in the Federal Register, it would be necessary to
summarize the environmental assessment in the finding of no significant
impact, because the environmental assessment would not be published in
the Federal Register.
E. General Comments on Subpart D--Typical Classes of Actions
Many of the commenters suggested, both generally and with regard to
specific proposed amendments to classes of actions in subpart D, that
DOE's terminology was too vague or subjective to adequately define
classes of actions. For example, commenters objected to DOE's use of
such terms as ``small-scale,'' ``short-term,'' ``minor,'' and
``generally,'' among others, as being too imprecise. On the other hand,
where DOE had proposed using specific quantities to aid in defining a
class of actions (e.g., 50,000 square feet of area and 100 MeV (million
electron-volts) of energy), commenters asked why DOE had picked the
proposed value rather than any other, and how DOE could justify such
apparent precision.
DOE has considered all such comments in the context of the
individual proposed amendments to subpart D classes of actions
presented in Section III.F, below. To provide additional information
and to simplify the more specific discussions, DOE is providing the
following general response.
DOE formulates subpart D classes of actions based on DOE's
experience, other agencies' experience as reflected in their NEPA
procedures, technical judgments regarding impacts from actions, and
public comments on a proposed rule. To minimize subjectivity in
interpretation, DOE uses both numerical values of quantities (which
have clear meaning) and descriptive words such as ``minor'' and
``small-scale,'' which suggest the smaller actions in a class, not the
larger. DOE also uses examples, both to clarify that the class of
actions includes the specific examples cited, and to suggest the nature
of actions that may be included.
With regard to DOE's use of specific quantities in several of the
proposed classes of actions, commenters had two general objections.
First, they noted correctly that using ``generally'' in defining a
class of actions (e.g., proposed B1.26 and B3.10) could allow the class
to be applied to proposed actions that would otherwise not even
approximately fit the definition. Second, commenters questioned the
justification for the specific quantity values chosen and even whether
any specific value could be justified.
DOE's intention with respect to both issues is better expressed by
the concept of ``approximately'' rather than ``generally,'' and the
classes of actions in the final rule have been changed accordingly. By
using ``approximately,'' DOE is indicating that the numerical values
used in defining classes of actions are to be interpreted flexibly
rather than with unwarranted precision. For example, DOE proposed to
categorically exclude construction of small accelerators and decided
that it could express the class of actions as including accelerators
less than 100 MeV in energy. DOE acknowledges that judgment is involved
and that it could
[[Page 36227]]
have chosen numbers somewhat greater than 100 MeV to limit the
categorical exclusion. DOE believes, however, that the phrase ``less
than approximately 100 MeV in energy'' provides appropriate flexibility
and represents the best overall resolution of the matter.
One commenter expressed concern that DOE had not taken the
opportunity to decrease the level of prescription and detail in the DOE
NEPA regulations. The commenter expressed particular concern that DOE
had proposed 17 new classes of actions, many of which the commenter
believed would add little or no value to DOE's NEPA process. Similarly,
another commenter stated that DOE should make existing categorical
exclusions more comprehensive whenever possible, rather than simply
expand the list of categorical exclusions.
In proposing amendments to the DOE NEPA rule, DOE considered making
the list of categorical exclusions shorter by combining certain actions
and making the list more comprehensive by broadening the categories.
DOE declined to pursue such a course of action generally in this
rulemaking, although it proposed to combine two classes of actions.
DOE's extensive list of categorical exclusions results primarily from
the fact that DOE is engaged in many different types of activities.
One commenter requested that DOE define the phrase ``already
developed area'' that is used in several proposed new or amended
categorical exclusions (e.g., B1.15, B1.22, B3.6, B3.10, B3.12, and
B6.4). The commenter expressed concern that DOE may consider portions
of wildlife management areas surrounding DOE facilities to be
``developed'' merely because of DOE ownership or because of the
existence of abandoned DOE facilities. In the existing and proposed
regulations, DOE used the parenthetical phrase ``where site utilities
and roads are available'' to help define ``an already developed area''
in the classes of actions in the final rule. For further clarity, DOE
has modified the parenthetical phrase to read ``where active utilities
and currently used roads are readily accessible.'' DOE does not intend
to include wildlife areas and abandoned facilities in its definition of
``an already developed area.''
Finally, several commenters noted that DOE defined categorical
exclusions as classes of actions that ``normally'' do not require
environmental assessments or environmental impact statements. One of
these commenters suggested that ``normally'' should mean 99 percent of
the time, and this commenter and others stated that there should be
provisions for extraordinary circumstances under which a proposed
action listed in appendices A or B should not be categorically
excluded.
DOE's use of the term ``normally'' in the context of categorical
exclusions is consistent with the use of this term in the CEQ
regulations, which state that an agency's NEPA implementing procedures
for categorical exclusions ``shall provide for extraordinary
circumstances in which a normally excluded action may have a
significant environmental effect'' (40 CFR 1508.4). See also 40 CFR
1507.3(b)(2)(ii), in which CEQ directs agencies to identify classes of
actions ``which normally do not require either an environmental impact
statement or an environmental assessment.'' DOE believes that its
categorical exclusions comply with CEQ's regulations, i.e., to be
eligible for categorical exclusion, a class of actions must not have
significant effects on the human environment except in extraordinary
circumstances that may affect the significance of the environmental
effects of a specific proposed action. DOE's existing regulations (10
CFR 1021.410(b)(2)) describe the nature of extraordinary circumstances
under which a categorical exclusion should not be applied, and
explicitly require (Sec. 1021.400(d)) an environmental assessment or
environmental impact statement for a proposed action that presents such
circumstances. Therefore, DOE does not believe any changes are needed
to address the use or interpretation of the word ``normally'' in DOE's
description of categorical exclusions or the manner in which DOE
provides for extraordinary circumstances.
F. Comments on Appendices of Subpart D--Typical Classes of Actions
Several commenters objected to many categorical exclusions on the
grounds of cumulative effects, connected actions, or extraordinary
circumstances, but without explanation as to their specific objection.
A categorical exclusion is a class of actions that, individually or
cumulatively, do not have significant environmental impacts. If there
are extraordinary circumstances associated with a proposed action, or
if the proposal is connected to other actions with potentially
significant impacts or related to other proposed actions with
cumulatively significant impacts, then a categorical exclusion would
not apply under Sec. 1021.410(b).
Another commenter noted that several of the proposed categorical
exclusions referred to ``siting, construction, operation, and
decommissioning'' of various DOE activities and questioned whether such
activities would also need state permits. DOE notes that while new
construction could require state or local permits, one of the integral
elements for all appendix B categorical exclusions is that the proposed
action ``does not threaten a violation of applicable statutory,
regulatory, or permit requirements for environment, safety, and
health.'' Any DOE action would be required to comply with applicable
state and local requirements, independent of the level of NEPA review
appropriate under DOE's NEPA regulations.
In general, the following responses to comments regarding specific
categorical exclusions should be read in the full context of the DOE
regulations for categorical exclusions. Under the current regulations,
before a proposed action may be categorically excluded, DOE must
determine in accordance with Sec. 1021.410(b) that (1) the proposed
action fits within a class of actions listed in appendix A or B to
subpart D, (2) there are no extraordinary circumstances related to the
proposal that may affect the significance of the environmental effects
of the action, and (3) there are no connected or related actions with
cumulatively significant impacts and, where appropriate, the proposed
action is a permissible interim action. In addition, to fit within a
class of actions that is normally categorically excluded under appendix
B, a proposed action must include certain integral elements (appendix
B, paragraphs B (1) through (4)). These conditions ensure that an
excluded action will not threaten a violation of applicable
requirements, require siting and construction of waste management
facilities, disturb hazardous substances such that there would be
uncontrolled or unpermitted releases, or adversely affect
environmentally sensitive resources.
The headings below are those used in the table of contents of the
appendices in the proposed amendments. The conversion table below shows
which classes of actions have been included in the final amendments to
the rule. There were a few numbering changes between the proposed and
final amendments because some classes of actions were added or removed.
Specifically, the proposed B1.32 was removed, and the proposed B1.33
was renumbered as B1.32; existing B6.4, which had been proposed for
revision, was retained without change, and a new B6.10 was added to
incorporate some of the changes proposed for B6.4; and the proposed
modification to C9 was withdrawn. These changes are explained more
fully in the following discussion.
[[Page 36228]]
Conversion Table
------------------------------------------------------------------------
------------------------------------------------------------------------
Existing rule
(1)Final amendments
------------------------------------------------------------------------
A.7............................. A.7................ Clarified.
B(1)............................ B(1)............... Modified.
B(2)............................ B(2)............... Do.
B1.3............................ B1.3............... Clarified.
B1.8............................ B1.8............... Modified.
B1.13........................... B1.13.............. Do.
B1.15........................... B1.15.............. Do.
B1.18........................... B1.18.............. Do.
B1.21........................... B1.21.............. Do.
B1.22........................... B1.22 & B1.23...... Clarified.
B1.24--B1.32....... Added.
B2.6............... Do.
B3.1............................ B3.1............... Clarified.
B3.3............................ B3.3............... Do.
B3.6............................ B3.6............... Modified.
B3.10........................... B3.6............... Do.
B3.10.............. Added.
B3.12-B3.13........ Do.
B5.3............................ B5.3............... Modified.
B5.5............................ B5.5............... Do.
B5.9-B5.11...................... B5.9-B5.11......... Clarified.
B5.12-B5.16..................... Removed............
B5.12.............. Added.
B6.1............................ B6.1............... Modified.
B6.5............................ B6.5............... Clarified.
B6.9-B6.10......... Added.
C1.............................. C1................. Reserved.
C10............................. C10................ Do.
C11............................. C11................ Modified.
C14............................. C14................ Do.
C16............................. C16................ Do.
D1.............................. D1................. Do.
D10............................. D10................ Do.
------------------------------------------------------------------------
Finally, after considering all public comments on the proposed
amendments, DOE has determined that the final amendments to appendices
A and B constitute classes of actions that do not individually or
cumulatively have a significant effect on the human environment, and
are covered by a finding to that effect in Sec. 1021.410(a). In making
this finding, DOE has considered, among other things, its own
experience with these classes of actions, other agencies' experience as
reflected in their NEPA procedures, DOE's technical judgment, and the
comments received on the proposed amendments.
Proposed Clarification A7 Transfer of property, use
unchanged.
One commenter stated that DOE cannot assume that transfer of
property will not result in short- and long-term changes in impacts.
DOE proposed to amend paragraph A7 only to clarify the meaning of
property by explicitly including both personal property (e.g.,
equipment and material) and real property (e.g., permanent structures
and land). DOE did not propose to amend the requirement regarding
property use remaining unchanged. The categorical exclusion may only be
applied when the impacts would remain essentially the same after the
transfer as before. See also the discussion of B1.24 and B1.25.
Classes of Actions Listed in Appendix B
Proposed Modification to Integral Element B(2).
DOE proposed to modify integral element B(2)--which sets the
condition that a categorically excluded action may not require siting,
construction, or major expansion of waste storage, disposal, recovery,
or treatment facilities--to provide an exception for such actions that
are themselves categorically excluded. DOE proposed this change to
conform to simultaneously proposed changes (B1.26, B1.29, B6.4, and
B6.9) that would categorically exclude certain water treatment and
waste storage facilities.
Two commenters objected to the change, apparently as an extension
of their objections to the proposed categorical exclusion amendments
that prompted DOE's proposal to modify B(2). Another commenter
expressed concern that the proposed B(2) would imply that ``major''
expansion of waste facilities might be categorically excluded. This
interpretation was unintended and the language has been modified. In
other respects, however, DOE has retained the B(2) amendment as
necessary to conform to certain final categorical exclusions (B1.26,
B1.29, B6.9, and B6.10). As finally revised, B(2) reads as follows:
``To fit within the classes of actions (in appendix B), a proposal must
be one that would not . . . require siting and construction or major
expansion of waste storage, disposal, recovery, or treatment facilities
(including incinerators), but the proposal may include categorically
excluded waste storage, disposal, recovery, or treatment actions.''
Proposed Modification to Integral Element B(4)(iii).
DOE intended to modify this integral element to allow the
categorical exclusion of actions listed in appendix B despite their
having an adverse impact on small, low quality wetlands. DOE
anticipated that activities in such areas would not have a significant
environmental impact, either individually or cumulatively. While
several commenters supported the proposed change, others expressed
concern about the potential cumulative impacts, the institution of a
threshold size, the meaning of ``covered'' by a general permit, and the
difference between a ``general'' permit and a ``Nationwide'' permit.
In consideration of the comments and after consultation with staff
of the U.S. Army Corps of Engineers (Corps), DOE has revised B(4)(iii)
to allow the categorical exclusion of actions in wetland areas not
considered waters of the United States and thus not regulated under the
Clean Water Act. This includes certain drainage and irrigation ditches,
artificial lakes and ponds, and borrow pits, as discussed below.
The Corps generally does not consider the following areas to be
waters of the United States: (a) Non-tidal drainage and irrigation
ditches excavated on dry land; (b) artificially irrigated areas which
would revert to upland if the irrigation ceased (for DOE this would
include areas ``irrigated'' by leaking pipes, tanks, or ditches); (c)
artificial lakes or ponds created by excavating and/or diking dry land
to collect and retain water and which are used exclusively for such
purposes as stock watering, irrigation, settling basins, or rice
growing; (d) artificial reflecting or swimming pools or other small
ornamental bodies of water created by excavating and/or diking dry land
to retain water for primarily aesthetic reasons; (e) waterfilled
depressions created in dry land incidental to construction activity and
pits excavated in dry land for the purpose of obtaining fill, sand, or
gravel unless and until the construction or excavation operation is
abandoned and the resulting body of water meets the definition of
waters of the United States under 33 CFR 328.3(a). See 51 FR 41206,
41217 (November 13, 1986). The Corps reserves the right, however, on a
case-by-case basis to determine that a particular water body within
these categories fits within the definition of waters of the United
States. The U.S. Environmental Protection Agency (EPA) also has the
right to determine on a case-by-case basis if any of these areas are
waters of the United States. Note that some of these areas could become
waters of the United States and subject to regulation. This may occur
if the area no longer meets the above criteria, e.g., the area is no
longer used for the purpose for which it was constructed or is
abandoned. In such cases, a categorical exclusion could not be applied.
The wording of B(4)(iii) has been modified from the proposed rule
as follows: ``Wetlands regulated under the Clean Water Act (33 USC
1344) and floodplains.''
Proposed Clarification B1.3 Routine maintenance/custodial
services for buildings, structures, infrastructures, equipment.
One commenter asked for clarification of ``in kind replacement.''
The commenter stated that, with regard to older facilities, certain
equipment used in the facilities is no longer made or its installation
at this time would be
[[Page 36229]]
contrary to code or good management practices. The commenter asked if
replacing equipment in older facilities with modern components is
considered ``in kind replacement.''
DOE recognizes that the equipment used in many of its facilities
cannot be replaced literally ``in kind'' for the reasons the commenter
states. DOE believes, however, that the description of ``in kind
replacement'' presented in the proposed clarification for B1.3 (i.e.,
in kind replacement includes installation of new components to replace
outmoded components if the replacement does not result in a significant
change in the expected useful life, design capacity, or function of the
facility) adequately addresses the commenter's request.
B1.3(n). One commenter suggested that instead of adding additional
examples of testing and calibration of facility components to B1.3,
that the word ``maintenance'' be added to B3.1. DOE has chosen to
address routine maintenance under a separate categorical exclusion
rather than adding it to other categorical exclusions where it might
apply.
B1.3(o). One commenter thought that the term ``routine
decontamination'' needed additional clarification. DOE uses ``routine''
to mean a recurring action that is done easily and is well understood,
such as wiping with rags, using strippable latex, and minor vacuuming.
B1.3(o) is intended to categorically exclude contamination-cleanup
activities of a routine nature.
Proposed Modification B1.13 Construction/acquisition/
relocation of onsite pathways, spur or access roads/railroads.
DOE proposed to expand existing B1.13 (Acquisition or minor
relocation of existing access roads serving existing facilities if the
traffic they are to carry will not change substantially) by adding
construction and spur roads, pathways and railroads, and by deleting
the phrase ``serving existing facilities if the traffic they will carry
will not change substantially.'' One commenter questioned the
definition of ``spur'' and ``access'' roads. Another commenter
suggested more restrictive language for B1.13 so that it would be
applied only in instances to improve safety, and only if the total
traffic volume would not substantially change. A third commenter
expressed concern that applying the categorical exclusion could
eliminate valuable input from natural resource agencies and cause
potential significant impacts to wildlife, including loss of habitat,
habitat fragmentation, and degradation of adjacent habitat. Another
commenter stated that the actions proposed to be categorically excluded
should be subject to public review.
In response to the concerns raised by these commenters, DOE has
made two changes to the proposed modification to B1.13. First, DOE has
deleted the reference to ``spur roads'' because the term ``access
roads'' adequately encompasses the intended purpose. Second, DOE has
revised the categorical exclusion to apply only to the construction of
``short'' access roads and access railroads. DOE acknowledges that the
construction of onsite access roads could result in adverse
environmental impacts. DOE believes, however, that the general
restrictions on the application of categorical exclusions, particularly
at Sec. 1021.410 and the integral elements at appendix B, B(1)-B(4),
will provide adequate safeguards to ensure that this class of actions
is not applied to activities that could result in significant effects.
Also, it is DOE's intention that the inclusion of the term ``short''
will further clarify the length of access roads and railroads that DOE
intended to be constructed under this categorical exclusion (i.e., no
more than a few miles in length). The categorical exclusion B1.13 now
reads: ``Construction, acquisition, and relocation of onsite pathways
and short onsite access roads and railroads.'' DOE does not believe
that actions qualifying under this categorical exclusion warrant public
review. See Section III.B, above.
Proposed Modification B1.15 Siting/construction/operation
of support buildings/support structures.
One commenter suggested that the categorical exclusion be expanded
to include deactivation and demolition of the same structures. Such
expansion is not necessary because these activities are included under
proposed categorical exclusion B1.23.
Two commenters suggested that the phrase ``but not limited to'' be
inserted between ``including'' and ``prefabricated buildings and
trailers.'' DOE has incorporated the suggestion, as well as reversing
the order of ``prefabricated buildings'' and ``trailers,'' to be
consistent with B1.22.
One commenter stated that actions covered by this categorical
exclusion should be subject to public review. For the reasons stated in
Section III.B, DOE believes that public review is not appropriate.
One commenter asked for a definition of an ``already developed
area,'' a phrase used in the existing regulations. The phrase in the
proposed B1.15, ``where site utilities and roads are available,'' was
intended to define the term. For clarification, DOE has modified this
phrase to read ``where active utilities and currently used roads are
readily accessible.'' See the discussion of ``already developed area''
in Section III.E.
Proposed Clarification B1.23 Demolition/disposal of
buildings.
DOE proposed to divide the existing categorical exclusion B1.22
into two categorical exclusions to clarify that the two actions
included in the existing class of actions--relocation of buildings
(proposed B1.22) and demolition and subsequent disposal of buildings,
equipment, and support structures (proposed B1.23)--are not connected
actions (i.e., actions that are closely related and therefore needed to
be considered in the same NEPA review).
DOE received three comments on B1.23, none of which directly
related to the proposed clarification. One commenter suggested that the
categorical exclusion should be applicable to contaminated buildings
that, after demolition, could be entombed in place. Another commenter
questioned whether DOE was mandating disposal of construction debris in
landfills. Apparently, this commenter's concern is based on DOE's
intended clarification that building relocation actions are separate
from building demolition and disposal. In any event, DOE is not
mandating the disposal of construction debris in landfills. The third
commenter objected to the categorical exclusion on the grounds of
cumulative effects, connected actions, or extraordinary circumstances.
DOE has responded to this objection, which was also expressed by other
commenters in regard to other categorical exclusions, in Section III.F.
DOE does not intend for proposed categorical exclusion B1.23 to
apply to in-place entombment of demolished structures. However, this
categorical exclusion could be applied to the demolition and disposal
of contaminated structures if releases are controlled or permitted and
other conditions for application of the categorical exclusion are met.
Proposed B1.24 Transfer of property/residential,
commercial, industrial use; and
Proposed B1.25 Transfer of property/habitat preservation,
wildlife management.
DOE received several comments on these two proposed categorical
exclusions. One commenter, noting that proposed B1.24 and B1.25 were
similar, suggested combining them. Based on this comment and other
comments that expressed concern about the broad scope of the
categorical exclusions as proposed, DOE has retained both
[[Page 36230]]
categorical exclusions, but changed their wording to clarify DOE's
intentions for their scopes and the differences between them.
Categorical exclusion B1.24 as now revised refers to transfer, lease,
disposition, or acquisition of interests in structures and equipment,
and only land that is necessary for use of the transferred structures
and equipment. Proposed B1.25 as revised refers to transfer of
interests in land for purposes of habitat preservation or wildlife
management, and only buildings that support those purposes.
One commenter questioned the meaning of ``uncontaminated.'' DOE has
added a definition to each of these two proposed categorical exclusions
that states that ``uncontaminated means that there would be no
potential for release of substances at a level, or in a form, that
would pose a threat to public health or the environment.'' This
definition is based on the definition of contaminant in CERCLA
Sec. 101(33). DOE already has defined ``contaminant'' in Sec. 1021.104
of its existing NEPA regulations as ``a substance identified within the
definition of contaminant in Section 101(33) of CERCLA (42 USC
9601.101(33)).''
Several commenters questioned the feasibility of making a
determination about potential releases and impacts that could occur
after the transfer, as required by the categorical exclusions, without
some formal environmental analysis (e.g., an environmental assessment).
With regard to proposed B1.24, one of the commenters questioned how DOE
would know if contaminant releases increase after transfer, stating
that private operators, unlike DOE, are under no obligation to provide
records of types, volumes, and pathways of contaminants released into
the environment. In applying these two categorical exclusions (as in
applying any other categorical exclusion), DOE will consider reasonably
foreseeable circumstances, but will not attempt to speculate on all
possible circumstances that the future could present. DOE believes that
it will be able to determine whether a proposed post-transfer use is
similar enough to the existing use to meet the conditions of the
categorical exclusion, i.e., no decrease in environmental quality, no
increased discharges, and generally similar environmental impacts. If
DOE cannot make these judgments without environmental analysis, DOE
will prepare at least an environmental assessment.
One commenter stated that the proposed categorical exclusion B1.24
was a positive step, but thought DOE had unduly limited its
application. Another commenter stated that proposed categorical
exclusion B1.24 was an improvement in that property transfers that
could be categorically excluded would not be limited to those where use
remains the same. This commenter wanted to expand the proposed
categorical exclusion B1.24 to include transfers to other Federal
agencies without restrictions on environmental parameters, because
other Federal agencies must conduct their own NEPA review for future
uses of the property. DOE believes that it must conduct the proper
level of NEPA review for its actions, and that a NEPA review for the
transfer, lease, disposition, or acquisition of property must consider
reasonably foreseeable uses and conditions of those uses, regardless of
whether the transfer would be to another Federal agency.
Two commenters expressed concern about eliminating community
involvement in DOE's decisions about future land use. One commenter
stated that the transfer of potentially contaminated land without
environmental analysis would be inconsistent with DOE's openness
policy. DOE does not intend to categorically exclude the transfer of
contaminated property. However, DOE recognizes that in listing these
classes of actions as categorical exclusions, the sharing of public
information will be diminished in some instances, as discussed in
Section III.B.
One commenter questioned whether categorical exclusion B1.24 would
apply to a facility that had been idle (and thus not discharging any
pollutants into the environment), allowing the facility to resume
operations and resulting in pollutant discharges. If the facility to be
transferred has not been in operation and transfer of the facility
would result in the resumption of operation, then greater environmental
discharges would result, making this proposed activity ineligible for
this categorical exclusion.
With regard to proposed B1.25, one commenter suggested that the
preamble was unclear because the categorical exclusion deals with the
transfer, lease, and disposition of habitat lands and not a change to
the habitat. The commenter also stated that a habitat improvement that
supported the existing species of plants and animals, although a
change, would not have the potential for significant impact and
therefore could be categorically excluded.
There are three categorical exclusions related to the transfer of
property: A7, where the use will remain the same; B1.24, where the use
may change but the environmental impacts are similar; and B1.25, where
the use will be habitat preservation or wildlife management. Small-
scale improvements to fish and wildlife habitat are included under
existing categorical exclusion B1.20. A large-scale habitat improvement
project may have significant environmental effects, albeit beneficial,
and would not be categorically excluded.
A commenter suggested that DOE should not assume that significant
environmental and socioeconomic impacts will not result from the
transfer of uncontaminated lands for habitat preservation and wildlife
management, because DOE cannot reasonably predict the types of uses
that private interests, conservation groups, or local and state
agencies might allow for these lands. DOE agrees that it cannot project
with certainty all future activities that might be allowed on any land
that it transfers, leases, or disposes. However, categorical exclusion
B1.25 is intended for application in those cases where the
circumstances of the property transaction create a reasonable
expectation that the property will be used for habitat preservation and
wildlife management for the reasonably foreseeable future.
Proposed B1.26 Siting/construction/operation/
decommissioning of small water treatment facilities, generally less
than 250,000 gallons per day capacity.
Several commenters recommended that DOE not categorically exclude
water treatment facilities that would involve highly toxic substances,
regardless of the limited rate at which water could be processed. Some
commenters stated that the 250,000 gallon criterion was not necessarily
the relevant factor regarding environmental impacts. The commenters
also expressed concern that cumulatively significant effects would
occur from repeated applications of this proposed categorical
exclusion. DOE believes that the adverse environmental effects of
concern to many of the commenters are highly unlikely. DOE chose to
categorically exclude treatment facilities with less than about 250,000
gallons capacity because such small plants have little potential for
significant impacts, especially in light of the safeguards afforded by
the integral elements. For example, a DOE categorical exclusion may not
be applied where the proposed action could adversely affect an
environmentally sensitive resource (10 CFR part 1021, subpart D,
appendix B, B(4)). Regarding cumulative effects, appendix B listings
are not applicable to a proposed action that is connected to other
actions with potentially significant impacts or related to other
[[Page 36231]]
proposed actions with cumulatively significant impacts (10 CFR
1021.410(b)(3)). Nevertheless, DOE has modified the proposal as one
commenter suggested, so that, in addition to small potable water and
sewer facilities, only those small wastewater and surface water
treatment facilities whose liquid discharges are subject to external
regulation would be categorically excluded. See also the discussion
regarding the use of the word ``generally'' and numerical values in
Section III.B.
Proposed B1.27 Facility deactivation.
One commenter expressed concern that the categorical exclusion
would apply to any facility and that deactivation is not clearly
defined. The commenter suggested that if DOE intended the categorical
exclusion to apply only to the disconnection of utilities, then it
should be rewritten as: ``The disconnection of utilities such as water,
steam, telecommunications, and electrical power after it has been
determined that the continued operation of these systems is not needed
for safety.'' DOE agrees and has rewritten the categorical exclusion as
suggested. The term deactivation is no longer included in the
categorical exclusion.
Another commenter suggested that the categorical exclusion be
clarified to include provisions for partial disconnections and utility
modifications where equipment may be required to remain operational at
a reduced level. DOE believes that this categorical exclusion
encompasses such disconnections and modifications.
One commenter stated that the risk posed by surplus facilities
varies greatly and that DOE should be cautious in presuming NEPA
documentation is not required. DOE agrees that the risks posed by
particular facilities can vary, but believes that merely disconnecting
the utilities of such facilities will not cause significant
environmental impacts.
Another commenter questioned whether DOE intended to deactivate
nuclear electrical utility facilities under this categorical exclusion,
and suggested that such activities would require consultation and
cooperation with other state and federal agencies and full public
notice and participation. The proposed categorical exclusion would
apply only to DOE facilities and not to the commercial nuclear power
industry or other commercial powerplants.
Proposed B1.28 Minor activities to place a facility in an
environmentally safe condition, no proposed uses.
Several commenters questioned the scope of the categorical
exclusion and generally expressed concern with the use of the word
``minor.'' Several commenters suggested that DOE more narrowly define
what it intended to cover in this categorical exclusion (e.g., the
meaning of ``adequate treatment, storage, or disposal facilities'' and
``no proposed use''). Other commenters stated that such activities
could be carried out on a large scale at a particular site and that
there could be cumulative impacts associated with waste management
activities.
As discussed in Section III.E, DOE believes that the word ``minor''
is useful in describing the types of activities contemplated by the
categorical exclusion, particularly when combined with examples and
exclusions. DOE intends this categorical exclusion to apply to
activities needed to place a surplus facility (one that will no longer
be used by DOE for any purpose, including storage) in an
environmentally safe condition, where there are existing treatment,
storage, or disposal facilities with existing capacity to manage the
resulting waste (including low-level radioactive waste). These
activities include the final defueling of a reactor, as stated in the
example in the proposed rule. DOE emphasizes that this categorical
exclusion, like all other categorical exclusions, may not be applied in
situations involving extraordinary circumstances (such as uncertain
effects or effects involving unique or unknown risks) or where the
proposal is connected to other actions with potentially significant
impacts (see Sec. 1021.410(b) (2) and (3)). Thus, if a proposal
involved a mode of decontamination with potentially significant
environmental effects or if it posed serious potential risks to
workers, the public, or the environment, then the proposed activity
would not be eligible for a categorical exclusion. DOE believes that
the language of the proposed categorical exclusion, together with the
general restrictions on the application of categorical exclusions,
particularly at Sec. 1021.410 and the integral elements at appendix B,
B(1)-B(4), provide adequate safeguards to ensure that this categorical
exclusion is not applied to activities that could result in significant
environmental effects.
One commenter asked that the relationship of this categorical
exclusion to CERCLA and the Resource Conservation and Recovery Act
(RCRA) procedures be clarified. DOE's CERCLA/NEPA policy is discussed
in Section III.B. Although DOE's RCRA procedures are outside the scope
of this rulemaking, DOE notes that its application of this categorical
exclusion would have no effect on its compliance with RCRA.
Another commenter recommended that the categorical exclusion be
broadened to include removal of contaminated equipment, material, and
waste and include activities such as size reduction and placement of
wastes in storage containers if done in the same building. DOE intends
the categorical exclusion, as proposed, to include these activities.
Proposed B1.29 Siting/construction/operation/
decommissioning of onsite disposal facility for construction and
demolition waste.
Several commenters objected to this categorical exclusion. One
c
FR Doc. 96-17285 National Environmental Policy Act Implementing Procedures
ommenter expressed concern that new disposal facilities for
construction and demolition waste could be sited and constructed in
environmentally sensitive areas, such as priority shrub steppe habitat,
with adverse impacts on wildlife. This commenter also expressed concern
about cumulative impacts from multiple facilities. DOE believes that
integral element B(4), which states that an action proposed for
categorical exclusion must not adversely affect environmentally
sensitive areas, would preclude use of the proposed categorical
exclusion for construction of disposal facilities in priority shrub
steppe habitat. Also, under Sec. 1021.410(b)(3) of its NEPA
implementing regulations, DOE may not categorically exclude a proposed
action that may be connected to other actions with potentially
significant impacts, or related to other proposed actions with
cumulatively significant impacts.
Another commenter expressed concern that a 10-acre disposal
facility could pose major health and safety risks to workers and
members of the public in adjacent communities, noting in particular the
potential for adverse impacts on air quality. By limiting this
categorical exclusion to disposal of uncontaminated materials, DOE
believes there would be no harmful releases of contaminants and no
increased health impact to workers or the nearby public. DOE has
revised the language in this categorical exclusion in the final
amendments by inserting the phrase ``which would not release substances
at a level, or in a form, that would pose a threat to public health or
the environment'' to explain the term ``uncontaminated.'' This new
language corresponds to the definition of ``contaminant'' in DOE's NEPA
regulations, which in turn is based on CERCLA Sec. 101(33). In
addition, DOE employs standard industrial practices, such as water
spraying to control dust, in operating any of its facilities, and DOE
believes that any particulate
[[Page 36232]]
emissions would be adequately controlled to protect workers and the
public. To correspond to other changes in the final amendments, DOE has
changed the phrase ``generally less than 10 acres in area,'' to ``less
than approximately 10 acres.'' See also the discussion in Section
III.E.
Another commenter stated that the scope of the categorical
exclusion was so broad that the host community, state and local
officials, and interested citizens could be excluded from participating
in decisions that may have significant environmental and socioeconomic
impacts. DOE believes that this class of actions normally does not have
potential for significant impacts and has decided to list it as a
categorical exclusion in the final amendments. See also the discussion
of public involvement and information sharing opportunities in Section
III.B.
One commenter requested that the proposed categorical exclusion be
expanded to include on-site disposal facilities for all uncontaminated
waste, including office and cafeteria waste. This comment is outside
the scope of this rulemaking, but DOE may consider the suggestion in a
future rulemaking.
Proposed B1.30 Transfer actions.
Several commenters objected to this proposed categorical exclusion
as too broad and open ended, some noting potential for adverse impacts.
Some commenters requested that it be deleted; others requested that
limits be provided on the quantity and types of materials and wastes
that could be transported. Other commenters sought additional
clarification.
In contrast, two commenters stated that the proposed categorical
exclusion was too limited in scope and suggested broadening the
categorical exclusion to include routine transportation of materials,
equipment, and wastes that are managed in accordance with regulatory
requirements. One of these commenters noted DOE's statement in the
preamble to the proposed rulemaking that ``transportation activities
under DOE's standard practices pose no potential for significant
impacts.''
All DOE proposed actions must comply with applicable regulatory
requirements, although some actions nevertheless may have significant
impacts. DOE will continue to include analysis of transportation
impacts in environmental assessments and environmental impact
statements where the scope of the proposed actions presents potential
for significant impact.
DOE has revised the language of the categorical exclusion to
characterize the amount of materials, equipment, or waste to be
transferred as ``small'' in addition to being incidental to the amount
at the receiving site. This revision addresses the concerns expressed
by several commenters that DOE had proposed to limit the amount of
material or waste that could be transported, not by the impacts that
might occur by transport of the material or waste, but by the amount of
material or waste at the receiving site.
One of these commenters stated that the proposed categorical
exclusion could be applied to the transport of thousands of containers
of materials or waste to a site that had yet larger amounts. Another
commenter stated that the baseline for determining the amount of waste
or material that could be received at a site, under the proposed
categorical exclusion, would continually increase as waste or materials
were transferred to the site. The revision reinforces DOE's intention
that use of the categorical exclusion should not add significantly to
what may already be significant amounts of waste or materials at a
site.
Several commenters stated that transportation of radioactive
materials and waste is likely to be a key or controversial issue to
local communities. One commenter stated that unscheduled transportation
of waste would generate considerable community interest, and another
expressed concern that the host community, state and local officials,
and interested citizens could be excluded from participating in
decisions that may result in significant environmental and
socioeconomic impacts. DOE believes that this class of actions normally
does not have potential for significant impacts and has decided to list
it, as revised, as a categorical exclusion in the final amendment. See
also the discussion of public involvement opportunities in Section
III.B.
One commenter suggested that the proposed categorical exclusion
would be more appropriately placed as a clarifying statement elsewhere
in the regulations, to note that transportation may be an implicit part
of any action that is eligible for a categorical exclusion or to
require, as an integral element of any categorical exclusion, that
transportation be conducted in accordance with applicable regulatory
requirements. Other commenters stated that transportation is a
connected activity and should not be considered independently.
DOE's NEPA regulations currently state that a categorically
excluded class of actions includes activities foreseeably necessary to
proposals encompassed within the class of actions and provides
``associated transportation activities'' as one of two examples
(Sec. 1021.410(d)). Categorical exclusion B1.30, however, applies to
transfer actions where the predominant activity is transportation.
DOE's existing NEPA regulations (appendix B(1)) also contain an
integral element for categorical exclusions requiring that, in order to
be categorically excluded, an action not threaten a violation of
applicable statutory, regulatory, or permit requirements for
environment, safety, and health, including requirements of DOE orders.
One commenter asked DOE to clarify whether this categorical
exclusion could be applied to the transfer of waste from a DOE site to
an offsite, non-DOE facility that treats that type of waste. DOE
believes that B1.30 does cover these types of transfer actions, as long
as all the conditions of the categorical exclusion, including the
integral elements, are satisfied and there are no extraordinary
circumstances.
Proposed B1.32 Restoration, creation, or enhancement of
small wetlands.
One commenter supported DOE's strategy, stated in the preamble to
the proposed rule, to coordinate activities in wetlands with state and
federal agencies to assure compliance with other land use plans. The
commenter suggested that wetland creation should address the impacts of
attracting migratory wildlife, especially types of wildlife that are
likely to be hunted for human consumption. Other commenters questioned
how the terms ``small'' and ``large'' were defined and how size would
be used to determine whether wetland restoration, creation, or
enhancement would have significant impacts. Other commenters stated
that this categorical exclusion should include compliance with all
appropriate Federal environmental laws and regulations and that DOE
should consider limiting the number of such projects to reduce the
potential for cumulative adverse impacts.
DOE has reconsidered its proposal to categorically exclude
restoration, creation, or enhancement of a small wetland. Actions
typically taken by DOE to restore, enhance, or create a wetland
normally would be performed as mitigation to compensate for loss or
degradation of other wetlands as a result of a DOE proposed action. As
such, wetland mitigation is not a separate or distinct action and
should be considered as an integral part of the proposed action.
Further, in those rare situations where DOE would undertake specific
actions to restore, enhance, or create wetlands (e.g., development of
[[Page 36233]]
wetlands as part of wetland banking), the existing class of actions C9,
which normally requires preparation of an environmental assessment,
provides opportunity for other agency and public review and input into
decisions regarding how the action should be undertaken. Accordingly,
DOE is withdrawing its proposal to categorically exclude restoration,
creation, or enhancement of a small wetland, as well as its proposal to
make a conforming language change in C9.
Proposed B1.33 (Final B1.32). Traffic flow adjustments,
existing roads.
One commenter questioned whether DOE would extend the categorical
exclusion to include road adjustments. This categorical exclusion is
limited to DOE sites and applies only to adjustments of traffic flow,
such as installation of traffic signs, signal lights, and turning
lanes. It does not apply to general road adjustments, such as road
widening and realignment. In order to clarify this point, DOE has
modified this categorical exclusion to include turning lanes as an
example of a categorically excluded action, and to specifically exclude
general road adjustments.
The commenter also stated that increased traffic flow could result
in increased risk of exposure to the public. DOE believes traffic flow
adjustments could not, by their nature, alter traffic patterns in such
a manner as to produce significantly increased public exposures. In
response to a comment that commercial trucking terminals should be
excluded, DOE notes that it does not operate commercial trucking
terminals.
One commenter suggested adding this activity to B1.3 on routine
maintenance. DOE does not consider traffic flow adjustments to
constitute routine maintenance.
Proposed B2.6 Packaging/transportation/storage of
radioactive sources upon request by the Nuclear Regulatory Commission
or other cognizant agency.
In response to several comments, DOE has clarified that ``other
cognizant agency'' would include a state that regulates radioactive
materials under an agreement with the Nuclear Regulatory Commission
(Commission). In addition, DOE intends to include other agencies that
may, under perhaps unusual circumstances, have responsibilities
regarding the materials that are included in the categorical exclusion.
One commenter expressed concern that this categorical exclusion
could apply to a wide variety of actions that private parties might
conduct. DOE's NEPA implementing procedures, however, apply only to
actions that DOE would conduct.
Another commenter expressed concern about cumulative effects from
applying this categorical exclusion repeatedly. Because DOE is
requested to perform the actions covered under B2.6 only occasionally--
e.g., when a Commission licensee cannot or will not safely manage the
material--DOE does not expect these activities to have significant
cumulative effects. This commenter also stated that the justification
for one of the examples cited in the proposed categorical exclusion--
``packaged radioactive waste not exceeding 50 curies''--was not
apparent and undefined as to impact. DOE possesses all the skills and
equipment required to handle, transport, and store such materials
safely, and would be involved in such activities only occasionally.
Moreover, the Commission has found that its licensees normally possess
and manage such materials without significant impacts. For these
reasons, DOE believes it is appropriate to categorically exclude its
activities regarding all of the materials the Commission has listed in
10 CFR 51.22(14).
Finally, a commenter suggested that DOE should apply the
categorical exclusion to packaging, transportation, and storage of
DOE's own radioactive materials that are the same kind as listed in the
Commission's categorical exclusion. DOE is taking this suggestion under
advisement and may consider it in a future rulemaking.
Proposed Modification B3.6 Siting/construction/operation/
decommissioning of facilities for bench-scale research, conventional
laboratory operations, small-scale research and development and pilot
projects.
DOE proposed to modify B3.6 (indoor bench-scale research projects)
by combining it with B3.10 (small-scale research and development
projects and small-scale pilot projects) and to include the siting,
construction, operation, and decommissioning of facilities to house
such projects. DOE also proposed to delete the descriptive phrase ``for
generally less than two years'' in reference to the length of time a
categorically excluded pilot project typically could be conducted.
One commenter stated that this categorical exclusion as proposed
may be susceptible to abuse, e.g., by permitting a pilot project to
evolve into a full-scale operation without public environmental review.
DOE believes that this example would be a misapplication of the
categorical exclusion. To clarify the meaning of ``pilot project,'' DOE
is inserting the descriptive phrase ``generally less than two years.''
Thus, as revised, the only modification DOE is making to the existing
categorical exclusions is combining B3.6 and B3.10, and expanding the
combined categorical exclusion to include the siting, construction,
operation, and decommissioning of facilities that would house the
indoor bench-scale research, conventional laboratory operations, small-
scale research and development, and small-scale pilot projects. DOE
received no comments on these aspects of the proposed modification.
Several commenters questioned the definition of ``small-scale'' and
``pilot projects.'' One commenter questioned whether ``bench-scale''
includes the use of large pieces of equipment. The meaning of these
terms is not changing from the existing regulations. DOE notes,
however, that scale refers to the magnitude of the activity, e.g., the
amount of materials consumed, waste produced, air emissions, and
effluents. Further, the size of the equipment would be relevant in this
context only if it affected the input of material and output of waste,
so as to produce potentially significant physical impacts. See also the
discussion of ``small-scale'' in Section III.E.
Another commenter expressed concern that the nature of research
activities could involve new and untried processes. If a proposed
research action had the potential to involve unique or unknown risks,
then it would trigger the ``extraordinary circumstances'' provision in
Sec. 1021.410(b)(2), and thus would not be eligible for a categorical
exclusion.
One commenter stated that there is an apparent conflict between
B3.6 and C12. DOE notes that B3.6 specifically covers ``small-scale
pilot projects (generally less than two years),'' constructed in an
already developed area. C12, however, refers to larger scale, longer
term projects that are not restricted to an already developed area. DOE
is adding a specific reference to C12 in B3.6 to call attention to the
differences between them.
Proposed B3.10 Siting/construction/operation/
decommissioning of particle accelerators, including electron beam
accelerators, primary beam energy generally less than 100 MeV.
Two commenters recommended that DOE remove the word ``generally''
from the phrase ``generally less than 100 MeV,'' stating that the
proposed language would permit categorically excluding much higher
energy machines than 100 MeV (million electron-volts).
[[Page 36234]]
DOE has restated the condition to read ``less than approximately 100
MeV,'' which better reflects DOE's intention and addresses the
commenters' concerns. See also the discussion in Section III.E.
Another commenter welcomed the proposed amendment and recommended
adding to this proposed categorical exclusion ``maintenance and
remedial actions [involving particle and electron beam accelerators]
which have the incidental effect of improving machine performance
within design criteria.'' DOE intends that the language of B3.10, as
proposed, covers such actions as long as there is no increase in
primary beam energy or current.
Finally, a commenter requested that the proposed categorical
exclusion be restated in terms that relate to impacts such as land
requirements and radioactive emissions rather than beam energy (i.e.,
100 MeV) as proposed, stating that the proposed formulation would not
be very meaningful to the public. Accelerators fitting this class of
actions typically are room-size and often are installed in existing
buildings at hospitals and universities. On the basis of its
experience, the language of this proposed amendment, and the general
restrictions on the application for categorical exclusions,
particularly at Sec. 1021.410 and the integral elements at appendix B,
B(1)-B(4), DOE believes that the covered actions will not present any
significant land use or radiation effects issues.
Proposed B3.12 Siting/construction/operation/
decommissioning of microbiological and biomedical facilities.
Several commenters expressed concern about the potential
environmental, health, and socioeconomic impacts of microbiological and
biomedical facilities and the lack of opportunity for public
involvement. One commenter sought clarification regarding DOE's
statement in the preamble to the proposed rulemaking that these
facilities generally do not handle ``extremely dangerous materials.''
Another commenter urged DOE not to categorically exclude laboratories
that are rated Biosafety Level 1 through 4.
All microbiological laboratories are rated Biosafety Level 1
through 4. Level 1 handles the least dangerous agents. To clarify what
is intended by Biosafety Levels 1 and 2, the following definitions were
extracted from Biosafety in Microbiological and Biomedical
Laboratories, 3rd Edition, May 1993, U.S. Department of Health and
Human Services Public Health Service, Centers for Disease Control and
Prevention, and the National Institutes of Health: Publication No.
(CDC) 93-8395. Biosafety Level 1 is assigned to facilities in which
work is done with defined and characterized strains of viable
microorganisms not known to cause disease in healthy adult humans
(e.g., Bacillus subtilis, Naeleria gruberi, and infectious canine
hepatitis). This designation represents a basic level of containment
that relies on standard microbiological practices with no special
primary or secondary barriers recommended, other than a sink for
handwashing. Biosafety Level 2 is assigned to facilities in which work
is done with the broad spectrum of indigenous moderate-risk agents
present in the community and associated with human disease of varying
severity (e.g., Hepatitis B virus, salmonellae and Toxoplasma spp.).
This designation requires the use of splash shields, face protection,
gowns and gloves, as appropriate, and the availability of secondary
barriers such as handwashing facilities and laboratory waste
decontamination facilities. Given these controls, DOE believes that it
is appropriate to categorically exclude Biosafety Level 1 and 2
laboratories from further NEPA review, provided that all of the
integral elements of a categorical exclusion (appendix B, B(1)-B(4))
are met.
Another commenter asked for a clarification of ``an already
developed area.'' In particular, this commenter asked if it referred to
a metropolitan area, residential area, commercially developed area, or
existing biomedical facility. As discussed previously, ``an already
developed area'' refers to an area ``where active utilities and
currently used roads are readily accessible.'' DOE has clarified the
categorical exclusion accordingly. Facilities that would be eligible
for this categorical exclusion could be sited in a metropolitan,
residential, or commercially developed area or in an existing
biomedical facility, as long as the area is already developed.
Proposed B3.13 Magnetic fusion experiments, no tritium
fuel use.
A commenter asked whether DOE intends to conduct new magnetic
fusion experiments at existing facilities under this proposed
categorical exclusion, and indicated that an environmental assessment
or environmental impact statement is required to protect the public and
worker health and safety in light of impacts from exposure to
electromagnetic fields. DOE intends to categorically exclude such
experiments at existing facilities. Based on its experience with such
activities, DOE believes that magnetic fusion experiments do not pose
an electromagnetic field or other hazard to the public. DOE routinely
provides workers with adequate training and controlled conditions to
conduct such work safely.
Proposed Modification B5.3 Modification (not expansion)/
abandonment of oil storage access/brine injection/gas/geothermal wells,
not part of site closure.
DOE proposed to add gas wells to this categorical exclusion, and
one commenter stated that DOE should consider possible risks to public
health and safety before doing so. This categorical exclusion applies
only to the modification (e.g., installation of different chokes and
other wellhead equipment) or abandonment of existing wells and does not
include workover (see proposed B5.12) or expansion. Therefore, the
inclusion of gas will not result in any significant impacts.
Proposed Modification B5.5 Construction/operation of
short crude oil/gas/steam/geothermal pipeline segments.
DOE proposed to add natural gas and steam pipelines and to remove
references to the specific existing facilities to which the pipelines
would be connected. One commenter expressed concern about the end point
facilities of the pipeline segments and how such facilities would
affect the impacts. The commenter stated that connecting pipeline
segments without regard to the impacts of the end point facilities is
comparable to approval of a sewer pipe without knowledge of the
discharge point. DOE notes that this categorical exclusion applies to
the construction and operation of short segments of pipelines between
existing DOE facilities and existing transportation, storage, or
refining facilities within a single industrial complex and within
existing rights-of-way. Because both end points must be existing
facilities, DOE believes that the potential impacts of constructing and
operating short pipeline segments between such facilities do not depend
on the type of facility and will not cause significant environmental
impacts. There would be no discharges to the environment from these
pipelines.
Proposed Clarification B5.9. Temporary exemption for any
electric powerplant;
Proposed Clarification B5.10 Certain permanent exemptions
for any existing electric powerplant;
Proposed Clarification B5.11 Permanent exemption for
mixed natural gas and petroleum;
[[Page 36235]]
Proposed Modification (Removal) B5.12 Permanent exemption
for new peakload powerplant;
Proposed Modification (Removal) B5.13 Permanent exemption
for emergency operations;
Proposed Modification (Removal) B5.14 Permanent exemption
for meeting scheduled equipment outages;
Proposed Modification (Removal) B5.15 Permanent exemption
due to lack of alternative fuel supply; and
Proposed Modification (Removal) B5.16 Permanent exemption
for new cogeneration powerplant.
DOE proposed to clarify or modify (i.e., remove) these categorical
exclusions because they involve the grant or denial by DOE of certain
exemptions under the Power Plant and Industrial Fuel Use Act of 1978
(PIFUA), which was amended by Congress and now applies only to base
load power plants. It no longer applies to other types of power plants
or to major fuel-burning installations. Some commenters opposed the
retention of B5.9, B5.10, and B5.11 in their modified state on the
basis that they appear to exempt multiple actions from an environmental
assessment or environmental impact statement under the guise of energy
conservation or expressed concerns about cumulative impacts, connected
actions, or extraordinary circumstances. DOE believes that the original
rationale for these categorical exclusions, based on experience with
actual cases, remains valid and thus believes that they should be
retained for situations where the law provides for exemptions (i.e.,
base load power plants). Another commenter expressed concern regarding
the proposed removal of existing B5.12 through B5.16. While DOE
acknowledges this concern, it is nonetheless appropriate for DOE to
conform its NEPA regulations to changes in the law. These categorical
exclusions are being clarified or removed from appendix B because under
PIFUA, as amended, DOE no longer has authority to grant or deny PIFUA
exemptions except in cases involving base load power plants.
Proposed B5.12 Workover of existing oil/gas/geothermal
well.
DOE proposed a new categorical exclusion covering the workover of
existing oil, gas, or geothermal wells on existing wellpads where the
work ``would not disturb adjacent habitat.'' One commenter requested
that the word ``endanger'' be included in the proposed categorical
exclusion. DOE believes that the words ``disturb'' and ``endanger'' are
both subject to various interpretations. DOE is therefore modifying the
categorical exclusion to use instead ``adversely affect,'' which
reflects DOE's original intent and is consistent with language
elsewhere in the DOE NEPA rule.
Proposed Modification B6.1 Small-scale, short-term
cleanup actions under RCRA, Atomic Energy Act, or other authorities.
DOE proposed to change the way in which it defines the scope of the
categorical exclusion from ``removal actions under CERCLA * * * and
removal-type actions similar in scope'' to ``small-scale, short-term
cleanup actions under RCRA, the Atomic Energy Act, or other
authorities'' without naming CERCLA. This proposal reflects DOE's
policy (see Section III.B) of relying on the CERCLA process for review
of actions to be taken under CERCLA. DOE believes that the reference in
the current regulations to CERCLA removal actions is confusing in the
context of this policy. DOE also proposed to expand the limits of the
categorical exclusion to actions generally costing up to $5 million
over as many as 5 years.
One commenter supported the modification to clarify application to
RCRA cleanup actions and to increase the cost and time limitations.
Another commenter stated that DOE should integrate the CERCLA and NEPA
processes. As discussed in Section III.B, DOE's CERCLA/NEPA policy
allows for case-by-case integration of the CERCLA and NEPA processes.
Therefore, although CERCLA is not referenced in the new categorical
exclusion, DOE may apply categorical exclusion B6.1 to certain CERCLA
actions. DOE has not changed its proposed modification to the
categorical exclusion based on this comment.
This commenter also requested that DOE retain the time and cost
limits in the existing categorical exclusion (i.e., the CERCLA
regulatory cost and time limits of $2 million and 12 months), but
requested that if DOE does expand the limits to $5 million and 5 years
as proposed, the language of the categorical exclusion should read
``expand the limits to'' and that the categorical exclusion's limits be
stated as maximum cut off points. As discussed in Section III.E, DOE's
use of numerical quantities are intended to provide a reasonable degree
of flexibility and should not be applied as absolute limits. DOE has
retained the proposed cost and time factors in the final categorical
exclusion.
Another commenter stated that the applicability of a categorical
exclusion to an action should be based on the site-specific conditions
of the action, not on its cost or duration. The cost and time
descriptions in the proposed categorical exclusion are simply
indicators of the size and type of actions DOE intends to categorically
exclude, not definitions of the actions themselves. Categorical
exclusions listed in appendix B include integral elements that are site
specific, and categorical exclusions will be applied based on site-
specific factors, such as the existence of any extraordinary
circumstances, rather than on the cost or duration of the action.
One commenter expressed concern that the use of terms ``small-
scale,'' ``short-term,'' and ``generally'' are too subjective. The use
of such descriptive terms is discussed in Section III.E.
One commenter requested that DOE state in example B6.1(b) that it
would use the definition of hazardous waste from whichever regulatory
agency (e.g., EPA or a state agency) provided the more protective
definition for purposes of protecting public health and safety, or had
greater authority to regulate hazardous waste. DOE proposed to revise
the example to reflect the fact that hazardous waste is defined under
one of two possible regulatory authorities, either 40 CFR Part 261 or
applicable state requirements, depending on whether EPA or a state
exercises primary regulatory authority. DOE does not have a choice as
to which definition it must abide by. DOE is retaining the proposed
language in the final categorical exclusion.
This commenter also stated that DOE did not specifically exempt
high-level radioactive waste, transuranic waste, spent nuclear fuel,
waste from reprocessing spent nuclear fuel, and uranium mill tailings
in its language pertaining to waste cleanup and storage and requested
clarification on the scope of the categorical exclusions in this
regard. DOE agrees that it should clarify the scope of the categorical
exclusion and has added the phrase ``other than high-level radioactive
waste and spent nuclear fuel'' to the categorical exclusion. DOE
believes that it can appropriately apply the categorical exclusion to
cleanup activities involving transuranic waste and uranium mill
tailings.
This commenter also expressed concern that this categorical
exclusion allowed more discretionary authority to DOE for its waste
management actions with less public notification, involvement, and
accountability. DOE's response to comments relating to the reduction of
public involvement opportunities is in Section III.B.
See also the discussion of categorical exclusion B6.9 for a
modification of example B6.1(g).
[[Page 36236]]
Proposed Modification (Removal) B6.4 Siting/construction/
operation/ decommissioning of facility for storing packaged hazardous
waste for 90 days or less.
DOE proposed to replace the existing B6.4, which covers a very
narrow class of waste storage actions, with a new and broader B6.4 that
would have encompassed the activities to which the existing B6.4
applies. In response to comments on the proposed new B6.4, however, DOE
has decided to narrow its scope in such a manner that retaining the
existing B6.4 is necessary. Therefore, DOE is retaining the existing
B6.4, and will list a new class of actions covering waste storage
facilities (i.e., a ``reduced-scope'' version of the proposed B6.4) as
B6.10. See the further discussion below.
Proposed B6.4 (FinalB6.10) Siting/construction/operation/
decommissioning of small waste storage facilities (not high-level
radioactive waste, spent nuclear fuel).
Several commenters expressed concern that this proposed categorical
exclusion could apply to actions that individually may have significant
impacts and especially would have significant cumulative impacts if a
number of such facilities were built. Commenters also expressed concern
regarding the location of the facility, type of waste, and the nature
of the surrounding environment. On the other hand, a commenter who
supported the proposal suggested that DOE clarify that an unlimited
number of 50,000 square-foot facilities could be built under the
categorical exclusion.
DOE generally agrees with the commenters who stated that the
proposal was too broad. However, DOE notes that significant new waste-
producing activities and significant transfers of waste among sites are
subject to NEPA analysis and would not be categorically excluded.
Provisions for storing such waste would be within the scope of such
analyses (or reviewed under CERCLA, if the waste would result from
CERCLA environmental restoration activities), and storage impacts and
alternatives would be appropriately assessed.
In light of the comments, DOE has decided to limit the
applicability of proposed categorical exclusion B6.4 (final B6.10) to
upgrades or replacement of storage facilities for waste that is already
present at a DOE site at the time the storage capacity is to be
provided. Providing new or upgraded storage facilities for existing
wastes under this categorical exclusion would only improve upon
previous storage conditions. Further, because the storage changes would
not be associated with changes in waste type or waste quantity,
providing new storage facilities or upgrades would not likely have
cumulatively significant impacts. Storage facilities for newly
generated waste from ongoing operations would not be categorically
excluded, and any associated cumulative impacts would be considered in
an appropriate NEPA analysis.
Several commenters questioned the basis for DOE's proposal to
categorically exclude a particular size of storage facility, namely
approximately 50,000 square feet or less. In recent years DOE has
evaluated and constructed a variety of new waste storage facilities.
These are typically uncomplicated light-weight buildings on a concrete
pad floor that provide open floor storage space for waste packages.
They are designed, and waste is emplaced, with safety as a priority.
DOE chose 50,000 square feet as a representative size of such
facilities, intending not to categorically exclude facilities that
might be unusually large.
In response to commenters' objections regarding the word
``generally'' in the proposed phrase ``generally not to exceed an area
of 50,000 square feet,'' DOE has changed the phrase to read ``less than
approximately 50,000 square feet in area,'' which more accurately
conveys DOE's original intent. See also the discussion in Section
III.E.
As proposed, the categorical exclusion would not apply to storage
of high-level radioactive waste or spent nuclear fuel. Several
commenters questioned whether the categorical exclusion would apply to
other types of waste. One commenter suggested that DOE not apply this
categorical exclusion to transuranic wastes, fissile materials, and all
other materials for which DOE is largely self-regulating. The commenter
did not explain why self-regulation would be important to the
determination at issue, and DOE believes that it is not. DOE has
concluded, however, that storage facilities for wastes that require
special precautions to prevent nuclear criticality should not be
categorically excluded, and DOE is modifying the proposed categorical
exclusion accordingly. For example, certain transuranic wastes that
contain fissile materials may pose such concerns.
Finally, DOE has clarified its original intent to include under
this categorical exclusion only storage facilities located at DOE
sites, and also has deleted reference to ``activities connected to site
operations,'' as commenters requested.
Proposed Clarification B6.5 Siting/construction/
operation/decommissioning of facility for characterizing/sorting
packaged waste, overpacking waste (not high-level radioactive waste,
spent nuclear fuel).
DOE proposed to clarify the existing B6.5 merely by adding cross-
references to B6.4 and B6.6, not to change it substantively. A
commenter, however, suggested that B6.5 should be expanded to include
activities in which waste would be unpacked for purposes of
characterization. DOE considers the comment to be outside the scope of
this rulemaking, but may consider the suggestion in an appropriate
future rulemaking.
Proposed B6.9 Small-scale temporary measures to reduce
migration of contaminated groundwater.
Several commenters expressed concern that, in effect, this
categorical exclusion would reduce opportunities for review by other
agencies and the public, and that it might be applied to actions that
could have adverse effects on public health and the environment. One
commenter stated that contamination of groundwater is a potentially
significant risk to public health and that DOE should not exclude such
contamination issues from public participation opportunities and NEPA
documentation requirements. One commenter expressed concern that
application of this categorical exclusion would eliminate valuable
input from natural resource agencies regarding effects from actions of
this type on state-designated priority habitats. A related comment
expressed concern that actions categorically excluded under B6.9 could
be detrimental to valuable habitat or cultural resources.
As noted in the preamble to the proposed rulemaking, DOE has found
that these actions normally have very local and environmentally
beneficial effects and pose no potential for significant environmental
impacts. With regard to potential impacts to sensitive environmental
resources (such as priority habitat and cultural resources), DOE
believes that integral condition B(4) in appendix B, which states that
an action proposed for categorical exclusion must not adversely affect
environmentally sensitive areas, would preclude use of this categorical
exclusion when priority habitat and cultural resources may be adversely
affected. Public involvement opportunities are discussed in Section
III.B.
One commenter stated that it was unclear why the proposed
categorical exclusion was not within the scope of B6.1, an existing
categorical exclusion for small-scale cleanup actions (see modification
of B6.1 above). DOE believes that certain groundwater
[[Page 36237]]
cleanup actions could indeed be categorically excluded under B6.1, if
the proposed actions met the conditions of that categorical exclusion,
i.e., there were existing facilities to treat the water and the
proposed activities were to be completed in about 5 years or less. DOE
believes it is also appropriate, however, to categorically exclude the
siting, construction, and longer term operation of groundwater
treatment and containment facilities and therefore proposed a separate
categorical exclusion (i.e., B6.9) to define and cover those
activities. DOE intends that the categorical exclusion would include
mobile pumping and treatment facilities or pumping and treatment
facilities that might be built and then removed when the action was
stopped, and DOE used the phrase ``small-scale temporary measure'' to
characterize these possibilities. DOE has added these facility
descriptions to the examples in the final categorical exclusion. DOE
agrees that the example of ``installing underground barriers'' in the
proposed categorical exclusion is more appropriately considered as an
action under B6.1. For this reason, DOE is adding ``underground
barriers'' to the existing example B6.1(g) and is deleting it from
proposed B6.9.
Another commenter stated that the meaning of ``small-scale
temporary measure'' was vague. DOE's use of terms such as ``small-
scale'' is discussed in Section III.E.
Classes of Actions Listed in Appendix C
Proposed Modification (Removal) C1 Major projects.
One commenter expressed concern that DOE's proposal to remove
``Major Projects, as designated by DOE Order 4240.1'' from appendix C
would result in the categorical exclusion of proposed actions currently
requiring an environmental assessment or environmental impact
statement.
The term ``Major Project'' was defined in DOE Order 4240.1, based
primarily on cost characteristics. DOE no longer uses the term ``Major
Project,'' and thus the existing C1 is no longer meaningful.
Accordingly, DOE is removing C1. DOE will continue to prepare
environmental impact statements, however, for ``major Federal actions
significantly affecting the quality of the human environment'' as
required under NEPA Sec. 102(2)(C). Also, although DOE has eliminated
the designation of ``Major Projects'' from the proposed actions for
which an environmental assessment would normally be prepared, DOE will
continue to prepare environmental assessments for the types of proposed
actions formerly included within the definition of ``Major Projects.''
Proposed Modification C9 Restoration, creation, or
enhancement of large wetlands.
DOE originally proposed to amend this category to conform to
proposed B1.32, i.e., to distinguish NEPA review for large versus small
wetlands. As noted in the discussion on B1.32, DOE is withdrawing its
proposal to categorically exclude restoration, creation, or enhancement
of a small wetland. Similarly, DOE is also withdrawing its proposal to
make a conforming language change in C9.
Proposed Modification (Removal) C10 Siting/construction/
operation/ decommissioning of synchrotron radiation accelerator
facility; and
Proposed Modification C11 Siting/construction/operation/
decommissioning of low- or medium-energy particle acceleration facility
with primary beam energy generally greater than 100 MeV.
DOE proposed to consolidate the existing C10 and C11 into C11
(reserving C10), and make the resulting C11 applicable for low to
medium energy particle accelerators, consistent with the proposed
categorical exclusion B3.10 for accelerators with energy less than
approximately 100 MeV. One commenter stated that the existing
regulations would have required an environmental impact statement under
existing C1, which covers ``Major Projects,'' and DOE proposed to
eliminate C1. The commenter is mistaken because ``Major Projects''
would normally have required an environmental assessment under C1, not
an environmental impact statement. As noted above, DOE is removing C1.
See previous discussion under C1.
Proposed Modification C14 Siting/construction/operation
of water treatment facilities generally greater than 250,000 gallons
per day capacity.
DOE proposed to modify C14 to conform to proposed B1.26. A
commenter objected to use of the word ``generally'' in both listings.
DOE has replaced the phrase ``generally exceeding'' with ``greater than
approximately,'' which reduces the agency's discretion, as the
commenter requested, conforms with changes to proposed B1.26 discussed
above, and better expresses DOE's original intent. DOE also revised C14
to include small wastewater and surface water treatment facilities,
whose liquid discharges are not subject to external regulation, to
conform with changes to proposed B1.26 made in response to comments.
See also the discussion in Section III.E.
Proposed Modification C16 Siting/construction/operation/
decommissioning of large waste storage facilities (not high-level
radioactive waste, spent nuclear fuel).
DOE's proposed amendments were intended to clarify the meaning of
``onsite'' in the existing C16, and to make C16 consistent with
proposed B6.4 (now final B6.10), under which a subset of small-scale
actions included in existing C16 would be categorically excluded. DOE
does not agree with a commenter's statements to the effect that this
proposal would eliminate public participation for the siting of
centralized and regional treatment and storage facilities and protect
its contractors and itself at the expense of the public. DOE provides
for appropriate public involvement in its environmental assessment
process. In accordance with another commenter's suggestion, DOE is
providing clearer direction by replacing the phrase ``generally greater
than'' with ``greater than approximately,'' which also better expresses
DOE's original intent. See also the discussion in Section III.E.
Classes of Actions Listed in Appendix D
Proposed Modification D10 Siting/construction/operation/
decommissioning of major treatment, storage, and disposal facilities
for high-level waste and spent nuclear fuel.
DOE proposed to amend D10 so that there would be no presumption
that an EIS would be prepared for siting, constructing, operating, and
decommissioning of onsite replacement storage facilities or upgrading
storage facilities for spent nuclear fuel. DOE proposals for these
types of facilities have varied too widely to support a general
conclusion that such proposed actions normally require the preparation
of an environmental impact statement. Thus, under DOE's proposal,
onsite replacement or upgrade of storage facilities for spent nuclear
fuel would no longer require the preparation of an environmental impact
statement; rather, DOE would decide on a case-by-case basis (i.e.,
based on the particular project, site, and circumstances) whether to
prepare an environmental assessment or an environmental impact
statement. Contrary to one commenter's presumption, DOE's decision not
to assign a particular level of NEPA documentation to onsite
replacement or upgrading of storage facilities for spent nuclear fuel
would never result in such activities being categorically excluded.
While one commenter supported the proposed modification, several
others opposed it. Some commenters stated
[[Page 36238]]
that the use of the term ``major'' in D10 already provided DOE with the
flexibility to prepare an environmental assessment in certain
circumstances. In response, DOE notes that the term ``major'' refers to
the size and/or cost of a particular project, not to whether its
impacts will be significant. Thus, it is possible to have a large,
costly DOE project that, because of its location or technical
characteristics, is not likely to have significant environmental
effects. In that case (such as replacement or upgrade of a spent
nuclear fuel storage facility), DOE believes it is more appropriate to
prepare an environmental assessment. Two commenters expressed concern
that replacement or upgrade of spent nuclear fuel storage facilities
could result in expanded spent nuclear fuel storage capacity and that
existing storage sites may become long-term storage sites in the
absence of a permanent repository. DOE did not intend to permit
expanded storage under this exclusion and has modified its proposal to
add ``where such replacement or upgrade will not result in increased
storage capacity.'' Whether the storage of spent nuclear fuel may in
fact become long-term storage is outside the scope of this rulemaking.
Another commenter stated that D10 must not be replaced by any less
stringent process for public input and involvement. DOE will prepare
either an environmental assessment or an environmental impact statement
for replacement or upgrades of spent nuclear fuel storage facilities,
depending on the circumstances. DOE provides for public involvement in
both its environmental assessment and environmental impact statement
processes.
Other commenters contended that DOE had proposed that an
environmental assessment would be applicable for handling high-level
waste. DOE's proposed modification deals with replacement and upgrades
of storage facilities for spent nuclear fuel, not high-level waste.
Under the original D10 and as amended, DOE would normally prepare an
environmental impact statement for the siting, construction, operation,
and decommissioning of major treatment, storage, and disposal
facilities for high-level waste.
One commenter questioned why replacement or upgrades of high-level
waste storage facilities are not treated the same as similar facilities
for spent nuclear fuel, and whether DOE's proposed modification was
designed to justify the preparation of an environmental assessment for
a particular spent nuclear fuel facility at the Idaho National
Engineering Laboratory, rather than an environmental impact statement.
DOE's approach to formulating typical classes of actions for listing in
subpart D is described in Section III.E, above. DOE does not formulate
such classes of actions, or proposed additions and modifications, with
the intention of securing coverage for a specific future or past action
under a particular class of actions.
IV. Procedural Review Requirements
A. Environmental Review Under the National Environmental Policy Act
These amendments to the DOE NEPA rule establish, modify, and
clarify procedures for considering the environmental effects of DOE
actions within the Department's decision making process. Implementation
of this rule will not affect the substantive requirements imposed on
DOE or on applicants for DOE licenses, permits, and financial
assistance, and this rule will not result in environmental impacts.
Therefore, DOE has determined that this rule is covered by the
categorical exclusion found at paragraph A6 of appendix A to subpart D,
10 CFR part 1021, which applies to procedural rulemaking. Accordingly,
neither an environmental impact statement nor an environmental
assessment is required.
B. Review Under the Regulatory Flexibility Act
The Regulatory Flexibility Act (5 USC 601 et seq.) requires that an
agency prepare an initial regulatory flexibility analysis to be
published at the time the proposed rule is published. This requirement
does not apply if the agency ``certifies that the rule will not, if
promulgated, have a significant economic impact on a substantial number
of small entities'' (5 USC 603). The rule modifies existing policies
and procedural requirements for DOE compliance with NEPA. The rule
makes no substantive changes to requirements imposed on applicants for
DOE licenses, permits, financial assistance, and similar actions as
related to NEPA compliance. Therefore, DOE certifies that the rule will
not have a ``significant economic impact on a substantial number of
small entities.''
C. Review Under the Paperwork Reduction Act
No new information collection or recordkeeping requirements are
imposed by these amendments. Accordingly, no Office of Management and
Budget clearance is required under the Paperwork Reduction Act of 1980
(44 USC 3501 et seq.).
D. Review Under Executive Order 12612
Executive Order 12612, ``Federalism,'' 52 FR 41685 (October 30,
1987) requires that regulations be reviewed for Federalism effects on
the institutional interest of states and local governments, and, if the
effects are sufficiently substantial, preparation of a Federalism
assessment is required to assist senior policymakers. These amendments
will affect Federal NEPA compliance procedures, which are not subject
to state regulation. The amendments will not have any substantial
direct effects on states and local governments within the meaning of
the Executive Order. Therefore, no Federalism assessment is required.
E. Review Under Executive Order 12988
With respect to the review of existing regulations and the
promulgation of new regulations, Section 3(a) of Executive Order 12988,
``Civil Justice Reform'' 61 FR 4729 (February 7, 1996), imposes on
Executive agencies the general duty to adhere to the following
requirements: (1) Eliminate drafting errors and ambiguity, (2) write
regulations to minimize litigation, and (3) provide a clear legal
standard for affected conduct rather than a general standard and
promote simplification and burden reduction. With regard to the review
required by Section 3(a), Section 3(b) of Executive Order 12988
specifically requires that Executive agencies make every reasonable
effort to ensure that the regulation: (1) Clearly specifies the
preemptive effect, if any; (2) clearly specifies any effect on existing
Federal law or regulation; (3) provides a clear legal standard for
affected conduct while promoting simplification and burden reduction;
(4) specifies the retroactive effect, if any; (5) adequately defines
key terms; and (6) addresses other important issues affecting clarity
and general draftsmanship under any guidelines issued by the Attorney
General. Section 3(c) of Executive Order 12988 requires Executive
agencies to review regulations in light of applicable standards in
Section 3(a) and Section 3(b) to determine whether they are met or it
is unreasonable to meet one or more of them. DOE has completed the
required review and determined that, to the extent permitted by law,
the final rule meets the relevant standards of Executive Order 12988.
F. Review Under Executive Order 12866
The final amendments were reviewed in accordance with Executive
Order
[[Page 36239]]
12866, ``Regulatory Planning and Review,'' 58 FR 51735 (October 4,
1993), which requires a Federal agency to prepare a regulatory
assessment, including the potential costs and benefits, of any
``significant regulatory action.'' The order defines ``significant
regulatory action'' as any regulatory action that may have an annual
effect on the economy of $100 million or more and may adversely affect
the economy, productivity, competition, jobs, the environment, public
health or safety, or state, local, or tribal governments in a material
way; create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency; materially alter the
budgetary impact of entitlements, grants, user fees, or loan programs;
or raise novel legal or policy issues arising out of legal mandates
(section 3(f)).
These amendments will modify already existing policies and
procedures for compliance with NEPA. The amendments contain no
substantive changes in the requirements imposed on applicants for a DOE
license, financial assistance, permit, or similar actions. Therefore,
DOE has determined that the incremental effect of these amendments to
the DOE NEPA regulations will not have the magnitude of effects on the
economy, or any other adverse effects, to bring this proposal within
the definition of a ``significant regulatory action.''
G. Review Under the Unfunded Mandates Reform Act
Under section 205 of the Unfunded Mandates Reform Act of 1995 (2
USC 1533), Federal agencies are required to prepare a budgetary impact
statement to accompany any proposed or final rule that includes a
Federal mandate that may result in the expenditure by state, local and
tribal governments, in the aggregate, or by the private sector, of $100
million or more in any one year. Because the DOE NEPA regulations
affect only DOE and do not create obligations on the part of any other
person or government agency, neither state, local or tribal governments
nor the private sector will be affected by amendments to these
regulations. Therefore, DOE has determined that further review under
the Unfunded Mandates Reform Act is not required.
H. Congressional Notification
The final regulations published today are subject to the
Congressional notification requirements of Small Business Regulatory
Enforcement Fairness Act of 1996 (Act) (5 USC 801). The Office of
Management and Budget has determined that the final regulations do not
constitute a ``major rule'' under the Act (5 USC 804). DOE will report
to Congress on the promulgation of the final regulations prior to the
effective date set forth at the beginning of this notice.
List of Subjects in 10 CFR Part 1021
Environmental impact statement.
Issued in Washington, DC, June 28, 1996.
Tara O'Toole,
Assistant Secretary, Environment, Safety and Health.
For reasons set out in the preamble, 10 CFR part 1021 is amended as
follows:
PART 1021--NATIONAL ENVIRONMENTAL POLICY ACT IMPLEMENTING
PROCEDURES
1. The authority citation for part 1021 continues to read as
follows:
Authority: 42 U.S.C. 7254; 42 U.S.C. 4321 et seq.
Sec. 1021.104 [Amended]
2. In Sec. 1021.104(b), the definition for EIS Implementation Plan
is removed.
3. Section 1021.105 is revised to read as follows:
Sec. 1021.105 Oversight of Agency NEPA activities.
The Assistant Secretary for Environment, Safety and Health, or his/
her designee, is responsible for overall review of DOE NEPA compliance.
Further information on DOE's NEPA process and the status of individual
NEPA reviews may be obtained upon request from the Office of NEPA
Policy and Assistance, U.S. Department of Energy, 1000 Independence
Avenue, SW, Washington, DC 20585-0119.
4. Section 1021.310 is revised to read as follows:
Sec. 1021.310 Environmental impact statements.
DOE shall prepare and circulate EISs and related RODs in accordance
with the requirements of the CEQ Regulations, as supplemented by this
subpart. DOE shall include in draft and final EISs a disclosure
statement executed by any contractor (or subcontractor) under contract
with DOE to prepare the EIS document, in accordance with 40 CFR
1506.5(c).
Sec. 1021.311 [Amended]
5. Section 1021.311 is amended by removing paragraph (f) and
redesignating paragraph (g) as paragraph (f).
* * * * *
Sec. 1021.312 [Removed and reserved]
6. Section 1021.312 is removed and reserved.
7. In Sec. 1021.315 paragraphs (b) and (d) are revised and (e) is
added to read as follows:
Sec. 1021.315 Records of decision.
* * * * *
(b) If DOE decides to take action on a proposal covered by an EIS,
a ROD shall be prepared as provided at 40 CFR 1505.2 (except as
provided at 40 CFR 1506.1 and Sec. 1021.211 of this part).
* * * * *
(d) No action shall be taken until the decision has been made
public. DOE may implement the decision before the ROD is published in
the Federal Register if the ROD has been signed and the decision and
the availability of the ROD have been made public by other means (e.g.,
press release, announcement in local media).
(e) DOE may revise a ROD at any time, so long as the revised
decision is adequately supported by an existing EIS. A revised ROD is
subject to the provisions of paragraphs (b), (c), and (d) of this
section.
Sec. 1021.322 [Amended]
8. Section 1021.322 is amended by removing paragraph (b)(1), and
redesignating paragraphs (b)(2) through (b)(5) as paragraphs (b)(1)
through (b)(4).
9. Appendix A to Subpart D, paragraph A7, is revised to read as
follows:
Appendix A to Subpart D to Part 1021--Categorical Exclusions Applicable
to General Agency Actions
* * * * *
A7 Transfer, lease, disposition, or acquisition of interests in
personal property (e.g., equipment and materials) or real property
(e.g., permanent structures and land), if property use is to remain
unchanged; i.e., the type and magnitude of impacts would remain
essentially the same.
* * * * *
10. Appendix B to Subpart D, is amended to revise the Table of
Contents entries for B1.8, B1.13, B1.22, B3.6, B3.10, B5.3, B5.5, B5.9,
B5.10, B5.12, B6.1, and B6.5; add B1.23 through B1.32, B2.6, B3.12,
B3.13, B6.9, and B6.10; and remove B5.13 through B5.16, to read as
follows:
[[Page 36240]]
Appendix B to Subpart D to Part 1021-Categorical Exclusions Applicable
to Specific Agency Actions
Table of Contents
* * * * *
B1.8 Modifications to screened water intake/outflow structures
* * * * *
B1.13 Construction/acquisition/relocation of onsite pathways, short
onsite access roads/railroads
* * * * *
B1.22 Relocation of buildings
B1.23 Demolition/disposal of buildings
B1.24 Transfer of structures/residential, commercial, industrial
use
B1.25 Transfer of land/habitat preservation, wildlife management
B1.26 Siting/construction/operation/decommissioning of small water
treatment facilities, less than approximately 250,000 gallons per
day capacity
B1.27 Disconnection of utilities
B1.28 Minor activities to place a facility in an environmentally
safe condition, no proposed uses
B1.29 Siting/construction/operation/decommissioning of small onsite
disposal facility for construction and demolition waste
B1.30 Transfer actions
B1.31 Relocation/operation of machinery and equipment
B1.32 Traffic flow adjustments, existing roads
* * * * *
B2.6 Packaging/transportation/storage of radioactive sources upon
request by the Nuclear Regulatory Commission or other cognizant
agency
* * * * *
B3.6 Siting/construction/operation/decommissioning of facilities
for bench-scale research, conventional laboratory operations, small-
scale research and development and pilot projects
* * * * *
B3.10 Siting/construction/operation/decommissioning of particle
accelerators, including electron beam accelerators, primary beam
energy less than approximately 100 MeV
* * * * *
B3.12 Siting/construction/operation/decommissioning of
microbiological and biomedical facilities
B3.13 Magnetic fusion experiments, no tritium fuel use
* * * * *
B5.3 Modification (not expansion)/abandonment of oil storage
access/brine injection/gas/geothermal wells, not part of site
closure
* * * * *
B5.5 Construction/operation of short crude oil/gas/steam/geothermal
pipeline segments
* * * * *
B5.9 Temporary exemption for any electric powerplant
B5.10 Certain permanent exemptions for any existing electric
powerplant
* * * * *
B5.12 Workover of existing oil/gas/geothermal well
* * * * *
B6.1 Small-scale, short-term cleanup actions under RCRA, Atomic
Energy Act, or other authorities
* * * * *
B6.5 Siting/construction/operation/decommissioning of facility for
characterizing/sorting packaged waste, overpacking waste
* * * * *
B6.9 Small-scale temporary measures to reduce migration of
contaminated groundwater
B6.10 Siting/construction/operation/decommissioning of small
upgraded or replacement waste storage facilities
* * * * *
11. Appendix B to Subpart D, section B is amended by revising
paragraphs B(1), B(2), and B(4)(iii) to read as follows:
B. Conditions That are Integral Elements of the Classes of Actions
in Appendix B
* * * * *
(1) Threaten a violation of applicable statutory, regulatory, or
permit requirements for environment, safety, and health, including
requirements of DOE and/or Executive Orders.
(2) Require siting and construction or major expansion of waste
storage, disposal, recovery, or treatment facilities (including
incinerators), but the proposal may include categorically excluded
waste storage, disposal, recovery, or treatment actions.
* * * * *
(4) * * *
(iii) Wetlands regulated under the Clean Water Act (33 U.S.C.
1344) and floodplains;
* * * * *
12. Appendix B to Subpart D, section B1, is amended by revising the
introductory text to paragraph B1.3, paragraphs B1.3(n) and (o), B1.8,
B1.13, B1.15, B1.18, B1.21, and B1.22, and adding paragraphs B1.23
through B1.32, to read as follows:
B1. Categorical Exclusions Applicable to Facility Operation
* * * * *
B1.3 Routine maintenance activities and custodial services for
buildings, structures, rights-of-way, infrastructures (e.g.,
pathways, roads, and railroads), vehicles and equipment, and
localized vegetation and pest control, during which operations may
be suspended and resumed. Custodial services are activities to
preserve facility appearance, working conditions, and sanitation,
such as cleaning, window washing, lawn mowing, trash collection,
painting, and snow removal. Routine maintenance activities,
corrective (that is, repair), preventive, and predictive, are
required to maintain and preserve buildings, structures,
infrastructures, and equipment in a condition suitable for a
facility to be used for its designated purpose. Routine maintenance
may result in replacement to the extent that replacement is in kind
and is not a substantial upgrade or improvement. In kind replacement
includes installation of new components to replace outmoded
components if the replacement does not result in a significant
change in the expected useful life, design capacity, or function of
the facility. Routine maintenance does not include replacement of a
major component that significantly extends the originally intended
useful life of a facility (for example, it does not include the
replacement of a reactor vessel near the end of its useful life).
Routine maintenance activities include, but are not limited to:
* * * * *
(n) Routine testing and calibration of facility components,
subsystems, or portable equipment (including but not limited to,
control valves, in-core monitoring devices, transformers,
capacitors, monitoring wells, lysimeters, weather stations, and
flumes); and
(o) Routine decontamination of the surfaces of equipment, rooms,
hot cells, or other interior surfaces of buildings (by such
activities as wiping with rags, using strippable latex, and minor
vacuuming), including removal of contaminated intact equipment and
other materials (other than spent nuclear fuel or special nuclear
material in nuclear reactors).
* * * * *
B1.8 Modifications to screened water intake and outflow
structures such that intake velocities and volumes and water
effluent quality and volumes are consistent with existing permit
limits.
* * * * *
B1.13 Construction, acquisition, and relocation of onsite
pathways and short onsite access roads and railroads.
* * * * *
B1.15 Siting, construction (or modification), and operation of
support buildings and support structures (including, but not limited
to, trailers and prefabricated buildings) within or contiguous to an
already developed area (where active utilities and currently used
roads are readily accessible). Covered support buildings and
structures include those for office purposes; parking; cafeteria
services; education and training; visitor reception; computer and
data processing services; employee health services or recreation
activities; routine maintenance activities; storage of supplies and
equipment for administrative services and routine maintenance
activities; security (including security posts); fire protection;
and similar support purposes, but excluding facilities for waste
storage activities, except as provided in other parts of this
appendix.
* * * * *
B1.18 Siting, construction, and operation of additional water
supply wells (or replacement wells) within an existing well field,
or modification of an existing water supply well to restore
production, if there would be no drawdown other than in the
immediate vicinity of the pumping well, no
[[Page 36241]]
resulting long-term decline of the water table, and no degradation
of the aquifer from the new or replacement well.
* * * * *
B1.21 Noise abatement measures, such as construction of noise
barriers and installation of noise control materials.
B1.22 Relocation of buildings (including, but not limited to,
trailers and prefabricated buildings) to an already developed area
(where active utilities and currently used roads are readily
accessible).
B1.23 Demolition and subsequent disposal of buildings,
equipment, and support structures (including, but not limited to,
smoke stacks and parking lot surfaces).
B1.24 Transfer, lease, disposition or acquisition of interests
in uncontaminated permanent or temporary structures, equipment
therein, and only land that is necessary for use of the transferred
structures and equipment, for residential, commercial, or industrial
uses (including, but not limited to, office space, warehouses,
equipment storage facilities) where, under reasonably foreseeable
uses, there would not be any lessening in quality, or increases in
volumes, concentrations, or discharge rates, of wastes, air
emissions, or water effluents, and environmental impacts would
generally be similar to those before the transfer, lease,
disposition, or acquisition of interests. Uncontaminated means that
there would be no potential for release of substances at a level, or
in a form, that would pose a threat to public health or the
environment.
B1.25 Transfer, lease, disposition or acquisition of interests
in uncontaminated land for habitat preservation or wildlife
management, and only associated buildings that support these
purposes. Uncontaminated means that there would be no potential for
release of substances at a level, or in a form, that would pose a
threat to public health or the environment.
B1.26 Siting, construction (or expansion, modification, or
replacement), operation, and decommissioning of small (total
capacity less than approximately 250,000 gallons per day) wastewater
and surface water treatment facilities whose liquid discharges are
externally regulated, and small potable water and sewage treatment
facilities.
B1.27 Activities that are required for the disconnection of
utility services such as water, steam, telecommunications, and
electrical power after it has been determined that the continued
operation of these systems is not needed for safety.
B1.28 Minor activities that are required to place a facility in
an environmentally safe condition where there is no proposed use for
the facility. These activities would include, but are not limited
to, reducing surface contamination, and removing materials,
equipment or waste, such as final defueling of a reactor, where
there are adequate existing facilities for the treatment, storage,
or disposal of the materials, equipment or waste. These activities
would not include conditioning, treatment, or processing of spent
nuclear fuel, high-level waste, or special nuclear materials.
B1.29 Siting, construction, operation, and decommissioning of a
small (less than approximately 10 acres) onsite disposal facility
for construction and demolition waste which would not release
substances at a level, or in a form, that would pose a threat to
public health or the environment. These wastes, as defined in the
Environmental Protection Agency's regulations under the Resource
Conservation and Recovery Act, specifically 40 CFR 243.101, include
building materials, packaging, and rubble.
B1.30 Transfer actions, in which the predominant activity is
transportation, and in which the amount and type of materials,
equipment or waste to be moved is small and incidental to the amount
of such materials, equipment, or waste that is already a part of
ongoing operations at the receiving site. Such transfers are not
regularly scheduled as part of ongoing routine operations.
B1.31 Relocation of machinery and equipment, such as analytical
laboratory apparatus, electronic hardware, maintenance equipment,
and health and safety equipment, including minor construction
necessary for removal and installation, where uses of the relocated
items will be similar to their former uses and consistent with the
general missions of the receiving structure.
B1.32 Traffic flow adjustments to existing roads at DOE sites
(including, but not limited to, stop sign or traffic light
installation, adjusting direction of traffic flow, and adding
turning lanes). Road adjustments such as widening or realignment are
not included.
13. Appendix B to Subpart D, section B2, is amended by adding B2.6,
to read as follows:
B2. Categorical Exclusions Applicable to Safety and Health
* * * * *
B2.6 Packaging, transportation, and storage of radioactive
materials from the public domain, in accordance with the Atomic
Energy Act upon a request by the Nuclear Regulatory Commission or
other cognizant agency, which would include a State that regulates
radioactive materials under an agreement with the Nuclear Regulatory
Commission or other agencies that may, under unusual circumstances,
have responsibilities regarding the materials that are included in
the categorical exclusion. Covered materials are those for which
possession and use by Nuclear Regulatory Commission licensees has
been categorically excluded under 10 CFR 51.22(14) or its
successors. Examples of these radioactive materials (which may
contain source, byproduct or special nuclear materials) are density
gauges, therapeutic medical devices, generators, reagent kits,
irradiators, analytical instruments, well monitoring equipment,
uranium shielding material, depleted uranium military munitions, and
packaged radioactive waste not exceeding 50 curies.
14. Appendix B to Subpart D, section B3, is amended by revising the
introductory text to paragraph B3.1, B3.3, B3.6, and B3.10, and adding
new paragraphs B3.12 and B3.13, to read as follows:
B3. Categorical Exclusions Applicable to Site Characterization,
Monitoring, and General Research
B3.1 Onsite and offsite site characterization and environmental
monitoring, including siting, construction (or modification),
operation, and dismantlement or closing (abandonment) of
characterization and monitoring devices and siting, construction,
and associated operation of a small-scale laboratory building or
renovation of a room in an existing building for sample analysis.
Activities covered include, but are not limited to, site
characterization and environmental monitoring under CERCLA and RCRA.
Specific activities include, but are not limited to:
* * * * *
B3.3 Field and laboratory research, inventory, and information
collection activities that are directly related to the conservation
of fish or wildlife resources and that involve only negligible
habitat destruction or population reduction.
* * * * *
B3.6 Siting, construction (or modification), operation, and
decommissioning of facilities for indoor bench-scale research
projects and conventional laboratory operations (for example,
preparation of chemical standards and sample analysis); small-scale
research and development projects; and small-scale pilot projects
(generally less than two years) conducted to verify a concept before
demonstration actions. Construction (or modification) will be within
or contiguous to an already developed area (where active utilities
and currently used roads are readily accessible). See also C12.
* * * * *
B3.10 Siting, construction, operation, and decommissioning of a
particle accelerator, including electron beam accelerator with
primary beam energy less than approximately 100 MeV, and associated
beamlines, storage rings, colliders, and detectors for research and
medical purposes, within or contiguous to an already developed area
(where active utilities and currently used roads are readily
accessible), or internal modification of any accelerator facility
regardless of energy that does not increase primary beam energy or
current.
* * * * *
B3.12 Siting, construction (or modification), operation, and
decommissioning of microbiological and biomedical diagnostic,
treatment and research facilities (excluding Biosafety Level-3 and
Biosafety Level-4; reference: Biosafety in Microbiological and
Biomedical Laboratories, 3rd Edition, May 1993, U.S. Department of
Health and Human Services Public Health Service, Centers of Disease
Control and Prevention, and the National Institutes of Health (HHS
Publication No. (CDC) 93-8395)) including, but not limited to,
laboratories, treatment areas, offices, and storage areas, within or
contiguous to an already developed area (where active utilities and
currently used roads are readily accessible). Operation may include
the purchase, installation, and operation of biomedical equipment,
such as commercially
[[Page 36242]]
available cyclotrons that are used to generate radioisotopes and
radiopharmaceuticals, and commercially available biomedical imaging
and spectroscopy instrumentation.
B3.13 Performing magnetic fusion experiments that do not use
tritium as fuel, with existing facilities (including necessary
modifications).
15. Appendix B to Subpart D, section B5, is amended by revising
paragraphs B5.3, B5.5 and B5.9 through B5.12 and removing B5.13 through
B5.16, to read as follows:
B5. Categorical Exclusions Applicable to Conservation, Fossil, and
Renewable Energy Activities
* * * * *
B5.3 Modification (but not expansion) or abandonment (including
plugging), which is not part of site closure, of crude oil storage
access wells, brine injection wells, geothermal wells, and gas
wells.
* * * * *
B5.5 Construction and subsequent operation of short crude oil,
steam, geothermal, or natural gas pipeline segments between DOE
facilities and existing transportation, storage, or refining
facilities within a single industrial complex, if the pipeline
segments are within existing rights-of-way.
* * * * *
B5.9 The grant or denial of any temporary exemption under the
Powerplant and Industrial Fuel Use Act of 1978 for any electric
powerplant.
B5.10 The grant or denial of any permanent exemption under the
Powerplant and Industrial Fuel Use Act of 1978 of any existing
electric powerplant other than an exemption under (1) section 312(c)
relating to cogeneration, (2) section 312(l) relating to scheduled
equipment outages, (3) section 312(b) relating to certain state or
local requirements, and (4) section 312(g) relating to certain
intermediate load powerplants.
B5.11 The grant or denial of a permanent exemption from the
prohibitions of Title II of the Powerplant and Industrial Fuel Use
Act of 1978 for any new electric powerplant to permit the use of
certain fuel mixtures containing natural gas or petroleum.
B5.12 Workover (operations to restore production, such as
deepening, plugging back, pulling and resetting lines, and squeeze
cementing) of an existing oil, gas, or geothermal well to restore
production when workover operations will be restricted to the
existing wellpad and not involve any new site preparation or earth
work that would adversely affect adjacent habitat.
16. Appendix B to Subpart D, section B6, is amended by revising the
introductory text to paragraph B6.1, paragraph B6.1 (b), (g), and (j),
B6.5, and adding paragraphs B6.9 and B6.10, to read as follows:
B6. Categorical Exclusions Applicable to Environmental Restoration
and Waste Management Activities
B6.1 Small-scale, short-term cleanup actions, under RCRA,
Atomic Energy Act, or other authorities, less than approximately 5
million dollars in cost and 5 years duration, to reduce risk to
human health or the environment from the release or threat of
release of a hazardous substance other than high-level radioactive
waste and spent nuclear fuel, including treatment (e.g.,
incineration), recovery, storage, or disposal of wastes at existing
facilities currently handling the type of waste involved in the
action. These actions include, but are not limited to:
* * * * *
(b) Removal of bulk containers (for example, drums, barrels)
that contain or may contain hazardous substances, pollutants,
contaminants, CERCLA-excluded petroleum or natural gas products, or
hazardous wastes (designated in 40 CFR part 261 or applicable state
requirements), if such actions would reduce the likelihood of
spillage, leakage, fire, explosion, or exposure to humans, animals,
or the food chain;
* * * * *
(g) Confinement or perimeter protection using dikes, trenches,
ditches, diversions, or installing underground barriers, if needed
to reduce the spread of, or direct contact with, the contamination;
* * * * *
(j) Segregation of wastes that may react with one another or
form a mixture that could result in adverse environmental impacts;
* * * * *
B6.5 Siting, construction (or modification or expansion),
operation, and decommissioning of an onsite facility for
characterizing and sorting previously packaged waste or for
overpacking waste, other than high-level radioactive waste, if
operations do not involve unpacking waste. These actions do not
include waste storage (covered under B6.4, B6.6, B6.10, and C16) or
the handling of spent nuclear fuel.
* * * * *
B6.9 Small-scale temporary measures to reduce migration of
contaminated groundwater, including the siting, construction,
operation, and decommissioning of necessary facilities. These
measures include, but are not limited to, pumping, treating,
storing, and reinjecting water, by mobile units or facilities that
are built and then removed at the end of the action.
B6.10 Siting, construction (or modification), operation, and
decommissioning of a small upgraded or replacement facility (less
than approximately 50,000 square feet in area) at a DOE site within
or contiguous to an already developed area (where active utilities
and currently used roads are readily accessible) for storage of
waste that is already at the site at the time the storage capacity
is to be provided. These actions do not include the storage of high-
level radioactive waste, spent nuclear fuel or any waste that
requires special precautions to prevent nuclear criticality. See
also B6.4, B6.5, B6.6, and C16.
17. Appendix C to Subpart D is amended in the Table of Contents by
removing and reserving the entries for C1 and C10 and by revising the
entries for C11, C14 and C16 to read as follows:
Appendix C to Subpart D to Part 1021--Classes of Actions That Normally
Require EAs But Not Necessarily EISs
Table of Contents
C1 [Removed and Reserved]
* * * * *
C10 [Removed and Reserved]
C11 Siting/construction/operation/decommissioning of low- or
medium-energy particle acceleration facility with primary beam
energy greater than approximately 100 MeV
* * * * *
C14 Siting/construction/operation of water treatment facilities
greater than approximately 250,000 gallons per day capacity
* * * * *
C16 Siting/construction/operation/decommissioning of large waste
storage facilities
18. Appendix C to Subpart D to Part 1021 is amended by removing and
reserving paragraphs C1 and C10 and by revising C11, C14 and C16, to
read as follows:
C1 [Removed and reserved].
* * * * *
C10 [Removed and reserved].
C11 Siting, construction (or modification), operation, and
decommissioning of a low- or medium-energy (but greater than
approximately 100 MeV primary beam energy) particle acceleration
facility, including electron beam acceleration facilities, and
associated beamlines, storage rings, colliders, and detectors for
research and medical purposes, within or contiguous to an already
developed area (where active utilities and currently used roads are
readily accessible).
* * * * *
C14 Siting, construction (or expansion), operation, and
decommissioning of wastewater, surface water, potable water, and
sewage treatment facilities with a total capacity greater than
approximately 250,000 gallons per day, and of lower capacity
wastewater and surface water treatment facilities whose liquid
discharges are not subject to external regulation.
* * * * *
C16 Siting, construction (or modification to increase
capacity), operation, and decommissioning of packaging and unpacking
facilities (that may include characterization operations) and large
storage facilities (greater than approximately 50,000 square feet in
area) for waste, except high-level radioactive waste, generated
onsite or resulting from activities connected to site operations.
These actions do not include storage, packaging, or unpacking of
spent nuclear fuel. See also B6.4, B6.5, B6.6, and B6.10.
19. Appendix D to Subpart D is amended to revise the Table of
Contents
[[Page 36243]]
entries for D1 and D10 to read as follows:
Appendix D to Subpart D to Part 1021--Classes of Actions That Normally
Require EISs
Table of Contents
D1 Strategic Systems
* * * * *
D10 Siting/construction/operation/decommissioning of major
treatment, storage, and disposal facilities for high-level waste and
spent nuclear fuel
* * * * *
20. Appendix D to subpart D to part 1021 is amended by revising
paragraphs D1 and D10, to read as follows:
D1 Strategic Systems, as defined in DOE Order 430.1, ``Life-
Cycle Asset Management,'' and designated by the Secretary.
* * * * *
D10 Siting, construction, operation, and decommissioning of
major treatment, storage, and disposal facilities for high-level
waste and spent nuclear fuel, including geologic repositories, but
not including onsite replacement or upgrades of storage facilities
for spent nuclear fuel at DOE sites where such replacement or
upgrade will not result in increased storage capacity.
* * * * *
[FR Doc. 96-17285 Filed 7-8-96; 8:45 am]
BILLING CODE 6450-01-P
Complete official Federal Register PDF
FR Doc. 96-17266 Loan Assessment, Market Placement, and Graduation of Direct Loan Borrowers
[Federal Register Volume 61, Number 132 (Tuesday, July 9, 1996)]
[Rules and Regulations]
[Pages 35916-35934]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-17266]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF AGRICULTURE
Rural Housing Service
Rural Business-Cooperative Service
Rural Utilities Service
Farm Service Agency
7 CFR Parts 1910, 1924, 1941, 1943, 1945, 1951, 1955, 1962, 1965,
and 1980
RIN 0575-AB45
Loan Assessment, Market Placement, and Graduation of Direct Loan
Borrowers
AGENCIES: Rural Housing Service, Rural Business-Cooperative Service,
Rural Utilities Service, and Farm Service Agency, USDA.
ACTION: Interim rule with request for comments.
-----------------------------------------------------------------------
SUMMARY: The issuing USDA agencies are amending the direct and
guaranteed farm loan regulations to implement changes to the
Consolidated Farm and Rural Development Act (CONACT) as a result of the
Food, Agriculture, Conservation, and Trade Act of 1990 (1990 Act) and
the Agricultural Credit Improvement Act of 1992 (1992 Act). These
amendments implement and coordinate ``loan assessment,'' ``market
placement,'' and the ``graduation of seasoned direct loan borrowers to
the loan guarantee program.'' The intended outcome is to improve the
success rate of borrowers receiving Farm Service Agency (FSA)
assistance and to facilitate their transitions to commercial credit.
DATES: Effective July 9, 1996. Comments must be submitted by October 7,
1996.
ADDRESSES: Submit written comments to Steven R. Bazzell, Senior Loan
Officer, Farm Credit Programs Loan Making Division, Farm Service Agency
(FSA) United States Department of Agriculture (USDA), Ag Box Code 0522,
Room 5438 South Building, 14th Street and Independence Avenue, SW.,
Washington, DC. 20250-0522. Written comments made pursuant to this rule
will be available for public inspection at the above address between
8:15 am and 4:45 pm, Monday through Friday, except holidays.
FOR FURTHER INFORMATION CONTACT: Mr. Bazzell of the Farm Credit
Programs Loan Making Division at telephone (202) 720-3889, fax (202)
690-1117, or e-mail [email protected].
SUPPLEMENTARY INFORMATION:
Executive Order 12866
This rule has been determined ``not significant'' for the purpose
of complying with Executive Order 12866, and therefore, it has not been
reviewed by the Office of Management and Budget (OMB).
Executive Order 12372
1. For the reasons set forth in the Notice related to 7 CFR part
3015, subpart V (48 FR 29115, June 24, 1983), Farm Ownership Loans,
Farm Operating Loans, and Emergency Loans are excluded from the scope
of Executive Order 12372, which requires intergovernmental consultation
with State and local officials.
2. The Soil and Water Loan Program is subject to and has complied
with the provisions of Executive Order 12372 and FmHA Instruction 1940-
J.
Federal Assistance Programs
These changes affect the following FSA Farm Credit programs as
listed in the Catalog of Federal Domestic Assistance:
10.404--Emergency Loans
10.406--Farm Operating Loans
10.407--Farm Ownership Loans
10.416--Soil and Water Loans
Environmental Impact Statement
This document has been reviewed in accordance with 7 CFR part 1940,
subpart G, ``Environmental Program.'' The issuing agencies have
determined that this action does not significantly affect the quality
of the human environment, and in accordance with the National
Environmental Policy Act of 1969, Public Law 91-190, an Environmental
Impact Statement is not required.
Executive Order 12778
This interim rule has been reviewed under Executive Order 12778,
Civil Justice Reform. In accordance with this rule: (1) All State and
local laws and regulations that are in conflict with this rule will be
preempted; (2) no retroactive effect will be given to this rule; and
(3) administrative proceedings in accordance with the National Appeals
Division appeal regulations at 7 CFR part 11 must be exhausted before
bringing suit in court challenging action taken under this rule unless
those regulations specifically allow bringing suit at an earlier time.
Paperwork Reduction Act
The information collection or recordkeeping requirements contained
in these regulations have been approved by the Office of Management and
Budget (OMB) under the provisions of 44 U.S.C. Chapter 35 and have been
assigned OMB control numbers 0575-0134, 0575-0061, 0575-0141, 0575-
0085, 0575-0083, 0575-0090, 0575-0093, 0575-0079 and 0575-0111 in
accordance with the Paperwork Reduction Act of 1995. This interim rule
does not revise or impose any new information collection or
recordkeeping requirement from those approved by OMB.
This regulatory action is being taken as part of the National
Performance Review program to eliminate unnecessary regulations and
improve those that remain in force.
Discussion of the Interim Rule
On December 30, 1993, the Farmers Home Administration (FmHA)
published a proposed rule in the Federal Register (58 FR 69274-69298)
with a comment period that ended February 28, 1994. The purpose of this
interim rule is to implement statutory provisions on loan assessment,
market placement, and graduation of seasoned direct loan borrowers to
the guaranteed loan program. These provisions were contained in the
1990 Act and the 1992 Act and affect former FmHA Farmer Programs. Due
to the reorganization of USDA, responsibility for administering FmHA
Farmer Programs has been transferred to FSA. Other loan programs
formerly administered by FmHA will only be affected by general,
conforming administrative revisions made to the regulations on
receiving and processing applications and analyzing credit needs and
graduation of borrowers. These programs include: Rural Housing loans
now administered by the Rural Housing Service (RHS), Water and Waste
Facility loans now administered by the Rural Utilities Service (RUS),
and Business and Industrial loans and Intermediary Relending Program
loans now administered by the Rural Business-Cooperative Service (RBS).
FSA, RHS, RUS, and RBS are jointly issuing this interim rule since
substantial administrative revisions have been made to regulations
affecting their programs in an effort to reduce Agency regulations.
The issuing agencies are publishing these regulations as an interim
rule and providing a 90-day comment period. The comment period will
provide the public, including Agency field staff, the opportunity to
use and evaluate the new
[[Page 35917]]
processes from a practical standpoint. We expect this will provide the
Agency with many more valuable suggestions to consider prior to
issuance of the final rule.
Discussion of Comments
In response to the proposed rule, 14 respondents provided 25
specific comments. Since few of the comments addressed the same issue,
they have been grouped by the general regulatory areas to which they
pertain, as follows: Borrower supervision and planning, chattel loan
security, graduation to commercial credit, and guaranteed loans.
Borrower Supervision and Planning
One respondent stated that each borrower should submit the year's
actual production and financial information, in addition to the
projected budget, when the projected budget is being submitted for
review and reclassification purposes only. The Agency has revised the
regulations to require that actual production and financial performance
information be submitted along with the borrower's projections. FSA
agrees with the rationale that actual performance should be obtained
whenever financial information is obtained from borrowers in order to
monitor their financial progress. This is in line with the practices of
commercial lenders and the goals of FSA's borrower training.
One respondent stated that the year-end analysis should ideally be
done prior to the beginning of the next production cycle, but not later
than 60 days after the end of the previous production cycle. FSA has
revised the regulations to state that, whenever possible, the year-end
analysis should be scheduled and completed not later than 60 days after
the end of the borrower's business year or farm budget planning period.
This change was made in recognition of the uncertainties of Agency
staffing and the fluctuating nature of the demand for FSA Farm Credit
assistance. It is impracticable to mandate that the year-end analysis
be completed within the 60-day timeframe, without exception.
One respondent stated that a year-end analysis should be required
on all recently serviced loans under subpart S of part 1951. The
proposed regulations require that a year-end analysis be completed for
all first-time, annual operating, delinquent, and limited resource
interest rate borrowers. All other FSA Farm Credit borrowers were to
receive a year-end analysis at the discretion of the Agency based upon
the ``assessment'' of the needs and risks associated with each
individual farming operation. In response to this comment, the Agency
has revised the regulation to broaden coverage to require a year-end
analysis the first year after the borrower: (1) Receives a new loan,
chattel subordination or restructuring; (2) is determined delinquent or
financially distressed; (3) has a loan deferred; or (4) receives
limited resources interest rates. This change expands year-end analysis
coverage to chattel subordinations and restructurings while mandating
that it be performed only the first year when most problems arise.
Chattel subordinations and restructurings will trigger a year-end
analysis in the first year because of the increased risk to the
Government. Thereafter, the Agency has the flexibility to perform the
year-end analysis on a case-by-case basis based on the individual needs
of each borrower.
One respondent stated that Exhibit A, Attachment 1, of subpart B of
part 1924 of this chapter should be modified to inform the farm
borrower that budget plans other than the Form FmHA 432-1, ``Farm and
Home Plan,'' may be used. This Exhibit A letter is, however, used
exclusively to inform borrowers of their rights and responsibilities in
regard to the disposition of security. Since Exhibit A does not pertain
to farm budgeting, no changes will be made in response to this comment.
The Agency plans to remove this exhibit from the regulations in the
final rule.
Three respondents made a general statement that there are
inadequate staff resources at the county office level to carry out the
provisions of these regulations in a timely manner. The Agency has
eliminated several regulatory requirements to provide expanded
discretion to county office personnel, such as the elimination of
mandatory accounting updates and field visits. Such administrative
procedures have been removed from the regulations, but will be
addressed in internal agency instructions. Additional administrative
reductions may be considered for future regulatory revisions, after the
Agency has empirical evidence to determine the effectiveness of the
current regulatory changes. Therefore, no changes will be made by the
Agency at this time.
One respondent stated that FSA should accept an applicant's self-
certification with regard to environmental compliance. Currently,
Agency personnel, or lenders in the case of guaranteed loans, are
required to make a visual inspection of the farming operation as part
of the environmental compliance process. Generally, environmental
statutes place the burden on the Federal Government for compliance.
This responsibility cannot be delegated to individual applicants
without statutory authority. No change will be made.
One respondent stated that ``production cycle,'' as the term is
used in conducting the year-end analysis under Sec. 1924.55(d)(1)
should be defined as the completion of the farm budget planning period.
The Agency agrees that this could be potentially confusing and has
revised Sec. 1924.55(d)(1) to clarify ``production cycle'' to mean
``farm budget planning period.''
Chattel Loan Security
One respondent stated that Sec. 1924.56(b)(5) should be clarified
to state that during an appeal, FSA will release normal income security
to allow the borrower to pay essential family living and farm operating
expenses, except for the expenses which are the subject of the appeal.
The Agency agrees that this could be misunderstood and has referenced
this paragraph back to subpart A of part 1962.
Three respondents stated that the FSA regulations require that
notices be filed (for lien perfection) under both the Uniform
Commercial Code (UCC) and Central Filing System (CFS), where
implemented, which in their opinion has no significant benefit. The
respondents stated that filing under both systems should be used on a
discretionary basis for problem accounts only. The most common practice
among commercial lenders is to file notices under both the UCC and CFS.
FSA will follow this same conventional practice, and no changes will be
made in Agency procedure. Section 1962.5, describes which filing
procedures for financing statements and other internal procedures for
handling security instruments, has been removed but will be covered by
internal Agency instructions.
One respondent stated that Sec. 1924.57 should be revised to state
that Agency personnel may provide credit counseling rather than will
provide credit counseling. This suggestion is not being adopted in
internal agency instructions since it is the Agency's responsibility to
provide credit counseling as needed by individual farm borrowers. This
administrative section has been removed from the regulations.
One respondent stated that the regulations should allow more Agency
discretion on conducting field visits, year-end analyses, credit
counseling, etc. The Agency has already eliminated required numbers of
field visits, collateral inspections (when justified
[[Page 35918]]
and documented in the case file), accounting updates, etc., and has
directed that these activities be derived directly from the farm
assessment. No further changes in this regard will be made until
empirical evidence can be examined by the Agency with regard to the
effectiveness of the current revisions.
One respondent stated that borrowers who are not required to
undergo a year-end analysis should only be required to submit an annual
balance sheet and that it is unreasonable to require these borrowers to
submit a projected cash flow for the upcoming year for borrower
classification purposes. FSA is required by the 1992 Act to reclassify
``seasoned direct borrowers'' for the purpose of graduation, and the
projected cash flow is needed to classify borrowers; therefore, FSA
will make no changes with respect to the financial information needed.
However, FSA has revised the regulations to require these
``classification only'' borrowers to submit their full set of financial
statements only every 2 years. In intervening years when financial
statements are not obtained, the Agency will make a desk review of the
borrower's case file and determine whether graduation efforts should be
pursued according to internal Agency instructions. Full financial
information will be required automatically only every 2 years because
based on past experience a borrower's ability to graduate generally
does not change significantly from 1 year to the next. This will meet
the requirements of the statute, while reducing the burden on field
staff resources and borrowers. The Agency expects this approach to
actually enable the county offices to graduate more direct borrowers to
commercial credit because there will be more time available to perform
a more thorough graduation review and to more vigorously pursue
graduation through Market Placement.
Two respondents commented that Sec. 1924.56 needs clarification,
especially with regard to the derivation and use of production yields.
FSA agrees and has revised this regulation to clarify that 5 years of
actual production history will be used as a guide when preparing and
evaluating a farm business plan. This clarification has been made to
stress that, while historical information is extremely useful, the
analysis of an agricultural operation's production trends and current
capabilities must be considered.
One respondent suggested that the existing Form FmHA 431-2, ``Farm
and Home Plan,'' be revised to incorporate Form FmHA 1962-1,
``Agreement for Use of Proceeds/Release of Chattel Security.'' FSA will
give this suggestion consideration for future improvements, but no
changes will be made at this time. Form FmHA 1962-1 has been removed as
an exhibit to part 1962, subpart A, but will be available in any Agency
office.
Graduation to Commercial Credit
One respondent stated that only borrowers classified as commercial
should be considered candidates for graduation to commercial credit. No
change will be made since the Consolidated Farm and Rural Development
Act section 333A(f) (7 U.S.C. 1983a(f)) specifies that both commercial
and standard classified borrowers be considered for graduation.
One respondent stated that the proposed regulations require all
commercial and standard classified borrowers to have an assessment
completed or updated. The respondent recommended that an assessment not
automatically be required. The respondent suggested that a current
balance sheet, actual performance for the most recent year, and a
projected farm budget should instead be used to determine graduation
potential and for preparation of the prospectus to lenders. FSA agrees
with the logic of this recommendation and has revised Sec. 1951.262 and
the definition of ``prospectus.'' Many graduation candidates will not
need a complete or updated assessment, as described under subpart B of
part 1924, when the sole purpose is pursuing graduation to commercial
credit.
One respondent stated that the language ``reasonable rates and
terms'' should not be changed to ``prevailing rates and terms'' in
subpart F of part 1951 because the former language is defined by
regulation and it is contained in various loan documents, particularly
in the Community and Business Programs. FSA agrees and will not delete
``reasonable rates and terms'' from this regulation.
One respondent stated that farm borrowers should be charged
commercial interest rates when it appears that they are able to
graduate to commercial credit. Otherwise, the respondent stated, there
is no incentive for borrowers to graduate. Subpart A of part 1951
presently requires that direct borrowers be charged FSA's ``regular''
interest rate when they attain a 10-percent repayment margin. This
interest rate is comparable to commercial lending rates, therefore, no
change will be made.
Guaranteed Loans
The last respondent stated that under Sec. 1980.113, the term
``current balance sheet'' should be defined as one that is less than 90
days old on the date the Agency receives a complete application. FSA
agrees that this should be clarified and has revised the regulation
accordingly.
Miscellaneous Changes
In addition to the changes made as a result of public comments, FSA
has made several changes to further streamline or, in some cases,
clarify the intent of the regulations as discussed below.
The 5-year budget project projection also is being eliminated as a
general requirement for all FCP borrowers and applicants. The 5-year
budget will instead be used as a counseling tool by the Agency, as
appropriate, under internal Agency instructions. This change is in
keeping with the Agency's movement toward fewer regulatory requirements
and more discretion for Agency personnel.
Section 1924.55 is being clarified to state that many components of
the assessment will be inapplicable to the Youth Loan program since
these applicants and borrowers are not conducting farming or ranching
operations. Year-end analyses for Youth loans are also being made a
discretionary activity for Agency personnel since these loans are used
to make small purchases for mainly educational purposes, e.g., raising
and selling one pig or cow for a 4-H project.
``Flagged Accounts'' are being eliminated as needing mandatory
year-end analyses under Sec. 1924.55. Flagged accounts include such
accounts as bankruptcies and foreclosure actions pending. In such
cases, contact with the borrower may be constrained by a court, or the
farming operation may be in some stage of liquidation and, therefore,
no longer an ongoing business concern. Therefore, flagged accounts will
have a year-end analysis performed only at the discretion of the
Agency.
Section 1924.55 also has been revised to state that in the case of
existing borrowers, an assessment should be made at the time of the
year-end analyses if no assessment has yet been done. An earlier
assessment would have been done if the borrower had been found eligible
for another loan, for example. The mandatory assessment provision was
removed for existing borrowers in order to permit an administrative
phase-in of the assessment process over a three year period for most
existing borrowers.
[[Page 35919]]
Borrowers with flagged accounts would receive assessments only when and
if year-end analyses were performed in accordance with this revised
section. (The reason for the flagged account exception is discussed
above.) This policy is permissible under CONACT section 360 which only
requires initial assessments of eligible applicants and follow-up
reviews of the new borrowers. The phase-in will promote high quality
assessments by field offices and allow them to focus on new borrowers.
The Agency is unable because of fiscal constraints to take advantage of
its statutory authority to contract out loan assessments.
A minor revision was made with regard to the market placement
regulations in the guaranteed loan program. The requirement for the
submission of the applicant's or borrower's assessment to the lender
was deleted since the Agency will prepare the guaranteed application on
the lender's behalf. The Market Placement Application described under
Sec. 1980.113 also was revised to make it more concise. Upon further
Agency review, it was determined that the individual line items
describing the application were unnecessary. This now states Form FmHA
1980-25, which is the guaranteed loan application, along with all other
items listed in this section with the exception of the loan or line of
credit agreement, are required. The loan assessment is prepared by the
Agency as part of the items required in the narrative summary under
Sec. 1980.113(a)(12).
Section 1910.4 has been revised to implement a requirement of the
Federal Debt Collection Act of 1990. Under this statute, an applicant
is ineligible for a loan if the applicant has an outstanding recorded
judgment against them by the United States in a Federal Court other
than the United States Tax Court.
Section 1910.5 has been revised to clarify how bankruptcy is used
in determining the acceptability of an applicant's credit history. The
key is not the bankruptcy itself, but rather the circumstances behind
it. If they were beyond the borrower's control, then they are not
considered an indication of unacceptable credit history.
References to the FmHA County Committee and its certification of a
borrower or applicant's farm loan eligibility for five years have been
removed. FmHA County Committees and the mandate to make 5 year
certifications of eligibility were abolished by section 227(b) of the
Department of Agriculture Reorganization Act of 1994. The functions
performed by the FmHA County Committee in relation to Farmer Programs
loans now will be performed by the Agency. ``Agency'' has been defined
in the regulations to include FSA county or area committees established
in accordance with section 8(b) of the Soil Conservation and Domestic
Allotment Act (16 U.S.C. 590h(b)). Loan eligibility will be determined
for each loan application.
Regulations being changed to implement loan assessment, market
placement, and graduation policies also were substantially revised to
remove administrative procedures. These procedures instead will be
covered solely by the Agency's internal instructions.
The Agency intends to remove exhibits being revised by this interim
rule in the final rule. Any substantive policy will be covered in the
regulation text. Forms will remain available in any Agency office.
List of Subjects
7 CFR Part 1910
Agriculture, Applications, Credit, Loan programs--Housing and
community development, Low and moderate income housing, Marital status
discrimination, Sex discrimination.
7 CFR Part 1924
Agriculture, Construction management, Construction and repair,
Energy conservation, Housing, Housing and community development, Loan
programs--Low and moderate income housing.
7 CFR Part 1941
Agriculture, Crops, Livestock, Loan programs--Rural areas, Youth.
7 CFR Part 1943
Agriculture, Credit Loan Programs--Recreation and recreation areas,
Water resources.
7 CFR Part 1945
Agriculture, Disaster assistance, Loan programs.
7 CFR Part 1951
Account servicing, Agriculture, Credit, Debt restructuring, Loan
programs--Housing and community development, Low and moderate income
housing loans--Servicing.
7 CFR Part 1955
Government acquired property, Government property management.
7 CFR Part 1962
Agriculture, Crops, Government property, Livestock, Loan programs--
Rural areas.
7 CFR Part 1965
Agriculture, Foreclosure, Loan programs--Rural areas.
7 CFR Part 1980
Agriculture, Loan programs.
Accordingly, Chapter XVIII, Title 7, Code of Federal Regulations is
amended as follows:
PART 1910--GENERAL
1. The authority citation for part 1910 is revised to read as
follows:
Authority: 5 U.S.C. 301; 7 U.S.C. 1989; and 42 U.S.C. 1480.
Subpart A--Receiving and Processing Applications
2. Section 1910.1 introductory paragraph is amended:
a. by removing the phrase ``Farmers Home Administration or its
successor agency under Public Law 103-354 (FmHA or its successor agency
under Public Law 103-354)'' and adding the words ``Farm Service Agency
(FSA) and Rural Housing Service (RHS)'' in its place;
b. by removing the words ``Farmer Programs'' and adding the words
``Farm Credit Programs'' in its place;
c. by removing the phrase ``FmHA or its successor agency under
Public Law 103-354'' in paragraph (a) and adding the words ``FSA and
RHS'' in its place; and revising paragraph (c) and adding paragraph (e)
to read as follows:
Sec. 1910.1 General.
* * * * *
(c) FmHA forms are available in any Rural Development (RD) or FSA
office.
* * * * *
(e) As used in this subpart in relation to Farm Credit Programs
loans, Agency means the Farm Service Agency, its county and State
committees and their personnel, and any successor agency.
3. In Sec. 1910.3:
a. the introductory text and paragraph (a), introductory text, are
amended by removing the phrase ``FmHA or its successor agency under
Public Law 103-354'' and adding the words ``FSA or RHS'' in their
place;
b. all references to ``or its successor agency under Public Law
103-354'' in paragraphs (a)(1), (a)(2), and (a)(4)(i) are removed; and
references to ``FmHA or its successor agency under Public Law 103-354''
are removed and ``RD'' is added in their place, the first time it
[[Page 35920]]
appears in paragraph (a)(4)(i) and in paragraph (a)(4)(ii).
4. Section 1910.4 is amended by:
a. removing paragraph (h);
b. redesignating paragraphs (c) through (g) as (d) through (h),
respectively;
c. removing the words ``Farmer Programs'' in redesignated
paragraphs (d), (k) introductory text and (k)(3) and adding the words
``Farm Credit Programs;'' in its place;
d. removing the words ``FmHA or its successor agency under Public
Law in paragraph (k)(4) and adding the words ``the Agency'' in its
place; and
e. removing the language appearing in the parentheticals in
redesignated paragraphs (d)(3)(i), introductory text, (d)(3)(iii),
introductory text, (d)(3)(v) and (k)(4).
5. Section 1910.4 paragraphs (k)(1), (k)(4) and redesignated
(d)(1), (d)(3)(i), (d)(3)(iii), introductory text, and (d)(3)(v) are
amended by removing the phrase ``or its successor agency under Public
Law 103-354.''
6. In Sec. 1910.4 paragraph (k)(3) the reference ``paragraph (c)''
is removed and the reference ``paragraph (d)'' is added in its place;
removing and reserving paragraph (j); revising redesignated paragraphs
(e), (f), (g), and (h), and paragraphs (b), (i)(1), (i)(1)(i),
(i)(1)(ii)(B), (i)(5) and adding new paragraph (c) to read as follows:
Sec. 1910.4 Processing applications.
* * * * *
(b) Completed Farm Credit Programs applications and additional FSA
responsibilities. All persons requesting an application will be
provided Exhibit A (available in any office). The County Supervisor
will provide assistance as necessary to help applicants complete their
applications. Complete applications will be processed in the order of
date received, except as outlined in Section 1910.10 of this subpart.
If the application is complete when it is first received, a County
Office official will stamp the filing date on the front of Form FmHA
410-1 and enter the date in the ``Application Received'' and
``Application Completed'' fields in the Application Processing Module
of the Management Records Systems (MRS.) On the date all information
necessary to process an application is received, a County Office
official will send the applicant FmHA Guide Letter 1910-A-3 (available
in any office) notifying the applicant that the application is
considered complete. The date entered in the ``Application Completed''
field in the Application Processing Module of MRS will establish the
30-day and 60-day timeframes for determining eligibility and loan
approval/disapproval, respectively. The County Supervisor will verify
the information furnished by the applicant, and record and assemble
additional information needed to properly evaluate the applicant's
qualifications and credit needs. Additional information may be obtained
and verified by County Office records, personal contacts, and visits to
the applicant's operation. A complete Farm Credit Programs application
requires fulfillment of both the applicant and FSA responsibilities.
Once this information is received and the application is considered
complete, FSA has additional responsibilities before loan approval is
determined. The various responsibilities are as follows:
Applicant's Responsibilities for a Complete Application
(1) Completed Form FmHA 410-1, ``Application for FmHA Services,''
including a signed Form FmHA 410-9, ``Statement Required by the Privacy
Act.''
(2) If the applicant is a cooperative, corporation, partnership, or
joint operation:
(i) A complete list of members, stockholders, partners or joint
operators showing the address, citizenship, principal occupation, and
the number of shares and percentage of ownership or of stock held in
the cooperative or corporation, by each, or the percentage of interest
held in the partnership or joint operation, by each.
(ii) A current personal financial statement from each of the
members of a cooperative, stockholders of a corporation, partners of a
partnership, or joint operators of a joint operation.
(iii) A current financial statement from the cooperative,
corporation, partnership, or joint operation itself.
(iv) A copy of the cooperative's or corporation's charter, or any
partnership or joint operation agreement, any articles of incorporation
and bylaws, any certificate or evidence of current registration (good
standing), and a resolution(s) adopted by the Board of Directors or
members or stockholders authorizing specified officers of the
cooperative, corporation, partnership, or joint operation to apply for
and obtain the desired loan and execute required debt, security, and
other instruments and agreements.
(3) A brief written description as to the farm training and/or
experience of the applicant and the individual members of an entity
applicant (new applicants only). If a waiver from the training required
in Section 1924.74 of subpart B of part 1924 of this chapter is
requested, provide verification of any courses taken which covered
production and/or financial management concepts, and/or a statement
explaining how the applicant's proven performance based on 5-year
production records demonstrates production ability.
(4) Supporting and documented verification that the applicant (and
all members of an entity applicant) cannot obtain credit elsewhere,
including a guaranteed loan.
(5) Financial records for the past five years. Income tax records
may be provided by the applicant when other financial records are not
available.
(6) Five years of production history immediately preceding the year
of application, unless the applicant has been farming less than 5
years.
(7) A brief written description of the proposed operation and the
proposed size of the operation (required for new applicants and
existing borrowers with significant changes in their operations).
(8) Verification of off-farm employment, if any. This will be used
only when the applicant is relying on off-farm income to pay part of
the applicant's expenses.
(9) Projected production, income and expenses, and loan repayment
plan, which may be submitted on Form FmHA 431-2, ``Farm and Home
Plan,'' or other similar plans of operation acceptable to FSA.
(10) Applicable items required in Exhibit M of subpart G of part
1940 of this chapter including SCS Form CPA-026, ``Highly Erodible Land
and Wetland Conservation Determination,'' Form AD-1026, ``Highly
Erodible Land Conservation (HELC) and Wetland Conservation (WC)
Certification,'' and Form FmHA 1940-20, as required by subpart G of
part 1940 of this chapter.
(11) A legal description of farm, real estate property and/or (if
applicable) a copy of any lease, contract, option or agreement entered
into by the applicant which may be pertinent to consideration of the
application, or when a written lease is not obtainable, a statement
setting forth the terms and conditions of the agreement.
(12) Form FmHA 440-32, ``Request for Statement of Debts and
Collateral,'' when applicable.
(13) Forms FmHA 1945-22, ``Certification of Disaster Losses,'' and
FmHA 1940-38, ``Request for Lender's Verification of Loan
Application,'' (EM loans only).
FSA's Responsibilities for a Complete Application
(14) Send Form FmHA 410-7, ``Notification to Applicant on Use of
Financial Information from Financial
[[Page 35921]]
Institution,'' to the applicant when applicable.
(15) Form FmHA 1945-26, ``Calculation of Actual Losses'' (EM loans
only).
(16) Credit reports as provided in subparts B and C of this part.
(17) Form FmHA 1945-29, ``ASCS Verification of Farm Acreages,
Production and Benefits,'' (EM loans only).
(18) The Current/Past Debt Inquiry and Borrower Cross-Reference
Systems. The Current/Past Debt Inquiry System must be reviewed for each
application and copies of the screens must be attached to the
applicant's file.
(19) For special beginning farmer or rancher operating (OL) loan
assistance, a plan of operation will be developed for each of the first
5 years for which such assistance is requested. A projection of the
financial status of the operation showing financial viability within
the commitment period will also be developed. The 5-year plan and
projection will be developed as described in Sec. 1941.15. This
information will be presented on reports generated on the automated
Farm and Home Plan system, or in other plans or documents consistent
and acceptable to the Agency.
Additional FSA Farm Credit Responsibilities
(20) Form FmHA 1924-1, ``Development Plan,'' if necessary.
(21) Form FmHA 1940-22, ``Environmental Checklist for Categorical
Exclusions,'' or Class I and Class II assessment, whichever is
applicable.
(22) Real estate and chattel appraisal, when applicable.
(23) Completion of the assessment in accordance with Sec. 1924.55.
(c) Notifying applicants that direct loan eligibility is subject to
the unavailability of guaranteed financing. If the assessment,
completed in accordance with Sec. 1924.55 concludes that guaranteed
assistance may be available, with or without interest assistance, a
prospectus will be sent to area lenders in accordance with
Sec. 1951.262 (f) as appropriate. If a lender indicates interest in
providing financing with a Farm Credit Programs loan guarantee, refer
to Sec. 1980.113 (c) for handling as a market placement application. No
direct loan to a current borrower will be approved until the process
outlined in this paragraph has been concluded.
* * * * *
(e) Notifying applicants (including presently indebted borrowers)
about Limited Resource loans. Immediately after an application for OL,
FO, SW, or EM assistance is received, the County Supervisor will send a
letter similar to Guide Letter 1924-B-1 to the applicant telling the
applicant about Limited Resource loans.
(f) Notifying socially disadvantaged applicants regarding the
availability of Direct Farm Ownership (FO) loans and the acquisition/
leasing of Agency acquired farmland. Immediately after an application
for FO assistance is received, the County Supervisor will send Exhibit
B of this subpart, ``Letter to Notify Socially Disadvantaged
Applicants/Borrowers Regarding the Availability of Acquired Farmland,''
to the applicants. Exhibit B will also be presented to all socially
disadvantaged individuals at the time they make their initial contact
regarding Agency credit services. Socially disadvantaged applicants are
defined in Section 1943.4 of subpart A of part 1943 of this chapter.
(g) Notifying Borrowers about Farm Credit Programs (FCP) Borrower
Responsibilities. When an application for OL, FO, SW or EM assistance
is approved, the County Supervisor will provide to the borrower Exhibit
C of this subpart, ``Letter to Notify Applicant(s)/Borrower(s) of Their
Responsibilities in Connection with FmHA Farmer Programs Loans.''
(h) Determining eligibility. The Agency will determine eligibility
of all Farm Credit Programs applicants including those who are already
indebted for a Farm Credit Programs loan. The Farm Credit Programs
application does not need to be complete before it is reviewed;
however, all information relative to the eligibility decision must be
received. The Rural Housing Service will determine eligibility for all
RH loan applicants.
(1) The Agency will certify whether or not the applicant meets the
eligibility requirements and whether or not the applicant is a
beginning farmer or rancher, as defined in the applicable Farm Credit
Programs loan making regulation. An eligible Operating Loan (OL) or
Farm Ownership (FO) Loan applicant, who is considered a beginning
farmer or rancher, will have access to targeted funds. An eligible FO
applicant requesting to purchase suitable farmland, who is considered a
beginning farmer or rancher, will be given priority in accordance with
Sec. 1955.107 (f). In addition, it is the responsibility of the Agency
to determine whether or not the FO applicant is an operator of not
larger than a family size farm, as of the time immediately after the
contract of sale or lease is entered into, even though the applicant is
not in need of Agency credit assistance on eligible rates and terms to
purchase suitable farmland. The loan approval official will determine
the applicant's projected repayment ability, the adequacy of collateral
equity to secure the requested loan, and the feasibility of the
proposed operation.
(2) An outstanding judgment obtained by the United States in a
Federal Court (other than the United States Tax Court), which has been
recorded, shall cause the applicant to be ineligible for any loan or
grant until the judgment is paid in full or otherwise satisfied. Agency
loan or grant funds may not be used to satisfy the judgment.
(i) * * *
(1) Farm Credit Programs (FCP) applications. Each application must
be approved or disapproved and the applicant notified in writing of the
action taken, not later than 60 days after receipt of a complete
application. The District Director will monitor the processing of all
applications to ensure that each is processed in a timely manner and
receives a final disposition (i.e., approval, rejection, or withdrawal)
within the timeframes outlined in this section.
(i) Receipt by the applicant of a signed copy of Form FmHA 1940-1,
``Request for Obligation of Funds,'' will be considered written notice
of loan approval.
(ii) * * *
(A) * * *
(B) Every week the District Director will generate a report, using
the FOCUS Ad-Hoc Reporting System, based on the weekly upload of
information from each county office MRS data base. The District
Director will note each complete application pending more than 45
calendar days, and immediately take steps to ensure that final
disposition on the application is taken no later than 60 calendar days
after receipt of the complete application.
* * * * *
(5) Adverse decisions. If an applicant is given an adverse
decision, the applicant will be given appeal rights as provided in
Subpart B of Part 1900 or 7 CFR part 780, as appropriate. The letter
will contain the ECOA statement set forth in Section 1910.6(b)(1) of
this subpart.
* * * * *
7. Section 1910.5 is amended:
a. by removing the phrase ``FmHA or its successor agency under
Public Law 103-354'' in paragraph (c)(1) and adding the word
``Agency,'' in its place;
b. removing the word ``bankruptcy'' in paragraph (c)(4)
introductory text, and
c. revising paragraph (c)(5) to read as follows:
[[Page 35922]]
Sec. 1910.5 Evaluating applications.
* * * * *
(c) * * *
(5) Non-payment of a debt due to circumstances beyond the
applicant's or borrower's control. However, non-payment of a debt due
to circumstances within an applicant's or borrower's control may be
used as an indication of unacceptable credit history, in accordance
with paragraph (c)(1) of this section. The mere fact that an applicant
or borrower filed bankruptcy will not be used as an indication of
unacceptable credit history. The circumstances causing the nonpayment
of debt, i.e., whether nonpayment was beyond the applicant's or
borrower's control, however, are proper considerations.
* * * * *
Secs. 1910.6 through 1910.9 [Removed and Reserved]
8. In part 1910 Secs. 1910.6 through 1910.9 are removed and
reserved.
Sec. 1910.10 [Amended]
9. Section 1910.10(b) is amended by removing the words ``Farmer
Program'' and adding the words ``Farm Credit Programs (FCP)'' in its
place.
10. Section 1910.11 is revised to read as follows:
Sec. 1910.11 Special requirements.
(a) Servicemen's Readjustment Act of 1944. Section 512(a)(D) of the
Servicemen's Readjustment Act of 1944, as amended, provides that an
applicant for a direct housing loan from the Department of Veterans
Affairs (VA) must be ``unable to obtain a loan for such purposes from
the Secretary of Agriculture under the Consolidated Farm and Rural
Development Act, as amended, or the Housing Act of 1949, as amended.''
Department of Veterans Affairs Loan Guaranty Officers may, therefore,
require VA loan applicants to apply to the agency for loan assistance.
(b) Veterans determined ineligible by the Agency. If the veteran is
unable to obtain a loan, the County Supervisor will, upon request,
furnish the applicant with a rejection letter to be presented to the
Loan Guaranty Officer. The Loan Guaranty Officer may consult with the
County Supervisor regarding the investigation made by the Agency of the
veteran's application and the specific reasons for rejection.
PART 1924--CONSTRUCTION AND REPAIR
11. The authority citation for part 1924 is revised to read as
follows:
Authority: 5 U.S.C. 301; 7 U.S.C. 1989 and 42 U.S.C. 1480.
Subpart B--Management Advice to Individual Borrowers and Applicants
12. Section 1924.51 is revised and Secs. 1924.54 and 55 are added
to read as follows:
Sec. 1924.51 General.
This subpart contains policies for providing management advice to
all Farm Credit Programs direct loan applicants and borrowers. Forms
and Farm Assessment and Supervision Reference handbooks are available
in any Agency county office.
Sec. 1924.54 Definitions.
As used in this subpart, the following definitions apply:
Agency. This term refers to the Farm Service Agency, its county and
State committees and their personnel, and any successor agency.
Commercial classified. The Agency's highest quality Farm Credit
programs accounts. The financial condition of the borrowers is strong
enough to enable them to absorb the normal adversities of agricultural
production and marketing. There is ample security for all loans, there
is sufficient cash flow to meet the expenses of the agricultural
enterprise and the financial needs of the family, and to service debts.
The account is of such quality that commercial lenders would likely
view the loans as a profitable investment.
Farm Assessment and Supervision Reference. This reference provides
guidance to field staff on conducting assessments, year-end analyses,
and general borrower supervision.
Farm business plan. The automated or manual Farm and Home Plan
system which contains a projection that accurately reflects the
borrower's plan of operation for the production or marketing cycle. The
annual plan may cover a period of more or less than 12 months. A normal
year's plan, as defined in this section, will be used when the annual
plan does not reflect typical income, expenses, and debt payments. The
Agency will accept farm business plans other than the Farm and Home
Plan if they provide sufficient information to enable Agency officials
to render a sound credit decision in accordance with Agency
regulations.
Farm Credit Programs loan. Includes Farm Ownership (FO), Soil and
Water (SW), Operating (OL), Emergency (EM), Economic Emergency (EE),
Recreation (RL), Special Livestock (SL), Economic Opportunity (EO) and
Softwood Timber (ST) loans. Also included are Rural Housing loans for
farm service buildings (RHF), and Rural Housing (RH) loans where the
borrower is also indebted for an Agency direct farm loan that is not a
collection only or judgment account. Non-Program loans, which are
defined in Sec. 1951.451(a), are excluded.
Financially viable operation. A financially viable operation
projects that it can generate sufficient income to meet annual
operating expenses and debt payments as they become due, meet basic
family living expenses to the extent they are not met by dependable
non-farm income, provide for the replacement of capital items, and
provide for long-term financial progress to enable the operator to
obtain commercial credit.
Individual. The term ``individual'' is used throughout this subpart
to refer to the person receiving Agency supervision and management
advice. If an applicant or borrower applies as an individual applicant,
the term ``individual'' means the operator. In the case of an eligible
corporation, cooperative, partnership, or joint operation, the term
``individual'' means the entity members with the primary responsibility
for making management decisions and carrying out the day-to-day
physical tasks.
Normal year plan. A projected farm business plan most
representative, or typical, of an operation's normal income, expenses
(including family living expenses), and capital debt payments.
Prospectus. Consists of a transmittal letter similar to FmHA Guide
Letter 1951-F-3 with a current balance sheet and projected year's
budget attached. The applicant or borrower name and address need not be
withheld from the lender. The prospectus is used to determine lender
interest in financing or refinancing specific direct loan applicants
and borrowers. The prospectus will provide information regarding the
availability of Agency loan guarantee and interest assistance.
Standard classified. These loan accounts are fully acceptable by
Agency standards. Loan risk and potential loan servicing costs are
higher than would be acceptable to other lenders, but all loans are
adequately secured. Repayment ability is adequate, and there is a high
probability that all loans will be repaid as scheduled and in full.
Sec. 1924.55 Assessment of the agricultural operation.
Assessments will be completed for direct Farm Credit Programs loan
applicants. An assessment is a comprehensive evaluation of the
components of an operation, the identification and prioritization of
training and supervisory needs, and the resulting plan of supervision
to assist
[[Page 35923]]
the borrower in achieving financial viability. The assessment is the
central foundation upon which to build strategies for planning, credit
and management counseling, loan controls, analysis, borrower training,
and all other needed supervision. An assessment will include thorough
inspections of the operation and face-to-face meetings and discussions
with all key individuals. At least semi-annual reviews of progress will
be performed in accordance with paragraph (e) of this section.
(a) Agency evaluation. The Agency will assess each of the areas
described in paragraph (b) of this section in close cooperation with
the applicant or borrower. As part of that assessment, the Agency will
determine whether the proposed budget is feasible on a direct or
guaranteed loan basis, the type and nature of any material financial or
production management weaknesses in the operation, and the specific
strategy needed, including timeframes, to effect improvements and
control risks. Material weaknesses are those that have a significant
impact on the net income of the operation and need to be corrected to
enable the borrower to progress financially and eventually graduate
from FSA farm credit programs. Examples of material weaknesses include,
but are not limited to: lack of a farm recordkeeping system, obsolete
or inadequate facilities, and use of outdated production practices. In
the case of Youth loans, it is recognized that most of the component
areas will be ``Not Applicable'' since there is no full-scale farming
operation to consider.
(b) The assessment is an evaluation, conducted with an applicant or
borrower, of the following components:
(1) Type of operation.
(2) Goals.
(3) Real estate, including facilities.
(i) Location and size.
(ii) Proposed and existing improvements.
(iii) Presence of environmental hazards.
(iv) Conservation practices and measures.
(v) Adequacy and continued availability of real estate.
(vi) External factors, such as urban encroachment and zoning
changes.
(4) Chattel property used in the operation.
(5) Farm business organization and key personnel.
(6) Historical financial data.
(7) Projected budget.
(8) Planned changes.
(9) Ability to obtain guaranteed credit.
(c) Supervision and training. Appropriate supervisory oversight and
training recommendations will be developed based on the Agency's
evaluation of the strengths and weaknesses of the operation in
accordance with paragraphs (a) and (b) of this section and
Sec. 1924.59.
(d) Performing the year-end analysis. A year-end analysis is
required for borrowers (except for Youth loans and loans flagged as
having bankruptcy, foreclosure, or other action pending) the first year
after an initial or subsequent loan, chattel subordination, or
restructuring is received, borrowers who are financially distressed or
delinquent, borrowers who have loans deferred, and borrowers who are
receiving limited resource interest rates. All other borrowers
(including flagged accounts) will receive a year-end analysis at the
discretion and judgment of the Agency. However, at least every two
years, the borrower will provide upon Agency request, a year-end
balance sheet, actual financial performance, and a projected farm
budget so that the borrower can be classified for graduation purposes
in accordance with subpart F of part 1951. The year-end analysis should
coincide with the borrower's farm budget planning period. The borrower
will work with the Agency to:
(1) Complete the year-end analysis, whenever possible, within the
60-day period after completion of the borrower's business year or farm
budget planning period.
(2) Complete and review the ``actual'' columns on the farm business
plan and Form FmHA 1962-1, ``Agreement for the Use of Proceeds/Release
of Chattel Security,'' if applicable.
(3) Develop a farm business plan for the next production cycle in
accordance with Sec. 1924.56.
(4) Reach agreement on key management issues. Any such agreements
will be documented for the borrower case file and signed by the
borrower.
(e) For all borrowers, the assessment described under this section
will be reviewed on at least a semi-annual basis to monitor progress.
The borrower will consult with the Agency official in person, or if
that is not possible, by telephone, or in writing. A meeting must be
scheduled as soon as practicable to determine corrective options if:
the borrower is, or expects to be, delinquent; the borrower is
experiencing difficulties; or other significant changes have occurred.
The year-end analysis under this section may be treated as one of the
required assessment reviews.
13. Sections 1924.56 through 1924.60 are revised to read as
follows:
Sec. 1924.56 Farm business planning.
The automated Farm and Home Plan system is the primary tool used by
the Agency to evaluate loan feasibility and prospects for achieving
financial viability. Other manual or automated business planning
systems may be used with the consent of the Agency.
(a) [Reserved].
(b) Documentation and revision of plans. Individuals must submit a
farm business plan to the Agency, upon request, for loan approval and
servicing purposes. An individual may request the assistance of the
Agency official, as needed, in completing the plan. Farm business plans
will be based only on accurate, verifiable information. If the Agency
official and the individual cannot reach agreement, on the farm
business plan, then the Agency will make loan approval and servicing
determinations based on the Agency's separate, revised farm business
plan. The individual will have the right to appeal any resulting
adverse decision.
(1) Historical information will be used as a guide to evaluate the
feasibility of projected farm business plans. Individuals must provide
the Agency with their previous 5-year production history, if available.
Positive and negative trends, mutually agreed upon changes and
improvements, and current input prices, will be taken into
consideration when arriving at reasonable projections.
(i) For individuals with less than a 5-year history, actual
production records from an operation to be taken over by the individual
will be considered, whenever available.
(ii) In the absence of the information listed in paragraph
(b)(1)(i) of this section, other reliable data sources that may be used
include: FSA Farm Programs (formerly Agriculture Stabilization and
Conservation Service) actual yield records and county or State
averages.
(iii) This paragraph applies when an accurate projection cannot be
made because the individual's production history in any or all of the
previous 5 years has been substantially affected by a disaster that has
been declared by the President or designated by the Secretary of
Agriculture. This paragraph also applies to those individuals who would
have had a qualifying physical or production loss, as defined in
Sec. 1945.154(a), from such a disaster, but who were not located in a
designated or declared disaster area.
(A) If the individual's disaster years yields are less than the
county average yields, county average yields will be used for those
years. If county average
[[Page 35924]]
yields are not available, State average yields will be used.
(B) In calculating a baseline average yield, the individual may
exclude the production year with the lowest actual or county average
yield, providing the individual's yields were affected by disasters
during at least 2 of the 5 years.
(2) Unit prices for agricultural commodities as published in the
State supplement will generally be used. However, regional or county
unit prices may be used when there are transportation costs or other
significant factors that cause a difference in commodity prices within
the State. Individuals who can provide reliable evidence that they will
receive a premium price for a commodity will be allowed to use the
higher price for farm planning. The determination of disaster years
will be based on the 5-year history of disaster declarations or
designations for all counties contained in the State supplement.
(3) When the Agency official and individual revise the farm
business plan, the plan will be signed and initialed by both parties.
Form FmHA 1962-1 (available in any Agency office) will be revised
whenever significant changes occur during the year that will affect
repayment ability. It is the individual's responsibility to notify the
Agency of any necessary changes. If the changes would result in a major
change in the operation, a completely new farm business plan must be
developed. The individual and Agency official will initial and date
revisions to the Form FmHA 1962-1.
(4) If the borrower and Agency cannot reach an agreement on
revisions to the farm plan and an adverse decision results, the
borrower may appeal. During an appeal, the Agency will make releases of
normal income security for essential family living and farm operating
expenses in accordance with Sec. 1962.17. If the borrower refuses to
execute Form FmHA 1962-1 as finally determined by the Agency after an
appeal, the account will be serviced under Sec. 1962.18. If the
borrower does not appeal, the planned releases documented on Form FmHA
1962-1 are binding.
Sec. 1924.57 [Reserved].
Sec. 1924.58 Recordkeeping.
(a) All borrowers must have a recordkeeping system, which must be
documented as part of the assessment under Sec. 1924.55.
(b) The selected recordkeeping system must provide information
similar to that contained in Forms FmHA 431-2, FmHA 432-1, ``Farm
Family Record Book,'' and FmHA 432-2, ``Five Year Inventory Record.''
The recordkeeping system must enable borrowers to make informed
management decisions and allow the Agency to render loan making and
servicing decisions in accordance with Agency program regulations.
(c) Borrowers must maintain accurate records and submit financial
information to the Agency when required. Failure to do so will result
in the borrower's ineligibility for future Agency financing and loan
servicing and may result in acceleration and collection action.
Sec. 1924.59 Supervision.
The Agency's supervision is based on the information and evaluation
resulting from the assessment of the operation. The borrower is
required to:
(a) Cooperate with the Agency and comply with all supervisory
agreements, farm plans, and all other loan-related requirements.
(b) Promptly notify the Agency of any significant change in the
business or family expenses or the development of problem situations.
(c) Maintain and protect the collateral for Agency loans and
promptly report to the Agency any losses or other significant changes
in the collateral.
(d) Complete any training required by Sec. 1924.74.
Sec. 1924.60 Nonfarm enterprises.
A nonfarm enterprise is any business enterprise which supplements
farm income by providing goods or services for which there is a need
and a reasonably reliable market. The same general policies covered in
this subpart for giving management assistance to an applicant or
borrower on farm loans will be followed in dealing with an applicant or
borrower on nonfarm enterprise loans. The appropriate plans and record
book will be used for the nonfarm enterprise. The borrower
responsibilities in Sec. 1924.59 (a) also apply to nonfarm enterprises.
Secs. 1924.61 through 1924.73 [Removed and Reserved.]
14. In part 1924 Secs. 1924.61 through 1924.73 are removed and
reserved.
Sec. 1924.74 [Amended]
15. Section 1924.74 is amended by:
a. Removing all references to ``FmHA or its successor agency under
Public Law 103-354'' and adding the word ``Agency,'' it its place;
b. Removing the words ``Farmer Programs'' and adding the words
``Farm Credit Programs'' in its place; and
c. Removing the phrase ``Form FmHA or its successor agency under
Public Law 103-354'' wherever it appears and adding the words ``Form
FmHA'' in its place.
16. Section 1924.74 is amended by:
a. removing the ninth and twelfth sentences of introductory
paragraph (b)(1) and the second sentence of paragraph (b)(1)(i);
b. removing in the eighth sentence of paragraph (b)(1) the phrase
``Form FmHA or its successor agency under Public Law 103-354 1924-23,
``
c. removing the words ``County Committee,'' ``Committee,'' in
paragraphs (b)(1), (b)(1)(i), (b)(1)(ii) and (b)(2) and adding the word
``Agency'' in their place; and
d. removing the words ``County Committee's'' in paragraph (b)(3),
introductory text, and paragraph (b)(4) and adding the words ``the
Agency's'' in their place.
17. Section 1924.100 is revised to read as follows:
Sec. 1924.100 OMB control number.
The reporting and recordkeeping requirements contained in this
regulation have been approved by the Office of Management and Budget
(OMB) and have been assigned OMB control number 0560-0154.
18. Exhibit A is amended by redesignating all text following the
closure ``County Supervisor'' as attachment 1 to exhibit A; removing
all references to ``FmHA or its successor agency under Public Law 103-
354'' and adding the word ``Agency'' in its place; by removing the
references ``Form 1962-1'' and adding ``Form FmHA 1962-1'' in its
place; and revising the first paragraph of redesignated attachment 1 to
read as follows:
Exhibit A--Letter to Borrower Regarding Releases of Farm Income To Pay
Family Living and Farm Operating Expenses
* * * * *
Attachment 1 to Exhibit A
Periodically, you will be asked to complete Form FmHA 1962-1,
``Agreement for the Use of Proceeds/Release of Chattel Security,''
which will document the agreement between you and the Agency as to how
proceeds from the sale of chattel property which serves as security for
your Agency loans will be released. You will also need to list those
buyers to whom you plan to sell your farm products. This plan will give
you and the Agency a clear idea of what income you expect from your
operation and how those proceeds will be used. The plan will set forth
the amount of money required for paying essential family living, farm
operating expenses, and debt service payments. You and the
[[Page 35925]]
Agency must agree on how much money will be released from your crop
proceeds. Such releases must be in accordance with Agency regulations.
* * * * *
PART 1941--OPERATING LOANS
19. The authority citation for part 1941 is revised to read as
follows:
Authority: 5 U.S.C. 301; 7 U.S.C. 1989.
Subpart A--Operating Loan Policies, Procedures, and Authorizations
Sec. 1941.1 [Amended]
20. Section 1941.1 is amended by removing the words ``Farmers Home
Administration (FmHA)'' and adding the words ``Farm Service Agency
(FSA)'' in its place in the fourth sentence and removing ``FmHA'' and
adding the word ``Agency'' in its place.
Sec. 1941.4 [Amended]
21. Section 1941.4 is amended by adding the definition for
``Agency'' after the definition for ``Additional security.''
* * * * *
Agency. The Farm Service Agency, its county and State committees
and their personnel, and any successor agency.
* * * * *
Sec. 1941.15 [Amended]
22. Section 1941.15 paragraph (e) is amended by:
a. removing the reference to ``Sec. 1924.57'' and adding
``Sec. 1924.56'' in its place;
b. removing the phrase ``for County Committee review'';
c. removing the phrase ``FmHA or its successor agency under Public
Law 103-354'' in paragraphs (c), (e)(2), (f)(3), (j), and the heading
of paragraph (i) and adding the word ``Agency'' in its place;
d. by removing the words ``FmHA or its successor agency under
Public Law 103-354's'' in paragraphs (e)(3) and (j) and adding the
words ``the Agency's'' in its place.
23. Section 1941.15 is amended by:
a. removing the second sentence in paragraph (a);
b. removing the phrase ``FmHA or its successor agency under Public
Law 103-354-assisted'' in the first sentence of paragraph (a) and
paragraph (h)(2) introductory text;
c. removing the phrase ``FmHA or its successor agency under Public
Law 103-354 regulations setting forth'' in the last sentence of
paragraph (f)(2);
d. removing the words ``County Committee'' and adding the word
``Agency'' in its place in paragraph (h)(1); and
e. removing the phrase ``subpart B of part 1900 of this chapter''
and adding ``7 CFR part 780'' in its place in paragraph (h)(3); and
f. revising paragraph (k) to read as follows:
Sec. 1941.15 Special beginning farmer or rancher OL loan assistance.
* * * * *
(k) Agency certification. A special beginning farmer OL application
will only be considered after the applicant submits a complete 5-year
plan of operation and a projection of the financial status of the
operation as set forth in paragraph (e) of this section. In addition to
the requirements of Sec. 1941.30, the following conditions apply:
(1) Agency certifications of eligibility under paragraph (b) of
this section are effective throughout the commitment period.
(2) For subsequent loan requests during the commitment period, the
Agency will certify as to the applicant meeting the eligibility
requirements for the regular direct or guaranteed OL loan programs, as
appropriate. Such certification is unnecessary if a 5-year eligibility
certification has not yet expired unless the County Supervisor has
determined that the applicant's situation has changed such that the
eligibility determination would potentially be affected. If
recertification is rejected, no subsequent loan will be made under the
commitment and the commitment will be revoked in accordance with
paragraph (h) of this section.
Sec. 1941.16 [Amended]
24. Section 1941.16 paragraph (k) is amended by removing the words
``Agricultural Stabilization and Conservation Service (ASCS)'' and
adding the words ``FSA Farm Programs (formerly Agricultural
Stabilization and Conservation Service)'' in its place.
Sec. 1941.18 [Amended]
25. Section 1941.18 is amended:
a. In paragraph (a), introductory text, by removing ``FmHA'' and
adding the words ``the Agency'' in its place and
b. In paragraph (a)(2), by removing the reference to
``Sec. 1924.60'' and adding ``Sec. 1924.55'' in its place.
Sec. 1941.19 [Amended]
26. Section 1941.19 paragraph (f)(1) is amended:
a. by removing the phrase ``FmHA or its successor agency under
Public Law 103-354 for any other farmer programs'' and adding the
phrase ``the Agency for any other farm credit programs'' in its place
and
b. by removing paragraphs (g) through (j).
Sec. 1941.30 [Removed and Reserved]
27. In part 1941 Sec. 1941.30 is removed and reserved.
Sec. 1941.33 [Amended]
28. Section 1941.33 is amended:
a. by removing the words ``County Committee'' in paragraph
(b)(1)(i) and adding the word ``Agency'' in its place,
b. by removing paragraph (b)(1)(ii),
c. by redesignating paragraphs (b)(1) (iii) through (vii) as (b)(1)
(ii) through (vi), respectively;
d. by removing the second reference to ``FmHA'' in paragraph
(b)(2)(i), and
e. by removing the words ``(see subpart B of part 1900 of this
chapter)'' from paragraph (c)(2).
PART 1943--FARM OWNERSHIP, SOIL AND WATER AND RECREATION
29. The authority citation for part 1943 is revised to read as
follows:
Authority: 5 U.S.C. 301; and 7 U.S.C. 1989.
Subpart A--Direct Farm Ownership Loan Policies, Procedures and
Authorizations
Sec. 1943.1 [Amended]
30. Section 1943.1 is amended by removing the words ``Farmers Home
Administration (FmHA)'' and adding the words ``Farm Service Agency
(FSA)'' in its place and Sec. 1943.2 is amended by removing ``FmHA''
and adding the word ``Agency'' in its place.
Sec. 1943.4 [Amended]
31. Section 1943.4 is amended in the definition of primary security
by removing ``and/or'' and adding ``and'' in its place, and also by
adding the following definition after the definition of additional
security.
* * * * *
Agency. The Farm Service Agency, its county and State committees
and their personnel, and any successor agency.
* * * * *
Sec. 1943.18 [Amended]
32. Section 1943.18(b)(3) is amended by removing the reference to
``Sec. 1924.60'' and adding ``Sec. 1924.55'' in its place.
Sec. 1943.29 [Amended]
33. Section 1943.29 (c) is amended by removing the references to
``FmHA'' and adding the words ``the Agency'' in its place.
Secs. 1943.30 and 1943.32 [Removed and Reserved]
34. In part 1943 Secs. 1943.30 and 1943.32 are removed and
reserved.
Sec. 1943.33 [Amended]
35. Section 1943.33 is amended by:
[[Page 35926]]
a. removing and reserving paragraph (b)(2);
b. removing paragraph (c);
c. removing the words ``County Committee'' in paragraph (b)(1)(i)
and adding the word ``Agency'' in its place; and
d. removing paragraph (b)(1)(ii); and redesignating paragraphs
(b)(1) (iii) through (vii) as (b)(1) (ii) through (vi) respectively.
Subpart B--Direct Soil and Water Loan Policies, Procedures and
Authorizations
Secs. 1943.80 and 1943.82 [Removed and Reserved]
36. In part 1943 Secs. 1943.80 and 1943.82 are removed and
reserved.
Sec. 1943.83 [Amended]
37. Section 1943.83 is amended by:
a. removing the words ``County Committee'' in paragraph (b)(1)(i)
and adding the word ``Agency'' in its place;
b. removing paragraph (b)(1)(ii); and redesignating paragraphs
(b)(1) (iii) through (vii) as paragraphs (b)(1)(ii) through (vi)
respectively; and
c. removing and reserving paragraph (b)(2); and removing paragraph
(c).
PART 1945--EMERGENCY
38. The authority citation for part 1945 is revised to read as
follows:
Authority: 5 U.S.C. 301; 7 U.S.C. 1989; and 42 U.S.C. 1980.
Subpart D--Emergency Loan Policies, Procedures and Authorizations
Secs. 1945.151 and 1945.152 [Amended]
39. Sections 1945.151 and 1945.152 are amended by removing the
words ``Farmers Home Administration (FmHA)'' and adding the words
``Farm Service Agency (FSA)'' in its place and by removing ``FmHA'' and
adding the word ``Agency'' in its place.
Sec. 1945.154 [Amended]
40. Section 1945.154 (a) is amended in the definition of Feasible
Plan by removing words ``Sec. 1924.57(c)(5) of'' and also by adding the
following definition after the definition of Additional security.
* * * * *
Agency. The Farm Service Agency, its county and State committees
and their personnel, and any successor agency.
* * * * *
41. Section 1945.163 is amended by:
a. removing all references to ``Form FmHA or its successor agency
under Public Law 103-354 and adding the words ``Form FmHA'' in their
place;
b. removing the reference to ``FmHA'' in the last sentence of
introductory text; and adding the words ``the Agency'' in its place;
and
c. by removing and reserving paragraph (a)(2)(ii) and revising
paragraph (a)(1) to read as follows:
Sec. 1945.163 Determining qualifying losses, eligibility for EM
loan(s) and the maximum amount of each.
* * * * *
(a) * * *
(1) The normal year's production will be established by eliminating
the poorest year of the 5-year production history immediately preceding
the disaster year and averaging the remaining 4 years' production. The
applicant must select the year to be eliminated. The year selected to
be eliminated must be the same year for all farm enterprises (i.e., all
crops, livestock, and livestock products), which constituted a part of
the applicant's farming operation during that year. Applicants will
identify the production for each commodity that was produced on all
farms operated by the applicant in the disaster year. Applicants must
use the production record sources for each crop in the order of
priority as follows:
(i) The applicant's actual reliable farm records. If actual yields
are not available for all of the 5 crop years, the applicant will use a
combination of actual records and other data as specified in paragraphs
(a)(1) (ii) and (iii) of this section.
(ii) FSA Farm Programs (formerly ASCS) ``actual yields.'' When this
production record source is used, the applicant must obtain the
information and submit it with the application. The disaster year
actual yield will be used as the yield for those years for which the
applicant has no production records to determine the normal year's
yields.
(iii) The county or State average yields. These average yields are
located in the State supplement. However, these production figures can
be substituted only when an applicant has insufficient records for
certain commodities and years.
(iv) State Director determination. When an applicant's production
loss is on new land being developed, or to young perennial crops such
as fruits and nuts, which have not reached their mature production
potential, the Agency will establish the normal yields to be used.
* * * * *
Sec. 1945.166 [Amended]
42. Section 1945.166 is amended by removing ``FmHA'' in the last
sentence of paragraph (c)(4) and adding the word ``Agency'' in its
place.
FR Doc. 96-17266 Loan Assessment, Market Placement, and Graduation of Direct Loan Borrowers
Sec. 1945.167 [Amended]
43. Section 1945.167 is amended by removing paragraph (g); removing
paragraph (h); redesignating paragraphs (i) through (k) as (h) through
(j), and removing ``FmHA'' wherever it appears in redesignated
paragraph (h) and adding the word ``Agency'' in its place.
44. Section 1945.167 is amended by:
a. removing the words ``crop(s)'' and ``disaster(s)'' in paragraph
(a) and adding the words ``crop'' and ``disaster'' in their place
respectively;
b. removing the words ``FmHA or its successor agency under Public
Law 103-354'' in the heading of paragraph (b) and adding the word
``Agency'' in its place; and removing the words ``FmHA or its successor
agency under Public Law 103-354 farmer programs'' in paragraph (b) and
adding the words ``Farm Credit Programs'' in its place;
c. removing the word ``purpose(s)'' in the heading of paragraph (c)
and adding the word ``purposes'' in its place; removing the word
``operation(s)'' in paragraph (c) and adding the word ``operation'' in
its place.
Sec. 1945.168 [Amended]
45. Section 1945.168 is amended:
a. by removing ``FmHA'' in the first sentence of paragraph (a) and
adding the words ``the Agency'' in its place; and
b. by removing the words ``loan(s)'', ``reason(s)'' and ``lien(s)
in paragraphs (b)(1)(i) and (ii) and adding the words ``loans'',
``reasons'' and ``lien'' in their place, respectively.
Sec. 1945.169 [Amended]
46. Section 1945.169 is amended by removing and reserving
paragraphs (n), (o), and removing (p)(3), and (p)(4).
Sec. 1945.173 [Amended]
47. Section 1945.173 is amended by removing ``FmHA'' in paragraph
(b)(2)(ii) and adding the word ``Agency'' in its place.
Secs. 1945.180 and 1945.182 [Removed and Reserved]
48. In part 1945 Secs. 1945.180 and 1945.182 are removed and
reserved.
Sec. 1945.183 [Amended]
49. Section 1945.183 is amended by removing and reserving
paragraphs (a)(1) through (3), (a)(4)(i) and (ii); and removing (c)
through (e).
50. Section 1945.183 is amended:
a. by removing the words ``County Committee'' in paragraph (b)
introductory text, and paragraph (b)(1) and adding the word ``Agency''
in its place;
b. by removing the phrase ``FmHA or its successor agency under
Public Law 103-354'' in paragraphs (a)(4)(iii), (b)(7)
[[Page 35927]]
and (b)(8) and adding the word ``Agency'' in its place;
c. by removing the word ``loan(s)'' in paragraphs (b)(4) and (b)(8)
and adding the word ``loan'' in its place;
d. by removing the word ``certification(s)'' in paragraph (b)(6)
and adding the word ``certifications'' in its place; and
e. by removing the words ``Form FmHA or its successor agency under
Public Law 103-354'' wherever it appears and adding the words ``Form
FmHA'' in its place.
PART 1951--SERVICING AND COLLECTIONS
51. The authority citation for part 1951 is revised to read as
follows:
Authority: 5 U.S.C. 301; 42 U.S.C. 1480.
Subpart F--Analyzing Credit Needs and Graduation of Borrowers
52. Sections 1951.251 through 1951.300 are revised to read as
follows:
Sec. 1951.251 Purpose.
This subpart prescribes the policies to be followed when analyzing
a direct borrower's needs for continued Agency supervision, further
credit, and graduation. All loan accounts will be reviewed for
graduation in accordance with this subpart, with the exception of
Guaranteed, Watershed, Resource Conservation and Development, Rural
Development Loan Funds, and Rural Rental Housing loans made to build or
acquire new units pursuant to contracts entered into on or after
December 15, 1989, and Intermediary Relending Program loans. The term
``Agency'' used in this subpart refers to the Farm Service Agency (FSA)
including its county and state committees and their personnel), Rural
Utilities Service (RUS), Rural Housing Service (RHS), or Rural
Business-Cooperative Service (RBS), depending upon the loan program
discussed herein.
Sec. 1951.252 Definitions.
Commercial classified. The Agency's highest quality Farm Credit
Programs (FCP) accounts. The financial condition of the borrowers is
strong enough to enable them to absorb the normal adversities of
agricultural production and marketing. There is ample security for all
loans, there is sufficient cash flow to meet the expenses of the
agricultural enterprise and the financial needs of the family, and to
service debts. The account is of such quality that commercial lenders
would likely view the loans as a profitable investment.
Farm Credit Programs (FCP) loans. FSA Farm Ownership (FO),
Operating (OL), Soil and Water (SW), Recreation (RL), Emergency (EM),
Economic Emergency (EE), Economic Opportunity (EO), Special Livestock
(SL), Softwood Timber (ST) loans, and Rural Housing loans for farm
service buildings (RHF).
Graduation, FCP. The payment in full of all FCP loans or all FCP
loans of one type (i.e., all loans made for chattel purposes or all
loans made for real estate purposes) by refinancing with other credit
sources either with or without an Agency loan guarantee. A loan made
for both chattel and real estate purposes, for example an EM loan, will
be classified according to how the majority of the loan's funds were
expended. Borrowers must continue with their farming operations to be
considered as graduated.
Graduation, other programs. The payment in full of any direct loan
for Community and Business Programs, and all direct loans for housing
programs, before maturity by refinancing with other credit sources.
Graduated housing borrowers must continue to hold title to the
property. Graduation, for other than FCP, does not include credit which
is guaranteed by the United States.
Prospectus, FCP. Consists of a transmittal letter with a current
balance sheet and projected year's budget attached. The applicant's or
borrower's name and address need not be withheld from the lender. The
prospectus is used to determine lender interest in financing or
refinancing specific Agency direct loan applicants and borrowers. The
prospectus will provide information regarding the availability of an
Agency loan guarantee and interest assistance.
Reasonable rates and terms. Those commercial rates and terms which
borrowers are expected to meet when borrowing for similar purposes and
similar periods of time. The ``similar periods of time'' of available
commercial loans will be measured against, but need not be the same as,
the remaining or original term of the loan. In the case of Multi-Family
Housing (MFH) loans, ``reasonable rates and terms'' would be considered
to mean financing that would allow the units to be offered to eligible
tenants at rates consistent with other multi-family housing.
Servicing official. The district or county office official
responsible for the immediate servicing functions of the borrower.
Standard classified. These loan accounts are fully acceptable by
Agency standards. Loan risk and potential loan servicing costs are
higher than would be acceptable to other lenders, but all loans are
adequately secured. Repayment ability is adequate, and there is a high
probability that all loans will be repaid as scheduled and in full.
Sec. 1951.253 Objectives.
(a) [Reserved]
(b) Borrowers must graduate to other credit at reasonable rates and
terms when they are able to do so.
(c) If a borrower refuses to graduate, the account will be
liquidated under the following conditions:
(1) The borrower has the legal capacity and financial ability to
obtain other credit.
(2) Other credit is available from a commercial lender at
reasonable rates and terms. In the case of Labor Housing (LH), Rural
Rental Housing (RRH), and Rural Cooperative Housing (RCH) Programs,
reasonable rates and terms must also permit the borrowers to continue
providing housing for low and moderate income persons at rental rates
tenants can afford considering the loss of any subsidy which will be
canceled when the loan is paid in full.
(d) The Agency will enforce borrower graduation.
Sec. 1951.254 [Reserved]
Sec. 1951.255 Nondiscrimination.
All loan servicing actions described in this subpart will be
conducted without regard to race, color, religion, sex, familial
status, national origin, age, or physical or mental handicap.
Secs. 1951.256--1951.261 [Reserved]
Sec. 1951.262 Farm Credit Programs--graduation of borrowers.
(a) [Reserved].
(b) [Reserved].
(c) [Reserved].
(d) [Reserved].
(e) Graduation candidates. Borrowers who are classified
``commercial'' or ``standard'' are graduation candidates. At least
every 2 years, all borrowers who have a current classification of
commercial or standard must submit a year-end balance sheet, actual
financial performance information for the most recent year, and a
projected budget for the current year to enable the Agency to
reclassify their status and determine their ability to graduate.
(f) Sending prospectus information to lenders. (1) The Agency will
distribute a borrower's prospectus to local lenders for possible
refinancing only with the borrower's written permission. If more than
one lender indicates an interest in providing credit, the borrower has
the right to select a lender.
(2) If any borrower does not consent to the Agency contacting
lenders directly on their behalf, the borrower must make formal
application to at least
[[Page 35928]]
two local lenders who typically finance operations similar to that of
the borrower. The borrower is responsible for any application fees.
Letters of denial or rejection from lenders without formal application
being made will not be accepted by the Agency. The borrower has 60 days
from the date the borrower receives the prospectus information to make
application and receive a response from lenders. For good cause, the
borrower may be granted a reasonable amount of additional time by the
Agency.
Sec. 1951.263 Graduation of non-Farm Credit programs borrowers.
(a) [Reserved].
(b) [Reserved].
(c) The thorough review. Borrowers are required to supply such
financial information as the Agency deems necessary to determine
whether they are able to graduate to other credit. At a minimum, the
financial statements requested from the borrower must include a balance
sheet and a statement of income and expenses. Ordinarily, the financial
statements will be those normally required at the end of the particular
borrower's fiscal year. For borrowers who are not requested to furnish
audited financial statements, the balance sheet and statement of income
and expenses may be of the borrower's own format if the borrower's
financial situation is accurately reflected. The borrower has 60 days
for group type loans and 30 days for individual type loans to supply
the financial information requested.
(d) [Reserved].
(e) Requesting the borrower to graduate. (1) The Agency will send
written notice to borrowers found able to graduate requesting them to
graduate. The borrower must seek a loan only in the amount necessary to
repay the unpaid balance.
(2) Borrowers must provide evidence of their ability or inability
to graduate within 30 days for RH borrowers, and 90 days for group type
borrowers, after the date of the request. The Agency may allow
additional time for good cause, for example when a borrower expects to
receive income in the near future for the payment of accounts which
would substantially reduce the amount required for refinancing, or when
a borrower is a public body and must issue bonds to accomplish
graduation.
(3) If a borrower is unable to graduate the full amount of the
loan, the borrower must furnish evidence to the Agency, showing:
(i) The names of other lenders contacted;
(ii) The amount of loan requested by the borrower and the amount,
if any, offered by the lenders;
(iii) The rates and terms offered by the lenders or the specific
reasons why other credit is not available; and
(iv) The purpose of the loan request.
(4) The difference in interest rates between the Agency and other
lenders will not be sufficient reason for failure to graduate if the
other credit is available at rates and terms which the borrower can
reasonably be expected to pay. An exception is made where there is an
interest rate ceiling imposed by Federal law or contained in the note
or mortgage.
(5) The Agency will notify the borrower in writing if it determines
that the borrower can graduate. The borrower must take positive steps
to graduate within 15 days for individual loans and 60 days for group
loans from such notice to avoid legal action. The servicing official
may grant a longer period where warranted.
Sec. 1951.264 Action when borrower fails to cooperate, respond or
graduate.
(a) When borrowers with other than FCP loans fail to:
(1) Provide information following receipt of both FmHA Guide
Letters 1951-1 and 1951-2 (available in any Agency office), or letters
of similar format, they are in default of the terms of their security
instruments. The approval official may, when appropriate, accelerate
the account based on the borrower's failure to perform as required by
this subpart and the loan and security instruments.
(2) Apply for or accept other credit following receipt of both FmHA
Guide Letters 1951-F-5 and 1951-6 (available in any Agency office), or
letters of similar format, they are in default under the graduation
requirement of their security instruments. If the Agency determines the
borrower is able to graduate, foreclosure action will be initiated in
accordance with Sec. 1955.15(d)(2)(ii). If the borrower's account is
accelerated, the borrower may appeal the decision.
(b) If an FCP borrower fails to cooperate after a lender expresses
a willingness to consider refinancing the Agency loan, the account will
be referred for legal action.
Sec. 1951.265 Application for subsequent loan, subordination, or
consent to additional indebtedness from a borrower who has been
requested to graduate.
(a) Any borrower who appears to meet the local commercial lending
standards, taking into consideration the Agency's loan guarantee
program, will not be considered for a subsequent loan, subordination,
or consent to additional indebtedness until the borrower's ability or
inability to graduate has been confirmed. An exception may be made
where the proposed action is needed to alleviate an emergency
situation, such as meeting applicable health or sanitary standards
which require immediate attention.
(b) If the borrower has been requested to graduate and has also
been denied a request for a subsequent loan, subordination, or consent
to additional indebtedness, the borrower may appeal both issues.
Sec. 1951.266 Special requirements for MFH borrowers.
All requirements of subpart E of part 1965 must be met prior to
graduation and acceptance of the full payment from an MFH borrower.
Secs. 1951.267-1951.299 [Reserved]
Sec. 1951.300 OMB control number.
The reporting requirements contained in this regulation have been
approved by the Office of Management and Budget (OMB) and have been
assigned OMB control number 0575-0093.
Exhibit A of Subpart F--[Removed and Reserved]
53. Exhibit A of subpart F is removed and reserved.
Subpart S--Farmer Program Account Servicing Policies
54. Section 1951.906 is amended by revising the definitions of
``Feasible plan,'' ``Financially distressed,'' and ``Good faith'' to
read as follows:
Sec. 1951.906 Definitions.
* * * * *
Feasible plan. A feasible plan is a plan based upon the applicant's
or borrower's actual records that show the farming operation's actual
income, production and expenses. Income tax returns and supporting
documents (hereafter called income tax records) must be submitted to
verify the actual records. The records, including income tax records,
must be for the most recent 5-year period or if the borrower has been
farming less than 5 years, the records for the period which the
borrower has farmed. For borrowers who have been farming for less than
5 years, the borrower's actual records will be used along with other
available records in the order listed in Sec. 1924.56 to complete a 5-
year history. Future production yields will be based on a 5-year
average of the most recent past 5 years' actual production yields.
[[Page 35929]]
Borrowers that have yields affected by disasters in at least 2 of the 5
most recent years' actual production may exclude the crop year with the
lowest actual yield. In accordance with Sec. 1924.56, if the
applicant's remaining disaster year's yields are less than the county
average yield and the borrower's yields were affected by the disaster,
county average yields will be used for that year. If county average
yields are not available, State average yields will be used. These
records will be used along with realistic anticipated prices, including
any planned farm program payments, to determine that the income from
the farming operation and any reliable off-farm income, will provide
the income necessary for an applicant or borrower to at least be able
to:
(1) Pay all operating expenses and all taxes which are due during
the projected farm business accounting period.
* * * * *
(3) Meet up to 105 percent, but not less than 100 percent, of the
scheduled payments on all debts, except as provided in Sec. 1941.14 for
annual production loans or subordinations made to a delinquent borrower
submitting a ``NEW APPLICATION.'' The Agency will assume that a
borrower needs up to 105 percent of the scheduled payments on all the
debts for the business accounting period in order to meet the
obligations and continue farming. However, this will not prohibit a
borrower from receiving debt restructuring because the projected income
is less than 105 percent of the scheduled payments. In no case will a
borrower receive restructuring if projected income is less than 100
percent of scheduled payments.
* * * * *
Financially distressed. A financially distressed borrower is one
who will not be able to make payments as planned for the current or
next business accounting period. Borrowers will also be considered
financially distressed if the borrower will not be able to project a
feasible plan of operation for the next business accounting period.
* * * * *
Good faith. An eligibility requirement for Primary Loan Servicing
including Net Recovery Buyout, and Leaseback/Buyback. A borrower is
considered to have acted in ``good faith'' if the borrower has
demonstrated honesty and sincerity in carrying out the agreements on
Form FmHA 1962-1 (available in any Agency office) and any other written
agreements with the Agency. Findings of a lack of good faith will be
based on violations within the borrower's control. These actions will
demonstrate the borrower's intent to violate written agreements with
the Agency. The Agency must substantiate any allegations of fraud,
waste, or conversion with a written legal opinion by the Office of the
General Counsel (OGC) when such allegations are used to deny a
servicing request. A borrower will not be considered to lack good faith
if the sole basis for such determination was the disposition of normal
income security, as defined in Sec. 1962.4, prior to October 14, 1988
without the Agency's consent and the borrower demonstrates that the
proceeds were used to pay essential family living and farm operating
expenses that the Agency could have approved according to Sec. 1962.17.
* * * * *
Sec. 1951.909 [Amended]
55. Section 1951.909 is amended:
a. by removing the reference to ``Sec. 1924.60 of subpart B of part
1924 of this chapter'' in paragraph (e)(3)(vii) and adding the
reference ``Sec. 1924.55,'' in its place and;
b. by removing the reference ``as set forth in subpart B of part
1900 of this chapter'' in paragraph (e)(3)(vii).
56. Section 1951.909 is amended:
a. by removing the phrase ``FmHA or its successor agency under
Public Law 103-354'' in the heading of paragraph (e)(4) and in
paragraph (e)(4)(xi) and adding the word ``Agency'' in its place; and
b. by removing and reserving paragraphs (e)(3)(vi)(B) and (C).
PART 1955--PROPERTY MANAGEMENT
57. The authority citation for part 1955 is revised to read as
follows:
Authority: 5 U.S.C. 301; 7 U.S.C. 1989; 42 U.S.C. 1480.
Subpart B--Management of Property
Sec. 1955.66 [Amended]
58. Section 1955.66 is amended:
a. by removing the words ``Farmer Program loans'' in paragraphs
(a)(2)(iii)(A) and adding the words ``Farm Credit Programs loans'' in
their place;
b. by removing the reference ``Sec. 1924.27 of'' in paragraph
(a)(2)(iii)(B);
c. by removing the phrase ``FmHA or its successor agency under
Public Law 103-354'' in the third sentence of the introductory text and
paragraphs (a)(1) and (a)(2)(iii)(C) and adding the words ``the
Agency'' in its place; and
d. by removing the words ``Agricultural Stabilization and
Conservation Service (ASCS)'' in paragraph (a)(2)(iii)(D) and adding
the words ``the local FSA Farm Programs (formerly ASCS)'' in its place.
PART 1962--PERSONAL PROPERTY
59. The authority citation for part 1962 is revised to read as
follows:
Authority: 5 U.S.C. 301; 7 U.S.C. 1989; 42 U.S.C. 1480.
Subpart A--Servicing and Liquidation of Chattel Security
Sec. 1962.5 [Removed and Reserved]
60. In part 1962 Sec. 1962.5 is removed and reserved.
61. Section 1962.6 is revised to read as follows:
Sec. 1962.6 Liens and assignments on chattel property.
(a) Chattel property not covered by Agency lien. (1) When
additional chattel property not presently covered by an Agency lien is
available and needed to protect the Government's interest, the County
Supervisor will obtain one or more of the following:
(i) A lien on such property.
(ii) An assignment of the proceeds from the sale of agricultural
products when such products are not covered by the lien instruments.
(iii) An assignment of other income, including FSA Farm Programs
(formerly ASCS) payments.
(2) When a current loan is not being made to a borrower, a crop
lien will be taken as additional security when the County Supervisor
determines in individual cases that it is needed to protect the
Government's interests. However, a crop lien will not be taken as
additional security for Farm Ownership (FO), Rural Housing (RH), Labor
Housing (LH), and Soil and Water (SW) loans. When a new security
agreement or chattel mortgage is taken, all existing security items
will be described on it.
(b) [Reserved]
(c) Assignments of upland cotton, rice, wheat and feed grain
payments. Borrowers may assign FSA Farm Programs (formerly ASCS)
payments under upland cotton, rice, wheat and feed grain programs.
(1) Obtaining assignments. Assignments will be obtained as follows:
(i) Only when it appears necessary to collect operating-type loans.
(ii) Only for the crop year for which operating-type loans are
made, and
(iii) For only the amount anticipated for payments as indicated on
Form FmHA 1962-1, ``Agreement for the Use of Proceeds/Release of
Chattel
[[Page 35930]]
Security,'' of the applicable upland cotton, rice, wheat and feed grain
programs.
(2) Selecting counties. The County Supervisor then will:
(i) Determine, at the time of loan processing for indebted
borrowers and new applicants, who must give assignments and obtain them
no later than loan closing. Special efforts will be made to obtain the
bulk of assignments before the sign-up period for enrolling in the
annual Feed Grain and Wheat set aside programs.
(ii) Obtain assignments from selected borrowers on Form ASCS-36,
``Assignments of Payment,'' which will be obtained from FSA Farm
Programs.
(3) Releasing assignments and handling checks. (i) The County
Supervisor will inform FSA Farm Programs that releasing its assignment
whenever a borrower pays the amount due for the year on the operating-
type loan debt or pays the debt in full.
(ii) Checks obtained as a result of an assignment will be made only
to the Agency, and the proceeds used as indicated on Form FmHA 1962-1.
Sec. 1962.8 [Amended]
62. Section 1962.8 is amended by removing and reserving paragraphs
(a) and (b).
Sec. 1962.9 and 1962.12 [Removed and Reserved]
63. In part 1962 Secs. 1962.9 and 1962.12 are removed and reserved.
64. Section 1962.13 is revised to read as follows:
Sec. 1962.13 Notification to potential purchasers.
(a) In States without a Central Filing System (CFS), all Farm
Credit Programs borrowers prior to loan closing or prior to any
servicing actions which require taking a lien on farm products, such as
crops or livestock, must provide the names and addresses of potential
purchasers. A written notice will be sent by the Agency, certified
mail, return receipt requested, to these potential purchasers to
protect the Government's security interest.
(1) The name and address of the debtor, with signature.
(2) The name and address of any secured party.
(3) The Social Security number or tax ID number of the debtor.
(4) A description of the farm products given as security by the
debtor, including the amount of such products where applicable, the
crop year, the county in which the products are located, and a
reasonable description of the farm products.
(5) Any payment obligation imposed on the potential purchaser by
the secured party as a condition for waiver or release of lien. The
original or a copy of the written notice also must be sent to the
purchaser within 1 year before the sale of the farm products. The
written notice will lapse on either the expiration period of the
Financing Statement or the transmission of a letter signed by the
County Supervisor and showing that the statement has lapsed or the
borrower has performed all obligations to the Agency.
(b) Lists of borrowers whose chattels or crops are subject to an
Agency lien may be made available, upon request, to business firms in a
trade area, such as sale barns and warehouses, that buy chattels or
crops or sell them for a commission. These lists will exclude those
borrowers whose only crops for sale require FSA Farm Programs (formerly
ASCS) marketing cards. The list is furnished only as a convenience and
may be incomplete or inaccurate as of any particular date.
(1) [Reserved]
(2) [Reserved]
65. In Sec. 1962.14 all references to ``FmHA or its successor
agency under Public Law 103-354'' are removed and the words ``the
Agency'' are added in their place.
66. Section 1962.16, introductory text is added and paragraph (a)
is revised to read as follows:
Sec. 1962.16 Accounting by the borrower.
The Agency will maintain a current record of each borrower's
security. Whenever an inspection is performed, the borrower must advise
the Agency of any changes in the security and will complete and sign
Form FmHA 1962-1 in accordance with Sec. 1924.56 if it has not been
previously completed for the year.
(a) Agency responsibilities. Chattel security will be inspected
annually except in cases where the Agency official has justified in
assessment or analysis review that no undue risk exists. An FO borrower
who has been current with the Agency and who has provided chattels as
additional security is an example of a case where an inspection may not
be needed. All inspections will be recorded in the running record of
the borrower's file. More frequent inspections should be made for
delinquent borrowers or borrowers that have been indebted for less then
1 full crop year. The Agency official will discuss the provisions of
Secs. 1962.17 and 1962.18 and assist the borrower in completing the
form. If a borrower does not plan to dispose of any chattel security,
the form should be completed to show this and should be signed. When
the Agency official has other contacts with the borrower, the official
should also check for dispositions and acquisitions of security.
Changes will be recorded on the form, dated and initialed by the
borrower and the agency official. The purpose of all inspections is to:
(1) Verify that the borrower possesses all the security,
(2) Determine security is properly maintained, and
(3) Supplement security instruments.
* * * * *
67. Section 1962.17, paragraph (a), is revised to read as follows:
Sec. 1962.17 Disposal of chattel security, use of proceeds and release
of lien.
(a) General. (1) The borrower must account for all security. When
the borrower sells security, the property and proceeds remain subject
to the Agency's lien until the lien is released. All checks, drafts, or
money orders which the borrower receives for the sale of collateral
listed on Form FmHA 1962-1 (available in any Agency office) must be
payable to both the borrower and the Agency unless all Agency loan
installments for the period of the form have been paid including any
past-due installments. If the borrower disposes of collateral or uses
the proceeds in a way not listed on Form FmHA 1962-1, the borrower will
have violated the loan agreement, and the Government will not release
its security interest in the collateral. Releases of sales proceeds
will be terminated when the borrower's accounts are accelerated.
(2) Section 1924.56 requires that there must always be a current
Form FmHA 1962-1 in the file of a borrower with a loan secured by
chattels. If a borrower asks the Agency to release proceeds from the
sale of chattels and there is a current Form FmHA 1962-1 in the file,
the request will be approved or disapproved in accordance with
paragraph (b) of this section. If the borrower's request for release is
denied, the borrower must be given attachment 1 of exhibit A of subpart
S of part 1951 of this chapter, a written explanation of the reasons
for the denial, and the opportunity for an appeal in accordance with 7
CFR part 780. Immediately upon determining that the borrower does not
have a current Form FmHA 1962-1 in the file, the County Supervisor will
immediately contact the borrower to develop one.
(3) If the borrower requests a change(s) to Form FmHA 1962-1, and
the County Supervisor can approve the change(s), the borrower and the
County Supervisor will initial and date each
[[Page 35931]]
change in accordance with item (6) in the Forms Manual Insert (FMI) for
Form FmHA 1962-1. The form will be marked ``Revised'' and the borrower
will be notified in writing confirming that the change(s) has been
approved.
* * * * *
68. Section 1962.17 is amended by:
a. removing the phrase ``or its successor agency under Public Law
103-354'' wherever it appears;
b. removing the word ``FmHA,'' except when it refers to ``Form
FmHA,'' the second time it appears in paragraph (a)(1), in paragraphs
(a)(2), (b)(2), (b)(2)(v), the second time it appears in paragraph
(b)(2)(vii), in paragraphs (b)(2)(viii)(B), (b)(3), (b)(5), (c)(2)(i),
in the first and last sentences of paragraph (d)(2)(ii), and in
paragraphs (e)(1)(i) through (e)(1)(iii) and adding the words ``the
Agency'' in its place;
c. removing the word ``FmHA,'' except when it refers to ``Form
FmHA,'' in the first and second sentences of paragraphs (b)(1) and in
paragraphs (b)(2)(iv), (b)(2)(vi), (b)(2)(vii), (c)(2), (c)(2)(ii),
(c)(4), (c)(5), (d), (f) and (g) and adding the word ``Agency'' in its
place;
d. removing the reference to ``1924.57(d)'' in the last sentence
of paragraph (b)(5) and adding the reference ``1924.56'' in its place;
e. removing the words ``Farmer Programs'' in paragraph (c)(5) and
adding the words ``Farm Credit Programs'' in its place; and
f. removing the words ``Farmers Home Administration'' in paragraph
(d)(2)(ii).
* * * * *
Sec. 1962.34 [Amended]
69. Section 1962.34 is amended by:
a. removing paragraphs (f) through (h);
b. removing the phrase ``FmHA or its successor agency under Public
Law 103-354's'' in paragraph (b)(1) and adding the words ``the
Agency's'' in its place;
c. removing the phrase ``FmHA or its successor agency under Public
Law 103-354'' in paragraphs (b)(2), (b)(4), and (d), and the first word
at the beginning of the first sentence and the second, fourth, and
fifth sentences of paragraph (b)(3) and adding the word ``Agency'' in
its place;
d. removing the phrase ``Form FmHA or its successor agency under
Public Law 103-354 1964-13'' in paragraph (b)(3) and adding the words
``Form FmHA 1965-13'' in its place;
e. removing the words ``Farmer Programs'' in paragraphs (b)(3) and
(d) and adding the words ``Farm Credit Programs'' in its place; and
f. by revising paragraph (e) to read as follows:
Sec. 1962.34 Transfer of chattel security and EO property and
assumption of debts.
* * * * *
(e) Agency actions.
(1) Transfer to eligible applicant. The Agency will determine the
transferee's eligibility for the type of loan to be assumed.
(2) Release from liability. If the total outstanding debt is not
assumed, the Agency must make the following determinations before it
releases the transferor from personal liability:
(i) The transferor and any cosigner do not have reasonable ability
to pay all or a substantial part of the balance of the debt not assumed
after considering their assets and income at the time of transfer,
(ii) The transferor and any cosigner have cooperated in good faith,
used due diligence to maintain the security against loss, and have
otherwise fulfilled the covenants incident to the loan to the best of
their ability, and
(iii) The transferee will assume a portion of the indebtedness at
least equal to the present market value of the security.
* * * * *
Sec. 1962.40 [Amended]
70. Section 1962.40 is amended by:
a. adding the words ``subpart A of'' immediately preceding the
reference ``part 1965'' in paragraph (c);
b. removing the word ``insured'' in the heading of paragraph (d)
and adding the word ``direct'' in its place; removing the words ``an
insured'' in the first sentence of paragraph (d) and adding the words
``a direct'' in its place; and by removing the phrase ``to FmHA or its
successor agency under Public Law 103-354'' in the first sentence of
paragraph (d);
c. removing the phrase ``FmHA or its successor agency under Public
Law 103-354's'' in the second sentence of paragraph (d) and in
paragraph (e)(1) and adding the word ``Government's'' in its place;
d. removing all references to ``FmHA or its successor agency under
Public Law 103-354'' in paragraphs (e)(1)(i) and (e)(2) and adding the
words ``the Agency'' in their place; and
e. removing and reserving paragraph (e)(4).
Sec. 1962.43 [Removed and Reserved]
71. In part 1962 Sec. 1962.43 is removed and reserved.
Sec. 1962.44 [Amended]
72. Section 1962.44 is amended by removing and reserving paragraphs
(a) and (c); and by removing all references to ``FmHA or its successor
agency under Public Law 103-354'' in paragraph (b) and adding the words
``the Agency'' in their place.
Sec. 1962.46 [Amended]
73. Section 1962.46 is amended by:
a. removing the words ``an insured'' in the fourth sentence of the
introductory text of paragraph (c) and adding the words ``a direct'' in
its place;
b. removing all references to ``FmHA or its successor agency under
Public Law 103-354'' and adding the words ``the Agency'' in their
place, and
c. by removing all references to ``FmHA or its successor agency
under Public Law 103-354's'' in paragraphs (b) through (d) and adding
the words ``the Agency's'' in their place.
Sec. 1962.47 [Amended]
74. Section 1962.47 is amended:
a. by removing the words ``an insured'' in the first sentence of
paragraph (b)(2)(iv) and adding the words ``a direct'' in its place;
b. by removing references to ``FmHA or its successor agency under
Public Law 103-354'' in paragraphs (a)(3)(i), (b), introductory text,
(b)(2)(i), (b)(2)(iv), and (c) introductory text, and adding the words
``the Agency'' in its place; and
c. by removing the phrase ``or its successor agency under Public
Law 103-354 1965-14'' in the first sentence of paragraph (b)(2)(i).
Exhibit F of Subpart A--[Removed and Reserved]
75. Exhibit F of Subpart A is removed and reserved.
PART 1965--REAL PROPERTY
76. The authority citation for part 1965 is revised to read as
follows:
Authority: 5 U.S.C. 301; 7 U.S.C. 1989; 42 U.S.C. 1480.
Subpart A--Servicing of Real Estate Security for Farm Credit
Program Loans and Certain Note--Only Cases
Sec. 1965.13 [Amended]
77. Section 1965.13 is amended by:
a. removing the phrase ``FmHA or its successor agency under Public
Law 103-354'' in paragraph (f)(4)(ii) and adding the words ``FSA Farm
Credit Programs'' in its place; and
b. removing the references to ``Sec. 1924.57(c)(5)'' and
Sec. 1924.57(b)'' in paragraphs (f)(4)(ii)(A) and (B) and adding
``Sec. 1924.56'' in their place.
PART 1980--GENERAL
78. The authority citation for part 1980 is revised to read as
follows:
Authority: 5 U.S.C. 301; 7 U.S.C. 1989; 42 U.S.C. 1480.
[[Page 35932]]
Subpart B--Farm Credit Programs Loans
Sec. 1980.101 [Amended]
79. Section 1980.101 is amended by:
a. removing the words ``Farmers Home Administration or its
successor agency under Public Law 103-354'' in the first sentence of
paragraph (a);
b. removing all references to ``FmHA or its successor agency under
Public Law 103-354'' in paragraphs (a) and (b) and adding the word
``Agency'' in their place;
c. adding and reserving paragraphs (c)(1) and (c)(2);
d. removing the words ``Farmer Programs'' in paragraphs (a) and (b)
and adding the words ``Farm Credit Programs'' in its place;
e. removing the phrase ``or its successor agency under Public Law
103-354'' in paragraph (e)(1), and
f. by revising paragraph (e)(2) to read as follows:
Sec. 1980.101 Introduction.
* * * * *
(e) * * *
(2) Contract of Guarantee (Operating Loans--Line of Credit only).
Lenders desiring a guarantee on a ``line of credit'' will use the
method contained in subpart A of this part. Line of credit loans are
guaranteed in accordance with Form FmHA 1980-27, ``Contract of
Guarantee (Line of Credit).'' Line of credit notes and agreements may
not be sold by the originating lender, but the originating lender may
use participating lenders in accordance with Sec. 1980.119. Any amount
advanced by the lender in excess of the line of credit ceiling set
forth in the contract is not guaranteed by the Agency.
Sec. 1908.106 [Amended]
80. Section 1980.106(b) is amended by:
a. removing the words ``Farmer Programs'' in the definition of
``Applicant'' and adding the words ``Farm Credit Programs'' in its
place;
b. removing the phrase ``FmHA or its successor agency under Public
Law 103-354'' in the definition of Approval official and adding the
word Agency in its place; and
c. adding the definition of Agency before the definition of
Applicant.
* * * * *
Agency. Farm Service Agency, its county and State committees and
their personnel, and any successor agency.
* * * * *
Sec. 1980.108 [Amended]
81. Section 1980.108 is amended by:
a. removing the phrases ``FmHA or its successor agency under Public
Law 103-354'' and ``FmHA or its successor agency under Public Law 103-
354's'' in paragraph (a)(1)(iii) and adding the words ``the Agency''
and ``the Agency's'' in their place respectively, and
b. by revising paragraphs (a)(1)(i) and (a)(2)(i) to read as
follows:
Sec. 1980.108 General provisions.
(a) * * *
(1) * * * (i) The lender is responsible for seeing that security is
obtained and maintained to protect the interests of the lender and the
Agency.
* * * * *
(2) * * * (i) Guarantees of parent, subsidiary, or affiliated
companies may be required. Guarantees will be required in an amount
which reasonably assures repayment of the loan or line of credit and
provides sufficient security. If a review of all credit factors
indicates the need for additional security, the lender or the Agency
may require additional personal and corporate guarantees. The lender or
the Agency also may require that such guarantees be secured.
* * * * *
82. Section 1980.109 is amended by revising the introductory text
of paragraph (b) to read as follows:
Sec. 1980.109 Promissory notes, line of credit agreements, security
instruments, and financing statements.
* * * * *
(b) Financing statements. Commercial financing statement forms that
comply with state laws and regulations may be used. If the financing
statement does not already contain the following provisions, they must
be inserted to meet Agency requirements:
* * * * *
Sec. 1980.103 [Amended]
83. Section 1980.110 is amended by:
a. removing the phrase ``FmHA or its successor agency under Public
Law 103-354'' in the introductory text, in the first and last sentences
of paragraph (a), the second time it appears in paragraph (b) and in
paragraph (c) and adding the words ``the Agency'' and ``The Agency'' in
their place;
b. removing the phrase ``FmHA or its successor agency under Public
Law 103-354 Instruction 440.1'' in the last sentence of paragraph (a)
and adding the words ``FmHA Instruction 440.1'' in its place; and
c. by removing the phrase ``Form FmHA or its successor agency under
Public Law 103-354 1980-24'' in paragraph (b) and adding the words
``Form FmHA 1980-24'' in its place.
84. Section 1980.113 is amended by:
a. removing the phrase ``FmHA or its successor agency under Public
Law 103-354'' wherever it appears in the introductory text and adding
the word ``Agency'' in its place;
b. removing the phrase ``or its successor agency under Public Law
103-354'' in paragraphs (a), introductory text, (a)(1), (a)(2), (a)(5),
and (b), introductory text;
c. removing the words ``cash flow'' in the third sentence in the
introductory text of paragraph (a)(7) and adding the words ``case
file'' in its place;
d. removing the phrase ``FmHA or its successor agency under Public
Law 103-354'' in paragraph (a)(7)(ii) and adding the word ``Agency'' in
its place;
e. removing the words ``a disaster(s)'' in the introductory text of
paragraph (a)(7)(ii)(D) and adding the word ``disasters'' in its place;
f. revising paragraphs (a)(6), (a)(7)(i)(B), (a)(7)(ii)(B) and (C),
(a)(7)(ii)(D)(1), and (a)(11)(ii) and (iii); and
g. adding new paragraphs (a)(12) and (c) to read as follows:
Sec. 1980.113 Receiving and processing applications.
* * * * *
(a) * * *
(6) Proposed loan agreement or line of credit agreements between
the applicant and lender. Loan agreements or line of credit agreements
will address at least the following:
(i) Improved management or production practices to be implemented.
(ii) Requirements for accounting, recordkeeping, and financial
reporting.
(iii) Limitations on the purchase or sale of capital assets.
(iv) Prohibitions against incurring additional debt or cosigning
for the liabilities of others.
(v) Limits on family living expenses.
(vi) Insurance requirements and collateral inspections.
(vii) Purposes for which loan or line of credit funds can be used.
(viii) Interest rates and terms; how and when the rate may
fluctuate; term of loan; and conditions related to the repayment,
renewal, etc., of loans with balloon payments.
(ix) Credit ceiling, special limitations, and conditions precedent
to annual readvancement or continuation of loans or lines of credit.
(x) Limitations on salaries paid to entity members, hired labor, or
consultants. Limitations on withdrawals in the case of joint operations
and partnerships.
(7) * * *
(i) * * *
[[Page 35933]]
(B) Government loan rates, i.e., FSA (formerly ASCS) target prices.
* * * * *
(ii) * * *
(B) For those farmers with less than a 5-year production or yield
history, the applicant's available production history will be utilized.
(C) For those farmers whose actual history is insufficient to
provide an accurate estimate, consider the use of FSA Farm Programs
actual records for specific farms, county averages, State averages,
university data, or any other reliable sources of information that are
acceptable to the lender, applicant, and the Agency.
(D) * * *
(1) County average yields will be used for disaster years in
developing an historical base yield. If the applicant's disaster years
are less than the county average yields, county average yields will be
used for those years. If county average yields are not available, State
average yields will be used. Once the yield base has been established,
plus or minus adjustments may be made to reflect production trends or
changes that will impact expected yields during the projected farm
budget period. Adjustments can be made providing there is factual
evidence to demonstrate that the yield used in the farm plan is the
most reliable.
* * * * *
(11) * * *
(ii) A current, personal balance sheet from all members of a
cooperative, joint operators of a joint operation, partners of a
partnership, or stockholders of a corporation. To be current, the
balance sheet must be no more than 90 days old on the date that the
application is completed.
(iii) A current balance sheet of the cooperative, corporation,
partnership, or joint operation.
* * * * *
(12) A concise narrative summary of the following items:
(i) The agricultural and nonagricultural enterprises comprising the
operation, including any proposed to be added or dropped.
(ii) The real estate used in the operation including significant
planned and existing improvements, significant conservation practices
in effect, adequacy of facilities, external factors of negative or
positive impact.
(iii) Chattel property, including the adequacy of machinery,
equipment, and foundation livestock to carry out the existing or
proposed operation.
(iv) The farm business organization and key personnel. For example,
the legal business structure, roles, functions and backgrounds of key
individuals, the accounting and record keeping system, and agreements
for transferring or dissolving the business.
(v) Goals. The short-term and long-term business goals of the
operation.
(vi) Historical financial data.
(vii) Planned changes. Changes to overcome negative trends or other
aspects of the operation. Consider such items as improved production
techniques or management practices.
* * * * *
(c) Market Placement applications. This paragraph explains the
requirements for market placement applications for lenders that have
expressed interest in financing or refinancing specific direct loan
applicants described under Sec. 1910.4 (c), as well as for
``commercial'' or ``standard'' borrowers defined under Sec. 1951.252.
If more than one lender is interested in providing financing, the
direct loan applicant or borrower will rank the lenders in order of
preference, and the Agency will present the market placement
applications in that order. A market placement application should be
ready for immediate acceptance by the lender and approval by the
Agency, subject to the terms and conditions of the Request for
Obligation of Funds and Conditional Commitment. The items needed for a
market placement application are to be packaged by the Agency and
consist of the following:
(1) Form FmHA 1980-25 will be prepared using estimated interest
rates and terms. All other items required, with the exception of the
loan or line of credit agreement, for a complete application under this
section will be attached. The lender will submit the loan or line of
credit agreement prior to the Agency's issuance of the Conditional
Commitment.
(2) Form FmHA 1940-3, ``Request for Obligation of Funds--Guaranteed
Loans.''
85. Section 1980.114 is amended by:
a. removing the introductory text; by removing and reserving
paragraphs (a) and (b);
b. by redesignating paragraphs (c) and (d) as paragraphs (d) and
(e), respectively;
c. by removing and reserving the ADMINISTRATIVE section;
d. by revising the section heading;
e. by removing and reserving the redesignated paragraph (d); by
revising redesignated paragraph (e); and by adding a new paragraph (c)
to read as follows:
Sec. 1980.114 Evaluation and assessment of applications.
* * * * *
(c) Agency analysis of complete application. In addition to other
applicable requirements under this part, an application for a guarantee
must meet the following conditions:
(1) The proposed loan or line of credit is for authorized purposes,
and the amounts of borrowed capital are appropriate to successfully
carry on the agricultural operation.
(2) The operation's capital position is adequate taking its
strengths and weaknesses into consideration.
(3) The applicant has adequate repayment ability and has a
reasonable chance of securing non-guaranteed commercial credit for the
operation in the future. Developing an acceptable farm plan is the
responsibility of the lender and its borrower.
(4) Security is adequate, values are reasonable, and loan terms are
consistent with the useful life of the security and Agency regulations.
(5) The projected budget is reasonable in light of the applicant's
stated goals.
* * * * *
(e) Indication of acceptability. If the Agency's evaluation
indicates that the guarantee may be approved, the Agency will consider
the guarantee request for eligibility.
Sec. 1980.115 [Amended]
86. Section 1980.115 is amended by:
a. revising the heading to read ``Eligibility review.'';
b. removing paragraphs (a) through (d) and the ADMINISTRATIVE
section;
c. removing all references in the introductory text to ``County
Committee'' and adding the word ``Agency,'' in their place; and
d. by removing the reference to ``FmHA or its successor agency
under Public Law 103-354'' in the introductory text.
Sec. 1980.125 [Amended]
87. Section 1980.125 is amended by:
a. removing the phrase ``FmHA or its successor agency under Public
Law 103-354'' in paragraphs (a), introductory text, (b)(3), (c)
introductory text, (d)(5), and in the seventh and eighth lines of
paragraph (d)(4) and adding the words ``the Agency'' in its place; and
b. by removing the phrase ``or its successor agency under Public
Law 103-354'' from paragraphs (b)(1)(i), (c)(4), (d)(3), (d)(6) and in
the second and third lines of paragraph (d)(4).
Sec. 1980.126 [Amended]
88. Section 1980.126 is amended by removing the phrase ``FmHA or
its successor agency under Public Law 103-354'' in the last sentence
and
[[Page 35934]]
adding the words ``the Agency'' in its place.
Sec. 1980.129 [Amended]
89. Section 1980.129 is amended by:
a. removing the ADMINISTRATIVE section;
b. removing the phrase ``FmHA or its successor agency under Public
Law 103-354'' in paragraph (a) and adding the words ``the Agency'' in
its place; and
c. revising the introductory text to read as follows:
Sec. 1980.129 Planning and performing development.
The lender is responsible for seeing that any buildings or other
improvements or major land development to be paid for with loan funds
are properly completed within a reasonable period of time. The lender
is responsible for perfecting the required lien in the security, which
includes ensuring that the security property is free of any mechanic's,
materialmen's, or other liens which would affect lien priority. All
major construction, major repairs, and major land development must be
performed by qualified parties under conditions considered standard and
prudent by commercial lenders and their financial regulators. Form FmHA
449-11, ``Certificate of Acquisition or Construction,'' must be
completed and submitted to the Agency. In connection with construction,
the lender is responsible for:
* * * * *
Sec. 1980.130 [Amended]
90. Section 1980.130 is amended by removing the ADMINISTRATIVE
section.
Sec. 1980.136 [Amended]
91. Section 1980.136 is amended by:
a. removing the phrase ``FmHA or its successor agency under Public
Law 103-354'' in paragraphs (a) and (b) and adding the words ``The
Agency's'' and ``Agency'' respectively in their place; and
b. by removing the word ``instrument(s)'' in paragraph (d) and
adding the word ``instruments'' in its place.
Secs. 1980.148, 1980.149 and 1980.153 [Removed and Reserved]
92. In Part 1980 Secs. 1980.148, 1980.149, and 1980.153 are removed
and reserved.
Sec. 1980.175 [Amended]
93. Section 1980.175(b) is amended by:
a. removing the phrase ``FmHA or its successor agency under Public
Law 103-354'' in the introductory text and adding the word ``Agency''
in its place the first time it appears and to read ``FmHA'' the second
time it appears and to read ``Agency'' in paragraph (b)(1)(i);
b. removing the reference to ``Sec. 1980.106(b)(21)'' in the first
sentence of paragraph (b)(1)(i) and adding the reference to
``Sec. 1980.106(b)'' in its place.
Exhibit A of Subpart B--[Amended]
94. Exhibit A of subpart B is amended by:
a. removing the phrase ``FmHA or its successor agency under Public
Law 103-354'' in paragraph III.A and adding the words ``the Agency'' in
its place in the next to last sentence and to remove the phrase ``or
its successor agency under Public Law 103-354'' everywhere else it
appears in that paragraph;
b. removing the phrase ``or its successor agency under Public Law
103-354'' in paragraph III.C; and
c. by revising paragraph IV to read as follows:
IV. Agency Actions. The Agency will complete the evaluation
described in Sec. 1980.114 in any case where the approval official
determines an independent analysis is needed before approval or denial
of a request for guarantee. The Agency may request additional
information, review the lender's ``complete application'' file or make
an independent evaluation of the application, if needed, to determine
whether the applicant is eligible, the loan or line of credit is for
authorized purposes, there is reasonable assurance of repayment
ability, and sufficient collateral and equity is available. The Agency
will make the final determinations on the eligibility of applicants for
a guaranteed OL loan or line of credit, an SW loan, or FO loan, and the
purposes and terms of such loans or lines of credit.
A. [Reserved].
B. [Reserved].
Each approved lender who currently has an Approved Lender Agreement
executed prior to January 6, 1988, will be required to execute a new
Approved Lender Agreement. If liquidation of the account becomes
imminent, the Lender will consider the borrower for Interest Assistance
and request a determination of the borrower's eligibility by the
Agency. The lender may not initiate foreclosure action on the loan
until 60 days after a determination has been made on the borrower's
eligibility to participate in the Interest Assistance Program.
* * * * *
Signed at Washington, DC, on July 2, 1996.
Eugene Moos,
Under Secretary for Farm and Foreign Agricultural Services.
Jill Long Thompson,
Under Secretary for Rural Development.
[FR Doc. 96-17266 Filed 7-8-96; 8:45 am]
BILLING CODE 3410-05-P
Complete official Federal Register PDF
FR Doc. 96-17264 Adding Oakland, California, and Sanford, Florida, to the List of Ports of Entry Accepting Applications for Direct Transit Without Visa
[Federal Register Volume 61, Number 132 (Tuesday, July 9, 1996)]
[Rules and Regulations]
[Pages 35934-35935]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-17264]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
8 CFR Part 214
[INS No. 1765-96]
RIN 1115-AE40
Adding Oakland, California, and Sanford, Florida, to the List of
Ports of Entry Accepting Applications for Direct Transit Without Visa
AGENCY: Immigration and Naturalization Service, Justice.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This rule amends the Immigration and Naturalization Service
(the Service) regulations by adding Oakland, California, and Sanford,
Florida, to the list of ports of entry where, except for transit from
one part of foreign contiguous territory to another part of the same
territory, an alien must make application for admission to the United
States for direct transit without visa. This change is necessary to
accommodate the increase in international commerce service Oakland,
California, and Sanford, Florida.
EFFECTIVE DATE: July 9, 1996.
FOR FURTHER INFORMATION CONTACT:
Robert F. Hutnick, Assistant Chief Inspector, Immigration and
Naturalization Service, 425 I Street, NW., Room 7228, Washington, DC
20536, telephone number (202) 616-7499.
SUPPLEMENTARY INFORMATION: This final rule adds Oakland, California,
and Sanford, Florida, to 8 CFR 214.2(c)(1) as ports of entry where,
except for transit from one part of foreign contiguous territory to
another part of the same territory, application for direct transit
without visa must be made. The Orlando Sanford Airport in Sanford,
Florida, will be adding additional international passenger service,
specifically arrivals transiting between the United Kingdom and Mexico.
By allowing this airport to accept applications for direct transit
without visa, the Orlando Sanford Airport will be able to accommodate
these transit air
[[Page 35935]]
passengers. The Oakland International Airport has added international
passenger service between France and Tahiti. By allowing this airport
to accept applications for direct transit without visa, Oakland
International Airport will be able to accommodate these transit air
passengers.
Compliance with 5 U.S.C. 553 as to notice of proposed rulemaking
and delayed effective date is unnecessary as this rule relates to
agency management. Since this rule pertains to agency ``practice and
procedures'' it does not require Congressional review necessitated by 5
U.S.C. Sec. 801.
Regulatory Flexibility Act
The Commissioner of the Immigration and Naturalization Service, in
accordance with Regulatory Flexibility Act (5 U.S.C. 605(b)), has
reviewed this regulation and, by approving it, certifies that this rule
will not have a significant economic impact on a substantial number of
small entities. This rule merely allows the Oakland, California, and
the Sanford, Florida, airports to accommodate international passengers
by providing authority to accept applications for direct transit
without visa. This rule will facilitate travel for the public.
Executive Order 12866
This rule is not considered by the Department of Justice,
Immigration and Naturalization Service, to be a ``significant
regulatory action'' under Executive Order 12866, section 3(f),
Regulatory Planning and Review, and the Office of Management and Budget
has waived its review process under section 6(a)(3)(A).
Executive Order 12612
The regulation proposed herein will not have substantial direct
effects on the States, on the relationship between the National
Government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this rule
does not have sufficient federalism implications to warrant the
preparation of a Federalism Assessment.
List of Subjects in 8 CFR Part 214
Administrative practice and procedure, Aliens, Passports and visas.
Accordingly, part 214 of chapter I of title 8 of the Code of
Federal Regulations is amended as follows:
PART 214--NONIMMIGRANT CLASSES
1. The authority citation for part 214 continues to read as
follows:
Authority: 8 U.S.C. 1101, 1103, 1182, 1184, 1186a, 1187,1221,
1281, 1282; 8 CFR part 2.
Sec. 214.2 [Amended]
2. In Sec. 214.2, paragraph (c)(1) is amended, in the fourth
sentence, by adding ``Oakland, CA,'' immediately after ``Norfolk, VA,''
and ``Sanford, FL,'' immediately after ``San Diego, CA,'' to the
listing of ports of entry authorized to accept direct transit without
visa applications.
Dated: June 25, 1996.
Doris Meissner,
Commissioner, Immigration and Naturalization Service.
[FR Doc. 96-17264 Filed 7-8-96; 8:45 am]
BILLING CODE 4410-10-M
Complete official Federal Register PDF
FR Doc. 96-17219 Airworthiness Directives; Fokker Model F28 Mark 0100 Series Airplanes
[Federal Register Volume 61, Number 132 (Tuesday, July 9, 1996)]
[Rules and Regulations]
[Pages 35942-35944]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-17219]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
14 CFR Part 39
[Docket No. 96-NM-132-AD; Amendment 39-9692; AD 96-14-08]
RIN 2120-AA64
Airworthiness Directives; Fokker Model F28 Mark 0100 Series
Airplanes
AGENCY: Federal Aviation Administration, DOT.
ACTION: Final rule; request for comments.
-----------------------------------------------------------------------
SUMMARY: This amendment adopts a new airworthiness directive (AD),
applicable to certain Fokker Model F28 Mark 0100 series airplanes. This
action requires modification of the radio altimeter wiring circuitry
associated with the Automatic Flight Control Augmentation System
(AFCAS). This amendment is prompted by a report indicating that the
AFCAS does not properly monitor the radio altimeter status during
automatic landing operations. The actions specified in this AD are
intended to prevent erroneous indications and failure of the AFCAS to
properly align, flare, and retard the airplane during automatic landing
operations if a single radio altimeter were to fail.
DATES: July 24, 1996.
The incorporation by reference of certain publications listed in
the regulations is approved by the Director of the Federal Register as
of July 24, 1996.
Comments for inclusion in the Rules Docket must be received on or
before September 9, 1996.
ADDRESSES: Submit comments in triplicate to the Federal Aviation
Administration (FAA), Transport Airplane Directorate, ANM-103,
Attention: Rules Docket No. 96-NM-132-AD, 1601 Lind Avenue, SW.,
Renton, Washington 98055-4056.
The service information referenced in this AD may be obtained from
Fokker Aircraft USA, Inc., 1199 North Fairfax Street, Alexandria,
Virginia 22314. This information may be examined at the FAA, Transport
Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington; or at
the Office of the Federal Register, 800 North Capitol Street, NW.,
suite 700, Washington, DC.
FOR FURTHER INFORMATION CONTACT: Tim Dulin, Aerospace Engineer,
Standardization Branch, ANM-113, FAA, Transport Airplane Directorate,
1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone (206)
227-2141; fax (206) 227-1149.
SUPPLEMENTARY INFORMATION: The Rijksluchtvaartdienst (RLD), which is
the airworthiness authority for the Netherlands, recently notified the
FAA that an unsafe condition may exist on certain Fokker Model F28 Mark
0100 series airplanes. The RLD advises that it has received a report
indicating that the Automatic Flight Control Augmentation System
(AFCAS) on these airplanes does not properly monitor the radio
altimeter status during automatic landing (``LAND 2'') operations. As a
result, an airplane may perform a ``LAND 2'' operation with only one
radio altimeter that is operative. If the remaining altimeter were to
fail or to lose track during the ``LAND 2'' operation, the ALIGN,
FLARE, and/or RETARD modes will not be performed, even though the
annunciations for these modes would still be indicated on the
Electronic Flight Instrument System (EFIS). In this case, the flight
crew may accept the EFIS annunciation that these maneuvers (modes) are
being executed when, in fact, those maneuvers are not taking place.
This condition could result in the flight crew not being aware that the
AFCAS has not properly aligned, flared, and retarded the airplane
during automatic landing operations.
Explanation of Relevant Service Information
Fokker has issued Service Bulletin SBF100-34-015, Revision 2, dated
November 27, 1990, which describes procedures for a modification of the
radio altimeter wiring circuitry associated with the AFCAS data-control
jumper. This wiring change will allow the radio altimeters to remove
the data from AFCAS data bus whenever a failure is detected. As a
result, ``LAND 2'' operation is no longer possible with only one radio
altimeter operative. The RLD classified this service bulletin as
mandatory and issued Netherlands airworthiness directive (BLA) 90-023,
Issue 2, dated May 23, 1990, in order to assure the continued
airworthiness of these airplanes in the Netherlands.
[[Page 35943]]
FAA's Conclusions
This airplane model is manufactured in the Netherlands and is type
certificated for operation in the United States under the provisions of
section 21.29 of the Federal Aviation Regulations (14 CFR 21.19) and
the applicable bilateral airworthiness agreement. Pursuant to this
bilateral airworthiness agreement, the RLD has kept the FAA informed of
the situation described above. The FAA has examined the findings of the
RLD, reviewed all available information, and determined that AD action
is necessary for products of this type design that are certificated for
operation in the United States.
Explanation of Requirements of the Rule
Since an unsafe condition has been identified that is likely to
exist or develop on other airplanes of the same type design, this AD is
being issued to prevent erroneous indications and failure of the AFCAS
to properly align, flare, and retard the airplane during automatic
landing operations when a single radio altimeter fails. This AD
requires modification of the radio altimeter wiring circuitry
associated with the AFCAS data-control jumper. The actions are required
to be accomplished in accordance with the service bulletin described
previously.
Cost Impact
None of the Model F28 Mark 0100 series airplanes affected by this
action are on the U.S. Register. All airplanes included in the
applicability of this rule currently are operated by non-U.S. operators
under foreign registry; therefore, they are not directly affected by
this AD action. However, the FAA considers that this rule is necessary
to ensure that the unsafe condition is addressed in the event that any
of these subject airplanes are imported and placed on the U.S. Register
in the future.
Should an affected airplane be imported and placed on the U.S.
Register in the future, it would require approximately 4.6 work hours
to accomplish the required actions, at an average labor charge of $60
per work hour. The cost of required parts would be negligible. Based on
these figures, the cost impact of this AD would be $276 per airplane.
Determination of Rule's Effective Date
Since this AD action does not affect any airplane that is currently
on the U.S. register, it has no adverse economic impact and imposes no
additional burden on any person. Therefore, notice and public
procedures hereon are unnecessary and the amendment may be made
effective in less than 30 days after publication in the Federal
Register.
Comments Invited
Although this action is in the form of a final rule and was not
preceded by notice and opportunity for public comment, comments are
invited on this rule. Interested persons are invited to comment on this
rule by submitting such written data, views, or arguments as they may
desire. Communications shall identify the Rules Docket number and be
submitted in triplicate to the address specified under the caption
ADDRESSES. All communications received on or before the closing date
for comments will be considered, and this rule may be amended in light
of the comments received. Factual information that supports the
commenter's ideas and suggestions is extremely helpful in evaluating
the effectiveness of the AD action and determining whether additional
rulemaking action would be needed.
Comments are specifically invited on the overall regulatory,
economic, environmental, and energy aspects of the rule that might
suggest a need to modify the rule. All comments submitted will be
available, both before and after the closing date for comments, in the
Rules Docket for examination by interested persons. A report that
summarizes each FAA-public contact concerned with the substance of this
AD will be filed in the Rules Docket.
Commenters wishing the FAA to acknowledge receipt of their comments
submitted in response to this rule must submit a self-addressed,
stamped postcard on which the following statement is made: ``Comments
to Docket Number 96-NM-132-AD.'' The postcard will be date stamped and
returned to the commenter.
Regulatory Impact
The regulations adopted herein will not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this final
rule does not have sufficient federalism implications to warrant the
preparation of a Federalism Assessment.
For the reasons discussed above, I certify that this action (1) is
not a ``significant regulatory action'' under Executive Order 12866;
(2) is not a ``significant rule'' under DOT Regulatory Policies and
Procedures (44 FR 11034, February 26, 1979); and (3) will not have a
significant economic impact, positive or negative, on a substantial
number of small entities under the criteria of the Regulatory
Flexibility Act. A final evaluation has been prepared for this action
and it is contained in the Rules Docket. A copy of it may be obtained
from the Rules Docket at the location provided under the caption
ADDRESSES.
List of Subjects in 14 CFR Part 39
Air transportation, Aircraft, Aviation safety, Incorporation by
reference, Safety.
Adoption of the Amendment
Accordingly, pursuant to the authority delegated to me by the
Administrator, the Federal Aviation Administration amends part 39 of
the Federal Aviation Regulations (14 CFR part 39) as follows:
PART 39--AIRWORTHINESS DIRECTIVES
1. The authority citation for part 39 continues to read as follows:
Authority: 49 U.S.C. 106(g), 40113, 44701.
Sec. 39.13 [Amended]
2. Section 39.13 is amended by adding the following new
airworthiness directive:
96-14-08 Fokker: Amendment 39-9692. Docket 96-NM-132-AD.
Applicability: Model F28 Mark 0100 series airplanes; serial
numbers 11244 through 11256 inclusive, 11259, 11260, and 11268
through 11273 inclusive; certificated in any category.
Note 1: This AD applies to each airplane identified in the
preceding applicability provision, regardless of whether it has been
otherwise modified, altered, or repaired in the area subject to the
requirements of this AD. For airplanes that have been modified,
altered, or repaired so that the performance of the requirements of
this AD is affected, the owner/operator must request approval for an
alternative method of compliance in accordance with paragraph (b) of
this AD. The request should include an assessment of the effect of
the modification, alteration, or repair on the unsafe condition
addressed by this AD; and, if the unsafe condition has not been
eliminated, the request should include specific proposed actions to
address it.
Compliance: Required as indicated, unless accomplished
previously.
To prevent erroneous indications and failure of the AFCAS to
properly align, flare, and retard the airplane during autoland
operations when a single radio altimeter fails, accomplish the
following:
(a) Within 6 months after the effective date of this AD, modify
the radio altimeter wiring circuitry (AFCAS data-control jumper) in
accordance with Fokker Service Bulletin SBF100-34-015, Revision 2,
dated November 27, 1990.
[[Page 35944]]
(b) An alternative method of compliance or adjustment of the
compliance time that provides an acceptable level of safety may be
used if approved by the Manager, Standardization Branch, ANM-113,
FAA, Transport Airplane Directorate. Operators shall submit their
requests through an appropriate FAA Principal Maintenance or
Avionics Inspector, who may add comments and then send it to the
Manager, Standardization Branch, ANM-113.
Note 2: Information concerning the existence of approved
alternative methods of compliance with this AD, if any, may be
obtained from the Standardization Branch, ANM-113.
(c) Special flight permits may be issued in accordance with
sections 21.197 and 21.199 of the Federal Aviation Regulations (14
CFR 21.197 and 21.199) to operate the airplane to a location where
the requirements of this AD can be accomplished.
(d) The modification shall be done in accordance with Fokker
Service Bulletin SBF100-34-015, Revision 2, dated November 27, 1990,
which contains the following list of effective pages:
------------------------------------------------------------------------
Revision
Page number level shown Date shown on page
on page
------------------------------------------------------------------------
1, 5-.............................. 2- November 27, 1990
2-4, 6-9-.......................... 1- May 16, 1990
------------------------------------------------------------------------
This incorporation by reference was approved by the Director of
the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR
part 51. Copies may be obtained from Fokker Aircraft USA, Inc., 1199
North Fairfax Street, Alexandria, Virginia 22314. Copies may be
inspected at the FAA, Transport Airplane Directorate, 1601 Lind
Avenue, SW., Renton, Washington; or at the Office of the Federal
Register, 800 North Capitol Street, NW., suite 700, Washington, DC.
(e) This amendment becomes effective on July 24,1996.
Issued in Renton, Washington, on July 1, 1996.
S.R. Miller,
Acting Manager, Transport Airplane Directorate, Aircraft Certification
Service.
[FR Doc. 96-17219 Filed 7-8-96; 8:45 am]
BILLING CODE 4910-13-P
Complete official Federal Register PDF
FR Doc. 96-17217 Airworthiness Directives; McDonnell Douglas Model MD-11 and MD- 11F Series Airplanes
[Federal Register Volume 61, Number 132 (Tuesday, July 9, 1996)]
[Rules and Regulations]
[Pages 35946-35949]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-17217]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
14 CFR Part 39
[Docket No. 96-NM-133-AD; Amendment 39-9691; AD 96-14-07]
RIN 2120-AA64
Airworthiness Directives; McDonnell Douglas Model MD-11 and MD-
11F Series Airplanes
AGENCY: Federal Aviation Administration, DOT.
ACTION: Final rule; request for comments.
-----------------------------------------------------------------------
SUMMARY: This amendment supersedes an existing airworthiness directive
(AD), applicable to certain McDonnell Douglas Model MD-11 and MD-11F
series airplanes, that currently requires repetitive inspections of the
tail tank fuel pipe assembly and the associated mounting brackets in
the aft fuselage compartment, and follow-on actions, if necessary. That
AD also provides for an optional terminating modification for the
repetitive inspections. This amendment deletes the optional terminating
modification, and expands the applicability of the existing AD to
include additional airplanes. This amendment is prompted by reports of
cracking or bending of the fuel pipe mounting support and/or attaching
bracket in the aft fuselage compartment due to a fuel pressure surge
that caused repetitive loading of this area. The actions specified in
this AD are intended to prevent such cracking/bending, which could
expose the fuel pipe coupling O-ring. An exposed O-ring could lose its
sealing effect and could allow a fuel leak in the aft fuselage
compartment, which may result in a possible in-flight or ground fire.
DATES: Effective July 24, 1996.
The incorporation by reference of certain publications listed in
the regulations is approved by the Director of the Federal Register as
of July 24, 1996.
Comments for inclusion in the Rules Docket must be received on or
before September 9, 1996.
ADDRESSES: Submit comments in triplicate to the Federal Aviation
Administration (FAA), Transport Airplane Directorate, ANM-103,
Attention: Rules Docket No. 96-NM-133-AD, 1601 Lind Avenue, SW.,
Renton, Washington 98055-4056.
The service information referenced in this AD may be obtained from
McDonnell Douglas Corporation, 3855 Lakewood Boulevard, Long Beach,
California 90846, Attention: Technical Publications Business
Administration, Department C1-L51 (2-60). This information may be
examined at the FAA, Transport Airplane Directorate, 1601 Lind Avenue,
SW., Renton, Washington; or at the FAA, Los Angeles Aircraft
Certification Office, Transport Airplane Directorate, 3960 Paramount
Boulevard, Lakewood, California; or at the Office of the Federal
Register, 800 North Capitol Street, NW., suite 700, Washington, DC.
FOR FURTHER INFORMATION CONTACT: Raymond Vakili, Aerospace Engineer,
Propulsion Branch, ANM-140L, FAA, Los Angeles Aircraft Certification
Office, 3960 Paramount Boulevard, Lakewood, California 90712; telephone
(310) 627-5262; fax (310) 627-5210.
SUPPLEMENTARY INFORMATION: On November 4, 1991, the FAA issued AD 91-
24-09, amendment 39-8095 (56 FR 61364, December 3, 1991), applicable to
certain McDonnell Douglas Model MD-11 and MD-11F series airplanes. That
AD requires repetitive visual inspections of the tail tank fuel pipe
assembly and the associated mounting brackets located in the aft
fuselage compartment to verify the correct position of the pipe flange
and to detect damaged brackets. It also requires various follow-on
actions, if any discrepancy is detected. That AD also provides for an
optional terminating modification for the repetitive inspections. That
action was prompted by a report of an uncontained fuel leak in the aft
fuselage compartment on an in-service airplane, which was the result of
migration of the tail tank fuel pipe assembly, and consequent exposure
of the O-ring that provides the seal between the pipe assembly and the
coupling shroud assembly. The actions required by that AD are intended
to prevent a fuel leak in the aft fuselage compartment area, and the
possibility of an in-flight or ground fire.
Actions Since Issuance of Previous Rule
Since the issuance of that AD, the FAA has received several reports
of cracking or bending of the fuel pipe mounting support and/or
attaching bracket at station Y=2033.750 in the aft
[[Page 35947]]
fuselage compartment on McDonnell Douglas Model MD-11 series airplanes.
A section of the fuel pipe assembly and support bracket of some of
these airplanes had been replaced in accordance with the optional
terminating modification specified in AD 91-24-09. Additionally, this
replacement had been accomplished during production on certain other
airplanes on which these incidents occurred.
Investigation revealed that a fuel pressure surge during transfer
of the tail tank fuel caused repetitive loading of the fuel pipe
mounting support and/or attaching bracket, which resulted in the
subject cracking/bending. Although none of the reported events have
resulted in a fuel leak in the aft fuselage compartment, the FAA has
determined that severe deformation of the bracket could allow the pipe
to migrate, which could also expose the O-ring that provides the seal
between the fuel pipe and coupling. If the O-ring is exposed, it could
lose its sealing effect, and allow a fuel leak in the aft fuselage
compartment, which could result in a possible in-flight or ground fire.
In light of these recent incidents, which are similar to the
incident that prompted the issuance of AD 91-24-09, the FAA finds that
the optional and on-condition terminating modifications (i.e.,
replacement of a section of the fuel pipe assembly and support bracket,
an FAA-approved repair procedure, and replacement of the shroud
assembly) specified in AD 91-24-09 do not adequately preclude the
addressed unsafe condition identified as in-flight or ground fire.
Therefore, the FAA finds that repetitive visual inspections to detect
discrepancies (i.e., cracks, or deformation) of the fuel pipe of the
fuel transfer system of the tail tank and associated mounting bracket
located in the aft fuselage compartment, and to verify the correct
position of the fuel pipe flange are necessary. These actions will
ensure that the unsafe condition presented by fuel surge during
transfer of tail tank fuel is corrected, and provide an acceptable
level of safety.
Explanation of Relevant Service Information
The FAA has reviewed and approved McDonnell Douglas Alert Service
Bulletin MD11-28A082, dated May 14, 1996. The alert service bulletin
describes procedures for repetitive visual inspections to detect
discrepancies (i.e., cracks, or deformation) of the fuel pipe of the
fuel transfer system of the tail tank and associated mounting bracket
located in the aft fuselage compartment; and to verify the correct
position of the fuel pipe flange, and various follow-on actions. These
follow-on actions include replacing the O-ring, repositioning the tail
tank fuel pipe, and installing a temporary phenolic support block
assembly. Installation of a phenolic support block assembly between the
tail tank fuel pipe and adjoining structure as a temporary restraint
will minimize the possibility of migration of the tail tank fuel pipe.
In addition, the visual inspections and certain of the follow-on
actions of Alert Service Bulletin MD11-28A082 are essentially identical
to those described in McDonnell Douglas MD-11 Alert Service Bulletin
A28-22, Revision 4, dated September 16, 1991 (which was referenced in
AD 91-24-09). However, the effectivity listing of Alert Service
Bulletin MD11-28A082 includes additional airplanes that were not
included in the effectivity listing of Alert Service Bulletin A28-22.
These additional airplanes have been found to be subject to the
addressed unsafe condition.
Explanation of Requirements of Rule
Since an unsafe condition has been identified that is likely to
exist or develop on other airplanes of this same type design, this AD
supersedes AD 91-24-09 to require repetitive visual inspections to
detect discrepancies (i.e., cracks or deformation) of the fuel pipe of
the fuel transfer system of the tail tank and associated mounting
bracket located in the aft fuselage compartment and to verify the
correct position of the fuel pipe flange, and various follow-on
actions. This AD also expands the applicability of the existing AD to
include additional airplanes.
This is considered to be interim action. The manufacturer has
advised that it currently is developing a modification that will
positively address the unsafe condition addressed by this AD. Once this
modification is developed, approved, and available, the FAA may
consider additional rulemaking.
Determination of Rule's Effective Date
Since a situation exists that requires the immediate adoption of
this regulation, it is found that notice and opportunity for prior
public comment hereon are impracticable, and that good cause exists for
making this amendment effective in less than 30 days.
Comments Invited
Although this action is in the form of a final rule that involves
requirements affecting flight safety and, thus, was not preceded by
notice and an opportunity for public comment, comments are invited on
this rule. Interested persons are invited to comment on this rule by
submitting such written data, views, or arguments as they may desire.
Communications shall identify the Rules Docket number and be submitted
in triplicate to the address specified under the caption ADDRESSES. All
communications received on or before the closing date for comments will
be considered, and this rule may be amended in light of the comments
received. Factual information that supports the commenter's ideas and
suggestions is extremely helpful in evaluating the effectiveness of the
AD action and determining whether additional rulemaking action would be
needed.
Comments are specifically invited on the overall regulatory,
economic, environmental, and energy aspects of the rule that might
suggest a need to modify the rule. All comments submitted will be
available, both before and after the closing date for comments, in the
Rules Docket for examination by interested persons. A report that
summarizes each FAA-public contact concerned with the substance of this
AD will be filed in the Rules Docket.
Commenters wishing the FAA to acknowledge receipt of their comments
submitted in response to this rule must submit a self-addressed,
stamped postcard on which the following statement is made: ``Comments
to Docket Number 96-NM-133-AD.'' The postcard will be date stamped and
returned to the commenter.
Regulatory Impact
The regulations adopted herein will not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this final
rule does not have sufficient federalism implications to warrant the
preparation of a Federalism Assessment.
The FAA has determined that this regulation is an emergency
regulation that must be issued immediately to correct an unsafe
condition in aircraft, and that it is not a ``significant regulatory
action'' under Executive Order 12866. It has been determined further
that this action involves an emergency regulation under DOT Regulatory
Policies and Procedures (44 FR 11034, February 26, 1979). If it is
determined that this emergency regulation otherwise would be
significant under DOT Regulatory
[[Page 35948]]
Policies and Procedures, a final regulatory evaluation will be prepared
and placed in the Rules Docket. A copy of it, if filed, may be obtained
from the Rules Docket at the location provided under the caption
ADDRESSES.
List of Subjects in 14 CFR Part 39
Air transportation, Aircraft, Aviation safety, Incorporation by
reference, Safety.
Adoption of the Amendment
Accordingly, pursuant to the authority delegated to me by the
Administrator, the Federal Aviation Administration amends part 39 of
the Federal Aviation Regulations (14 CFR part 39) as follows:
PART 39--AIRWORTHINESS DIRECTIVES
1. The authority citation for part 39 continues to read as follows:
Authority: 49 U.S.C. 106(g), 40113, 44701.
Sec. 39.13 [Amended]
2. Section 39.13 is amended by removing amendment 39-8095 (56 FR
61364, December 3, 1991), and by adding a new airworthiness directive
(AD), amendment 39-9691, to read as follows:
96-14-07 McDonnell Douglas: Amendment 39-9691, Docket 96-NM-133-AD.
Supersedes AD 91-24-09, Amendment 39-8095.
Applicability: Model MD-11 and MD-11F series airplanes,
manufacturer's fuselage numbers 0447 through 0599 inclusive;
certificated in any category.
Note 1: This AD applies to each airplane identified in the
preceding applicability provision, regardless of whether it has been
modified, altered, or repaired in the area subject to the
requirements of this AD. For airplanes that have been modified,
altered, or repaired so that the performance of the requirements of
this AD is affected, the owner/operator must request approval for an
alternative method of compliance in accordance with paragraph (e) of
this AD. The request should include an assessment of the effect of
the modification, alteration, or repair on the unsafe condition
addressed by this AD; and, if the unsafe condition has not been
eliminated, the request should include specific proposed actions to
address it.
Compliance: Required as indicated, unless accomplished
previously.
To prevent the possibility of an in-flight or ground fire due to
fuel leaking from the fuel pipe coupling, accomplish the following:
(a) Perform a visual inspection to detect discrepancies (i.e.,
cracks or deformation) of the fuel pipe of the fuel transfer system
of the tail tank and associated mounting bracket located in the aft
fuselage compartment; and to verify the correct position of the fuel
pipe flange, in accordance with McDonnell Douglas Alert Service
Bulletin MD11-28A082, dated May 14, 1996; at the time specified in
paragraph (a)(1) or (a)(2) of this AD, as applicable.
(1) For airplanes on which the modification specified in
McDonnell Douglas Service Bulletin 28-22, dated September 24, 1991,
has been accomplished; or that have been repaired in accordance with
an FAA-approved repair procedure, as specified in paragraph (a)(3)
of AD 91-24-09, amendment 39-8095; or on which the shroud assembly
has been replaced with a serviceable part: Prior to the accumulation
of 600 flight hours, or within 60 days after the effective date of
this AD, whichever occurs later.
(2) For airplanes on which the modification specified in
McDonnell Douglas Service Bulletin 28-22, dated September 24, 1991,
has not been accomplished: Prior to the accumulation of 600 flight
hours, or within 60 days since accomplishment of the last visual
inspection in accordance with AD 91-24-09, whichever occurs first.
(b) CONDITION 1. If no discrepancy is detected during any visual
inspection required by paragraph (a) of this AD, accomplish either
paragraph (b)(1) or (b)(2) of this AD.
(1) OPTION 1. Repeat the visual inspection required by paragraph
(a) of this AD thereafter at intervals not to exceed 600 flight
hours or 60 days, whichever occurs later. Or
(2) OPTION 2. Prior to further flight, install a temporary
phenolic support block assembly, shim, clamp, and bracket between
the tail tank fuel pipe and station Y=2033.750 bulkhead, in
accordance with Condition 1, Option 2, of McDonnell Douglas Alert
Service Bulletin MD11-28A082, dated May 14, 1996. Within 6 months
after accomplishment of this installation, perform a one-time
inspection to verify the correct position of the temporary support
block assembly installation in accordance with Figure 2 (Sheet 2 of
3) of the alert service bulletin.
(i) If the assembly is found to be positioned properly, repeat
the verification of the correct position of the fuel pipe flange, as
specified in paragraph (a) of this AD, thereafter at intervals not
to exceed 15 months.
(ii) If the assembly is found to be improperly positioned, prior
to further flight, reposition the fuel pipe in accordance with
Figure 2 (Sheet 2 of 3) of the alert service bulletin. Repeat the
verification of the correct position of the fuel pipe flange, as
specified in paragraph (a) of this AD, thereafter at intervals not
to exceed 15 months.
(c) CONDITION 2. If any discrepancy is detected, and the fuel
pipe is found to be improperly positioned, but the O-ring is not
exposed, during any visual inspection required by paragraph (a) of
this AD, prior to further flight, accomplish either paragraph (c)(1)
or (c)(2) of this AD.
(1) OPTION 1. Repeat the visual inspection in paragraph (a) of
this AD thereafter at intervals not to exceed 600 flight hours or 60
days, whichever occurs later. Or
(2) OPTION 2. Prior to further flight, install a temporary
phenolic support block assembly, shim, clamp, and bracket between
the tail tank fuel pipe and station Y=2033.750 bulkhead; and
reposition the fuel pipe assembly, as applicable; in accordance with
Condition 2, Option 2, of McDonnell Douglas Alert Service Bulletin
MD11-28A082, dated May 14, 1996. Within 6 months after
accomplishment of this installation, perform a one-time inspection
to verify the correct position of the temporary support block
assembly installation in accordance with Figure 2 (Sheet 2 of 3) of
the alert service bulletin.
(i) If the assembly is found to be positioned properly, repeat
the verification of the correct position of the fuel pipe flange, as
specified in paragraph (a) of this AD, thereafter at intervals not
to exceed 15 months.
(ii) If the assembly is found to be improperly positioned, prior
to further flight, reposition the fuel pipe in accordance with
Figure 2 (Sheet 2 of 3) of the alert service bulletin. Repeat the
verification of the correct position of the fuel pipe flange, as
specified in paragraph (a) of this AD, thereafter at intervals not
to exceed 15 months.
(d) CONDITION 3. If any discrepancy is detected, and the fuel
pipe is found to be improperly positioned, and the O-ring is
exposed, during any visual inspection required by paragraph (a) of
this AD, prior to further flight, replace the O-ring with a new O-
ring, and install a temporary phenolic support block assembly, shim,
clamp, and bracket between the tail tank fuel pipe and station
Y=2033.750 bulkhead, in accordance with McDonnell Douglas Alert
Service Bulletin MD11-28A082, dated May 14, 1996. Within 6 months
after accomplishment of the replacement and installation, perform a
one-time inspection to verify the correct position of the temporary
support block assembly installation in accordance with Figure 2
(Sheet 2 of 3) of the alert service bulletin.
(1) If the assembly is found to be positioned properly, repeat
the verification of the correct position of the fuel pipe flange, as
specified in paragraph (a) of this AD, thereafter at intervals not
to exceed 15 months.
(2) If the assembly is found to be improperly positioned, prior
to further flight, reposition the fuel pipe in accordance with
Figure 2 (Sheet 2 of 3) of the alert service bulletin. Repeat the
verification of the correct position of the fuel pipe flange, as
specified in paragraph (a) of this AD, thereafter at intervals not
to exceed 15 months.
(e) An alternative method of compliance or adjustment of the
compliance time that provides an acceptable level of safety may be
used if approved by the Manager, Los Angeles Aircraft Certification
Office (ACO), FAA, Transport Airplane Directorate. Operators shall
submit their requests through an appropriate FAA Principal
Maintenance Inspector, who may add comments and then send it to the
Manager, Los Angeles ACO.
Note 2: Information concerning the existence of approved
alternative methods of compliance with this AD, if any, may be
obtained from the Los Angeles ACO.
(f) Special flight permits may be issued in accordance with
sections 21.197 and 21.199 of the Federal Aviation Regulations (14
CFR 21.197 and 21.199) to operate the airplane to a location where
the requirements of this AD can be accomplished.
(g) The actions shall be done in accordance with McDonnell
Douglas Alert Service
[[Page 35949]]
Bulletin MD11-28A082, dated May 14, 1996. This incorporation by
reference was approved by the Director of the Federal Register in
accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies may be
obtained from McDonnell Douglas Corporation, 3855 Lakewood
Boulevard, Long Beach, California 90846, Attention: Technical
Publications Business Administration, Department C1-L51 (2-60).
Copies may be inspected at the FAA, Transport Airplane Directorate,
1601 Lind Avenue, SW., Renton, Washington; or at the FAA, Los
Angeles Aircraft Certification Office, Transport Airplane
Directorate, 3960 Paramount Boulevard, Lakewood, California; or at
the Office of the Federal Register, 800 North Capitol Street, NW.,
suite 700, Washington, DC.
(h) This amendment becomes effective on July 24, 1996.
Issued in Renton, Washington, on July 1, 1996.
S.R. Miller,
Acting Manager, Transport Airplane Directorate, Aircraft Certification
Service.
[FR Doc. 96-17217 Filed 7-8-96; 8:45 am]
BILLING CODE 4910-13-P
Complete official Federal Register PDF
FR Doc. 96-17177 Office of the Assistant Secretary for Public and Indian Housing; Public/Private Partnerships for the Mixed-Finance Development of Public Housing Units Extension of Public Comment Deadline on Interim Rule
[Federal Register Volume 61, Number 132 (Tuesday, July 9, 1996)]
[Rules and Regulations]
[Page 35958]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-17177]
=======================================================================
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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
24 CFR Part 941
[Docket No. FR-3919-N-04]
Office of the Assistant Secretary for Public and Indian Housing;
Public/Private Partnerships for the Mixed-Finance Development of Public
Housing Units Extension of Public Comment Deadline on Interim Rule
AGENCY: Office of the Assistant Secretary for Public and Indian
Housing, HUD.
ACTION: Notice of Extension of Public Comment Deadline on Interim Rule.
-----------------------------------------------------------------------
SUMMARY: On May 2, 1996, HUD published an interim rule that added a new
subpart F to the public housing development program at 24 CFR part 941.
Under this new subpart, a public housing authority (PHA) was authorized
to provide to a non-PHA entity public housing development and operating
funds for the development and operation of the resulting public housing
units. In addition, the rule clarified that replacement public housing
units for public housing units that have been demolished could be built
on the original public housing site, or in the same neighborhood, if
the number of such replacement units was significantly fewer than the
number of units demolished. The May 2, 1996 interim rule provided for
the public comment period to expire on July 1, 1996. This notice
extends the public comment period to September 15, 1996.
DATES: Comment Due Date: September 15, 1996.
ADDRESSES: Interested persons are invited to submit comments on 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. A copy of each communication
submitted will be available for public inspection and copying during
regular business hours at the above address.
FOR FURTHER INFORMATION CONTACT: Bill Flood, Office of Capital
Improvements, Office of Public and Indian Housing, U.S. Department of
Housing and Urban Development, 451 Seventh Street, SW., Room 4134,
Washington, DC 20410-0500, telephone (202) 708-1640, ext. 4185; (TTY):
(202) 708-9300 or 1-800-877-8339. (Except for the ``800'' telephone
number, these are not toll-free numbers.)
SUPPLEMENTARY INFORMATION: On May 2, 1996, HUD published an interim
rule (61 FR 19708) that added a new subpart F to the public housing
development program at 24 CFR part 941. Under this interim rule, a PHA
is authorized to provide a portion of its HUD-awarded development and
operating funds to a non-PHA entity for the entity to own, develop and
operate the resulting public housing units. The non-PHA entity may
develop and operate the public housing units using public and private
financing (i.e., as a ``mixed-finance'' project), and to develop solely
public housing units or a combination of public housing, shallow
subsidy, and market rate units.
In addition, the May 2, 1996 interim rule added a new paragraph
(c)(3) to HUD's existing site and neighborhood standards at
Sec. 941.202. This purpose of this provision was to clarify HUD's
existing authority to approve the building of replacement public
housing units for public housing units that have been demolished on
either the original public housing site, or in the same neighborhood,
if the number of such replacement public housing units is significantly
fewer than the number of public housing units demolished. This
authority was affirmed by the passage of section 1002(a)(9) of Pub. L.
104-19 (approved July 27, 1995) which explicitly authorized HUD to
approve the building of replacement public housing units under such
circumstances.
Extension of Public Comment Period
The May 2, 1996 interim rule provided for a 60-day public comment
period which is scheduled to close on July 1, 1996. Because of the
significant public interest in this rule, HUD is extending the public
comment period to September 15, 1996.
Dated: June 28, 1996.
Michael B. Janis,
General Deputy, Assistant Secretary for Public and Indian Housing.
[FR Doc. 96-17177 Filed 7-8-96; 8:45 am]
BILLING CODE 4210-33-M
Complete official Federal Register PDF
FR Doc. 96-17169 Animal Drugs, Feeds, and Related Products; Chlortetracycline
[Federal Register Volume 61, Number 132 (Tuesday, July 9, 1996)]
[Rules and Regulations]
[Pages 35949-35958]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-17169]
=======================================================================
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Food and Drug Administration
21 CFR Parts 510 and 558
Animal Drugs, Feeds, and Related Products; Chlortetracycline
AGENCY: Food and Drug Administration, HHS.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Food and Drug Administration (FDA) is amending the animal
drug regulations to reflect approval of five supplemental new animal
drug applications (NADA's) filed by Hoffmann-LaRoche, Inc., Pfizer,
Inc., ALPHARMA, Inc., ADM Animal Health & Nutrition Div., and PennField
Oil Co. The supplemental NADA's provide for the safe and effective use
of Type A medicated articles containing chlortetracycline (CTC) in the
feed of chickens, turkeys, swine, sheep, and calves, beef and
nonlactating dairy cattle for improved production efficiency and for
control and treatment of certain bacterial diseases susceptible to CTC.
The approvals reflect compliance with results of the National Academy
of Sciences/National Research Council (NAS/NRC), Drug Efficacy Study
Group's (DESI) evaluation of the drug's effectiveness, and FDA's
conclusions concerning that evaluation.
EFFECTIVE DATE: July 9, 1996.
FOR FURTHER INFORMATION CONTACT: Dianne T. McRae, Center for Veterinary
Medicine (HFV-102), Food and Drug Administration, 7500 Standish Pl.,
Rockville, MD 20855, 301-594-1623.
SUPPLEMENTARY INFORMATION: The following sponsors have submitted
supplements to their approved NADA's:
Hoffmann-LaRoche, Inc., Nutley, NJ 07110 (formerly held by
American Cyanamid Co.), to NADA 48-761, which covers the Type A
medicated articles: Aureomix 293 (50 grams of
chlortetracycline hydrochloride per pound (g CTC HCl/lb)) and
Aureomycin 50, 70, 80, 90, and 100 (contain CTC calcium
complex equivalent to the indicated g/lb concentrations of CTC HCl);
Pfizer, Inc., 235 East 42d St., New York, NY 10017, to
NADA 92-286, which covers the Type A medicated articles CLTC
10, 20, 30, 50, and 70 (contain CTC calcium complex equivalent to the
indicated g/lb concentrations of CTC HCl) and to NADA 92-287, which
covers the Type A medicated articles CLTC 50 MR and 100 MR
(contain CTC calcium complex equivalent to the indicated g/lb
concentrations of CTC HCl);
ALPHARMA, Inc. (formerly A. L. Laboratories), One
Executive Dr., P.O. Box 1399, Fort Lee, NJ 07024, to NADA 46-699, which
covers the Type A medicated articles: CTC 100 MR (100 g CTC HCl/lb) and
CTC 10, CTC 50, CTC 65, CTC 70, and Micro CTC 100 (contains CTC calcium
complex equivalent to the indicated g/lb concentrations of CTC HCl);
ADM Animal Health & Nutrition Div., P.O. Box 2508, Fort
Wayne, IN 46801-2508 (formerly Feed Specialties Co., Inc.), to NADA 48-
480, which covers the Type A medicated article ChloratetTM 50
(contains CTC calcium complex equivalent to 50 g CTC HCI/lb); and
PennField Oil Co., 14040 Industrial Rd., Omaha, NE 68137,
to NADA 138-935, which covers the Type A medicated articles:
Chlortetracycline Premixes 50, 60, 70, 80, 100 (all contain CTC calcium
complex equivalent to the indicated g/lb concentrations of CTC HCl),
and 100 MR (100 g CTC HCl/lb).
The drug products were the subject of a NAS/NRC DESI evaluation of
effectiveness (DESI 0113NV). The findings were published in the Federal
Register of July 21, 1970 (35 FR 11646). NAS/NRC evaluated the drug
products as probably effective for growth promotion and feed efficiency
and for the treatment of animal diseases caused by pathogens sensitive
to chlortetracycline. NAS/NRC stated that:
(1) Claims made regarding ``for prevention of'' or ``to
prevent'' should be replaced with ``as an aid in the control of'' or
``to aid in the control of'''; (2) claims for growth promotion or
stimulation are disallowed and claims for faster gains and/or feed
efficiency should be stated as ``may result in faster gains and/or
improved feed efficiency under appropriate conditions''; (3) each
disease claim should be properly qualified as ``appropriate for use
in (name of disease) caused by pathogens sensitive to (name of
drug)''; if the disease cannot be so qualified the claim must be
dropped; (4) claims pertaining to egg production and hatchability
should be changed to ``May aid in maintaining egg production and
hatchability, under appropriate conditions, by controlling
pathogenic microorganisms''; (5) the labels should warn that treated
animals must actually be consuming enough medicated water or
medicated feed to provide a therapeutic dosage under the conditions
that prevail and, as a precaution, state the desired oral dose per
unit of animal weight per day for each species as a guide to
effective usage of the preparation in drinking water or feed; and
(6) effective blood levels are required for each recommended dosage.
FDA concurred with the NAS/NRC findings, interpreting the phrase
``* * * cannot be so qualified * * *'' in above item (3) to mean ``* *
* is not supported by adequate data * * *'' FDA reviewed all available
effectiveness data of products subject to the evaluation and concluded
that the data supported effectiveness for the control and treatment of
certain bacterial diseases susceptible to CTC in chickens, turkeys,
swine, sheep, calves, and cattle.
The NAS/NRC DESI evaluation is concerned only with the drugs'
effectiveness and safety to the treated animal. It does not take into
account the safety for food use of food derived from drug-treated
animals. Nothing herein will constitute a bar to further proceedings
with respect to questions of safety of the drugs or their metabolites
in food products derived from treated animals.
The five subject sponsors filed supplements that revised the
labeling of their products to comply with the findings of the NAS/NRC
review and FDA's conclusions concerning those findings. The
supplemental NADA's were approved as of February 16, 1996. The
revisions to Sec. 558.128 (21 CFR 558.128) list the NAS/NRC and FDA-
approved conditions of use for CTC-containing Type A medicated
articles.
Products which comply with the NAS/NRC findings and FDA's
conclusions regarding those findings are eligible for copying under the
Generic Animal Drug and Patent Term Restoration Act (GADPTRA) (see the
eighth in a series of policy letters issued to facilitate
implementation of GADPTRA that published in the Federal Register of
August 21, 1991 (56 FR 41561). Accordingly, sponsors may now
[[Page 35950]]
obtain approval of abbreviated new animal drug applications (ANADA's)
for these CTC Type A medicated articles.
FDA has incorporated within Sec. 558.128 a warning against use of
CTC feed in veal calves as part of a general effort to distinguish
between ruminating calves and preruminating calves based on information
indicating that withdrawal periods established in ruminating calves may
not be adequate for preruminating calves.
Also, the agency has removed in Sec. 558.128 the use of the fixed
combination for chlortetracycline and sulfamethazine to treat beef
cattle. FDA has recodified this approval in a separate section
(Sec. 558.140 (21 CFR 558.140)), as has been done for other fixed
combinations. In addition, the agency is using this occasion, of the
DESI finalization of the CTC Type A medicated articles, to amend those
portions of the regulations containing CTC combination feeds (see list
in Sec. 558.128(c)(5)) to revise the CTC claim language to make it
consistent with the NAS/NRC and FDA-approved conditions of use.
Furthermore, the agency is deleting the citations for CTC in
Sec. 510.515 (21 CFR 510.515). Section 510.515 defines antibiotic drugs
permitted in feed that were exempt from the requirement of
certification. GADPTRA (Pub. L. 100-670) signed on November 16, 1988,
removed the requirement for certification of antibiotic drugs for
animal use. In fact, in a final rule published in the Federal Register
of May 26, 1989 (54 FR 22741), the agency revoked the antibiotic
procedural regulations. The published exemption constituted a sanction
by the agency for use of the listed antibiotics. With the finalization
of the DESI evaluation of the CTC products, the sanction is obsolete.
Also, by deleting the CTC listing from Sec. 510.515, the agency is
correcting an error introduced when the regulation was published. Our
records indicate that concurrent cites to oxytetracycline in
Sec. 510.515(b)(7)(i) and (b)(17)(i) were incorrect, as oxytetracycline
was not considered a certifiable antibiotic animal drug; therefore, it
was incorrectly listed in Sec. 510.515.
In the Federal Register of October 21, 1977 (42 FR 56264), the then
Bureau of Veterinary Medicine issued a notice of opportunity for a
hearing (NOOH) on a proposal to withdraw approval of certain NADA's
listed in Sec. 558.15, for most subtherapeutic uses of tetracycline
(CTC and oxytetracycline) in animal feed. The NOOH was issued in
response to scientific research suggesting that subtherapeutic use of
such drugs has contributed to the pool of antibiotic-resistant
pathogenic microorganisms in food animals. Furthermore, research
indicated that the drug resistance could be transferred to pathogenic
organisms in humans. The NOOH is still pending and approval of these
supplements to finalize the DESI review process for CTC Type A
medicated articles does not constitute a bar to subsequent action to
withdraw approval on the grounds cited in the outstanding NOOH.
In accordance with the freedom of information provisions of part 20
(21 CFR part 20) and Sec. 514.11(e)(2)(ii) (21 CFR 514.11(e)(2)(ii)), a
summary of safety and effectiveness data and information submitted to
support approval of this application may be seen in the Dockets
Management Branch (HFA-305), Food and Drug Administration, 12420
Parklawn Dr., rm. 1-23, Rockville, MD 20857, between 9 a.m. and 4 p.m.,
Monday through Friday.
Under section 512(c)(2)(F)(iii) of the Federal Food, Drug, and
Cosmetic Act (21 U.S.C. 360b(c)(2)(F)(iii)), these approvals for food-
producing animals do not qualify for marketing exclusivity because the
supplemental applications do not contain reports of new clinical or
field investigations (other than bioequivalence or residue studies) and
new human food safety studies (other than bioequivalence or residue
studies) essential to the approvals and conducted or sponsored by the
applicant.
The agency has carefully considered the potential environmental
effects of this action. FDA has concluded that the action will not have
a significant impact on the human environment, and that an
environmental impact statement is not required. The agency's finding of
no significant impact and the evidence supporting that finding,
contained in an environmental assessment, may be seen in the Dockets
Management Branch (address above) between 9 a.m. and 4 p.m., Monday
through Friday.
List of Subjects -
21 CFR Part 510
Administrative practice and procedure, Animal drugs, Labeling,
Reporting and recordkeeping requirements.
21 CFR Part 558
Animal drugs, Animal feeds.
Therefore, under the Federal Food, Drug, and Cosmetic Act and under
authority delegated to the Commissioner of Food and Drugs and
redelegated to the Center for Veterinary Medicine, 21 CFR parts 510 and
558 are amended as follows:
PART 510--NEW ANIMAL DRUGS
1. The authority citation for 21 CFR part 510 continues to read as
follows:
-Authority: Secs. 201, 301, 501, 502, 503, 512, 701, 721 of the
Federal Food, Drug, and Cosmetic Act (21 U.S.C. 321, 331, 351, 352,
353, 360b, 371, 379e).
Sec. 510.515 [Amended]
2. Section 510.515 Animal feeds bearing or containing new animal
drugs subject to the provision of section 512(n) of the act is amended
in paragraph (b) by removing and reserving paragraphs (b)(7), (b)(17),
(b)(25), and (b)(29); by redesignating paragraphs (b)(10) and (b)(13)
as paragraphs (b)(1) and (b)(2); and in the table in paragraph (c) by
removing entries 6, 7, and 8 for ``Chlortetracycline.''
PART 558--NEW ANIMAL DRUGS FOR USE IN ANIMAL FEEDS
3. The authority citation for 21 CFR part 558 continues to read as
follows:
Authority: Secs. 512, 701 of the Federal Food, Drug, and
Cosmetic Act (21 U.S.C. 360b, 371).
4. Section 558.55 is amended in the table in paragraph (d)(2) under
entries (i), (ii), and (iv) by revising the items for
``Chlortetracycline 100 to 200'' and by adding new items for
``Chlortetracycline 200 to 400'' to read as follows:
Sec. 558.55 Amprolium.
* * * * *
(d) * * *
(2) * * *
[[Page 35951]]
------------------------------------------------------------------------
Amprolium in Combination in Indications
grams per ton grams per ton for use Limitations Sponsor
------------------------------------------------------------------------
(i) * * *
* * * *
* * *
Chlortetracycli Chickens; Do not feed
ne 100 to 200. development to chickens
of active producing
immunity to eggs for
coccidiosis; human
control of consumption.
infectious Feed for 7
synovitis to 14 d.
caused by
Mycoplasma
synoviae
susceptible
to
chlortetracy
cline.
Chlortetracycli Chickens; Do not feed
ne 200 to 400. development to chickens
of active producing
immunity to eggs for
coccidiosis; human
control of consumption.
chronic Feed for 7
respiratory to 14 d.
disease
(CRD) and
air sac
infection
caused by M.
gallisepticu
m and E.
coli
susceptible
to
chlortetracy
cline.
* * * *
* * *
(ii) * * *
* * * *
* * *
Chlortetracycli Chickens; Do not feed
ne 100 to 200. prevention to chickens
of producing
coccidiosis eggs for
caused by E. human
tenella consumption.
only; Feed for 7
control of to 14 d.
infectious
synovitis
caused by M.
synoviae
susceptible
to
chlortetracy
cline.
Chlortetracycli Chickens; Do not feed
ne 200 to 400. prevention to chickens
of producing
coccidiosis eggs for
caused by E. human
tenella consumption.
only; Feed for 7
control of to 14 d.
chronic
respiratory
disease
(CRD) and
air sac
infection
caused by M.
gallisepticu
m and E.
coli
susceptible
to
chlortetracy
cline.
* * * *
* * *
(iv) * * *
* * * *
* * *
Chlortetracycli Chickens Do not feed
ne 100 to 200. where to chickens
immunity to producing
coccidiosis eggs for
is not human
desired; consumption.
prevention Feed for 7
of to 14 d.
coccidiosis;
control of
infectious
synovitis
caused by M.
synoviae
susceptible
to
chlortetracy
cline.
Chlortetracycli Chickens Do not feed
ne 200 to 400. where to chickens
immunity to producing
coccidiosis eggs for
is not human
desired; consumption.
control of Feed for 7
chronic to 14 d.
respiratory
disease
(CRD) and
air sac
infection
caused by M.
gallisepticu
m and E.
coli
susceptible
to
chlortetracy
cline.
* * * *
* * *
------------------------------------------------------------------------
* * * * *
5. Section 558.58 is amended in the table in paragraph (d)(1) by
revising entry (iv) for the items ``Chlortetracycline 100 to 200'' and
``Chlortetracycline 200'' to read as follows:
Sec. 558.58 Amprolium and ethopabate.
* * * * *
(d) * * *
(1) * * *
[[Page 35952]]
------------------------------------------------------------------------
Amprolium and
ethopabate in Combination in Indications Limitations Sponsor
grams per ton grams per ton for use
------------------------------------------------------------------------
* * * *
* * *
(iv) * * *
* * * *
* * *
Chlortetracycl For chickens Do not feed
ine 100 to where to chickens
200. immunity to producing
coccidiosis eggs for
is not human
desired; consumption
prevention . Feed for
of 7 to 14 d.
coccidiosis
; control
of
infectious
synovitis
caused by
Mycoplasma
synoviae
susceptible
to
chlortetrac
ycline.
Chlortetracycl For chickens In low
ine 200 to where calcium
400. immunity to feed
coccidiosis containing
is not 0.8%
desired; dietary
prevention calcium and
of 1.5% sodium
coccidiosis sulfate;
; control feed
of chronic continuousl
respiratory y as sole
disease ration for
(CRD) and 7 to 14 d;
air sac do not feed
infection to chickens
caused by producing
M. eggs for
galliseptic human
um and E. consumption
coli .
susceptible
to
chlortetrac
ycline.
* * * *
* * *
------------------------------------------------------------------------
6. Section 558.128 is amended by revising paragraphs (a), (b), and
(c)(1); by removing paragraphs (c)(2) and (c)(3); and by redesignating
paragraphs (c)(4) and (c)(5) as paragraphs (c)(2) and (c)(3), to read
as follows:
Sec. 558.128 Chlortetracycline.
(a) Approvals. Type A medicated articles containing the following
concentrations of either chlortetracycline calcium complex equivalent
to chlortetracycline hydrochloride or, for products intended for use in
milk replacer, chlortetracycline hydrochloride:
(1) 50 to 100 grams per pound to 000004 in Sec. 510.600(c) of this
chapter.
(2) 50 to 100 grams per pound to 000069.
(3) 50 to 100 grams per pound to 046573.
(4) 50 grams per pound to 012286.
(5) 50 to 100 grams per pound to 053389 .
(b) Related tolerances. See Sec. 556.150 of this chapter.
(c)(1) It is used in feeds as follows:
----------------------------------------------------------------------------------------------------------------
Chlortetracycline amount Combination Indications for use Limitations Sponsor
----------------------------------------------------------------------------------------------------------------
(i) 10 to 50 g/ton 1. Chickens; increased Do not feed to 000004,
rate of weight gain chickens producing 000069,
and improved feed eggs for human 012286,
efficiency. consumption. 046573,
053389
2. Growing turkeys; Do not feed to turkeys do
increased rate of producing eggs for
weight gain and human consumption.
improved feed
efficiency.
3. Growing swine; do
increased rate of
weight gain and
improved feed
efficiency.
(ii) 20 to 50 g/ton Growing sheep; 000004,
increased rate of 000069,
weight gain and 046573,
improved feed 053389.
efficiency.
(iii) 50 to 100 g/ton Swine; reducing the 000004,
incidence of cervical 000069,
lymphadenitis (jowl 012286,
abscesses) caused by 046573,
Group E. Streptococci 053389
susceptible to
chlortetracycline.
(iv) 100 to 200 g/ton Chickens; control of Feed continuously for do
infectious synovitis 7 to 14 d; do not
caused by Mycoplasma feed to chickens
synoviae susceptible producing eggs for
to chlortetracycline. human consumption.
[[Page 35953]]
(v) 200 g/ton Turkeys; control of Feed continuously for do
infectious synovitis 7 to 14 d; do not
caused by M. synoviae feed to turkeys
susceptible to producing eggs for
chlortetracycline. human consumption.
(vi) 200 to 400 g/ton 1. Chickens; control of Feed continuously for do
chronic respiratory 7 to 14 d; do not
disease (CRD) and air feed to chickens
sac infection caused producing eggs for
by M. gallisepticum human consumption.
and E. coli
susceptible to
chlortetracycline.
2. Ducks; control and Feed in complete 000004
treatment of fowl ration to provide
cholera caused by from 8 to 28
Pasteurella multocida milligrams per pound
susceptible to of body weight per
chlortetracycline. day depending upon
age and severity of
disease, for not more
than 21 d.
(vii) 400 g/ton 1. Turkeys; control of Feed continuously for 000004,
hexamitiasis caused by 7 to 14 d; do not 000069,
Hexamita meleagrides feed to turkeys 012286,
susceptible to producing eggs for 046573,
chlortetracycline. human consumption. 053389
2. Turkey poults not do
over 4 weeks of age;
reduction of mortality
due to paratyphoid
caused by Salmonella
typhimurium
susceptible to
chlortetracycline.
3. Breeding swine; Feed continuously for do
control of not more than 14 d.
leptospirosis
(reducing the
incidence of abortion
and shedding of
leptospirae) caused by
Leptospira pomona
susceptible to
chlortetracycline.
(viii) 500 g/ton Chickens; reduction of Feed for 5 d; do not do
mortality due to E. feed to chickens
coli infections producing eggs for
susceptible to human consumption;
chlortetracycline. withdraw 24 h prior
to slaughter.
(ix)10 mg/g of finished Psittacine birds Feed continuously for 00004
feed daily. (cockatoos, macaws, 45 d; each bird
and parrots) suspected should consume daily
or known to be an amount of
infected with medicated feed equal
psittacosis caused by to one fifth of its
Chlamydia psittaci body weight. Warning:
sensitive to ``Psittacosis, avian
chlortetracycline. chlamydiosis, or
ornithosis is a
reportable
communicable disease,
transmissible between
wild and domestic
birds, other animals,
and man. Contact
appropriate public
health and regulatory
officials.''
(x) 0.1 mg/lb of body Calves (up to 250 lb); In milk replacers or 000004,
weight daily. for increased rate of starter feed; include 000069,
weight gain and on labeling the 012286,
improved feed warning: ``A 046573,
efficiency. withdrawal period has 053389
not been established
for this product in
pre-ruminating
calves. Do not use in
calves to be
processed for veal.''
(xi) 0.5 mg/lb of body Beef cattle (over 700 Withdraw 48 h prior to do
weight daily. lb); control of active slaughter.
infection of
anaplasmosis caused by
Anaplasma marginale
susceptible to
chlortetracycline.
(xii) 10 mg/lb of body 1. Calves, beef and Treat for not more do
weight nonlactating dairy than 5 d; in feed
cattle; treatment of excluding milk
bacterial enteritis replacers; withdraw
caused by E. coli and 10 d prior to
bacterial pneumonia slaughter except for
caused by P. multocida 24 h for sponsor
organisms susceptible 046573; include on
to chlortetracycline. labeling the warning:
``A withdrawal period
has not been
established for this
product in pre-
ruminating calves. Do
not use in calves to
be processed for
veal.''
[[Page 35954]]
2. Calves (up to 250 In milk replacers or
lb); treatment of starter feed; include
bacterial enteritis on labeling the
caused by E. coli warning: ``A
susceptible to withdrawal period has
chlortetracycline. not been established
for this product in
pre-ruminating
calves. Do not use in
calves to be
processed for veal.''
3. Swine; treatment of Feed for not more than 000004,
bacterial enteritis 14 d; withdraw 5 d 000069,
caused by E. coli and prior to slaughter 012286,
S. choleraesuis and for sponsor 012286. 046573,
bacterial pneumonia 053389
caused by P. multocida
susceptible to
chlortetracycline.
(xiii) 25 mg/lb of body Turkeys; control of Feed continuously for do
weight complicating bacterial 7 to 14 d; do not
organisms associated feed to turkeys
with bluecomb producing eggs for
(transmissible human consumption.
enteritis; coronaviral
enteritis) susceptible
to chlortetracycline.
(xiv) 25 to 70 mg/head/day Calves (250 to 400 lb); Include on labeling 000004,
increased rate of the warning: ``A 000069,
weight gain and withdrawal period has 012286,
improved feed not been established 046573,
efficiency. for this product in 053389
pre-ruminating
calves. Do not use in
calves to be
processed for veal.''
(xv) 70 mg/head/day Growing cattle (over do do
400 lb) increased rate
of weight gain,
improved feed
efficiency, and
reduction of liver
condemnation due to
liver abscesses.
(xvi) 80 mg/head/day Breeding sheep; 000004,
reducing the incidence 000069,
of (vibrionic) 046573,
abortion caused by 053389
Campylobacter fetus
infection susceptible
to chlortetracycline.
(xvii) 350 mg/head/day 1. Cattle (under 700 Withdraw 48 h prior to 000004,
lb); control of slaughter. 000069,
bacterial pneumonia 012286,
associated with 046573,
shipping fever complex 053389
caused by Pasteurella
spp. susceptible to
chlortetracycline.
2. Beef cattle (under do do
700 lb); control of
active infection of
anaplasmosis caused by
A. marginale
susceptible to
chlortetracycline.
----------------------------------------------------------------------------------------------------------------
* * * * *
7. New Sec. 558.140 is added to subpart B to read as follows:
Sec. 558.140 Chlortetracycline and sulfamethazine.
(a) Approvals. Type A medicated articles: 35 grams of
chlortetracycline per pound with 7.7 percent (35 grams) of
sulfamethazine to 000004 in Sec. 510.600(c) of this chapter.
(b) Related tolerances. See Secs. 556.150 and 556.670 of this
chapter.
(c) It is used in feed for beef cattle as follows:
(1) Amount per head per day. Chlortetracycline, 350 milligrams plus
sulfamethazine, 350 milligrams.
(2) Indications for use. Aid in the maintenance of weight gains in
the presence of respiratory disease such as shipping fever.
(3) Limitations. Feed for 28 days; withdraw 7 days prior to
slaughter.
8. Section 558.175 is amended by revising paragraph (c)(2)(ii) to
read as follows:
Sec. 558.175 Clopidol.
* * * * *
(c) * * *
(2) * * *
(ii) Amount per ton. Clopidol, 113.5 grams (0.0125 percent) plus
chlortetracycline 100 to 200 grams.
(a) Indications for use. Aid in the prevention of coccidiosis
caused by E. tenella, E. necatrix, E. acervulina, E. maxima, E.
brunetti, and E. mivati; control of infectious synovitis caused by
Mycoplasma synoviae susceptible to chlortetracycline.
(b) Limitations. Feed continuously as sole ration from the time
chicks are placed in floor pens for 7 to 14 days.
* * * * *
9. Section 558.195 is amended in the table in paragraph (d) in the
entry for ``27.2 (0.003pct)'' by removing the item for
``Chlortetracycline 200'' and adding in its place an item for
``Chlortetracycline 100 to 200'' and an item for ``Chlortetracycline
200 and 400'' to read as follow:
Sec. 558.195 Decoquinate.
* * * * *
(d) * * *
[[Page 35955]]
------------------------------------------------------------------------
Combination
Decoquinate in in grams per Indications Limitations Sponsor
grams per ton ton for use
------------------------------------------------------------------------
27.2
(0.003pct)
* * * *
* * *
Chlortetracyc Chickens; for Do not feed 011526
line 100 to the to chickens
200. prevention producing
of eggs for
coccidiosis human
caused by consumption;
Eimeria in low
tenella, E. calcium feed
necatrix, E. containing
mivati, E. 0.8 pct. of
acervulina, calcium;
E. maxima, feed
and E. continuously
brunetti; 7 to 14
control of days.
infectious
synovitis
caused by
Mycoplasma
synoviae
susceptible
to
chlortetracy
cline.
Chlortetracyc Chickens; for do 011526
line 200 to the
400. prevention
of
coccidiosis
caused by E.
tenella, E.
necatrix, E.
mivati , E.
acervulina,
E. maxima,
and E.
brunetti;
control of
chronic
respiratory
disease
(CRD) and
air sac
infection
caused by M.
gallisepticu
m and E.
coli
susceptible
to
chlortetracy
cline.
* * * *
* * *
------------------------------------------------------------------------
10. Section 558.274 is amended in the table in paragraph (c)(1)
under entry (i) by revising the item for ``Chlortetracycline 100 to
200'' and by adding a new item for ``Chlortetracycline 200 to 400'';
and under entry (ii) by removing the item for ``Chlortetracycline 100
to 200'' and adding in its place an item for ``Chlortetracycline 400''
to read as follows:
Sec. 558.274 Hygromycin B.
* * * * *
(c) * * *
(1) * * *
------------------------------------------------------------------------
Hygromycin B Combination
in grams per in grams per Indications Limitations Sponsor
ton ton for use
------------------------------------------------------------------------
(i) * * *
* * * *
* * *
Chlortetracyc Chickens; Do not feed
line 100 to control of to chickens
200. infestation producing
of large eggs for
roundworms human
(Ascaris consumption;
galli), feed for 7
cecal worms to 14 days;
(Heterakis withdraw 3
gallinae), days before
and slaughter.
capillary
worms
(Capillaria
obsignata);
control of
infectious
synovitis
caused by
Mycoplasma
synoviae
susceptible
to
chlortetracy
cline.
Chlortetracyc Chickens; do
line 200 to control of
400. infestation
of large
roundworms
(Ascaris
galli),
cecal worms
(H.
Gallinae),
and
capillary
worms
(Capillaria
obsignata);
control of
chronic
respiratory
disease
(CRD) and
air sac
infection
caused by
Mycoplasma
gallisepticu
m and
Escherichia
coli
susceptible
to
chlortetracy
cline.
* * * *
* * *
(ii) * * *
[[Page 35956]]
* * * *
* * *
Chlortetracyc Swine; Withdraw 15 d
line 400. control of before
infestation slaughter.
of large
roundworms
(Ascaris
suis),
nodular
worms
(Oesophagost
omum
dentatum)
and
whipworms
(Trichuris
suis);
treatment of
bacterial
enteritis
caused by E.
coli and
Salmonella
choleraesuis
and
bacterial
pneumonia
caused by P.
multocida
susceptible
to
chlortetracy
cline.
* * * *
* * *
------------------------------------------------------------------------
* * * * *
11. Section 558.515 is amended by revising paragraphs (d)(1)(iii),
(d)(1)(iv), and (d)(1)(v)(b) to read as follows:
Sec. 558.515 Robenidine hydrochloride.
* * * * *
(d) * * *
(1) * * *
(iii) Amount per ton. Robenidine hydrochloride, 30 grams (0.0033
percent) plus chlortetracycline, 100 to 200 grams.
(a) Indications for use. As an aid in the prevention of coccidiosis
caused by E. mivati, E. brunetti, E. tenella, E. acervulina, E. maxima,
and E. necatrix; control of infectious synovitis caused by Mycoplasma
synoviae susceptible to chlortetracycline.
(b) Limitations. Withdraw 5 days prior to slaughter; do not feed to
chickens producing eggs for human consumption; feed continuously as
sole ration up to 14 days.
(iv) Amount per ton. Robenidine hydrochloride, 30 grams (0.0033
percent) plus chlortetracycline, 200 to 400 grams.
(a) Indications for use. As an aid in the prevention of coccidiosis
caused by E. mivati, E. brunetti, E. tenella, E. acervulina, E. maxima,
and E. necatrix; control of chronic respiratory disease (CRD) and air
sac infection caused by M. gallisepticum and E. coli susceptible to
chlortetracycline.
(b) Limitations. Withdraw 5 days prior to slaughter; do not feed to
chickens producing eggs for human consumption; feed continuously as
sole ration up to 14 days.
(v) * * *
(b) Limitations. Withdraw 5 days prior to slaughter; do not feed to
chickens producing eggs for human consumption; feed continuously up to
5 days.
* * * * *
12. Section 558.530 is amended by revising paragraph (a); by
redesignating paragraphs (d)(2), (d)(3), and (d)(4) as paragraphs
(d)(4), (d)(5), and (d)(6), by adding new paragraphs (d)(2) and (d)(3);
and by revising newly redesignated paragraph (d)(4) to read as set
forth below, and in newly redesignated paragraph (d)(6) by
redesignating paragraphs (d)(6)(i)(a) through (d) as paragraphs
(d)(6)(i)(A) through (D).:
Sec. 558.530 Roxarsone.
(a) Approvals. Type A medicated articles: (1) 10, 20, and 50
percent to 011526 in Sec. 510.600(c) of this chapter for use as in
paragraph (d)(1) of this section.
(2) 10, 20, 50, and 80 percent to 046573 in Sec. 510.600(c) of this
chapter for use as in paragraphs (d)(1), (d)(2), (d)(3), and (d)(4) of
this section.
* * * * *
(d) * * *
(2) Growing chickens--(i) Grams per ton. Roxarsone, 22.7 to 45.4
(0.0025 to 0.005 percent) plus chlortetracycline, 10 to 50.
(A) Indications for use. For increased rate of weight gain,
improved feed efficiency, and improved pigmentation.
(B) Limitations. Do not feed to chickens producing eggs for human
consumption; withdraw 5 days before slaughter; as sole source of
organic arsenic; drug overdose or lack of water may result in leg
weakness; feed continuously throughout growing period.
(ii) Grams per ton. Roxarsone 22.7 to 45.4 (0.0025 to 0.005
percent) plus chlortetracycline, 100 to 200.
(A) Indications for use. For increased rate of weight gain,
improved feed efficiency, and improved pigmentation; control of
infectious synovitis caused by Mycoplasma synoviae susceptible to
chlortetracycline.
(B) Limitations. See paragraph (d)(2)(i)(B) of this section except
feed continuously for 7 to 14 days.
(iii) Grams per ton. Roxarsone 22.7 to 45.4 (0.0025 to 0.005
percent) plus chlortetracycline, 200 to 400.
(A) Indications for use. For increased rate of weight gain,
improved feed efficiency, and improved pigmentation; control of chronic
respiratory disease (CRD) and air sac infection caused by M.
gallisepticum and Escherichia coli susceptible to chlortetracycline.
(B) Limitations. See paragraph (d)(2)(i)(B) of this section except
feed continuously for 7 to 14 days.
(iv) Grams per ton. Roxarsone 22.7 to 45.4 (0.0025 to 0.005
percent) plus chlortetracycline, 500.
(A) Indications for use. For increased rate of weight gain,
improved feed efficiency, and improved pigmentation; reduction of
mortality due to E. coli infections susceptible to chlortetracycline.
(B) Limitations. See paragraph (d)(2)(i)(B) of this section except
feed for 5 days.
(3) Growing turkeys--(i) Grams per ton. Roxarsone 22.7 to 45.4
(0.0025 to 0.005 percent) plus chlortetracycline, 10 to 50.
(A) Indications for use. For increased rate of weight gain,
improved feed efficiency, and improved pigmentation.
(B) Limitations. Do not feed to turkeys producing eggs for human
consumption; withdraw 5 days before slaughter; as sole source of
organic arsenic; drug overdose or lack of water may result in leg
weakness; feed continuously throughout growing season.
(ii) Grams per ton. Roxarsone 22.7 to 45.4 (0.0025 to 0.005
percent) plus chlortetracycline 200.
(A) Indications for use. For increased rate of weight gain,
improved feed efficiency, and improved pigmentation; control of
infectious synovitis caused by
[[Page 35957]]
M. synoviae susceptible to chlortetracycline.
(B) Limitations. See paragraph (d)(3)(i)(B) of this section except
that the drug should only be fed continuously for 7 to 14 days.
(iii) Grams per ton. Roxarsone 22.7 to 45.4 (0.0025 to 0.005
percent) plus chlortetracycline, 400.
(A) Indications for use. For increased rate of weight gain,
improved feed efficiency, and improved pigmentation; control of
hexamitiasis caused by Hexamita meleagrides susceptible to
chlortetracycline. Turkey poults not over 4 weeks of age: Reduction of
mortality due to paratyphoid caused by Salmonella typhimurium
susceptible to chlortetracycline.
(B) Limitations. See paragraph (d)(3)(i)(B) of this section except
that the drug should only be fed continuously for 7 to 14 days.
(iv) Amount. Roxarsone 22.7 to 45.4 grams per ton (0.0025 to 0.005
percent) plus chlortetracycline, 25 milligrams per pound of body weight
daily.
(A) Indications for use. For increased rate of weight gain,
improved feed efficiency, and improved pigmentation; control of
complicating bacterial organisms associated with bluecomb
(transmissible enteritis, coronaviral enteritis) susceptible to
chlortetracycline.
(B) Limitations. See paragraph (d)(3)(i)(B) of this section except
that the drug should only be fed continuously for 7 to 14 days.
(4) Growing-finishing swine--(i) Grams per ton. Roxarsone 22.7 to
34.1 (0.0025 to 0.00375 percent).
(A) Indications for use. For increased rate of weight gain and
improved feed efficiency.
(B) Limitations. Withdraw 5 days before slaughter; as sole source
of organic arsenic; feed continuously throughout growing season.
(ii) Grams per ton. Roxarsone 22.7 to 34.1 (0.0025 to 0.00375
percent) plus chlortetracycline, 400 (to administer 10 milligrams per
pound of body weight).
(A) Indications for use. For increased rate of weight gain and
improved feed efficiency; treatment of bacterial enteritis caused by E.
coli and S. choleraesuis and bacterial pneumonia caused by P. multocida
susceptible to chlortetracycline.
(B) Limitations. Withdraw 5 days before slaughter; as sole source
of organic arsenic; feed for not more than 14 days.
(iii) Grams per ton. Roxarsone 181.5 (0.02 percent).
(A) Indications for use. For the treatment of swine dysentery.
(B) Limitations. Feed for not more than 6 consecutive days; if
improvement is not observed, consult a veterinarian; withdraw 5 days
before slaughter; as a sole source or organic arsenic; animals must
consume enough medicated feed to provide a therapeutic dose.
(iv) Grams per ton. Roxarsone, 181.5 (0.02 percent) plus
chlortetracycline, 10 to 50.
(A) Indications for use. For the treatment of swine dysentery;
increased rate of weight gain and improved feed efficiency.
(B) Limitations. See paragraph (d)(4)(iii)(B) of this section.
(v) Grams per ton. Roxarsone, 181.5 (0.02 percent) plus
chlortetracycline, 400.
(A) Indications for use. For the treatment of swine dysentery;
treatment of bacterial enteritis caused by E. coli and S. choleraesuis
and bacterial pneumonia caused by P. multocida susceptible to
chlortetracycline.
(B) Limitations. See paragraph (d)(4)(iii)(B) of this section.
* * * * *
13. Section 558.680 is amended in the table in paragraph (c)(1)
under entries (i) and (ii) by revising the item for ``Chlortetracycline
100 to 200''; by removing the item for ``Chlortetracycline 200'' and
adding in its place an item for ``Chlortetracycline 200 to 400'' to
read as follows:
Sec. 558.680 Zoalene.
* * * * *
(c) * * *
(1) * * *
------------------------------------------------------------------------
Zoalene in Combination in Indications for
grams/ton grams/ton use Limitations
------------------------------------------------------------------------
(i) * * *
* * * *
* * *
Chlortetracycli Replacement Do not feed to
ne 100 to 200. chickens; chickens
development of producing eggs
active immunity for human
to coccidiosis; consumption;
control of grower ration not
infectious to be fed to
synovitis caused birds over 14
by Mycoplasma weeks of age;
synoviae feed as in
susceptible to subtable in item
chlortetracycline (i).
.
Chlortetracycli Replacement Do not feed to
ne 200 to 400. chickens; chickens
development of producing eggs
active immunity for human
to coccidiosis; consumption;
control of grower ration not
chronic to be fed to
respiratory birds over 14
disease (CRD) and weeks of age;
air sac infection feed as in
caused by M. subtable in item
gallisepticum and (i).
Escherichia coli
susceptible to
chlortetracycline
.
* * * *
* * *
(ii) * * *
* * * *
* * *
Chlortetracycli Broiler chickens; Do not feed to
ne 100 to 200 prevention and chickens
control of producing eggs
coccidiosis; for human
control of consumption; feed
infectious continuously for
synovitis caused 7 to 14 d.
by M. synoviae
susceptible to
chlortetracycline
.
[[Page 35958]]
Chlortetracycli Broiler chickens; Do not feed to
ne 200 to 400 prevention and chickens
control of producing eggs
coccidiosis; for human
control of consumption; feed
chronic continuously for
respiratory 7 to 14 d.
disease (CRD) and
air sac infection
caused by M.
gallisepticum and
E. coli
susceptible to
chlortetracycline
.
* * * *
* * *
------------------------------------------------------------------------
* * * * *
Dated: June 13, 1996.
Andrew J. Beaulieau,
Acting Director, Office of New Animal Drug Evaluation, Center for
Veterinary Medicine.
[FR Doc. 96-17169 Filed 7-8-96; 8:45 am]
BILLING CODE 4160-01-F
Complete official Federal Register PDF
FR Doc. 96-16951 Airworthiness Directives; McDonnell Douglas Model DC-10 and MD-11 Series Airplanes, and KC-10A (Military) Airplanes
[Federal Register Volume 61, Number 132 (Tuesday, July 9, 1996)]
[Rules and Regulations]
[Pages 35944-35946]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-16951]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
14 CFR Part 39
[Docket No. 95-NM-254-AD; Amendment 39-9686; AD 96-14-04]
RIN 2120-AA64
Airworthiness Directives; McDonnell Douglas Model DC-10 and MD-11
Series Airplanes, and KC-10A (Military) Airplanes
AGENCY: Federal Aviation Administration, DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This amendment adopts a new airworthiness directive (AD),
applicable to certain McDonnell Douglas Model DC-10 and MD-11 series
airplanes, and KC-10A (military) airplanes, that requires identifying
and replacing certain lock link bolts in the nose landing gear (NLG).
This amendment is prompted by a report indicating that certain bolts
were improperly heat-treated during manufacturing, which makes them
prone to failure. The actions specified by this AD are intended to
prevent failure of the lock link bolts in the NLG, which could result
in the collapse of the NLG.
DATES: Effective August 13, 1996.
The incorporation by reference of certain publications listed in
the regulations is approved by the Director of the Federal Register as
of August 13, 1996.
ADDRESSES: The service information referenced in this AD may be
obtained from McDonnell Douglas Corporation, 3855 Lakewood Boulevard,
Long Beach, California 90846, Attention: Technical Publications
Business Administration, Department C1-L51 (2-60). This information may
be examined at the Federal Aviation Administration (FAA), Transport
Airplane Directorate, Rules Docket, 1601 Lind Avenue, SW., Renton,
Washington; or at the FAA, Los Angeles Aircraft Certification Office,
Transport Airplane Directorate, 3960 Paramount Boulevard, Lakewood,
California; or at the Office of the Federal Register, 800 North Capitol
Street, NW., suite 700, Washington, DC.
FOR FURTHER INFORMATION CONTACT: Wahib Mina, Aerospace Engineer,
Airframe Branch, ANM-120L, FAA, Los Angeles Aircraft Certification
Office, 3960 Paramount Boulevard, Lakewood, California 90712; telephone
(310) 627-5324; fax (310) 627-5210.
SUPPLEMENTARY INFORMATION: A proposal to amend part 39 of the Federal
Aviation Regulations (14 CFR part 39) to include an airworthiness
directive (AD) that is applicable to certain McDonnell Douglas Model
DC-10 and MD-11 series airplanes, and KC-10A (military) airplanes was
published in the Federal Register on March 18, 1996 (61 FR 10907). That
action proposed to require a one-time visual inspection to identify
suspect lock link bolts, and the replacement of those bolts with new
serviceable bolts.
Interested persons have been afforded an opportunity to participate
in the making of this amendment. Due consideration has been given to
the comments received.
Support for the Proposal
Four commenters support the proposal.
Request To Allow Records Search in Lieu of Inspection
One commenter requests that the proposed rule be revised to allow
operators to conduct a records search to determine if airplanes are
equipped with the suspect bolt, rather than conduct an inspection of
every airplane in order to determine if the bolt is installed. This
commenter states that, for some operators, the NLG lock link bolts are
required to have a tracking history (i.e., records track the bolt by
serial number). For these operators, it would be more economically
feasible, and just as productive, to conduct a records search in lieu
of an inspection.
The FAA concurs. Paragraph (a) of the final rule has been revised
to provide for the option of conducting a records search.
Request To Extend the Compliance Time for Replacement
Several commenters request that the proposed rule be revised to
allow operators to replace suspect bolts at a later time. These
commenters request that, instead of requiring that a suspect bolt be
replaced prior to further flight after the inspection is accomplished,
the proposed rule should permit operators to replace the bolt at any
time after the inspection, but prior to the end of the 24-month
compliance time. These commenters consider that this extension of the
replacement time will obtain the same result as intended by the FAA,
and will have a less disruptive impact on operators' schedules.
The FAA concurs that the bolts need not be replaced prior to
further flight after the inspection (or records search) is
accomplished. The FAA makes this finding based on the following data
pertinent to the configuration of the suspect bolts themselves:
1. None of the suspect bolts were manufactured prior the initial
production of the Model MD-11 series airplanes (in 1991). In light of
this, the FAA is confident that none of the suspect bolts was installed
as original equipment on any of the affected Model DC-10 series
airplanes. (Model DC-10's have been produced since 1971.)
2. The suspect bolts were manufactured using a process that did not
affect their static strength requirement, but did reduce their fatigue
life. These bolts should have a fatigue life in the range of 58,281
landings; due to the manufacturing process used, however, the fatigue
life
[[Page 35945]]
of the suspect bolts has been reduced to approximately 24,638 landings.
3. A review of the utilization rates of the current worldwide fleet
indicates that the highest number of landings accumulated on any Model
MD-11 series airplane is approximately 5,000 landings.
4. The average annual utilization rate of the airplanes affected by
this AD is between 1,000 and 1,200 landings.
These data indicate that, if any suspect bolt had been installed as
original equipment on a Model MD-11 (even those airplanes with the
highest number of landings accumulated so far), or installed as a
replacement component on a Model DC-10, the fatigue life ``remaining''
on any suspect bolt is long enough to permit continued use of that bolt
for a 24-month period.
Based on these factors, the FAA has determined that a large enough
margin of safety exists so that replacement of the suspect bolts may be
accomplished within 24 months after the effective date of this AD,
regardless of when the inspection (or records search) is performed.
Paragraph (c) of the final rule has been revised to specify this.
Request To Permit Replacement With Other Than New Bolts
One commenter, the airframe manufacturer, requests that the
proposed rule be revised to delete the requirement that a ``new'' bolt
be used as a replacement bolt. This commenter states that the use of
the term ``new'' excludes the use of refurbished or serviceable bolts
that do not have one of the suspect serial numbers.
The FAA concurs. Serviceable (non-suspect) bolts are acceptable as
replacement parts. Accordingly, paragraph (c) of the final rule has
been revised to delete the word ``new'' from the description of
required replacement bolts.
Request To Ensure Availability of Replacement Parts
One commenter expresses concerns that the replacement bolts will
not be available in a timely manner. This commenter states that several
service bulletins recently have been released by McDonnell Douglas that
recommend inspections and replacement of high-strength landing gear
parts that were improperly heat-treated. This commenter is concerned
that the bolt suppliers may not be able to meet the concurrent demand
for the large quantity of parts needed for the entire affected fleet.
The FAA acknowledges this commenters concerns, and just recently
contacted the manufacturer on this very subject. The manufacturer has
assured the FAA that its suppliers stand ready to meet the demand for
parts for the total fleet.
Conclusion
After careful review of the available data, including the comments
noted above, the FAA has determined that air safety and the public
interest require the adoption of the rule with the changes previously
described. The FAA has determined that these changes will neither
increase the economic burden on any operator nor increase the scope of
the AD.
Cost Impact
There are approximately 565 Model DC-10 and MD-11 series airplanes
and KC-10A (military airplanes) of the affected design in the worldwide
fleet. The FAA estimates that 334 airplanes of U.S. registry will be
affected by this proposed AD.
It will take approximately .5 work hour per airplane to accomplish
either a one-time inspection or a commensurate records search, at an
average labor rate of $60 per work hour. Based on these figures, the
cost impact of the AD on U.S. operators is estimated to be $10,020, or
$30 per airplane.
If a suspect lock link bolt is found to be installed on an
airplane, its removal and replacement will take approximately 3 work
hours to accomplish, at an average labor rate of $60 per work hour.
(For operators of Model MD-11 series airplanes, the manufacturer has
indicated that it will reimburse operators for certain of these labor
costs as a labor credit allowance.) Replacement parts will be supplied
by the manufacture at no charge to operators. Based on these figures,
the cost impact of the replacement action on U.S. operators is
estimated to be $180 per airplane.
The cost impact figures discussed above are based on assumptions
that no operator has yet accomplished any of the requirements of this
AD action, and that no operator would accomplish those actions in the
future if this AD were not adopted.
Regulatory Impact
The regulations adopted herein will not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this final
rule does not have sufficient federalism implications to warrant the
preparation of a Federalism Assessment.
For the reasons discussed above, I certify that this action (1) is
not a ``significant regulatory action'' under Executive Order 12866;
(2) is not a ``significant rule'' under DOT Regulatory Policies and
Procedures (44 FR 11034, February 26, 1979); and (3) will not have a
significant economic impact, positive or negative, on a substantial
number of small entities under the criteria of the Regulatory
Flexibility Act. A final evaluation has been prepared for this action
and it is contained in the Rules Docket. A copy of it may be obtained
from the Rules Docket at the location provided under the caption
ADDRESSES.
List of Subjects in 14 CFR Part 39
Air transportation, Aircraft, Aviation safety, Incorporation by
reference, Safety.
Adoption of the Amendment
Accordingly, pursuant to the authority delegated to me by the
Administrator, the Federal Aviation Administration amends part 39 of
the Federal Aviation Regulations (14 CFR part 39) as follows:
PART 39--AIRWORTHINESS DIRECTIVES
1. The authority citation for part 39 continues to read as follows:
Authority: 49 U.S.C. 106(g), 40113, 44701.
Sec. 39.13 [Amended]
2. Section 39.13 is amended by adding the following new
airworthiness directive:
96-14-04 McDonnell Douglas: Amendment 39-9686. Docket 95-NM-254-AD.
Applicability: Model DC-10-10, -15, -30, and -40 series
airplanes, and KC-10A airplanes, as listed in McDonnell Douglas
Service Bulletin DC10-32-242, dated November 1, 1995; and Model MD-
11 series airplanes as listed in McDonnell Douglas Service Bulletin
MD11-32-060, dated November 6, 1995; certificated in any category.
Note 1: This AD applies to each airplane identified in the
preceding applicability provision, regardless of whether it has been
modified, altered, or repaired in the area subject to the
requirements of this AD. For airplanes that have been modified,
altered, or repaired so that the performance of the requirements of
this AD is affected, the owner/operator must request approval for an
alternative method of compliance in accordance with paragraph (e) of
this AD. The request should include an assessment of the effect of
the modification, alteration, or repair on the unsafe condition
addressed by this AD; and, if the unsafe condition has not been
eliminated, the request should include specific proposed actions to
address it.
[[Page 35946]]
Compliance: Required as indicated, unless accomplished
previously.
To prevent collapse of the nose landing gear as a result of
failure of the lock link bolt, accomplish the following:
(a) Within 24 months after the effective date of this AD,
perform either a visual inspection or a records search to determine
the serial number of the lock link bolt, part number (P/N) ACG7079-
1, installed in the nose landing gear (NLG). If the visual
inspection is accomplished, it must be conducted in accordance with
procedures specified in McDonnell Douglas Service Bulletin DC10-32-
242, dated November 1, 1995, for Model DC-10 series airplanes; or
McDonnell Douglas Service Bulletin MD11-32-060, dated November 6,
1995, for Model MD-11 series airplanes.
(b) If the serial number of the lock link bolt is not AP001
through AP036 inclusive, or AP200 through AP344 inclusive: No
further action is required by this AD.
(c) If the serial number of the lock link bolt is AP001 through
AP036 inclusive, or AP200 through AP344 inclusive: Within 24 months
after the effective date of this AD, replace the lock link bolt with
a bolt, P/N ACG7079-1, that does not have one of those serial
numbers.
(d) As of the effective date of this AD, no person shall install
a lock link bolt, part number (P/N) ACG7079-1, having a serial
number of AP001 through AP036 inclusive, or AP200 through AP344
inclusive, on any airplane.
(e) An alternative method of compliance or adjustment of the
compliance time that provides an acceptable level of safety may be
used if approved by the Manager, Los Angeles Aircraft Certification
Office (ACO), FAA, Transport Airplane Directorate. Operators shall
submit their requests through an appropriate FAA Principal
Maintenance Inspector, who may add comments and then send it to the
Manager, Los Angeles ACO.
Note 2: Information concerning the existence of approved
alternative methods of compliance with this AD, if any, may be
obtained from the Los Angeles ACO.
(f) Special flight permits may be issued in accordance with
sections 21.197 and 21.199 of the Federal Aviation Regulations (14
CFR 21.197 and 21.199) to operate the airplane to a location where
the requirements of this AD can be accomplished.
(g) The inspection shall be done in accordance with McDonnell
Douglas Service Bulletin DC10-32-242, dated November 1, 1995, for
Model DC-10 series airplanes; and McDonnell Douglas Service Bulletin
MD11-32-060, dated November 6, 1995, for Model MD-11 series
airplanes. This incorporation by reference was approved by the
Director of the Federal Register in accordance with 5 U.S.C. 552(a)
and 1 CFR part 51. Copies may be obtained from McDonnell Douglas
Corporation, 3855 Lakewood Boulevard, Long Beach, California 90846,
Attention: Technical Publications Business Administration,
Department C1-L51 (2-60). Copies may be inspected at the FAA,
Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton,
Washington; or at the FAA, Los Angeles Aircraft Certification
Office, Transport Airplane Directorate, 3960 Paramount Boulevard,
Lakewood, California; or at the Office of the Federal Register, 800
North Capitol Street, NW., suite 700, Washington, DC.
(h) This amendment becomes effective on August 13, 1996.
Issued in Renton, Washington, on June 27, 1996.
S.R. Miller,
Acting Manager, Transport Airplane Directorate, Aircraft Certification
Service.
[FR Doc. 96-16951 Filed 7-8-96; 8:45 am]
BILLING CODE 4910-13-P
Complete official Federal Register PDF
FR Doc. 96-16950 Airworthiness Directives; Boeing Model 767 Series Airplanes
[Federal Register Volume 61, Number 132 (Tuesday, July 9, 1996)]
[Rules and Regulations]
[Pages 35938-35940]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-16950]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
14 CFR Part 39
[Docket No. 95-NM-124-AD; Amendment 39-9687; AD 96-14-05]
RIN 2120-AA64
Airworthiness Directives; Boeing Model 767 Series Airplanes
AGENCY: Federal Aviation Administration, DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This amendment supersedes an existing airworthiness directive
(AD), applicable to certain Boeing Model 767 series airplanes, that
currently requires an inspection of the control rods of the outboard
leading edge slat, and follow-on actions (including repetitive
ultrasonic inspections), if necessary. For certain airplanes, that AD
also requires replacement of the control rod ends and attach bolts. It
also provides for an optional terminating action for follow-on
repetitive inspections. That AD was prompted by reports of cracks and
worn attach bolts of the control rods of the leading edge outboards
slats of the wings due to the high breakout torque in the joint of the
control rod end. This amendment requires the installation of the
previously optional terminating action. The actions specified by this
AD are intended to prevent reduced controllability of the airplane and
damage in the slat structure or fixed leading edge of the wing, as a
result of cracks and worn attach bolts.
DATES: Effective August 13, 1996.
The incorporation by reference of certain publications listed in
the regulations is approved by the Director of the Federal Register as
of August 13, 1996.
ADDRESSES: The service information referenced in this AD may be
obtained from Boeing Commercial Airplane Group, P.O. Box 3707, Seattle,
Washington 98124-2207. This information may be examined at the Federal
Aviation Administration (FAA), Transport Airplane Directorate, Rules
Docket, 1601 Lind Avenue, SW., Renton, Washington; or at the Office of
the Federal Register, 800 North Capitol Street, NW., suite 700,
Washington, DC.
FOR FURTHER INFORMATION CONTACT: Kristin Larson, Aerospace Engineer,
Systems and Equipment Branch, ANM-130S, FAA, Seattle Aircraft
Certification Office, 1601 Lind Avenue, SW., Renton, Washington;
telephone (206) 227-1760; fax (206) 227-1181.
SUPPLEMENTARY INFORMATION: A proposal to amend part 39 of the Federal
Aviation Regulations (14 CFR part 39) by superseding AD 90-20-16,
amendment 39-6726 (55 FR 37858, September 14, 1990), which is
applicable to certain Boeing Model 767 series airplanes, was published
in the Federal Register on December 13, 1995 (60 FR 63990). The action
proposed to continue to require a one-time visual inspection to
determine the date of manufacture of the control rods of the outboard
leading edge slat, and follow-on actions (i.e., repetitive ultrasonic
inspection), if necessary. The action also proposed to continue to
require replacement of the control rod ends and attach bolts, for
certain airplanes. For operators accomplishing the (follow-on)
repetitive ultrasonic inspections, that action proposed to require
replacement of the control rod with a new control rod manufactured
after June 1983; this replacement would constitute terminating action
for the repetitive inspections.
Interested persons have been afforded an opportunity to participate
in the making of this amendment. Due consideration has been given to
the comments received.
Request To Add a Visual Inspection
One commenter requests that the FAA revise paragraph (a)(2)(i) of
the proposal to require a visual inspection to detect cracks of the
control rods, prior to further flight, rather than the proposed
ultrasonic inspection. The commenter suggests that the proposed
ultrasonic inspection be accomplished within 300 flight hours following
accomplishment of the visual inspection. The commenter points out that
the control rods currently are being inspected ultrasonically at 2,000
flight cycles/15-month intervals in accordance with AD 90-20-16. Since
the ultrasonic inspections will identify cracks prior to rod failure,
the commenter states that it is unnecessary to accomplish an additional
ultrasonic inspection.
The FAA finds that clarification is necessary. Paragraph (a)(2)(i)
of this AD merely restates the existing requirements of paragraph A.2.
of AD 90-20-16. Therefore, for operators who have previously
accomplished at least the initial ultrasonic inspection in accordance
with AD 90-20-16, paragraph (a)(2)(i) of this AD requires that the next
scheduled inspection be performed within 2,000 landings or 15 months,
whichever occurs first, after the last inspection performed in
accordance with paragraph A.2. of AD 90-20-16. In light of this, the
FAA finds that the addition of a visual inspection, as suggested by the
commenter, is unnecessary. NOTE 2 has been added to this final rule to
clarify the restatement
[[Page 35939]]
of the existing requirements of AD 90-20-16.
Request To Include Reference to Additional Service Bulletins
Two commenters request that the FAA revise paragraph (a)(2)(ii) of
the proposed rule to reference Revision 2 of Boeing Service Bulletin
767-57-0021, dated July 26, 1990, as an additional source of service
information for accomplishment of the replacement. One of the
commenters points out that this will eliminate unnecessary processing
of an alternative method of compliance.
The FAA concurs partially. The FAA has determined that the
procedures for replacement of the control rod, specified in Revision 2
of Boeing Service Bulletin 767-57-0021, are identical to those
procedures in Revision 5 of the service bulletin (which is referenced
in the AD as the appropriate source of service information). In
addition, the FAA has determined that Revision 3, dated June 20, 1991,
and Revision 4, dated March 19, 1992, of Boeing Service Bulletin 767-
57-0021 also contain these identical replacement procedures. The FAA
has revised the final rule by adding a new NOTE 2 to clarify that
accomplishment of the replacement in accordance with Revision 2,
Revision 3, or Revision 4 of Service Bulletin 767-57-0021, is
considered acceptable for compliance with paragraph (a)(2)(ii) of the
AD. In addition, since paragraph (b) of the final rule also contains
these identical replacement procedures, the FAA has also added a
similar Note 3 to that paragraph.
Request To Correct Referenced Service Bulletin Number
One commenter notes that the service bulletin number referenced in
paragraph (b) of the proposal should be corrected to 767-57-0021. The
FAA acknowledges that it inadvertently referenced the incorrect service
bulletin number (i.e., 767-57-0221) in paragraph (b) of the proposal.
Therefore, the FAA has revised paragraph (b) of the final rule to
reference service bulletin number 767-57-0021.
Request for Assurance of Parts Availability
Two commenters support the rule, but question whether the
manufacturer of the control rod assemblies can produce the quantity of
required parts within the proposed compliance time.
The FAA has contacted to the manufacturer who has advised that
ample parts are currently available; therefore, obtaining them within
the required compliance time should not pose a problem for any affected
operator. However, under the provisions of paragraph (c) of the final
rule, the FAA may approve requests for adjustments to the compliance
time if data are submitted to substantiate that such an adjustment
would provide an acceptable level of safety.
Conclusion
After careful review of the available data, including the comments
noted above, the FAA has determined that air safety and the public
interest require the adoption of the rule with the changes previously
described. The FAA has determined that these changes will neither
increase the economic burden on any operator nor increase the scope of
the AD.
Cost Impact
There are approximately 271 Boeing Model 767 series airplanes of
the affected design in the worldwide fleet. The FAA estimates that 193
airplanes of U.S. registry will be affected by this proposed AD.
The actions that are currently required by AD 90-20-16 take
approximately 21 work hours per airplane to accomplish, at an average
labor rate of $60 per work hour. Required parts cost approximately
$5,500 per airplane. Based on these figures, the cost impact on U.S.
operators of the actions currently required is estimated to be
$1,304,680, or $6,760 per airplane.
For certain affected airplanes, the new replacement (terminating)
action that is required by this new AD will take approximately 1 work
hour per airplane to accomplish, at an average labor rate of $60 per
work hour. The cost of the required replacement parts is estimated to
be $5,500 per airplane. Based on these figures, the cost impact on U.S.
operators of the new requirements of this AD is estimated to be $5,560
per airplane.
The cost impact figures discussed above are based on assumptions
that no operator has yet accomplished any of the requirements of this
AD action, and that no operator would accomplish those actions in the
future if this AD were not adopted.
Regulatory Impact
The regulations adopted herein will not have substantial direct
effects on the States, or on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this final
rule does not have sufficient federalism implications to warrant the
preparation of a Federalism Assessment.
For the reasons discussed above, I certify that this action (1) is
not a ``significant regulatory action'' under Executive Order 12866;
(2) is not a ``significant rule'' under DOT Regulatory Policies and
Procedures (44 FR 11034, February 26, 1979); and (3) will not have a
significant economic impact, positive or negative, on a substantial
number of small entities under the criteria of the Regulatory
Flexibility Act. A final evaluation has been prepared for this action
and it is contained in the Rules Docket. A copy of it may be obtained
from the Rules Docket at the location provided under the caption
ADDRESSES.
List of Subjects in 14 CFR Part 39
Air transportation, Aircraft, Aviation safety, Incorporation by
reference, Safety.
Adoption of the Amendment
Accordingly, pursuant to the authority delegated to me by the
Administrator, the Federal Aviation Administration amends part 39 of
the Federal Aviation Regulations (14 CFR part 39) as follows:
PART 39--AIRWORTHINESS DIRECTIVES
1. The authority citation for part 39 continues to read as follows:
Authority: 49 U.S.C. 106(g), 40113, 44701.
Sec. 39.13 [Amended]
2. Section 39.13 is amended by removing amendment 39-6726 (55 FR
37858, September 14, 1990), and by adding a new airworthiness directive
(AD), amendment 39-9687, to read as follows:
96-14-05 Boeing: Amendment 39-9687. Docket 95-NM-124-AD. Supersedes
AD 90-20-16, Amendment 39-6726.
Applicability: Model 767 series airplanes; as listed in Boeing
Service Bulletin 767-57-0021, Revision 1, dated September 14, 1989,
or Revision 5, dated June 15, 1995; certificated in any category.
Note 1: This AD applies to each airplane identified in the
preceding applicability provision, regardless of whether it has been
modified, altered, or repaired in the area subject to the
requirements of this AD. For airplanes that have been modified,
altered, or repaired so that the performance of the requirements of
this AD is affected, the owner/operator must request approval for an
alternative method of compliance in accordance with paragraph (c) of
this AD. The request should include an assessment of the effect of
the modification, alteration, or repair on the unsafe condition
addressed by this AD; and, if the unsafe condition has not
[[Page 35940]]
been eliminated, the request should include specific proposed
actions to address it.
Compliance: Required as indicated, unless accomplished
previously.
Note 2: Paragraphs (a), (a)(1), (a)(1), (a)(2), and (a)(2)(i) of
this AD merely restate the initial and repetitive inspections
contained in paragraphs A.1. and A.2. of AD 90-20-16, amendment 39-
6726. Therefore, for operators who have previously accomplished at
least the initial inspection in accordance with AD 90-20-16,
paragraph (a)(2)(i) of this AD requires that the next scheduled
inspection be performed within 2,000 landings or within 15 months,
whichever occurs first, after the last inspection performed in
accordance with paragraph A.2. of AD 90-20-16.
To prevent loss of the pilot's ability to control the affected
slat, which could adversely affect the controllability of the
airplane, accomplish the following:
(a) For airplanes having line positions 1 through 235 inclusive:
Within the next 1,200 landings or 9 months after October 23, 1990
(the effective date of AD 90-20-16, amendment 39-6726), whichever
occurs first, unless accomplished within the last 800 landings or 6
months, whichever occurs later, perform a visual inspection to
determine the date of manufacture of the control rods of the
outboard leading edge slat of the wings, in accordance with the
Accomplishment Instructions of Boeing Service Bulletin 767-57-0021,
dated August 25, 1988; Revision 1, dated September 14, 1989;
Revision 2, dated July 26, 1990; or Revision 5, dated June 15, 1995.
(1) If the date of manufacture (stamped on the control rod) is
June 1983 or later, no further action is required by this paragraph.
(2) If the date of manufacture is illegible or is prior to June
1983, accomplish paragraphs (a)(2)(i) and (a)(2)(ii) of this AD.
(i) Prior to further flight, perform an ultrasonic inspection to
detect cracks of the control rods in accordance with Figure 1 of
Boeing Service Bulletin 767-57-0021, dated August 25, 1988, Revision
1, dated September 14, 1989, or Revision 2, dated July 26, 1990. If
any crack or fracture is detected, prior to further flight, replace
it in accordance with Figure 2 of the service bulletin. Repeat the
ultrasonic inspection of the control rods manufactured prior to June
1983 thereafter at intervals not to exceed 2,000 landings or 15
months, whichever occurs first, until the replacement required by
paragraph (a)(2)(ii) of this AD is accomplished.
(ii) Within 3,000 flight hours or 15 months after the effective
date of this AD, whichever occurs later, replace the control rod
with a new rod manufactured June 1983 or later, in accordance with
Boeing Service Bulletin 767-57-0021, Revision 5, dated June 15,
1995. Accomplishment of this replacement constitutes terminating
action for the repetitive inspection requirement of paragraph
(a)(2)(i) of this AD.
Note 3: Replacement accomplished prior to the effective date of
this amendment in accordance with Boeing Service Bulletin 767-57-
0021, Revision 2, dated July 26, 1990; Revision 3, dated June 20,
1991, or Revision 4, dated March 19, 1992; is considered acceptable
for compliance with paragraph (a)(2)(ii) of this AD.
(b) For airplanes having line number 1 through 264 inclusive,
and 266 through 273 inclusive: Within the next 2,500 landings or 18
months after October 23, 1990 (the effective date of AD 90-20-16,
amendment 39-6726, whichever occurs first, replace the control rod
end and attach bolt with a new configuration control rod end and
attach bolt on each wing, in accordance with Boeing Service Bulletin
767-57-0021, Revision 1, dated September 14, 1989; Revision 2, dated
July 26, 1990; or Revision 5, dated June 15, 1995.
Note 4: Replacement accomplished prior to the effective date of
this amendment in accordance with Boeing Service Bulletin 767-57-
0021, Revision 3, dated June 20, 1991, or Revision 4, dated March
19, 1992, is considered acceptable for compliance with paragraph (b)
of this AD.
(c) An alternative method of compliance or adjustment of the
compliance time that provides an acceptable level of safety may be
used if approved by the Manager, Seattle Aircraft Certification
Office (ACO), FAA, Transport Airplane Directorate. Operators shall
submit their requests through an appropriate FAA Principal
Maintenance Inspector, who may add comments and then send it to the
Manager, Seattle ACO.
Note 5: Information concerning the existence of approved
alternative methods of compliance with this AD, if any, may be
obtained from the Seattle ACO.
(d) Special flight permits may be issued in accordance with
sections 21.197 and 21.199 of the Federal Aviation Regulations (14
CFR 21.197 and 21.199) to operate the airplane to a location where
the requirements of this AD can be accomplished.
(e) The inspections and replacements shall be done in accordance
with Boeing Service Bulletin 767-57-0021, dated August 25, 1988;
Boeing Service Bulletin 767-57-0021, Revision 1, dated September 14,
1989; Boeing Service Bulletin 767-57-0021, Revision 2, dated July
26, 1990; Boeing Service Bulletin 767-57-0021, Revision 3, dated
June 20, 1991; Boeing Service Bulletin 767-57-0021, Revision 4,
dated March 19, 1992; or Boeing Service Bulletin 767-57-0021,
Revision 5, dated June 15, 1995. This incorporation by reference was
approved by the Director of the Federal Register in accordance with
5 U.S.C. 552(a) and 1 CFR part 51. Copies may be obtained from
Boeing Commercial Airplane Group, P.O. Box 3707, Seattle, Washington
98124-2207. Copies may be inspected at the FAA, Transport Airplane
Directorate, 1601 Lind Avenue, SW., Renton, Washington; or at the
Office of the Federal Register, 800 North Capitol Street, NW., suite
700, Washington, DC.
(f) This amendment becomes effective on August 13, 1996.
Issued in Renton, Washington, on June 27, 1996.
S.R. Miller,
Acting Manager, Transport Airplane Directorate, Aircraft Certification
Service.
[FR Doc. 96-16950 Filed 7-8-96; 8:45 am]
BILLING CODE 4910-13-P
Complete official Federal Register PDF
FR Doc. 96-16949 Airworthiness Directives; Boeing Model 777-200 Series Airplanes
[Federal Register Volume 61, Number 132 (Tuesday, July 9, 1996)]
[Rules and Regulations]
[Pages 35940-35942]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-16949]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
14 CFR Part 39
[Docket No. 96-NM-134-AD; Amendment 39-9688; AD 96-14-06]
RIN 2120-AA64
Airworthiness Directives; Boeing Model 777-200 Series Airplanes
AGENCY: Federal Aviation Administration, DOT.
ACTION: Final rule; request for comments.
-----------------------------------------------------------------------
SUMMARY: This amendment adopts a new airworthiness directive (AD) that
is applicable to certain Boeing Model 777-200 series airplanes. This
action requires repetitive inspections for broken lockwires on the
bearing retainer nut of the pivot fittings of the horizontal
stabilizer. This AD also requires eventual modification of the bearing
nut retention means, which, when accomplished, terminates the
repetitive inspections. This amendment is prompted by reports of broken
lockwires on the bearing retainer nut of the pivot fittings of the
horizontal stabilizer due to inadequate torquing of the nut. The
actions specified in this AD are intended to prevent failure of the
lockwires, which could result in loosening of the retainer nut for the
pivot bearing of the horizontal stabilizer, and subsequent migration of
the pivot bearing. This condition, if not corrected, could result in
reduced controllability of the airplane.
DATES: Effective July 24, 1996.
The incorporation by reference of certain publications listed in
the regulations is approved by the Director of the Federal Register as
of July 24, 1996.
Comments for inclusion in the Rules Docket must be received on or
before September 9, 1996.
ADDRESSES: Submit comments in triplicate to the Federal Aviation
Administration (FAA), Transport Airplane Directorate, ANM-103,
Attention: Rules Docket No. 96-NM-134-AD, 1601 Lind Avenue, SW.,
Renton, Washington 98055-4056.
The service information referenced in this AD may be obtained from
Boeing Commercial Airplane Group, P.O. Box 3707, Seattle, Washington
98124-2207. This information may be examined at the FAA, Transport
Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington; or at
the Office of the Federal Register, 800 North Capitol Street, NW.,
suite 700, Washington, DC.
FOR FURTHER INFORMATION CONTACT: Stan Wood, Aerospace Engineer,
Airframe Branch, ANM-120S, FAA, Seattle Aircraft Certification Office,
1601 Lind
[[Page 35941]]
Avenue, SW., Renton, Washington; telephone (206) 227-2772; fax (206)
227-1181.
SUPPLEMENTARY INFORMATION: The FAA has received reports indicating that
broken lockwires were found on the bearing retainer nut of the pivot
fittings (bearings) of the horizontal stabilizer on Boeing Model 777-
200 series airplanes. In one of these incidents, the retainer nut on
the left and right sides of the horizontal stabilizer also was loose.
The lockwires may have broken and the retainer nuts may have become
loose due to inadequate torquing of the nut. Failure of the lockwire
could result in loosening of the retainer nut for the pivot bearing of
the horizontal stabilizer. Loss of the retainer nut could result in
migration of the pivot bearing. This condition, if not corrected, could
result in reduced controllability of the airplane.
Explanation of Relevant Service Information
The FAA has reviewed and approved Boeing Alert Service Bulletin
777-55A0003, Revision 1, dated June 20, 1996, which describes
procedures for repetitive visual inspections to detect broken lockwires
on the bearing retainer nut of the pivot fittings of the horizontal
stabilizer (left and right sides). The alert service bulletin also
describes procedures for eventual modification of the bearing nut
retention means, which, when accomplished, eliminates the need for the
repetitive inspections. The modification involves removing all lockwire
on the nut, tightening the nut, and installing a new nut retainer.
Accomplishment of the modification will prevent rotation of the bearing
retainer nut.
Explanation of the Requirements of the Rule
Since an unsafe condition has been identified that is likely to
exist or develop on other Model 777-200 series airplanes of the same
type design, this AD is being issued to prevent reduced controllability
of the airplane due to failure of the lockwire on the bearing retainer
nut of the pivot fittings of the horizontal stabilizer, loosening of
the retainer nut for the pivot bearing, and subsequent migration of the
pivot bearing. This AD requires repetitive visual inspections for
broken lockwires on the bearing retainer nut of the pivot fittings of
the horizontal stabilizer (left and right sides). This AD also requires
eventual modification of the bearing nut retention means, which, when
accomplished, terminates the repetitive inspections. The actions are
required to be accomplished in accordance with the alert service
bulletin described previously.
Determination of Rule's Effective Date
Since a situation exists that requires the immediate adoption of
this regulation, it is found that notice and opportunity for prior
public comment hereon are impracticable, and that good cause exists for
making this amendment effective in less than 30 days.
Comments Invited
Although this action is in the form of a final rule that involves
requirements affecting flight safety and, thus, was not preceded by
notice and an opportunity for public comment, comments are invited on
this rule. Interested persons are invited to comment on this rule by
submitting such written data, views, or arguments as they may desire.
Communications shall identify the Rules Docket number and be submitted
in triplicate to the address specified under the caption ADDRESSES. All
communications received on or before the closing date for comments will
be considered, and this rule may be amended in light of the comments
received. Factual information that supports the commenter's ideas and
suggestions is extremely helpful in evaluating the effectiveness of the
AD action and determining whether additional rulemaking action would be
needed.
Comments are specifically invited on the overall regulatory,
economic, environmental, and energy aspects of the rule that might
suggest a need to modify the rule. All comments submitted will be
available, both before and after the closing date for comments, in the
Rules Docket for examination by interested persons. A report that
summarizes each FAA-public contact concerned with the substance of this
AD will be filed in the Rules Docket.
Commenters wishing the FAA to acknowledge receipt of their comments
submitted in response to this rule must submit a self-addressed,
stamped postcard on which the following statement is made: ``Comments
to Docket Number 96-NM-134-AD.'' The postcard will be date stamped and
returned to the commenter.
Regulatory Impact
The regulations adopted herein will not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this final
rule does not have sufficient federalism implications to warrant the
preparation of a Federalism Assessment.
The FAA has determined that this regulation is an emergency
regulation that must be issued immediately to correct an unsafe
condition in aircraft, and that it is not a ``significant regulatory
action'' under Executive Order 12866. It has been determined further
that this action involves an emergency regulation under DOT Regulatory
Policies and Procedures (44 FR 11034, February 26, 1979). If it is
determined that this emergency regulation otherwise would be
significant under DOT Regulatory Policies and Procedures, a final
regulatory evaluation will be prepared and placed in the Rules Docket.
A copy of it, if filed, may be obtained from the Rules Docket at the
location provided under the caption ADDRESSES.
List of Subjects in 14 CFR Part 39
Air transportation, Aircraft, Aviation safety, Incorporation by
reference, Safety.
Adoption of the Amendment
Accordingly, pursuant to the authority delegated to me by the
Administrator, the Federal Aviation Administration amends part 39 of
the Federal Aviation Regulations (14 CFR part 39) as follows:
PART 39--AIRWORTHINESS DIRECTIVES
1. The authority citation for part 39 continues to read as follows:
Authority: 49 U.S.C. 106(g), 40113, 44701.
Sec. 39.13 [Amended]
2. Section 39.13 is amended by adding the following new
airworthiness directive:
96-14-06 Boeing: Amendment 39-9688. Docket 96-NM-134-AD.
Applicability: Model 777-200 series airplanes; line positions 1,
3, 5, 7, 8, 9, 11, 12, 13, 15, 16, 17, 19, 20, 21, 22, and 23;
certificated in any category.
Note 1: This AD applies to each airplane identified in the
preceding applicability provision, regardless of whether it has been
otherwise modified, altered, or repaired in the area subject to the
requirements of this AD. For airplanes that have been modified,
altered, or repaired so that the performance of the requirements of
this AD is affected, the owner/operator must request approval for an
alternative method of compliance in accordance with paragraph (b) of
this AD. The request should include an assessment of the effect of
the modification, alteration, or repair on the unsafe condition
addressed by this AD; and, if the unsafe condition has not been
eliminated, the request should include specific proposed actions to
address it.
[[Page 35942]]
Compliance: Required as indicated, unless accomplished
previously.
To prevent reduced controllability of the airplane due to
failure of the lockwire on the bearing retainer nut of the pivot
fittings of the horizontal stabilizer, loosening of the retainer nut
for the pivot bearing, and subsequent migration of the pivot
bearing, accomplish the following:
(a) Within 150 flight cycles after the effective date of this
AD: Perform a visual inspection for broken lockwires on the bearing
retainer nut of the pivot fittings of the horizontal stabilizer
(left and right sides), in accordance with the Accomplishment
Instructions of Boeing Alert Service Bulletin 777-55A0003, Revision
1, dated June 20, 1996.
(1) If no broken lockwire is found: Repeat the inspection within
500 flight cycles following accomplishment of the initial
inspection. Within 1,000 flight cycles after accomplishment of the
initial inspection, modify the bearing nut retention means in
accordance with Figure 3 of the alert service bulletin. Following
accomplishment of the modification, no further action is required by
paragraph (a) of this AD.
(2) If only one broken lockwire is found: Repeat the inspection
thereafter at intervals not to exceed 150 flight cycles. Within 450
flight cycles after accomplishment of the initial inspection, modify
the bearing nut retention means in accordance with Figure 3 of the
alert service bulletin. Following accomplishment of the
modification, no further action is required by paragraph (a) of this
AD.
(3) If two broken lockwires are found: Repeat the inspection and
ensure that the bearing retainer nut is tight thereafter at
intervals not to exceed 10 flight cycles. Within 100 flight cycles
after accomplishment of the initial inspection, modify the bearing
nut retention means in accordance with Figure 3 of the alert service
bulletin. Following accomplishment of the modification, no further
action is required by paragraph (a) of this AD.
(b) An alternative method of compliance or adjustment of the
compliance time that provides an acceptable level of safety may be
used if approved by the Manager, Seattle Aircraft Certification
Office (ACO), FAA, Transport Airplane Directorate. Operators shall
submit their requests through an appropriate FAA Principal
Maintenance Inspector, who may add comments and then send it to the
Manager, Seattle ACO.
Note 2: Information concerning the existence of approved
alternative methods of compliance with this AD, if any, may be
obtained from the Seattle ACO.
(c) Special flight permits may be issued in accordance with
sections 21.197 and 21.199 of the Federal Aviation Regulations (14
CFR 21.197 and 21.199) to operate the airplane to a location where
the requirements of this AD can be accomplished.
(d) The actions shall be done in accordance with Boeing Alert
Service Bulletin 777-55A0003, Revision 1, dated June 20, 1996. This
incorporation by reference was approved by the Director of the
Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part
51. Copies may be obtained from Boeing Commercial Airplane Group,
P.O. Box 3707, Seattle, Washington 98124-2207. Copies may be
inspected at the FAA, Transport Airplane Directorate, 1601 Lind
Avenue, SW., Renton, Washington; or at the Office of the Federal
Register, 800 North Capitol Street, NW., suite 700, Washington, DC.
(e) This amendment becomes effective on July 24, 1996.
Issued in Renton, Washington, on June 27, 1996.
S.R. Miller,
Acting Manager, Transport Airplane Directorate, Aircraft Certification
Service.
[FR Doc. 96-16949 Filed 7-8-96; 8:45 am]
BILLING CODE 4910-13-U
Complete official Federal Register PDF
FR Doc. 96-16830 Certifications and Exemptions Under the International Regulations for Preventing Collisions at Sea, 1972
[Federal Register Volume 61, Number 132 (Tuesday, July 9, 1996)]
[Rules and Regulations]
[Pages 35958-35959]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-16830]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
Department of the Navy
32 CFR Part 706
Certifications and Exemptions Under the International Regulations
for Preventing Collisions at Sea, 1972
AGENCY: Department of the Navy, DoD.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Department of the Navy is amending its certifications and
exemptions under the International Regulations for Preventing
Collisions at Sea, 1972 (72 COLREGS). The Deputy Assistant Judge
Advocate General (Admiralty) of the Navy has determined that a prior
certification of noncompliance for USS SEAWOLF (SSN 21) should be
amended. The intended effect of this rule is to warn mariners in waters
where 72 COLREGS apply.
EFFECTIVE DATE: March 4, 1996.
FOR FURTHER INFORMATION CONTACT: Captain R. R. Pixa, JAGC, U.S. Navy;
Admiralty Counsel, Office of the Judge Advocate General Navy
Department, 200 Stovall Street, Alexandria, VA 22332-2400, Telephone
number: (703) 325-9744.
[[Page 35959]]
SUPPLEMENTARY INFORMATION: Pursuant to the authority granted in 33
U.S.C. 1605, the Department of the Navy amends 32 CFR Part 706. This
amendment provides notice that the Deputy Assistant Judge Advocate
General (Admiralty) of the Navy, under authority delegated by the
Secretary of the Navy, has determined that certain navigation lights on
USS SEAWOLF (SSN 21), previously certified as not in compliance with 72
COLREGS, have been relocated. The relocation has resulted in a
reduction in the arc of visibility of the side lights of the vessel
from 118.3 degrees to 111.5 degrees.
Moreover, it has been determined, in accordance with 32 CFR Parts
296 and 701, that publication of this amendment for public comment
prior to adoption is impracticable, unnecessary, and contrary to public
interest since it is based on technical findings that the placement of
lights on this vessel in a manner differently from that prescribed
herein will adversely affect the vessel's ability to perform its
military functions.
List of Subjects in 32 CFR Part 706
Marine safety, Navigation (water), and Vessels.
Accordingly, 32 CFR Part 706 is amended as follows:
PART 706--[AMENDED]
1. The authority citation for 32 CFR Part 706 continues to read:
Authority: 33 U.S.C. 1605.
2. Table Three of Sec. 706.2 is amended by adding an entry for USS
SEAWOLF (SSN 21) to read as follows:
Sec. 706.2 Certifications of the Secretary of the Navy under Executive
Order 11964 and 33 U.S.C. 1605.
* * * * *
Table 3
--------------------------------------------------------------------------------------------------------------------------------------------------------
Forward
Side lights Stern anchor Anchor lights
Masthead lights Stern light distance light, light, relationship
arc of Side lights arc arc of inboard of distance height of aft light
Vessel No. visibility; of visibility; visibility; ship's forward of above hull to forward
rule 21(a) rule 21(b) rule 21(c) sides in stern in in meters; light in
meters 3(b) meters; 2(K) annex meters 2(K)
annex 1 rule 21(c) 1 annex 1
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
USS SEAWOLF................... SSN-21 225 deg. 111.5 deg. 205 deg. 5.1 10.7 2.8 1.8 below.
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Dated: June 4, 1996.
M.W. Kerns,
Lieutenant, JAGC, U.S. Navy, Deputy Assistant Judge Advocate General
(Admiralty), Acting.
[FR Doc. 96-16830 Filed 7-8-96; 8:45 am]
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