issue-1996-09-13•Federal Register final rules — 1996-09-13
Federal Register final rules — 1996-09-13
issue-1996-09-13Federal Register final rules — 1996-09-13Regulation
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. X96-10913 Cotton Classification Under Cotton Futures Legislation
[Federal Register Volume 61, Number 179 (Friday, September 13, 1996)]
[Rules and Regulations]
[Pages 48399-48402]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: X96-10913]
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Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
Prices of new books are listed in the first FEDERAL REGISTER issue of each
week.
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Federal Register / Vol. 61, No. 179 / Friday, September 13, 1996 /
Rules and Regulations
[[Page 48399]]
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 27
Cotton Classification Under Cotton Futures Legislation
CFR Correction
In Title 7 of the Code of Federal Regulations, parts 27 to 45,
revised as of January 1, 1996, Secs. 27.62 through 27.67, 27.69, 27.72,
27.73, 27.80, 27.81, 27.83, 27.85, 27.87, and 27.89 through 27.98 were
inadvertently omitted. The omitted sections should immediately preceed
Sec. 27.99 on page 15, and should read as follows:
Sec. 27.62 Conditions for review of classification and for incidental
Micronaire determination for original applicant.
The person for whom the classification of cotton has been or is to
be performed under this subpart may have a review of such
classification by filing a written application therefor before the
delivery of such cotton on a basis grade contract and not later than
the expiration of the seventh business day following the date of the
first certification of the cotton involved. Such written application
may be made at the same time as the request for initial classification.
The written application may also include a request for Micronaire
determination of the cotton if this service has not been previously
performed.
[22 FR 10926, Dec. 28, 1957, as amended at 42 FR 40677, Aug. 11,
1977]
Sec. 27.63 Conditions for review of classification and for Micronaire
determination for receiver.
Any receiver of cotton upon a basis grade contract who has not
redelivered such cotton on a basis grade contract may have a review of
the classification of any cotton of which the classification has not
been previously reviewed by filing a written application within 7
business days following the date of the delivery of cotton class
certificates in accordance with this subpart. When more than 5,000
bales of cotton shall have been delivered to the same receiver on the
same date of delivery, the receiver may, upon proper showing of the
facts, be allowed 5 additional business days for filing the application
for review of the classification of any such cotton, provided written
request for such extension is filed within 7 business days following
the date of such delivery. In the event of the reissue of certificates
to replace any certificates delivered, the receiver may have a review
of the classification of the cotton covered by such reissued
certificates, provided such review is requested within the time herein
prescribed, calculated from the date of delivery of such reissued
certificates. Any such receiver may also have a Micronaire
determination, with or without review of classification, under these
same conditions on cotton on which this service has not been previously
performed under this subpart.
[48 FR 49212, Oct. 25, 1983]
Sec. 27.64 Application for review of classification and for Micronaire
determination; filing.
(a) Every application review of classification or for Micronaire
determination under Sec. 27.62 or Sec. 27.63 shall be filed with the
Marketing Services Office serving the location at which the cotton is
stored. The application shall in each case be in the hands of such
Marketing Services Office within the time specified in Sec. 27.62 or
Sec. 27.63 for applying for review: Provided, That any Marketing
Services Office may designate any officer of the Cotton Division or a
representative of an exchange inspection agency located at another
point to receive applications, and in such cases the applications shall
be in the hands of the persons so designated within the time specified.
Any person making such application shall, upon call of the Marketing
Services Office or person with whom such application was filed under
this section, surrender the cotton class certificates covering the
cotton involved.
(b) Such applications shall be made on a form furnished or approved
by the Cotton Division and shall contain (1) the name and address of
the party, if any, from whom the cotton was received on a basis grade
contract; (2) the lot numbers of the cotton; and (3) the warehouse bale
numbers.
[22 FR 10928, Dec. 28, 1957, as amended at 26 FR 1657, Feb. 25,
1961; 42 FR 40677, Aug. 11, 1977; 48 FR 49213, Oct. 25, 1983]
Sec. 27.65 Completion of review of classification.
In any case where an application for review of classification or an
application for Micronaire determination has been filed with respect to
cotton previously designated as tenderable, such review or
determination may be completed notwithstanding the subsequent tender of
such cotton on a basis grade contract.
[22 FR 10926, Dec. 28, 1957, as amended at 42 FR 40677, Aug. 11,
1977]
Sec. 27.66 Dismissal of application for review.
Any application for review may be dismissed whenever it shall be
found by the Area Director or the Director that it was filed without
good cause or for dilatory purposes.
[48 FR 49213, Oct. 25, 1983]
Sec. 27.67 Use of new samples in reviews and Micronaire
determinations.
Unless the use of new samples shall be necessary in the judgment of
the Area Director, a review classification pursuant to Secs. 27.61 to
27.72, or a Micronaire determination pursuant to Sec. 27.14, Sec. 27.62
or Sec. 27.63, shall be made by reference to the samples, if any, of
the cotton involved in the possession of the Marketing Services Office;
but if the use of new samples is deemed necessary by the Area Director,
or if there are no samples of the cotton in the possession of the
Marketing Services Office, or if the samples of the cotton have been in
the possession of the Marketing Services Office for more than one year,
the person requesting the review classsification or Micronaire
determination shall cause new samples to be drawn for the purpose and
submitted to the Marketing Services Office in accordance with this
subpart.
[48 FR 49213, Oct. 25, 1983]
Sec. 27.69 Classification review; notations on certificate.
When a review of classification is made after the issuance of a
cotton class certificate, the results of the review classification, the
date of issuance of the
[[Page 48400]]
review classification results, and the signature of the Head, Grading
Section shall be entered on the cotton class certificate. Thereupon the
certificate shall be returned to the person who requested the review.
[48 FR 49213, Oct. 25, 1983]
Sec. 27.72 Withdrawal of application for review.
Any application for review may be withdrawn by the applicant at any
time before the review classification of the cotton covered thereby has
been completed, subject to the payment of such fees, if any, as may be
assessed pursuant to Secs. 27.80 through 27.92.
Transfers of Cotton
Sec. 27.73 Supervision of transfers of cotton.
Whenever the owner of any cotton inspected and sampled for
classification pursuant to this subpart and for which the owner holds
valid cotton class certificates desires to transfer such cotton to a
different delivery point, or to a different warehouse at the same
delivery point, for the purpose of having it made available for
delivery upon a basis grade contract, such transfer shall be effected
under the supervision of an exchange inspection agency or a supervisor
of cotton inspection.
[48 FR 49213, Oct. 25, 1983]
Costs of Classification and Micronaire
Sec. 27.80 Fees; classification, micronaire, and supervision.
For services rendered by the Cotton Division pursuant to this
subpart, whether the cotton involved is tenderable or not, the person
requesting the services shall pay fees as follows:
(a) Initial classification and certification--$2.00 per bale.
(b) Review classification and certification--$2.00 per bale.
(c) Micronaire determination and certification--30 cents per bale.
(d) Combination service--$3.50 per bale. (Initial classification,
review classification, and Micronaire determination covered by the same
request and only the review classification and Micronaire determination
results certified on cotton class certificates.)
(e) Supervision, by a supervisor of cotton inspection, of the
inspection, weighing, or sampling of cotton when any two or more of
these operations are performed together--$1.60 per bale.
(f) Supervision, by a supervisor of cotton inspection, of the
inspection, weighing, or sampling of cotton when any one of these
operations is performed individually--$1.60 per bale.
(g) Supervision, by a supervisor of cotton inspection, of transfers
of cotton to a different delivery point, including issuance of new
cotton class certificates in substitution for prior certificates--$2.75
per bale.
(h) Supervision, by a supervisor of cotton inspection, of transfers
of cotton to a different warehouse at the same delivery point,
including issuance of new cotton class certificates in substitution for
prior certificates--$2.00 per bale.
[51 FR 22061, June 18, 1986, as amended at 55 FR 20440, May 17,
1990]
Sec. 27.81 Fees; certificates.
For each new certificate issued in substitution for a prior
certificate at the request of the holder thereof, for the purpose of
business convenience, or when made necessary by the transfer of cotton
under the supervision of any exchange inspection agency as provided in
Sec. 27.73, the person making the request shall pay a fee of $.70 cents
for each certificate issued.
[55 FR 20440, May 17, 1990]
Sec. 27.83 No fees for certain certificates.
No fee shall be collected for a new cotton class certificate issued
in lieu of a prior certificate solely for the purpose of correcting
clerical errors therein or for the purpose of substituting a new form
applicable to outstanding certificates, or without an application
therefor.
Sec. 27.85 Fees; withdrawn requests or applications.
When the request for classification, or the application for review
or classification, of any cotton or the request for Micronaire
determination for any cotton shall be withdrawn after the service
requested has been started pursuant to such request or application, the
person making such request or application shall pay the fee prescribed
by Sec. 27.80 as to any service completed prior to such withdrawal.
Sec. 27.87 Fees; classification and Micronaire determination
information.
Whenever the person who requests the classification of, or
Micronaire determination for, any cotton, or the person on whose behalf
such request is made, also requests the transmission by telegraph or
telephone of information concerning such classification or Micronaire
determination, the person making the request for such classification or
determination shall pay, in addition to the applicable costs prescribed
in this subpart, the cost of tolls incurred in such transmission.
Sec. 27.89 Expenses; inspection; sampling.
Expense of inspection and sampling, the preparation of the samples
and the delivery of such samples in accordance with Sec. 27.24, shall
be borne by the party requesting the classification of the cotton
involved. When a review of classification or a Micronaire determination
is requested and samples of the cotton involved are not in possession
of a Marketing Services Office, the expense of inspection, sampling,
preparation of samples, and delivery of the samples to the Marketing
Services Office shall be borne by the party requesting the service.
[48 FR 49213, Oct. 25, 1983]
Sec. 27.90 Bills for payment of fees and expenses.
The Cotton Division shall deliver bills to all persons from whom
payment for fees or expenses on account of services under this subpart
shall be due. Such bills shall be rendered as soon as practicable after
the last day of each month for the amounts due and unpaid on such day.
When necessary, in the discretion of the Area Director or the Director,
any bill may be rendered at an earlier date for any fees and expenses
then due by the person to whom such bill shall be rendered. Payment of
any such bill shall be made as soon as possible after the rendition
thereof, but in any event not later than 2 weeks after such rendition.
[48 FR 49213, Oct. 25, 1983]
Sec. 27.91 Advance deposit may be required.
If requested by the Area Director with whom the classification
request is required to be filed or by the Director, the person from
whom any payment under this subpart may become due shall make an
advance deposit to cover such payment in such amount as may be
necessary in the judgment of the official requesting the same.
[48 FR 49213, Oct. 25, 1983]
Sec. 27.92 Method of payment; advance deposit.
Any payment or advance deposit under this subpart shall be by
check, draft, or money order, payable to the order of ``Agricultural
Marketing Service, USDA,'' and may not be made in cash except in cases
where the total payment or deposit does not exceed $1.
Spot Markets
Sec. 27.93 Bona fide spot markets.
The following markets have been determined, after investigation,
and are hereby designated to be bona fide spot markets within the
meaning of the act:
[[Page 48401]]
Southeastern, North Delta, South Delta, East Texas and Oklahoma,
West Texas, Desert Southwest and San Joaquin Valley. Such markets
will comprise the following areas:
Southeastern
All counties in the states of Alabama, Florida, Georgia, North
Carolina and South Carolina and all counties in the state of
Tennessee east of and including Stewart, Houston, Humphreys, Perry,
Wayne and Hardin counties.
North Delta
All counties in the states of Arkansas and Missouri and all
counties in Tennessee west of and including the counties of Henry,
Benton, Henderson, Decatur, Chester and McNairy counties and the
Mississippi counties of Alcorn, Benton, Calhoun, Chickasaw, DeSoto,
Grenada, Itawamba, Lafayette, Lee, Marshall, Monroe, Panola,
Pontotoc, Prentiss, Tate, Tippah, Tishomingo, Union and Yalobusha.
South Delta
All counties in the state of Louisiana and all counties in the
state of Mississippi not included in the North Delta market.
East Texas and Oklahoma
All counties in the state of Oklahoma and the Texas counties
east of and including Montague, Wise, Parker, Erath, Comanche,
Mills, San Saba, Mason, Sutton, Edwards, Kinney, Maverick, Webb,
Zapata, Star and Hidalgo counties.
West Texas
All Texas counties not included in the East Texas, Oklahoma and
Desert Southwest Markets and the New Mexico counties of Union, Quay,
Curry, Roosevelt and Lea.
Desert Southwest
The Texas counties of Val Verde, Crockett, Terrell, Pecos,
Brewster, Presidio, Jeff Davis, Culberson, Hudspeth and El Paso, all
New Mexico counties except those included in the West Texas market,
all counties in the state of Arizona and the California counties
south of and including Riverside and Orange counties.
San Joaquin Valley
All California counties except those included in the Desert
Southwest market.
[53 FR 29326, Aug. 4, 1988]
Sec. 27.94 Spot markets for contract settlement purposes.
The following are designated as spot markets for the purpose of
determining as provided in paragraph 15b(f)(3) of the act, the
differences above or below the contract price which the receiver shall
pay for grades tendered or deliverable in settlement of a basis grade
contract:
(a) For cotton delivered in settlement of any No. 2 contract on the
New York Cotton Exchange:
Southeastern, North Delta, South Delta, Eastern Texas and
Oklahoma, and Desert Southwest.
(b) [Reserved]
[53 FR 29327, Aug. 4, 1988]
Price Quotations and Differences
Sec. 27.95 Spot markets to conform to Act and regulations.
Every bona fide spot market shall, as a condition of its
designation and of the retention thereof, conform to the act and any
applicable regulations.
[53 FR 29327, Aug. 4, 1988]
Sec. 27.96 Quotations in bona fide spot markets.
The price or value and differences between the price or value of
grades and staple lengths of cotton shall be based solely upon the
official cotton standards of the United States and shall be the actual
commercial value or price and differences as determined by the sale of
spot cotton in such spot market. Quotations shall be determined and
maintained in each designated spot market by the Cotton Division,
Agricultural Marketing Service, USDA, as follows:
(a) In spot markets designated to determine differences for the
settlement of futures contracts, the Cotton Division will on each
business day determine and quote by bale volume the prices or values of
base qualities which are deliverable on any active futures contracts,
as well as the differences for all other qualities deliverable on such
contracts. The prices or differences for non-deliverable qualities will
be determined and quoted by bale volume in each such spot market for
those qualities normally produced or traded in that particular market.
(b) In spot markets not designated to determine differences for the
settlement of futures contracts, the Cotton Division will on each
business day determine and quote by bale volume the prices or
differences for all qualities of cotton normally produced or traded in
each such spot market.
[53 FR 29327, Aug. 4, 1988]
Sec. 27.97 Ascertaining the accuracy of price quotations.
The buyers and sellers of cotton in each spot market shall be
responsible for providing accurate and timely price, quality, and
volume of purchases data by growth area to the Cotton Division. The
Cotton Division is responsible for ascertaining the accuracy of the
price quotations in each designated spot market. The Cotton Division
will carry out this responsibility by performing the following duties
and functions:
(a) The Cotton Division will collect and analyze pertinent
information on the prices and values of spot cotton from each spot
market.
(b) In the process of determining price quotations, the Cotton
Division will contact a minimum of three buyers and sellers of cotton
in each bona fide market at least two times per week during the active
trading season and one time per week during the remainder of the year
to obtain information on prices, qualities, volume, and terms of sales
in sufficient detail to determine quotations.
(c) The Cotton Division will summarize the price and quality data
and, based on analysis of this summary, make determinations regarding
quotations of price, value and differences.
(d) Quotations for each spot market shall be reviewed and approved
by the Cotton Division's Market News Branch Chief or Assistant Branch
Chief prior to publication.
(e) The Cotton Division will publish the appropriate quotations by
bale volume for grades, staple lengths, micronaire determinations, and
other quality factors for each spot market on a daily basis.
(The information collection requirements contained in this section
were approved by the Office of Management and Budget under OMB
control number 0581-0029.)
[53 FR 29327, Aug. 4, 1988]
Sec. 27.98 Value of grade where no sale; determination.
As provided in Sec. 27.96, whenever no sale of a particular grade
of cotton shall have been made on a given day in a particular spot
market, the value of such grade in the market on that day will be
determined as follows:
(a) If on such given day there shall have been in such market both
a sale of any higher grade and a sale of any lower grade, the average
of the declines, or advances, or decline and advance, as the case may
be, of the next higher grade and the next lower grade so sold shall be
deducted from, or added to, as the case may be, the value, on the last
preceding business day, of the grade the value of which on such given
day is sought to be ascertained.
(b) If on such given day there shall have been in such market a
sale of either a higher or a lower grade, but not sales of both, the
decline or advance of the next higher or the next lower grade so sold
shall be deducted from, or added to, as the case may be, the value on
the last preceding business day of the grade the value of which on such
given day is sought to be ascertained.
(c) If on such given day there shall have been in such market no
sale of spot cotton of any grade, the value of each
[[Page 48402]]
grade shall be deemed to be the same as its value therein on the last
preceding business day, unless in the meantime there shall have been
bona fide bids and offers, or sales of hedged cotton, or other sales of
cotton, or changes in prices of futures contracts made subject to the
act, which in the usual course of business would clearly establish a
rise or fall in the value of spot cotton in such market, in which case
such rise or fall may be calculated and added to or deducted from the
value on the preceding business day of cotton of all grades affected
thereby.
[53 FR 29327, Aug. 4, 1988]
BILLING CODE 1505-01-D
Complete official Federal Register PDF
FR Doc. 96-55565 Food and Drug Administration
[Federal Register Volume 61, Number 179 (Friday, September 13, 1996)]
[Rules and Regulations]
[Page 48405]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-55565]
[[Page 48405]]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Food and Drug Administration
21 CFR Part 131
Stabilizers and Emulsifiers in Lowfat Milk and Skim Milk
CFR Correction
In title 21 of the Code of Federal Regulations, parts 100 to 169,
revised as of April 1, 1996, make the following corrections:
1. On page 278, in Sec. 131.135, the effective date was
inadvertently removed. The omitted text should read as follows:
Effective Date Note: Paragraph (e)(1)(iv) of Sec. 131.135 was
revised at 45 FR 81737, Dec. 12, 1980, effective for compliance July
1, 1983. The effective date for compliance was stayed until further
notice at 47 FR 11271, Mar. 16, 1982. Paragraph (e)(1)(iv) published
at 42 FR 14360, Mar. 15, 1977, and set forth below is currently
effective.
Sec. 131.135 Lowfat milk.
* * * * *
(e) * * *
(1) * * *
(iv) The phrase ``protein fortified'' or ``fortified with
protein'' if the food contains not less than 10 percent milk derived
nonfat solids.
* * * * *
2. On page 282, in Sec. 131.143, the effective date was
inadvertently removed. The omitted text should read as follows:
Effective Date Note: Paragraph (e)(1)(iii) of Sec. 131.143 was
revised at 45 FR 81737, Dec. 12, 1980, effective date for compliance
July 1, 1983. The effective date for compliance was stayed until
further notice at 47 FR 11271, Mar. 16, 1982. Paragraph (e)(1)(iii)
published at 42 FR 14360, Mar. 15, 1977, and set forth below is
currently effective.
Sec. 131.143 Skim milk.
* * * * *
(e) * * *
(1) * * *
(iii) The phrase ``protein fortified'' or ``fortified with
protein'' if the food contains not less than 10 percent milk derived
nonfat solids.
* * * * *
[FR Doc. 96-55565 Filed 9-12-96; 8:45 am]
BILLING CODE 1505-01-D
Complete official Federal Register PDF
FR Doc. 96-23530 Reef Fish Fishery of the Gulf of Mexico; Amendment 13
[Federal Register Volume 61, Number 179 (Friday, September 13, 1996)]
[Rules and Regulations]
[Pages 48413-48415]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-23530]
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DEPARTMENT OF COMMERCE
50 CFR Part 622
[Docket No. 96061317-6247-02; I.D. 050996C]
RIN 0648-AI71
Reef Fish Fishery of the Gulf of Mexico; Amendment 13
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: NMFS issues this final rule to implement Amendment 13 to the
Fishery Management Plan for the Reef Fish Resources of the Gulf of
Mexico (FMP). Amendment 13 extends the red snapper vessel permit
endorsement and trip limit system until implementation of either the
individual transferrable quota (ITQ) system approved under Amendment 8
to the FMP or an alternate program to restrict access to
[[Page 48414]]
the commercial red snapper fishery, such as a limited license system.
If neither option is possible, the vessel permit endorsement and trip
limit system terminates on December 31, 1997. The intended effects of
this rule are to stabilize the fishery and to provide for controlled
harvest until a more comprehensive controlled access plan can be
implemented.
EFFECTIVE DATE: September 15, 1996.
FOR FURTHER INFORMATION CONTACT: Robert Sadler, 813-570-5305.
SUPPLEMENTARY INFORMATION: The reef fish fishery of the Gulf of Mexico
is managed under the FMP. The FMP was prepared by the Gulf of Mexico
Fishery Management Council and is implemented through regulations at 50
CFR part 622 under the authority of the Magnuson Fishery Conservation
and Management Act (Magnuson Act).
Background information on the management of the commercial red
snapper fishery and the rationale for the management measures in
Amendment 13 were contained in the preamble to the proposed rule (61 FR
32422, June 24, 1996) and are not repeated here.
The availability of Amendment 13 for public comment was announced
in the Federal Register on May 14, 1996 (61 FR 24267), and comments
were invited through July 8, 1996. Public comments were invited on the
proposed rule through July 8, 1996. NMFS approved Amendment 13 on
August 9, 1996. One comment was received in support of Amendment 13
during the public comment periods on the amendment and the rule.
Accordingly, the proposed rule is adopted as final with only the
changes described below.
Comment and Response
Comment: The U.S. Fish and Wildlife Service provided a comment in
support of Amendment 13.
Response: NMFS agrees.
Changes from the Proposed Rule
Since the proposed rule was published, NMFS has consolidated most
of its fishery regulations for the Southeast Region into one set of
regulations at 50 CFR part 622 (published on July 3, 1996, 61 FR
34930). Accordingly, the amendatory instructions in this final rule
implementing Amendment 13 are amendments to part 622 rather than
amendments to 50 CFR part 641, as were contained in the proposed rule.
In Sec. 622.4, paragraph (p) is added for clarity and consistency. The
endorsement provisions contained in paragraph (p) are consistent with
the original provisions established in emergency regulations published
December 30, 1992 (57 FR 62237), and continued via subsequent
regulations. Minor changes in language have been made to conform to the
standards in part 622.
Classification
The Director, Southeast Region, NMFS, determined that Amendment 13
is necessary for the conservation and management of the reef fish
fishery of the Gulf of Mexico and that it is consistent with the
Magnuson Act and other applicable law.
This action has been determined to be not significant for purposes
of E.O. 12866.
The Assistant General Counsel for Legislation and Regulation of the
Department of Commerce certified to the Chief Counsel for Advocacy of
the Small Business Administration that the proposed rule, if adopted,
would not have a significant economic impact on a substantial number of
small entities. The reasons for this certification were published in
the preamble to the proposed rule (61 FR 32422, June 24, 1996) and are
not repeated here. No comments were received concerning this
certification. As a result, a regulatory flexibility analysis was not
prepared.
In accordance with the FMP's framework procedure for adjusting
annual management measures, NMFS has proposed to increase the
commercial quota for red snapper and make this additional quota
available to the commercial fishery as of September 15, 1996 (FR 42413,
August 15, 1996). If NMFS, after considering the public comment,
approves the increased 1996 quota for the commercial red snapper
fishery, this fishery will still be subject to the ITQ system
(established by Amendment 8) that requires fishermen to have ITQ
coupons in order to fish for red snapper. As explained in the proposed
rule for Amendment 13, NMFS is unable to implement the ITQ system for
the foreseeable future. Therefore, unless the ITQ regulations are
suspended by this final rule by September 15, the commercial fishery
cannot reopen on that date in order to harvest the additional
commercial quota. For these reasons, the Assistant Administrator for
Fisheries, NOAA, has determined that this rule relieves a restriction
within the meaning of section 553(d) of the Administrative Procedure
Act. Therefore, the effective date of this rule is not delayed for 30
days.
List of Subjects in 50 CFR Part 622
Fisheries, Fishing, Puerto Rico, Reporting and recordkeeping
requirements, Virgin Islands.
Dated: September 9, 1996.
Nancy Foster,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries
Service.
For the reasons set out in the preamble, 50 CFR part 622 is amended
as follows:
PART 622--FISHERIES OF THE CARIBBEAN, GULF AND SOUTH ATLANTIC
1. The authority citation for part 622 continues to read as
follows:
Authority: 16 U.S.C. 1801 et seq.
2. In Sec. 622.4, paragraphs (a)(2)(ix) and (p) are added to read
as follows:
Sec. 622.4 Permits and fees.
(a) * * *
(2) * * *
(ix) Gulf red snapper. Effective through December 31, 1997, as a
prerequisite for exemption from the trip limit for red snapper
specified in Sec. 622.44(e)(1), a commercial vessel permit for Gulf
reef fish with a red snapper endorsement must have been issued to the
vessel and must be on board.
* * * * *
(p) Gulf red snapper endorsements. This paragraph (p) is effective
through December 31, 1997.
(1) Based on documented historical red snapper landings from the
Gulf of 5,000 lb (2,269 kg), round weight, or its equivalent in
eviscerated weight, per year in 2 of the years 1990, 1991, and 1992,
Gulf red snapper endorsements have been issued for vessels that have
commercial permits for Gulf reef fish. In cases where a red snapper
endorsement is issued based on the qualifications of an operator, the
validity of that endorsement is conditioned on that named operator
being aboard and in charge of the permitted vessel.
(2) A Gulf red snapper endorsement is invalid upon sale of the
vessel; however, an owner of a vessel with a red snapper endorsement
may transfer the endorsement to another vessel owned by the same entity
by returning the existing endorsement with an application for an
endorsement for the replacement vessel.
(3) Paragraph (p)(2) of this section notwithstanding--
(i) In the event that a vessel with a Gulf red snapper endorsement
has a change of ownership that is directly related to the disability or
death of the owner, the RD may issue a red snapper
[[Page 48415]]
endorsement, temporarily or permanently, with the commercial permit for
Gulf reef fish that is issued for the vessel under the new owner. Such
new owner will be the person specified by the owner or his/her legal
guardian, in the case of a disabled owner, or by the will or executor/
administrator of the estate, in the case of a deceased owner. (Change
of ownership of a vessel with a commercial vessel permit for Gulf reef
fish upon disability or death of an owner is considered a purchase of a
permitted vessel and paragraph (m)(3) of this section applies regarding
a commercial vessel permit for Gulf reef fish for the vessel under the
new owner.)
(ii) In the event of the disability or death of an operator whose
presence aboard a vessel is a condition for the validity of a Gulf red
snapper endorsement, the RD may revise and reissue an endorsement,
temporarily or permanently, to the permitted vessel. Such revised
endorsement will contain the name of a substitute operator specified by
the operator or his/her legal guardian, in the case of a disabled
operator, or by the will or executor/administrator of the estate, in
the case of a deceased operator. As was the case with the replaced
endorsement, the presence of the substitute operator aboard and in
charge of the vessel is a condition for the validity of the revised
endorsement. Such revised endorsement will be reissued only with the
concurrence of the vessel owner.
Sec. 622.7 [Amended]
3. In Sec. 622.7, in paragraph (i)(5), the concluding words
``introductory text'' are removed.
Sec. 622.16 [Suspended]
4. Section 622.16 is suspended indefinitely.
5. In Sec. 622.44, paragraph (e) is added to read as follows:
Sec. 622.44 Commercial trip limits.
* * * * *
(e) Gulf red snapper. This paragraph (e) is effective through
December 31, 1997.
(1) Except as provided in paragraph (e)(2) of this section, the
trip limit for red snapper in or from the Gulf for a vessel that has on
board a valid commercial permit for Gulf reef fish is 200 lb (91 kg),
round or eviscerated weight.
(2) The trip limit for red snapper in or from the Gulf for a vessel
that has on board a valid commercial permit for Gulf reef fish and a
valid Gulf red snapper endorsement is 2,000 lb (907 kg), round or
eviscerated weight.
(3) As a condition of a commercial vessel permit for Gulf reef
fish, as required under Sec. 622.4(a)(2)(v), without regard to where
red snapper are harvested or possessed, a vessel with such permit--
(i) May not possess red snapper in or from the Gulf in excess of
the appropriate vessel trip limit, as specified in paragraph (e)(1) or
(e)(2) of this section.
(ii) May not transfer at sea red snapper in or from the Gulf.
[FR Doc. 96-23530 Filed 9-10-96; 3:00 pm]
BILLING CODE 3510-22-F
Complete official Federal Register PDF
FR Doc. 96-23516 Miscellaneous Revisions to Standards for Mail Preparation
[Federal Register Volume 61, Number 179 (Friday, September 13, 1996)]
[Rules and Regulations]
[Pages 48572-48578]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-23516]
[[Page 48571]]
_______________________________________________________________________
Part V
Postal Service
_______________________________________________________________________
39 CFR Part 111
Miscellaneous Revisions to Standards for Mail Preparation; Final Rule
Federal Register / Vol. 61, No. 179 / Friday, September 13, 1996 /
Rules and Regulations
[[Page 48572]]
POSTAL SERVICE
39 CFR Part 111
Miscellaneous Revisions to Standards for Mail Preparation
AGENCY: Postal Service.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This final rule sets forth revised Domestic Mail Manual (DMM)
standards regarding several aspects of mail preparation. Each of these
revisions is a relaxation of current standards and allows mailers
immediate access to a simplified preparation method not currently
permitted.
EFFECTIVE DATE: August 23, 1996, for 3-digit carrier routes trays;
October 15, 1996, for 5-digit scheme sortation; October 1, 1996, for
all other revisions.
FOR FURTHER INFORMATION CONTACT: Lynn M. Martin, (202) 268-6351, for 5-
digit scheme sort; Leo F. Raymond, (202) 268-5199, for other
information.
SUPPLEMENTARY INFORMATION: On March 12, 1996, the Postal Service
published a final rule in the Federal Register setting forth the
Domestic Mail Manual (DMM) standards implementing phase one of
Classification Reform as of July 1, 1996 (61 FR 10068-10217).
Comparable standards for phase two were published on August 15, 1996,
to be effective October 6, 1996 (61 FR 42464-42489).
Included in each of these rules (which affected primarily
commercial or nonprofit mailers, respectively) were extensive revised
standards for mail preparation. Experience with those standards in the
weeks since July 1 has enabled the Postal Service to identify aspects
that can be simplified further, in part based on observations and
suggestions presented by customers.
All the DMM revisions described below amend both final rules noted
earlier (i.e., for commercial mail as of July 1 and for nonprofit mail
effective October 6) as of the dates shown. Nonprofit mailers using the
option of preparing mail under the reformed rules (as announced in the
March 12 final rule) may adopt these new options accordingly. Where
noted, these amendments are implemented as options so that mailers can
best determine how to balance production cost, rate eligibility, and
service.
Because the revisions described below often separately amend or
redesignate the same sections of the DMM, this final rule has
aggregated them for simultaneous announcement in order to avoid the
confusion that would occur where the individual amendments conflicted.
The Postal Service has determined not to issue a proposed rule for
comment because the major DMM revisions implemented by this final rule
represent added options for mailers that are relaxations of current
standards and are neither new mail preparation burdens on mailers nor
impediments to access to any rate of postage.
Accordingly, the Postal Service is adopting the DMM revisions
described below to allow the following simplified preparation options
to customers.
1. DMM E140.2.1a, E230.2.2a, E630.2.8a, E640.2.5, M020.2.1c,
M032.1.3, M200.2.2, M200.4.1c, M200.4.2e, M620.2.2b, M620.3.1c,
M620.3.2e, M810.1.4, M810.1.5, M810.2.1, M810.2.2c, M810.2.3c,
P012.2.2c(2), P012.2.2c(3), and P012.2.4 are amended effective August
23, 1996, to allow an option for the preparation of letter-size mail in
3-digit carrier routes trays at the applicable carrier route presort
rates. For letter-size mail, the standards implemented for
Classification Reform specified the exclusive use of trays, ending the
previously prescribed use of sacks for certain letter-size mailings. In
general, Classification Reform also sought to apply identical standards
to similar mail regardless of class; this objective was largely
achieved for carrier route rate mail. As a result, all carrier route
rate letter-size mail was subject to two-step preparation: first, the
preparation of full trays for individual carrier routes, then
preparation of remaining qualifying volume (subject to a six-piece
minimum for Periodicals or a 10-piece minimum for First-Class Mail and
Standard Mail) in carrier route packages that are placed in 5-digit
trays. Under this standard, a 5-digit tray is required on each occasion
that carrier route presort mail remains for any route in the
corresponding 5-digit area, regardless of the physical volume that mail
represents.
In practice, the net effect of these standards has often been a
significant increase in tray usage to transport relatively small
amounts of mail because individual trays were prepared to carry one or
two packages of carrier route sorted mail for a 5-digit area. In turn,
this has impacted mailer production line speed and capacity, equipment
supplies, and vehicle utilization.
Although the Postal Service had implemented this rule to optimize
the movement of carrier route mail deep into its network, thus
minimizing the impact of package and tray handling costs on carrier
route rates, and although it anticipated some increase in low-volume
trays and an equivalent loss of vehicle cube utilization, actual
experience has been less favorable than expected.
In response, the Postal Service collaborated with mailers to
formulate a solution to this condition to balance mailer production
costs and postal processing efficiencies as much as possible. As a
result of this collaboration, the Postal Service has decided to
establish, through this final rule, a 3-digit level for tray
preparation as an optional step available to all mailers preparing
letter-size mail eligible for and claimed at any post-Classification
Reform carrier route rate. This final rule also amends the preparation
standards for 5-digit mixed carrier routes trays to optimize their
preparation while retaining service-related choices for mailers.
As shown in the DMM standards below, mailers will still be required
to prepare a direct carrier route tray when sufficient pieces are
available to physically fill such a tray. However, preparation of a 5-
digit mixed carrier routes tray will now be required only if there are
sufficient pieces in carrier route packages to physically fill a 1-foot
or 2-foot tray to the corresponding 5-digit ZIP Code destination. A 5-
digit mixed carrier routes tray with less volume, but at least one
carrier route package, will be allowed at the mailer's option, such as
for service reasons. Under the option effective with this final rule,
mailers may prepare a 3-digit mixed carrier routes tray when it will
contain at least one carrier route package for each of two or more 5-
digit ZIP Code areas. Because the objective of these revised standards
is the reduction in the number of less-than-full trays, a 3-digit tray
will be permissible only when it represents the consolidation of the
content of two or more 5-digit trays that would be otherwise required.
Therefore, a 3-digit mixed carrier routes tray that contains mail only
for a single 5-digit area is not allowed.
In addition, because the content of a 3-digit mixed carrier routes
tray requires additional processing before reaching the delivery unit,
mail placed in 3-digit carrier routes trays is not eligible for
destination delivery unit discounts.
2. DMM E140.2.1b, E240.2.1a, E240.2.1b, E240.3.2a, E640.1.3a,
M011.1.2d, M011.1.3g, M032.1.3, M810.2.2d, M810.2.3d, M810.3.1a,
M810.3.2a, and P012.2.4 are amended effective October 15, 1996, to make
a 5-digit scheme sort option available for automation rate letter-size
mail. Separate 5-digit ZIP Codes that are processed by the Postal
Service on the same incoming secondary barcode sorter scheme, and that
meet other Postal Service criteria will be identified as 5-
[[Page 48573]]
digit schemes on the Postal Service's City State File that is provided
with Address Information System products. If the mailer has 150 or more
pieces in total for any or all of the 5-digit ZIP Codes that comprise a
single 5-digit scheme group, those pieces may qualify for the 5-digit
automation letter rate applicable to the class of the mailing if all
pieces for the individual 5-digit ZIP Code areas that form the scheme
group are sorted together in the same tray(s) labeled to the 5-digit
scheme destination.
The 5-digit ZIP Code to use on Line 1 of 5-digit scheme tray labels
is also contained in the City State File; the city name used on Line 1
must be the preferred last line for the 5-digit ZIP Code in the City
State File. Line 2 of the label must contain the class of mail
abbreviation ``LTRS BC'' and ``5D SCHEME.'' The applicable content
identifier number (CIN) for the 5-digit scheme trays for each class
must be used as shown in the revised DMM information below.
The 5-digit scheme combinations will be updated with each bimonthly
release of the City State File. Although monthly updates of the City
State File will continue to be released, the 5-digit scheme information
contained in the City State File will be revised only with the
bimonthly updates.
Mailings prepared according to the 5-digit schemes in the City
State File must be entered into the mail no later than 90 days after
the release date of the bimonthly City State File used to obtain the
scheme information. For example, mail matched to the October release of
the City State File (or the November 15 monthly file update) may be
entered into the mail from October 15 through January 15. Beginning
with mail entered on January 16, the 5-digit scheme sort information
must be based on the December 15 release of the City State File, and so
forth. The following table shows the dates of City State File releases
and the periods during which mailings may be entered that were prepared
using 5-digit scheme information contained in the corresponding
releases.
----------------------------------------------------------------------------------------------------------------
Product release (bimonthly) Product release (monthly) Mailing dates
----------------------------------------------------------------------------------------------------------------
February 15........................ March 15......................... February 15-May 15.
April 15........................... May 15........................... April 15-July 15.
June 15............................ July 15.......................... June 15-September 15.
August 15.......................... September 15..................... August 15-November 15.
October 15......................... November 15...................... October 15-January 15.
December 15........................ January 15....................... December 15-March 15.
----------------------------------------------------------------------------------------------------------------
As detailed by the DMM standards prescribed below, use of the 5-
digit scheme sortation is optional. The mailer may choose to prepare
all possible 5-digit scheme sorts or any lesser number of scheme
groups. Whenever the mailer can prepare 150 or more pieces to one or
more of the 5-digit ZIP Codes that are part of a single 5-digit scheme
group, those pieces are eligible for the 5-digit automation rate
applicable to the class of mail. Documentation must correctly reflect
5-digit scheme trays by using the abbreviation ``5DGS'' and
individually listing each 5-digit ZIP Code and corresponding piece
count under the group destination column.
3. DMM E630.2.2 is amended effective October 1, 1996, to clarify
the standard for the maximum size of nonautomation rate Enhanced
Carrier Route Standard Mail. The language appearing in DMM Issue 50
(the product of rulemaking related to Classification Reform but based
on standards predating Reform) states that ``flats may not be more than
11-\3/4\ inches wide, 14 inches long, or \3/4\ inch thick.'' Although
this is true, the limitation actually applies generally to all
nonautomation rate Enhanced Carrier Route Standard Mail other than
merchandise samples mailed with detached address labels. Because of the
current wording, some mailers have incorrectly concluded that pieces
that are not flats are no longer subject to the cited size limits. The
revised DMM section shown below does not represent a new or stricter
standard, rather a more accurate restatement of the standard that has
been in effect for many years.
4. DMM M033.2.1f is amended effective October 1, 1996, to allow
mailers the option of using a 1-foot or 2-foot MM tray when it is
adequate to contain the mail that otherwise would be placed in a 2-foot
EMM tray. The larger EMM tray is specified by standard as the correct
tray to use for pieces whose height or width exceeds the corresponding
dimensions of the smaller MM tray. However, unlike MM trays, EMM trays
are available in only a 2-foot length, and some mailers have found them
too large for the quantity of mail prepared to some destinations, such
as overflow or less-than-full tray volumes prepared in packages.
Although some mailers may find it undesirable to work with multiple
tray sizes, whether for production or pallet preparation reasons,
others have expressed a preference for the option to use a smaller tray
when it would suffice to carry the available mail. Accordingly, the
Postal Service is amending its standards to allow this option when
useful from the customer's perspective, when it does not create
processing inefficiencies for the Postal Service, and when use of the
smaller tray does not require the mail to be bent or deformed to fit.
5. DMM M120.2.8 is amended effective October 1, 1996, to correct
the Line 2 label information for Priority Mail. This information is
used by mailers to indicate the class, processing category, and
preparation of the mail in the container to which the label is affixed.
Although the standards in DMM M120 have long specified the use of
``PRIORITY MAIL'' on the second line, the correct wording in that
instance should be shown as ``PRIORITY.'' The correct marking on pieces
claimed at that rate has been and remains either ``Priority'' or
``Priority Mail'' as shown in DMM M120.2.2. Mailers whose label stock
includes ``PRIORITY MAIL'' on the second line may exhaust that supply.
6. DMM M200.1.4, M200.2.4, M200.3.1, M820.1.6, and M820.3.0 are
amended effective October 1, 1996, to allow the optional preparation of
Periodicals in packages and sacks containing fewer than six pieces each
when such preparation is beneficial to service in the opinion of the
publisher/mailer. The standards previously specified in the
aforementioned final rules regarding Periodicals had consistently
prescribed six pieces as the fewest that could be prepared as a package
to any required or optional level of presort. Similarly, sacks in
package-based mailings (i.e., all flat-size mailings) were generally
required to contain at least one six-piece package.
Under the revisions to M200 detailed below, publishers of sacked,
package-based Periodicals have the option of preparing packages
containing fewer
[[Page 48574]]
than six addressed pieces when those packages are sorted to the carrier
route, 5-digit, or 3-digit level and correctly placed in carrier route,
5-digit carrier routes, 5-digit, or 3-digit sacks. These pieces are
subject to Basic rates, but may claim the destination delivery unit or
destination SCF discount under the corresponding standards.
This option is limited to sacked package-based (flat-size)
publications because those criteria describe those publications
typically prepared in sacks of fewer than six pieces each. It is not
offered to publications prepared in trays because the use of a tray for
five or fewer pieces would result in excessive transportation and
handling costs. Further, automation letter-size mail is not allowed
this option because the standards applicable to such mail do not
include package preparation and specify a 150-piece minimum per tray.
It is anticipated that automation letter-size Periodicals can
experience satisfactory delivery performance without requiring the
level of preparation being allowed to publications not as amenable to
automated handling.
This option is limited to the sortation levels cited above because
finer levels of presort are consistent with the reduction of handling
(and related delays and costs) that otherwise would inhibit attainment
of the desired service. It is not being extended to other levels of
packages or sacks because their preparation does not comport with the
reduced handling that is fundamental to quicker service. This option
was introduced at the customers' request to allow them to evaluate and
balance their production costs and service requirements.
7. DMM M630.4.2 is amended effective October 1, 1996, to establish
an abbreviated rate marking for Special Standard Mail. Current
standards prescribe using the full name of the subclass on each piece
claimed at the corresponding rate, but customer systems commonly need
to abbreviate rate markings based on equipment or space limitations.
Therefore, to accommodate these circumstances while preserving a
consistent and recognizable marking for the mail, the Postal Service is
allowing the optional use of ``SPEC STD'' in lieu of the full ``Special
Standard Mail'' marking. The optional abbreviation may be preceded by
``Presorted'' on pieces claimed at the corresponding rate.
8. Miscellaneous insubstantive revisions for conformance or clarity
are also made in E140.2.1c, E240.2.1c, E240.2.1d, E240.3.2b, M011.1.3h,
M011.1.3i, M200.4.1b, M620.1.5, M620.3.1b, M810.2.2b, M810.2.3e, and
M810.3.2b.
All the foregoing revisions will appear in DMM Issue 51.
List of Subjects in 39 CFR Part 111
Postal Service.
For the reasons discussed above, the Postal Service hereby adopts
the following amendments to the Domestic Mail Manual, which is
incorporated by reference in the Code of Federal Regulations (see 39
CFR part 111).
PART 111--[AMENDED]
1. The authority citation for 39 CFR part 111 continues to read as
follows:
Authority: 5 U.S.C. 552(a); 39 U.S.C. 101, 401, 403, 404, 3001-
3011, 3201-3219, 3403-3406, 3621, 3626, 5001.
2. Revise the following sections of the Domestic Mail Manual as set
forth below:
E ELIGIBILITY
* * * * *
E100 First-Class Mail
* * * * *
E140 Automation Rates
* * * * *
2.0 RATE APPLICATION
2.1 Letters or Cards
[Revise 2.1a through 2.1c to read as follows:]
First-Class automation rates apply to each piece that is sorted
under M810 into the corresponding qualifying groups:
a. Pieces in full carrier route trays, in carrier route groups of
10 or more pieces each placed in 5-digit carrier routes trays, or in
carrier route packages of 10 or more pieces each placed in 3-digit
carrier routes trays, qualify for the Carrier Route automation rate.
(Preparation to qualify for that rate is optional and need not be done
for all carrier routes in a 5-digit area.)
b. Groups of 150 or more pieces in 5-digit or 5-digit scheme trays
(and all pieces in one less-than-full overflow tray) qualify for the 5-
Digit automation rate. (Preparation to qualify for that rate is
optional and need not be done for all 5-digit or 5-digit scheme
destinations.)
c. Groups of 150 or more pieces in 3-digit or 3-digit scheme trays
(and all pieces in one less-than-full overflow tray) qualify for the 3-
Digit automation rate.
* * * * *
E200 Periodicals
* * * * *
E230 Nonautomation Rates
* * * * *
2.0 CARRIER ROUTE RATES
* * * * *
2.2 Eligibility
[Revise 2.2a to read as follows:]
Preparation to qualify eligible pieces for carrier route rates is
optional and is subject to M200. Carrier route sort need not be done
for all carrier routes in a 5-digit area. Specific rate eligibility is
subject to these standards:
a. The basic carrier route rate applies to copies in carrier route
packages of six or more letter-size pieces each that are sorted to
carrier route, 5-digit carrier routes, or 3-digit carrier routes trays;
and six or more flat-size pieces each that are sorted to carrier route
or 5-digit carrier routes sacks.
* * * * *
E240 Automation Rates
* * * * *
2.0 RATE APPLICATION--EXCEPT CLASSROOM PERIODICALS
2.1 Letters
[Revise 2.1a through 2.1d to read as follows:]
Automation rates apply to each piece that is sorted under M810 into
the corresponding qualifying groups:
a. Groups of 150 or more pieces in 5-digit or 5-digit scheme trays
(and all pieces in one less-than-full overflow tray) qualify for the 5-
Digit automation in-county rate.
b. Groups of 150 or more pieces in 5-digit, 5-digit scheme, or
unique 3-digit trays (and all pieces in one less-than-full overflow
tray) qualify for the 3/5 automation Regular or Nonprofit rate, as
applicable.
c. Groups of 150 or more pieces in unique 3-digit trays (and all
pieces in one less-than-full overflow tray) qualify for the 3-Digit
automation in-county rate.
d. Pieces for a unique 3-digit destination that is part of a 3-
digit scheme group in L003 qualify for the 3-Digit automation in-county
rate or the 3/5 automation Regular or Nonprofit rate, as applicable,
when placed in a 3-digit scheme tray if grouped separately from pieces
for other 3-digit areas.
* * * * *
[Revise the heading of 3.0 to read as follows:]
3.0 RATE APPLICATION--CLASSROOM PERIODICALS ONLY
* * * * *
3.2 Barcoded Rates
[Revise 3.2a and 3.2b to read as follows:]
[[Page 48575]]
Barcoded Classroom Periodicals must meet the basic standards in
1.0. Barcoded rates apply to each letter-size piece that is sorted
under M810 into the corresponding qualifying groups:
a. Groups of 150 or more pieces in 5-digit or 5-digit scheme trays
(and all pieces in one less-than-full overflow tray) qualify for the 5-
Digit Barcoded rate.
b. Groups of 150 or more pieces in unique 3-digit trays (and all
pieces in one less-than-full overflow tray) qualify for the 3-Digit
Barcoded rate.
* * * * *
E600 Standard Mail
* * * * *
E630 Nonautomation Presort Rates
* * * * *
2.0 ENHANCED CARRIER ROUTE RATES
* * * * *
2.2 Flats and Merchandise Samples
[Revise 2.2 to read as follows:]
Enhanced Carrier Route rate mail may not be more than 11\3/4\
inches wide, 14 inches long, or \3/4\ inch thick. Merchandise samples
with detached address labels may exceed these dimensions if the labels
meet the standards in A060.
* * * * *
2.8 Basic Rates
[Revise 2.8a to read as follows:]
Basic (nonautomation) Carrier Route rates apply to each piece that
is sorted under M620 into the corresponding qualifying groups:
a. Letter-size pieces in a full carrier route tray, or in a carrier
route package of 10 or more pieces placed in a 5-digit carrier routes
or 3-digit carrier routes tray.
* * * * *
E640 Automation Rates
1.0 REGULAR AND NONPROFIT RATES
* * * * *
1.3 Rate Application--Letters and Cards
[Revise 1.3a to read as follows:]
Automation rates apply to each piece that is sorted under M810 into
the corresponding qualifying groups:
a. Groups of 150 or more pieces in 5-digit or 5-digit scheme trays
(and all pieces in one less-than-full overflow tray) qualify for the 5-
Digit automation rate. (Preparation to qualify for that rate is
optional and need not be done for all 5-digit or 5-digit scheme
destinations.)
* * * * *
2.0 ENHANCED CARRIER ROUTE RATES
* * * * *
2.5 Rate Application
[Revise 2.5 to read as follows:]
Automation Basic Carrier Route rates apply to each piece that is
sorted under M810 into full carrier route trays, in carrier route
groups (or packages, where appropriate) of 10 or more pieces each
placed in 5-digit carrier routes trays, or in carrier route packages of
10 or more pieces each placed in 3-digit carrier routes trays.
(Preparation to qualify for that rate is optional and need not be done
for all carrier routes in a 5-digit area.)
* * * * *
M MAIL PREPARATION AND SORTATION
M000 General Preparation Standards
M010 Mailpieces
M011 Basic Standards
1.0 TERMS AND CONDITIONS
* * * * *
1.2 Presort Levels
[Redesignate current 1.2d through 1.2l as 1.2e through 1.2m,
respectively; change the reference in 1.2f from ``1.3g'' to ``1.3h'';
and add new 1.2d to read as follows:]
Terms used for presort levels are defined as follows:
* * * * *
d. 5-digit scheme: the ZIP Code in the delivery address on all
pieces is one of the 5-digit ZIP Code areas processed by the USPS as a
single scheme, as shown in the USPS City State File (see 1.3g).
* * * * *
1.3 Preparation Instructions
[Redesignate current 1.3g through 1.3o as 1.3h through 1.3p,
respectively; add new 1.3g; and revise redesignated 1.3h and 1.3i to
read as follows:]
For purposes of preparing mail:
* * * * *
g. A 5-digit/scheme sort yields 5-digit scheme trays for those 5-
digit ZIP Codes identified in the USPS City State File and 5-digit
trays for other areas. Mail prepared using 5-digit scheme sort must be
entered no later than 90 days after the release date of the City State
File used to obtain the scheme information (see A950). The 5-digit ZIP
Codes in each scheme are treated as a single presort destination
subject to a single minimum volume, with no further separation by 5-
digit ZIP Code required. Trays prepared for a 5-digit scheme
destination that contain pieces for only one of the schemed 5-digit ZIP
Codes are still considered 5-digit scheme sorted and are labeled
accordingly. The 5-digit scheme sort is always optional, including when
5-digit sortation is required for rate eligibility; need not be used
for all 5-digit ZIP Codes that are part of a scheme; is available only
for automation rate letter-size First-Class Mail, Periodicals, and
Standard Mail; and may not be used by mail at other rates. Scheme
sortation is not available for ZIP+4 Classroom Periodicals.
h. A 3-digit/scheme sort yields 3-digit scheme trays for those 3-
digit ZIP Code prefixes listed in L003 and 3-digit trays for other
areas. The 3-digit ZIP Code prefixes in each scheme are treated as a
single presort destination subject to a single minimum tray volume,
with no further separation by 3-digit prefix required. Trays prepared
for a 3-digit scheme destination that contain pieces for only one of
the schemed 3-digit areas are still considered 3-digit scheme sorted
and are labeled accordingly. The 3-digit/scheme sort is required for
automation rate letter-size First-Class Mail, Periodicals, and Standard
Mail and may not be used by mail at other rates. Scheme sortation is
not available for ZIP+4 Classroom Periodicals.
i. An origin 3-digit (or origin 3-digit/scheme) tray/sack contains
all mail (regardless of quantity) for a 3-digit ZIP Code (or 3-digit/
scheme) area processed by the SCF in whose service area the mail is
verified. If more than one 3-digit (or 3-digit/scheme) area is served,
as indicated in L005, a separate tray must be prepared for each.
* * * * *
M020 Packages and Bundles
* * * * *
2.0 ADDITIONAL STANDARDS--FIRST-CLASS MAIL, PERIODICALS, AND STANDARD
MAIL (A)
2.1 Cards and Letter-Size Pieces
[Revise 2.1c to read as follows:]
Cards and letter-size pieces are subject to these specific
packaging standards:
* * * * *
c. Packages must be prepared for mail in all less-than-full and 3-
digit carrier routes trays; for nonupgradable Presorted First-Class
Mail and nonupgradable Standard Mail (A); and for nonautomation
Periodicals.
* * * * *
M030 Containers
* * * * *
[[Page 48576]]
M032 Barcoded Labels
1.0 BARCODED TRAY LABELS
* * * * *
1.3 Printed Text Lines
[Amend Exhibit 1.3c by adding the following content identifier numbers
(CINs) and corresponding codes for mail type:]
------------------------------------------------------------------------
CIN Mail type
------------------------------------------------------------------------
023.............................. FCM LTRS 3D CR-RTS BC.
079.............................. FCM LTRS BC 5D SCHEME.
112.............................. NEWS LTRS 3D CR-RTS.
119.............................. NEWS LTR BC 5D SCHEME.
219.............................. PER LTRS BC 5D SCHEME.
229.............................. PER LTRS 3D CR-RTS.
406.............................. STD LTRS 3D CR-RTS.
408.............................. STD LTRS 3D CR-RTS BC.
503.............................. STD LTRS BC 5D SCHEME.
------------------------------------------------------------------------
* * * * *
M033 Sacks and Trays
* * * * *
2.0 FIRST-CLASS MAIL, PERIODICALS, AND BULK RATE STANDARD MAIL (A)
2.1 Letter Tray Preparation
[Revise 2.1f to read as follows:]
Pieces must be prepared to result in the fewest practical number of
packages (where required) and trays to contain the mail sorted to a
destination. Letter tray preparation uses terms defined in M011 and is
subject to these further standards:
* * * * *
f. Subject to availability, standard MM trays must be used for all
letter-size mail, except that extended MM (EMM) trays must be used when
available for letter-size mail that exceeds the height or width (inside
dimensions) of MM trays defined in 1.3. When EMM trays are not
available, such pieces must be placed in MM trays, angled back and/or
placed upright perpendicular to the length of the tray in row(s) to
preserve their orientation. At the mailer's option, a 1-foot or 2-foot
MM tray (as appropriate) may be used when adequate to contain mail that
otherwise would be placed in a less-than-full 2-foot EMM tray if that
mail fits without being bent or deformed.
* * * * *
M120 Priority Mail
* * * * *
2.0 PRESORTED RATE
* * * * *
2.8 Line 2
[Revise 2.8 to read as follows:]
Line 2: ``PRIORITY'' followed by ``LTRS,'' ``FLTS,'' or
``PARCELS,'' as applicable.
* * * * *
M200 Periodicals (Nonautomation)
1.0 BASIC STANDARDS
* * * * *
[Add new 1.4 to read as follows:]
1.4 Low-Volume Packages and Sacks
As a general exception to 2.4b through 2.4d and 3.1a through 3.1d,
Periodicals may be prepared in packages containing fewer than six
pieces, and in sacks containing as few as one such package, when the
publisher determines that such preparation improves service.
2.0 PACKAGE PREPARATION
* * * * *
2.2 Carrier Route Packages
[Revise 2.2 to read as follows:]
Carrier route packages may be placed only in carrier route or 5-
digit carrier routes sacks or trays or 3-digit carrier routes trays. A
mailer may choose to prepare carrier route packages at a higher level
of route saturation (e.g., only if there are at least 15 pieces per
route). Under this option, smaller packages of six or more pieces per
carrier route not prepared for carrier route rates must be prepared for
and paid at another applicable rate.
* * * * *
2.4 Package Preparation
[In 2.4b, 2.4c, and 2.4d, add ``except under 1.4'' after ``fewer not
permitted.'']
3.0 SACK PREPARATION (FLAT-SIZE PIECES ONLY)
3.1 Sack Preparation
[In 3.1a through 3.1d, add ``except under 1.4`` after ``one six-piece
package minimum.'']
* * * * *
4.0 TRAY PREPARATION (LETTER-SIZE PIECES ONLY)
4.1 Tray Preparation
[Revise 4.1b; redesignate 4.1c through 4.1f as 4.1d through 4.1g,
respectively; and add new 4.1c to read as follows:]
Tray size, preparation sequence, and labeling:
* * * * *
b. 5-digit carrier routes (carrier route packages only): required
for rate eligibility if full tray, optional with minimum one six-piece
package; for Line 1, use 5-digit ZIP Code destination of packages,
preceded for military mail by the prefixes under M031.
c. 3-digit carrier routes (carrier route packages only): optional
with minimum one six-piece package for each of two or more 5-digit
areas; for Line 1, use the city/state/ZIP shown in L002, Column A, that
corresponds to the 3-digit ZIP Code prefix of packages.
* * * * *
4.2 Line 2
[Redesignate 4.2e and 4.2f as 4.2f and 4.2g, respectively; and add new
4.2e to read as follows:]
Line 2: PER or NEWS (as applicable), LTRS, and:
* * * * *
e. 3-digit carrier routes trays: 3D CR-RTS.
* * * * *
M620 Enhanced Carrier Route Standard Mail
1.0 BASIC STANDARDS
* * * * *
[Add new 1.5 to read as follows:]
1.5 Low-Volume Destinations
As a general exception to 2.0 through 4.0, a package with fewer
than 10 pieces and either a less-than-full tray or a sack with fewer
than 125 pieces and less than 15 pounds of pieces may be prepared to a
carrier route when the Saturation rate is claimed for the contents and
the applicable density standard is met.
2.0 PACKAGE PREPARATION
* * * * *
2.2 Package Preparation
[Revise 2.2b to read as follows:]
Package size: carrier route; required (10-piece minimum, fewer not
permitted). Carrier route package labels are based on the sack or tray
level in which placed:
* * * * *
b. Packages in 5-digit carrier routes trays and sacks and in 3-
digit carrier routes trays must have a facing slip unless the pieces in
the package show a carrier route information line or an optional
endorsement line.
3.0 TRAY PREPARATIONLETTER-SIZE PIECES
3.1 Tray Preparation
[Revise 3.1b and add new 3.1c to read as follows:]
Tray size, preparation sequence, and labeling:
* * * * *
[[Page 48577]]
b. 5-digit carrier routes: required if full tray, optional with
minimum one 10-piece package; for Line 1, use 5-digit ZIP Code
destination of packages, preceded for military mail by the prefixes
under M031.
c. 3-digit carrier routes: optional with minimum one 10-piece
package for each of two or more 5-digit areas; for Line 1, use the
city/state/ZIP shown in L002, Column A, that corresponds to the 3-digit
ZIP Code prefix of packages.
3.2 Line 2
[Add new 3.2e to read as follows:]
Line 2: STD LTRS and:
* * * * *
e. 3-digit carrier routes trays: 3D CR-RTS.
* * * * *
M630 Standard Mail (B)
* * * * *
4.0 SPECIAL STANDARD MAIL
* * * * *
4.2 Marking
[Revise 4.2 to read as follows:]
Each piece claimed at Special Standard Mail single-piece rates must
be marked ``Special Standard Mail'' or ``SPEC STD.'' Each piece claimed
at Presorted Special Standard Mail rates must be marked ``Presorted
Special Standard Mail'' or ``Presorted SPEC STD.'' Pieces not marked as
required are treated as single-piece parcel post, subject to additional
postage as necessary.
* * * * *
M800 All Automation Mail
M810 Letter-Size Mail
1.0 BASIC STANDARDS
[Remove 1.6 and redesignate current 1.7 as 1.6; revise 1.4 and 1.5 to
read as follows:]
* * * * *
1.4 General Preparation
Grouping, packaging, and labeling are not generally required or
permitted, except packaging is required in any mailing consisting
entirely of card-size pieces and for pieces in overflow, less-than-
full, and 3-digit carrier routes trays; pieces must be grouped (or
packaged, if applicable) as specified in 2.0 and 3.0; package labels
are required only for Periodicals.
1.5 Carrier Route
Carrier route groups (or packages, if applicable) may be placed
only in carrier route, 5-digit carrier routes, or 3-digit carrier
routes trays. Preparation of mail to qualify for automation carrier
route rates is optional for First-Class Mail under E140 and Standard
Mail (A) under E640.
* * * * *
2.0 PREPARATION--FIRST-CLASS MAIL AND STANDARD MAIL (A)
2.1 Carrier Route Pieces
[Revise 2.1 to read as follows:]
Grouping size, preparation sequence, and labeling: carrier route
(only); required (10-piece minimum; fewer not permitted); use an
optional endorsement line or carrier route information line. Group
pieces by carrier route in full 5-digit carrier routes trays, using
separator cards under M020, not packaging. Package pieces by carrier
route in less-than-full 5-digit carrier routes trays and in all 3-digit
carrier routes trays.
2.2 Tray Preparation
[Revise 2.2b; redesignate 2.2c through 2.2f as 2.2d through 2.2g,
respectively; add new 2.2c; and revise redesignated 2.2d to read as
follows:]
Tray size, preparation sequence, and labeling:
* * * * *
b. 5-digit carrier routes (carrier route pieces/packages only):
required for rate eligibility if full tray, optional with minimum one
10-piece package; for Line 1, use 5-digit ZIP Code destination of
packages, preceded for military mail by the prefixes under M031.
c. 3-digit carrier routes (carrier route packages only): optional
with minimum one 10-piece package for each of two or more 5-digit
areas; for Line 1, use the city/state/ZIP shown in L002, Column A, that
corresponds to the 3-digit ZIP Code prefix of packages.
d. 5-digit/scheme: optional, but 5-digit trays required for rate
eligibility (150-piece minimum); overflow allowed; for 5-digit trays,
use 5-digit ZIP Code destination of pieces for Line 1, preceded for
military mail by the prefixes under M031; for optional 5-digit scheme
trays, use destination shown in the current City State File for Line 1.
* * * * *
2.3 Line 2
[Redesignate 2.3c and 2.3d as 2.3e and 2.3f, respectively; add new 2.3c
and 2.3d; and revise redesignated 2.3e to read as follows:]
Line 2: FCM or STD (as appropriate), LTRS BC, and:
a. For carrier route trays: route type and number.
b. For 5-digit carrier routes trays: CR-RTS.
c. For 3-digit carrier routes trays: 3D CR-RTS.
d. For 5-digit scheme trays: 5D SCHEME.
e. For 3-digit scheme trays: SCHEME (or as shown in L002, Column
B).
f. For mixed AADC trays: WKG.
3.0 PREPARATION--PERIODICALS
3.1 Tray Preparation
[Revise 3.1a to read as follows:]
Tray size, preparation sequence, and labeling:
a. 5-digit/scheme: 5-digit trays required (150-piece minimum), 5-
digit scheme trays optional (150-piece minimum) except for ZIP+4
Classroom Periodicals; overflow allowed; for required 5-digit trays and
ZIP+4 Classroom Periodicals, use 5-digit ZIP Code destination of pieces
for Line 1, preceded for military mail by the prefixes under M031; for
optional 5-digit scheme trays, use destination shown in the current
City State File for Line 1.
* * * * *
3.2 Line 2
[Redesignate 3.2a and 3.2b as 3.2b and 3.2c, respectively; add new
3.2a; and revise redesignated 3.2b to read as follows:]
Line 2: PER or NEWS (as appropriate), LTRS BC (except LTRS UPGR for
ZIP+4 Classroom Periodicals), and:
a. For 5-digit scheme trays: 5D SCHEME.
b. For 3-digit scheme trays: SCHEME (or as shown in L002, Column
B).
c. For mixed AADC trays: WKG.
* * * * *
M820 Flat-Size Mail
1.0 BASIC STANDARDS
* * * * *
[Add new 1.6 to read as follows:]
1.6 Exception--Periodicals
As a general exception to 3.1a, 3.1b, 3.2a, and 3.2b, Periodicals
may be prepared in packages containing fewer than six pieces, and in
sacks containing as few as one such package, when the publisher
determines that such preparation improves service.
* * * * *
3.0 PREPARATION--PERIODICALS
[In 3.1a and 3.1b, add ``except under 1.6'' after ``fewer not
permitted''; in 3.2a and 3.2b, add ``except under 1.6'' after ``one
six-piece package minimum.'']
* * * * *
P POSTAGE AND PAYMENT METHODS
P000 Basic Information
P010 General Standards
* * * * *
[[Page 48578]]
P012 Documentation
* * * * *
2.0 STANDARDIZED DOCUMENTATION--FIRST-CLASS MAIL, PERIODICALS, AND
STANDARD MAIL (A)
* * * * *
2.2 Format and Content
[Revise 2.2c(2) and 2.2c(3) to read as follows:]
For First-Class Mail, Periodicals, and Standard Mail (A),
standardized documentation includes:
* * * * *
c. For mail in trays or sacks, the body of the listing reporting
these required elements:
* * * * *
(2) Tray/sack destination ZIP Code (use destination on top line of
tray/sack label except that, for 3-digit carrier routes trays, list the
individual 5-digit ZIP Codes contained in each tray).
(3) Group destination for automation letter mail (number of pieces
for each carrier route in carrier routes trays, for each 5-digit ZIP
Code in 5-digit scheme trays, for each 3-digit ZIP Code prefix in 3-
digit scheme and AADC trays, and for each AADC in mixed AADC trays), or
package level and package destination for automation flats and regular
nonautomation presort mail (use the presort destination as described in
M011).
* * * * *
2.4 Sortation Level
[Revise 2.4 to read as follows:]
The actual sortation level (or corresponding abbreviation) is used
for the tray, sack, pallet, or package sortation levels required by 2.2
and shown below:
------------------------------------------------------------------------
Sortation level Abbreviation
------------------------------------------------------------------------
Carrier Route.............................. CRD
5-Digit Carrier Routes..................... CR5
5-Digit.................................... 5DG
5-Digit Scheme [barcoded letters].......... 5DGS
3-Digit Carrier Routes..................... CR3
3-Digit.................................... 3DG
3-Digit Scheme [barcoded letters].......... 3DGS
ADC........................................ N/A
AADC....................................... N/A
Mixed ADC.................................. MADC
Mixed AADC................................. MAAD
SCF [pallets].............................. N/A
BMC or ASF................................. N/A
Mixed BMC [working]........................ MBMC
------------------------------------------------------------------------
* * * * *
Stanley F. Mires,
Chief Counsel, Legislative.
[FR Doc. 96-23516 Filed 9-12-96; 8:45 am]
BILLING CODE 7710-12-P
Complete official Federal Register PDF
FR Doc. 96-23491 Agreements Promising Non-Deportation or Other Immigration Benefits
[Federal Register Volume 61, Number 179 (Friday, September 13, 1996)]
[Rules and Regulations]
[Pages 48405-48406]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-23491]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
28 CFR Part 0
[INS No. 1791-96; AG Order No. 2055-96]
RIN 1115-AE50
Agreements Promising Non-Deportation or Other Immigration
Benefits
AGENCY: Department of Justice.
ACTION: Interim rule with request for comments.
-----------------------------------------------------------------------
SUMMARY: This interim rule requires Federal prosecutors, law
enforcement agencies, and other officials to obtain written consent
from the Immigration and Naturalization Service (Service) when entering
into a plea agreement, cooperation agreement, or similar agreement
promising an alien favorable treatment by the Service. This rule
ensures that favorable treatment under the immigration laws is extended
only after a full consideration of its effect on overall immigration
enforcement, alleviates confusion over the authority to enforce the
immigration laws, and prevents the Service from being bound by
agreements undertaken without its knowledge and approval. The rule
codifies a long-standing position of the Department of Justice.
DATES: This interim rule is effective October 15, 1996. Written
comments must be submitted on or before November 12, 1996.
ADDRESSES: Please submit written comments, in triplicate, to the
Director, Policy Directives and Instructions Branch, Immigration and
Naturalization Service, 425 ``I'' Street NW., Room 5307, Washington, DC
20536. To ensure proper handling, please reference INS number 1791-96
on all correspondence. Comments are available for public inspection at
the above address by calling (202) 514-3048 to arrange for an
appointment.
FOR FURTHER INFORMATION CONTACT:
Brad Glassman, Office of the General Counsel, Immigration and
Naturalization Service, 425 ``I'' Street NW., Room 6100, Washington, DC
20536, telephone (202) 514-2895.
SUPPLEMENTARY INFORMATION: Considerable uncertainty has arisen as to
whether plea agreements, cooperation agreements, and other agreements
undertaken by agencies other than the Immigration and Naturalization
Service (Service) may bind the Service in the exercise of its authority
under the immigration laws. The Supreme Court has held that ``anyone
entering into an agreement with the Government takes the risk of having
accurately ascertained that he who purports to act for the Government
stays within the bounds of his authority.'' Federal Crop Ins. Corp. v.
Merrill, 332 U.S. 380, 384 (1947). Accordingly, the Eleventh Circuit
has held that ``officials at the INS may initiate deportation
proceedings against a particular defendant without considering whether
(a) * * * U.S. Attorney has promised the defendant non-deportation as
part of a plea agreement.'' San Pedro v. United States, 79 F.3d 1065,
1071 (11th Cir. 1996).
However, two United States Courts of Appeals have taken a different
view, relying on common law agency principles to enforce a plea
agreement and a cooperation agreement against the Service. Margalli-
Olvera v. INS, 43 F.3d 345 (8th Cir. 1994) (plea agreement); Thomas v.
INS, 35 F.3d 1332 (9th Cir. 1994) (cooperation agreement). This rule
will clarify which components within the Department of Justice have
authority to bind the Department in matters concerning the immigration
laws. The consent requirement ensures that favorable treatment under
the immigration laws is extended only after a full consideration of its
effect on overall immigration enforcement, preserves the authority of
the Service to enforce the immigration laws, and prevents the Service
from being bound by agreements undertaken without its knowledge and
approval. Cf. Thomas, 35 F.3d at 1341 (``If the Attorney General wished
to limit the incidental authority of United States Attorneys [to bind
the Service without its consent], she could easily do so with a section
in the Code of Federal Regulations * * *.''). This rule codifies a
long-standing position of the Department of Justice.
The Attorney General's implementation of this rule as an interim
rule, with provision for post-promulgation public comment, is based
upon the exception found at 5 U.S.C. 553(b)(3)(A) for ``rulers of
agency organization, procedure, or practice.'' The Attorney General
certifies, in accordance with 5 U.S.C. 605(b) (1995), that this rule
does not have a significant adverse economic impact on a substantial
number of small entities. This rule is not considered to be a
``significant regulatory action'' within the meaning of E.O. 12866,
section 3(f), and accordingly has not been reviewed by the Office of
Management and Budget. This rule is not considered to have federalism
implications warranting the preparation of a Federalism Assessment in
accordance with E.O. 12612.
[[Page 48406]]
List of Subjects in 28 CFR Part 0
Authority delegations (government agencies), Government employees,
Organization and functions (government agencies), Whistleblowing.
Accordingly, part 0 of chapter I of Title 28 of the Code of Federal
Regulations is amended as follows:
PART 0--ORGANIZATION OF THE DEPARTMENT OF JUSTICE
1. The authority citation for Part 0 continues to read as follows:
Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510, 515-519.
2. In part 0, subpart CC, a new Sec. 0.197 is added to read as
follows:
Sec. 0.197 Agreements, in connection with criminal proceedings or
investigations, promising non-deportation or other immigration
benefits.
The Immigration and Naturalization Service (Service) shall not be
bound, in the exercise of its authority under the immigration laws,
through plea agreements, cooperation agreements, or other agreements
with or for the benefit of alien defendants, witnesses, or informants,
or other aliens cooperating with the United States Government, except
by the authorization of the Commissioner of the Service or the
Commissioner's delegate. Both the agreement itself and the necessary
authorization must be in writing to be effective, and the authorization
shall be attached to the agreement.
Dated: September 9, 1996.
Janet Reno,
Attorney General.
[FR Doc. 96-23491 Filed 9-12-96; 8:45 am]
BILLING CODE 4410-01-M
Complete official Federal Register PDF
FR Doc. 96-23474 Allocation of Assets in Single-Employer Plans; Interest Rate for Valuing Benefits
[Federal Register Volume 61, Number 179 (Friday, September 13, 1996)]
[Rules and Regulations]
[Pages 48406-48407]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-23474]
=======================================================================
-----------------------------------------------------------------------
PENSION BENEFIT GUARANTY CORPORATION
29 CFR Part 4044
Allocation of Assets in Single-Employer Plans; Interest Rate for
Valuing Benefits
AGENCY: Pension Benefit Guaranty Corporation.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Pension Benefit Guaranty Corporation's regulation on
Allocation of Assets in Single-Employer Plans prescribes interest
assumptions for valuing benefits under terminating single-employer
plans. This final rule amends the regulation to adopt interest
assumptions for plans with valuation dates in October 1996.
EFFECTIVE DATE: October 1, 1996.
FOR FURTHER INFORMATION CONTACT: Harold J. Ashner, Assistant General
Counsel, Office of the General Counsel, Pension Benefit Guaranty
Corporation, 1200 K Street, NW., Washington, DC 20005, 202-326-4024
(202-326-4179 for TTY and TDD).
SUPPLEMENTARY INFORMATION: The PBGC's regulation on Allocation of
Assets in Single-Employer Plans (29 CFR part 4044) prescribes actuarial
assumptions for valuing plan benefits of terminating single-employer
plans covered by title IV of the Employee Retirement Income Security
Act of 1974.
Among the actuarial assumptions prescribed in part 4044 are
interest rates and factors. These interest rates and factors are
intended to reflect current conditions in the financial and annuity
markets.
Two sets of interest rates and factors are prescribed, one set for
the valuation of benefits to be paid as annuities and one set for the
valuation of benefits to be paid as lump sums. This amendment adds to
appendix B to part 4044 the annuity and lump sum interest rates and
factors for valuing benefits in plans with valuation dates during
October 1996.
For annuity benefits, the interest rates will be 6.30 percent for
the first 20 years following the valuation date and 4.75 percent
thereafter. For benefits to be paid as lump sums, the interest
assumptions to be used by the PBGC will be 5.25 percent for the period
during which benefits are in pay status, 4.50 percent during the seven-
year period directly preceding the benefit's placement in pay status,
and 4.00 percent during any other years preceding the benefit's
placement in pay status. The annuity and lump sum interest assumptions
are unchanged from those in effect for September 1996.
The PBGC has determined that notice and public comment on this
amendment are impracticable and contrary to the public interest. This
finding is based on the need to determine and issue new interest rates
and factors promptly so that the rates and factors can reflect, as
accurately as possible, current market conditions.
Because of the need to provide immediate guidance for the valuation
of benefits in plans with valuation dates during October 1996, the PBGC
finds that good cause exists for making the rates and factors set forth
in this amendment effective less than 30 days after publication.
The PBGC has determined that this action is not a ``significant
regulatory action'' under the criteria set forth in Executive Order
12866.
Because no general notice of proposed rulemaking is required for
this amendment, the Regulatory Flexibility Act of 1980 does not apply.
See 5 U.S.C. 601(2).
List of Subjects in 29 CFR Part 4044
Pension insurance, Pensions.
In consideration of the foregoing, 29 CFR part 4044 is hereby
amended as follows:
PART 4044--[AMENDED]
1. The authority citation for part 4044 continues to read as
follows:
Authority: 29 U.S.C. 1301(a), 1302(b)(3), 1341, 1344, 1362.
2. In appendix B, a new entry is added to Table I, and Rate Set 36
is added to Table II, as set forth below. The introductory text of each
table is republished for the convenience of the reader and remains
unchanged.
Appendix B to Part 4044--Interest Rates Used to Value Annuities and
Lump Sums
Table I.--Annuity Valuations
[This table sets forth, for each indicated calendar month, the interest
rates (denoted by i1, i2, * * * , and referred to generally
as it) assumed to be in effect between specified anniversaries of
a valuation date that occurs within that calendar month; those
anniversaries are specified in the columns adjacent to the rates. The
last listed rate is assumed to be in effect after the last listed
anniversary date.]
----------------------------------------------------------------------------------------------------------------
The values of it are:
For valuation dates occurring in -----------------------------------------------------------------------------
the month it For t = it For t = it For t =
----------------------------------------------------------------------------------------------------------------
* * * * * *
*
Oct. 1996......................... .0630 1-20 .0475 >20 N/A N/A
----------------------------------------------------------------------------------------------------------------
[[Page 48407]]
Table II.--Lump Sum Valuations
[In using this table: (1) For benefits for which the participant or
beneficiary is entitled to be in pay status on the valuation date, the
immediate annuity rate shall apply; (2) For benefits for which the
deferral period is y years (where y is an integer and
0n1), interest rate i1 shall apply from the
valuation date for a period of y years, and thereafter the immediate
annuity rate shall apply; (3) For benefits for which the deferral
period is y years (where y is an integer and
n1n1+n2), interest rate i2 shall apply from the
valuation date for a period of y-n1 years, interest rate i1
shall apply for the following n1 years, and thereafter the
immediate annuity rate shall apply; (4) For benefits for which the
deferral period is y years (where y is an integer and
y>n1+n2), interest rate i3 shall apply from the
valuation date for a period of y-n1-n2 years, interest rate
i2 shall apply for the following n2 years, interest rate
i1 shall apply for the following n1 years, and thereafter the
immediate annuity rate shall apply.]
--------------------------------------------------------------------------------------------------------------------------------------------------------
For plans with a Immediate Deferred annuities (percent)
valuation date annuity ----------------------------------------------------------------
Rate set -------------------------- rate
On or after Before (percent) i\1\ i\2\ i\3\ n\1\ n\2\
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
36.............................................. 10-1-96 11-1-96 5.25 4.50 4.00 4.00 7 8
--------------------------------------------------------------------------------------------------------------------------------------------------------
Issued in Washington, DC, on this 9th day of September 1996.
Martin Slate,
Executive Director, Pension Benefit Guaranty Corporation.
[FR Doc. 96-23474 Filed 9-12-96; 8:45 am]
BILLING CODE 7708-01-P
Complete official Federal Register PDF
FR Doc. 96-23471 Airspace Designations; Incorporation by Reference
[Federal Register Volume 61, Number 179 (Friday, September 13, 1996)]
[Rules and Regulations]
[Pages 48403-48404]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-23471]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 71
[Docket No. 28674; Amendment No. 71-28]
Airspace Designations; Incorporation by Reference
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This action amends the Federal Aviation Regulations relating
to airspace designations to reflect the approval by the Director of the
Federal Register of the incorporation by reference of FAA Order
7400.9D, Airspace Designations and Reporting Points. This action also
explains the procedures the FAA will use to amend the listings of Class
A, Class B, Class C, Class D, and Class E airspace areas and reporting
points incorporated by reference.
EFFECTIVE DATE: These regulations are effective September 16, 1996,
through September 15, 1997. The incorporation by reference of FAA Order
7400.9D is approved by the Director of the Federal Register as of
September 16, 1996, through September 15, 1997.
FOR FURTHER INFORMATION CONTACT: Brenda Brown or Janet Glivings,
Airspace and Rules Division (ATA-400), Office of Air Traffic Airspace
Management, Federal Aviation Administration, 800 Independence Avenue,
SW., Washington, DC 20591; telephone: (202) 267-8783.
SUPPLEMENTARY INFORMATION:
History
FAA Order 7400.9C, Airspace Designations and Reporting Points,
dated August 17, 1995, and effective September 16, 1995, listed Class
A, Class B, Class C, Class D, and Class E airspace areas and reporting
points. Due to the length of these descriptions, the FAA requested
approval from the Office of the Federal Register to incorporate the
material by reference in the Federal Aviation Regulations (FAR) section
71.1 (14 CFR Sec. 71.1). The Director of the Federal Register approved
the incorporation by reference of FAA Order 7400.9C in section 71.1,
effective September 16, 1995, through September 15, 1996. During the
incorporation by reference period, the FAA processed all proposed
changes of the airspace listings in FAA Order 7400.9C in full text as
proposed rule documents in the Federal Register. Likewise, all
amendments of these listings were
[[Page 48404]]
published in full text as final rules in the Federal Register. This
rule reflects the periodic integration of these final rule amendments
into a revised edition of Airspace Designations and Reporting Points,
Order 7400.9D. The Director of the Federal Register has approved the
incorporation by reference of FAA Order 7400.9D in Sec. 71.1, as of
September 16, 1996, through September 15, 1997. This rule also explains
the procedures the FAA will use to amend the airspace designations
incorporated by reference in part 71. Sections 71.5, 71.31, 71.33,
71.41, 71.51, 71.61, 71.71, 71.79, and 71.901 are also updated to
reflect the incorporation by reference of FAA Order 7400.9D.
The Rule
This action amends part 71 of the Federal Aviation Regulations to
reflect the approval by the Director of the Federal Register of the
incorporation by reference of FAA Order 7400.9D effective September 16,
1996, through September 15, 1997. During the incorporation by reference
period, the FAA will continue to process all proposed changes of the
airspace listings in FAA Order 7400.9D in full text as proposed rule
documents in the Federal Register. Likewise, all amendments of these
listings will be published in full text as final rules in the Federal
Register. The FAA will periodically integrate all final rule amendments
into a revised edition of the Order, and submit the revised edition to
the Director of the Federal Register for approval for incorporation by
reference in Sec. 71.1.
The FAA has determined 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) does not warrant preparation of a
regulatory evaluation as the anticipated impact is so minimal. This
action neither places any new restrictions or requirements on the
public, nor changes the dimensions or operating requirements of the
airspace listings incorporated by reference in part 71. Consequently,
notice and public procedure under 5 U.S.C. 553(b) are unnecessary.
Because this action will continue to update the changes to the airspace
designations, which are depicted on aeronautical charts and to avoid
any unnecessary pilot confusion, I find that good cause exists, under 5
U.S.C. 553(d), for making this amendment effective in less than 30
days.
List of Subjects in 14 CFR Part 71
Airspace, Incorporation by reference, Navigation (air).
Adoption of the Amendment
In consideration of the foregoing, the Federal Aviation
Administration amends 14 CFR part 71 as follows:
PART 71--[AMENDED]
1. The authority citation for part 71 continues to read as follows:
Authority: 49 U.S.C. 106(g); 40103, 40113, 40120; E.O. 10854, 24
FR 9565, 3 CFR, 1959-1963 Comp., p. 389; 14 CFR 11.69.
2. Section 71.1 is revised to read as follows:
Sec. 71.1 Applicability.
The complete listing for all Class A, Class B, Class C, Class D,
and Class E airspace areas and for all reporting points can be found in
FAA Order 7400.9D, Airspace Designations and Reporting Points, dated
September 4, 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. The approval to incorporate by reference FAA Order
7400.9D is effective September 16, 1996, through September 15, 1997.
During the incorporation by reference period, proposed changes to the
listings of Class A, Class B, Class C, Class D, and Class E airspace
areas and to reporting points will be published in full text as
proposed rule documents in the Federal Register. Amendments to the
listings of Class A, Class B, Class C, Class D, and Class E airspace
areas and to reporting points will be published in full text as final
rules in the Federal Register. Periodically, the final rule amendments
will be integrated into a revised edition of the order and submitted to
the Director of the Federal Register for approval for incorporation by
reference in this section. Copies of FAA Order 7400.9D may be obtained
from the Airspace and Rules Division, ATA-400, Federal Aviation
Administration, 800 Independence Avenue, SW., Washington, DC 20591,
(202) 267-8783. Copies of FAA Order 7400.9D may be inspected in Docket
No. 28674 at the Federal Aviation Administration, Office of the Chief
Counsel, AGC-200, Room 915G, 800 Independence Avenue, SW., Washington,
DC, weekdays between 8:30 a.m. and 5:00 p.m., or at the Office of the
Federal Register, 800 North Capitol Street, NW., Suite 700, Washington,
DC. This section is effective September 16, 1996, through September 15,
1997.
Sec. 71.5 [Amended]
3. Section 71.5 is amended by removing the words ``FAA Order
7400.9C'' and adding, in their place, the words ``FAA Order 7400.9D.''
Sec. 71.31 [Amended]
4. Section 71.31 is amended by removing the words ``FAA Order
7400.9C'' and adding, in their place, the words ``FAA Order 7400.9D.''
Sec. 71.33 [Amended]
5. Paragraph (c) of Sec. 71.33 is amended by removing the words
``FAA Order 7400.9C'' and adding, in their place, the words ``FAA Order
7400.9D.''
Sec. 71.41 [Amended]
6. Section 71.41 is amended by removing the words ``FAA Order
7400.9C'' and adding, in their place, the words ``FAA Order 7400.9D.''
Sec. 71.51 [Amended]
7. Section 71.51 is amended by removing the words ``FAA Order
7400.9C'' and adding, in their place, the words ``FAA Order 7400.9D.''
Sec. 71.61 [Amended]
8. Section 71.61 is amended by removing the words ``FAA Order
7400.9C'' and adding, in their place, the words ``FAA Order 7400.9D.''
Sec. 71.71 [Amended]
9. Paragraphs (b), (c), (d), (e), and (f) of Sec. 71.71 are amended
by removing the words ``FAA Order 7400.9C'' and adding, in their place,
the words ``FAA Order 7400.9D.''
Sec. 71.79 [Amended]
10. Section 71.79 is amended by removing the words ``FAA Order
7400.9C'' and adding, in their place, the words ``FAA Order 7400.9D.''
Sec. 71.901 [Amended]
11. Paragraph (a) of Sec. 71.901 is amended by removing the words
``FAA Order 7400.9C'' and adding, in their place, the words ``FAA Order
7400.9D.''
Issued in Washington, DC, September 4, 1996.
Harold W. Becker,
Acting Program Director for Air Traffic Airspace Management.
[FR Doc. 96-23471 Filed 9-12-96; 8:45 am]
BILLING CODE 4910-13-P
Complete official Federal Register PDF
FR Doc. 96-23451 Endangered and Threatened Wildlife and Plants; Listing of the Umpqua River Cutthroat Trout in Oregon
[Federal Register Volume 61, Number 179 (Friday, September 13, 1996)]
[Rules and Regulations]
[Pages 48412-48413]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-23451]
=======================================================================
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AD96
Endangered and Threatened Wildlife and Plants; Listing of the
Umpqua River Cutthroat Trout in Oregon
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: The U.S. Fish and Wildlife Service (FWS) is adding the Umpqua
River cutthroat trout (Oncorhynchus clarki clarki) to the List of
Endangered and Threatened Wildlife. This measure, authorized by the
Endangered Species Act of 1973 (Act), corresponds with a determination
of endangered status for this species, as defined under the Act, by the
National Marine Fisheries Service (NMFS) which has jurisdiction for
this species.
EFFECTIVE DATE: September 9, 1996.
FOR FURTHER INFORMATION CONTACT: E. LaVerne Smith, Chief, Division of
Endangered Species, U.S. Fish and Wildlife Service, (703/358-2171).
SUPPLEMENTARY INFORMATION: In accordance with Reorganization Plan No. 4
of 1970, the NMFS, National Oceanic and Atmospheric Administration,
Department of Commerce, is responsible for the decisions regarding the
Umpqua River cutthroat trout under the Act. Under section 4(a)(2) of
the Act, NMFS must decide whether a species under its jurisdiction
should be classified as endangered or threatened. The FWS is
responsible for the actual addition of a species to the List of
Endangered and Threatened Wildlife in 50 CFR 17.11(h).
The NMFS published its determination of endangered status for the
Umpqua River cutthroat trout on August 9, 1996 (61 FR 41514).
Accordingly, the FWS is now adding it to the List of Endangered and
Threatened Wildlife as an endangered species. This addition is
effective as of September 9, 1996, as indicated in the NMFS's
determination. Because this action of the FWS is nondiscretionary, and
in view of the public comment period provided by NMFS on the proposed
listing (July 8, 1994; 50 FR 35089), the FWS finds that good cause
exists to omit the notice and public comment procedures of 5 U.S.C.
553(b).
National Environmental Policy Act
The FWS has determined that an Environmental Assessment, as defined
under the authority of the National Environmental Policy Act of 1969,
need not be prepared in connection with regulations adopted pursuant to
Section 4(a) of the Act, as amended. A notice outlining the FWS's
reasons for this determination was published in the Federal Register on
October 25, 1983 (48 FR 49244).
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Export, Import, Reporting and
recordkeeping requirements, and Transportation.
Regulation Promulgation
Accordingly, part 17, subchapter B of chapter I, title 50 of the
Code of Federal Regulations is amended as set forth below:
PART 17--[AMENDED]
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500, unless otherwise noted.
2. Section 17.11(h) is amended by adding the following, in
alphabetical order under Fish, to the List of Endangered and Threatened
Wildlife, to read as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
[[Page 48413]]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species Vertebrate
-------------------------------------------------------- population where Critical Special
Historic range endangered or Status When listed habitat rules
Common name Scientific name threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
Fish
* * * * * * *
Trout, Umpqua River cutthroat.... Oncorhynchus clarki U.S.A. (AK, CA, OR, Umpqua R. (U.S.A.-- E 588 NA NA
clarki. WA), Canada. OR) naturally
spawning pops.in
mainstem and
tributaries.
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Dated: August 29, 1996.
John G. Rogers,
Acting Director, Fish and Wildlife Service.
[FR Doc. 96-23451 Filed 9-12-96; 8:45 am]
BILLING CODE 4310-55-P
Complete official Federal Register PDF
FR Doc. 96-23449 Atlantic Tuna Fisheries; Fishery Closure
[Federal Register Volume 61, Number 179 (Friday, September 13, 1996)]
[Rules and Regulations]
[Page 48413]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-23449]
=======================================================================
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 285
[I.D. 090696G]
Atlantic Tuna Fisheries; Fishery Closure
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Closure.
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SUMMARY: NMFS has determined that the Atlantic bluefin tuna (ABT)
General category quota for the September period has been attained.
Therefore, the General category fishery for the September period will
be closed effective at 11:30 p.m. on September 9, 1996. This action is
being taken to prevent overharvest of the adjusted 165 metric tons (mt)
subquota for the September period. In addition, NMFS has determined
that the Incidental other category has attained its 1996 annual quota.
Therefore, the Incidental other category for 1996 will be closed
effective September 9, 1996.
EFFECTIVE DATES: The closure of the General category for the September
period is effective 11:30 p.m. local time on September 9, 1996, through
September 30, 1996, and the closure of the Incidental other category is
effective 11:30 p.m. local time on September 9, 1996, through December
31, 1996.
FOR FURTHER INFORMATION CONTACT: John Kelly, 301-713-2347, or Mark
Murray-Brown, 508-281-9260.
SUPPLEMENTARY INFORMATION: Regulations implemented under the authority
of the Atlantic Tunas Convention Act (16 U.S.C. 971 et seq.) governing
the harvest of ABT by persons and vessels subject to U.S. jurisdiction
are found at 50 CFR part 285. Section 285.22 subdivides the U.S. quota
recommended by the International Commission for the Conservation of
Atlantic Tunas among the various domestic fishing categories.
NMFS is required, under 285.20(b)(1), to monitor the catch and
landing statistics and, on the basis of these statistics, to project a
date when the catch of ABT will equal the quota and publish a Federal
Register announcement to close the applicable fishery.
General Category Closure
Implementing regulations for the Atlantic tuna fisheries at 50 CFR
285.22 provide for a quota of 159 mt of large medium and giant ABT to
be harvested from the regulatory area by vessels fishing under the
General category quota during the period beginning September 1 and
ending September 30. Due to an underage of 6 mt in the August subquota,
the September subquota was adjusted to 165 mt. Based on reported catch
and effort, NMFS projects that this revised quota has been reached.
Therefore, fishing for, retaining, possessing, or landing large medium
or giant ABT under the General category quota must cease at 11:30 p.m.
local time September 9, 1996. The General category will reopen October
1, 1996 with a quota of 63 mt for the October-December period. Note
that this October-December quota includes a 10-mt set aside for the New
York Bight fishery.
Incidental Other Category Closure
Implementing regulations for the Atlantic tuna fisheries at 50 CFR
285.22 provide for a quota of 1 mt of large medium and giant ABT to be
harvested from the regulatory area by vessels fishing under the
Incidental other category quota over the period January 1 - December
31. Based on reported catch, NMFS projects that this quota has been
reached. Therefore, retaining, possessing, or landing large medium or
giant ABT under the Incidental other category quota must cease at 11:30
p.m. local time September 9, 1996.
Classification
This action is taken under 50 CFR 285.20(b) and 50 CFR 285.22 and
is exempt from review under E.O. 12866.
Authority: 16 U.S.C. 971 et seq.
Dated: September 9, 1996.
Gary C. Matlock,
Director, Office of Sustainable Fisheries, National Marine Fisheries
Service.
[FR Doc. 96-23449 Filed 9-9-96; 4:39 pm]
BILLING CODE 3510-22-F
Complete official Federal Register PDF
FR Doc. 96-23448 Fisheries of the Exclusive Economic Zone Off Alaska; Pacific Ocean Perch in the Eastern Regulatory Area of the Gulf of Alaska
[Federal Register Volume 61, Number 179 (Friday, September 13, 1996)]
[Rules and Regulations]
[Page 48415]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-23448]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
50 CFR Part 679
[Docket No. 960129018-6018-01; I.D. 090996A]
Fisheries of the Exclusive Economic Zone Off Alaska; Pacific
Ocean Perch in the Eastern Regulatory Area of the Gulf of Alaska
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Closure.
-----------------------------------------------------------------------
SUMMARY: NMFS is closing the directed fishery for Pacific ocean perch
in the Eastern Regulatory Area of the Gulf of Alaska. This action is
necessary to prevent exceeding the Pacific ocean perch total allowable
catch (TAC) in the Eastern Regulatory Area.
EFFECTIVE DATE: 1200 hrs, Alaska local time (A.l.t.), September 9,
1996, until 2400 hrs, A.l.t., December 31, 1996.
FOR FURTHER INFORMATION CONTACT: Mary Furuness, 907-586-7228.
SUPPLEMENTARY INFORMATION: The groundfish fishery in the GOA exclusive
economic zone is managed by NMFS according to the Fishery Management
Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North
Pacific Fishery Management Council under authority of the Magnuson
Fishery Conservation and Management Act. Fishing by U.S. vessels is
governed by regulations implementing the FMP at subpart H of 50 CFR
part 600 and 50 CFR part 679.
In accordance with Sec. 679.20(c)(3)(ii), the Pacific ocean perch
TAC for the Eastern Regulatory Area was established by the Final 1996
Harvest Specifications of Groundfish (61 FR 4304, February 5, 1996) as
2,366 metric tons (mt). The directed fishery for Pacific ocean perch in
the Eastern Regulatory Area was closed under Sec. 679.20(d)(iii) on
July 11, 1996, (61 FR 37225, July 17, 1996) and reopened on July 31,
1996 (61 FR 40158, August 1, 1996).
The Director, Alaska Region, NMFS (Regional Director), has
determined, in accordance with Sec. 679.20(d)(1), that the Pacific
ocean perch TAC in the Eastern Regulatory Area soon will be reached.
Therefore, the Regional Director has established a directed fishing
allowance of 2,066 mt, with consideration that 300 mt will be taken as
incidental catch in directed fishing for other species in the Eastern
Regulatory Area. The Regional Director has determined that the directed
fishing allowance has been reached. Consequently, NMFS is prohibiting
directed fishing for Pacific ocean perch in the Eastern Regulatory
Area.
Maximum retainable bycatch amounts for applicable gear types may be
found in the regulations at Sec. 679.20(e).
Classification
This action is taken under Sec. 679.20 and is exempt from OMB
review under E.O. 12866.
Authority: 16 U.S.C. 1801 et seq.
Dated: September 9, 1996.
Gary Matlock,
Director, Office of Sustainable Fisheries, National Marine Fisheries
Service.
[FR Doc. 96-23448 Filed 9-9-96; 4:33 pm]
BILLING CODE 3510-22-F
Complete official Federal Register PDF
FR Doc. 96-23267 Approval and Promulgation of Implementation Plan for New Mexico Albuquerque/Bernalillo County: General Conformity Rules
[Federal Register Volume 61, Number 179 (Friday, September 13, 1996)]
[Rules and Regulations]
[Pages 48407-48409]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-23267]
=======================================================================
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[NM29-1-7272a; FRL-5549-9]
Approval and Promulgation of Implementation Plan for New Mexico--
Albuquerque/Bernalillo County: General Conformity Rules
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: This action approves the Albuquerque/Bernalillo County State
Implementation Plan (SIP) revision that contains regulations for
implementing and enforcing the general conformity rules which the EPA
promulgated on November 30, 1993 (58 FR 63214). Specifically, the
general conformity rules enable the Albuquerque/Bernalillo County Air
Quality Control Board to review conformity of all Federal actions (see
40 CFR part 51, subpart W--Determining Conformity of General Federal
Actions to State or Federal Implementation Plans) with the control
strategy SIP's submitted for the nonattainment and maintenance areas
within the boundary of Bernalillo County. This approval action is
intended to streamline the conformity process and allow direct
consultation among agencies at the local levels. The Federal actions by
the Federal Highway Administration and Federal Transit Administration
(under 23 U.S.C. or the Federal Transit Act) are covered by the
transportation conformity rules under 40 CFR part 51, subpart T--
Conformity to State or Federal Implementation Plans of Transportation
Plans, Programs, and Projects Developed, Funded or Approved Under Title
23 U.S.C. or the Federal Transit Act. The EPA approved the Albuquerque/
Bernalillo County transportation conformity SIP on November 8, 1995 (60
FR 56241).
The EPA is approving this SIP revision under sections 110(k) and
176 of the Clean Air Act (the Act). The rationale for the approval and
other information are provided in this document.
DATES: This action is effective on November 12, 1996, unless adverse or
critical comments are received by October 15, 1996. If the effective
date is delayed, timely notice will be published in the Federal
Register.
ADDRESSES: Copies of the Albuquerque/Bernalillo County General
Conformity SIP and other relevant information are available for
inspection during normal business hours at the following locations.
Interested persons wanting to examine these documents should make an
appointment with the appropriate office at least 24 hours before the
visiting day:
Air Planning Section (6PDL), Multimedia Planning and Permitting
Division, Environmental Protection Agency, Region 6, 1445 Ross Avenue,
Dallas, Texas 75202, Telephone: (214) 665-7214.
Air and Radiation Docket and Information Center, Environmental
Protection Agency, 401 M Street, S.W., Washington, D.C. 20460.
Air Pollution Control Division, Albuquerque Environmental Health
Department, One Civic Plaza, Albuquerque, New Mexico 87103, Telephone:
(505) 768-2600.
FOR FURTHER INFORMATION CONTACT: Mr. J. Behnam, P. E., Air Planning
Section (6PDL), Multimedia Planning and Permitting Division ,
Environmental Protection Agency, Region 6, 1445 Ross Avenue, Dallas,
Texas 75202, telephone (214) 665-7247.
SUPPLEMENTARY INFORMATION:
I. Background
Conformity provisions first appeared in the Act as amended in 1977
(Pub. L. 95-95). Although these provisions did not define conformity,
they provided that no Federal department could engage in, support in
any way or provide financial assistance for, license or permit, or
approve any activity which did not conform to a SIP that has been
approved or promulgated for the nonattainment or maintenance areas.
The 1990 Amendments of the Act expanded the scope and content of
the conformity provisions by defining conformity to an implementation
plan. Conformity is defined in section 176(c) of the Act as conformity
to the SIP's purpose of eliminating or reducing the severity and number
of violations of the National Ambient Air Quality Standards and
achieving expeditious attainment of such standards, and that such
activities will not: (1) cause or contribute to any new violation of
any standard in any area, (2) increase the frequency or severity of any
existing violation of any standard in any area, or (3) delay timely
attainment of any standard or any required interim emission reductions
or other milestones in any area.
The Act requires EPA to promulgate criteria and procedures for
determining conformity of all other Federal actions in the
nonattainment or maintenance areas (actions other than those under
Title 23 U.S.C. or the Federal Transit Act ) to a SIP. The criteria and
procedures developed for this purpose
[[Page 48408]]
are called ``general conformity'' rules. The rules pertaining to
actions under Title 23 U.S.C. or the Federal Transit Act were published
in a separate Federal Register notice on November 24, 1993 (see 58 FR
62188). The EPA published the final general conformity rules on
November 30, 1993 (58 FR 63214) and codified them at 40 CFR part 51,
subpart W--Determining Conformity of General Federal Actions to State
or Federal Implementation Plans. The general conformity rules require
the States and local air quality agencies (where applicable) to adopt
and submit a general conformity SIP revision to the EPA not later than
November 30, 1994.
II. Evaluation of State's (Albuquerque/Bernalillo County)
Submission
In response to the Federal Register notice of November 30, 1993,
the Governor of New Mexico submitted a SIP revision which included the
general conformity rules adopted by the Albuquerque/Bernalillo County
Air Quality Control Board. Currently, the Albuquerque/Bernalillo area
is nonattainment for carbon monoxide and has requested redesignation to
attainment; however, the general conformity SIP revision is applicable
to all nonattainment and maintenance classifications under the Act. The
following paragraphs present the results of EPA's review and evaluation
of the Albuquerque/Bernalillo County nonattainment area SIP revision.
The Albuquerque Environmental Health Department (AEHD) is the lead
air agency for SIP development, adoption, and enforcement in the
Bernalillo County carbon monoxide nonattainment area. The New Mexico
Air Quality Control Act (NMAQCA) allows, by ordinance, ``A'' class
counties (as defined in the New Mexico statute) and any municipality
within an ``A'' class county to create a municipal, county, or joint
air quality board to administer and enforce the provisions of the
NMAQCA. The City of Albuquerque and Bernalillo County have jointly
established such a board, namely Albuquerque/Bernalillo County Air
Quality Control Board, for administration and enforcement of NMAQCA
because Bernalillo County is an ``A'' class county. The AEHD is the
regulatory and administrative agency for implementing and enforcing the
air quality control regulations of the Board in the Bernalillo County
nonattainment area.
On December 19, 1994, the Governor of New Mexico submitted a SIP
revision on behalf of the Albuquerque/Bernalillo County Air Quality
Control Board in compliance with 40 CFR part 51 subpart W that contains
the general conformity rules. The SIP revision was adopted by the Board
on November 9, 1994, after appropriate public participation and
interagency consultation. The AEHD adopted the Federal general
conformity rules verbatim with the exception of limited changes and
additional definitions, where necessary, to create consistency with the
local processes, procedures, and area specific terms or names. These
minor modifications and additional clarifications do not in any way
alter the effect, implementation and enforcement of the Federal
conformity requirements in the Bernalillo County nonattainment area.
The EPA has determined that AEHD's general conformity rule meets the
Federal requirements and EPA is approving this SIP revision.
III. Final Action
The EPA is approving the general conformity SIP revision for the
Albuquerque/Bernalillo County nonattainment area as submitted by the
Governor of New Mexico on December 19, 1994. The EPA has evaluated this
SIP revision and has determined that Albuquerque/Bernalillo County
nonattainment area has fully adopted the provisions of the Federal
general conformity rules in accordance with 40 CFR part 51 subpart W.
The appropriate public participation and comprehensive interagency
consultations have been undertaken during development and adoption of
these rules by the Albuquerque Environmental Health Department at the
local level.
The EPA is publishing this action without prior proposal because
the EPA views this as a noncontroversial amendment and anticipates no
adverse comments. However, in a separate document in this Federal
Register publication, the EPA is proposing to approve the SIP revision
should adverse or critical comments be filed. This action will be
effective November 12, 1996, unless adverse or critical comments
concerning this action are submitted and postmarked by October 15,
1996. If the EPA receives such comments, this action will be withdrawn
before the effective date by publishing a subsequent document that will
withdraw the final action. All public comments received concerning this
action will then be addressed in a subsequent final rule based on this
action serving as a proposed rule. The EPA will not institute a second
comment period on this action. Any parties interested in commenting on
this action should do so at this time. If no such comments are received
on this action, the public is advised that this action will be
effective November 12, 1996.
IV. Administrative Requirements
A. Regulatory Flexibility
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., the EPA
must prepare a regulatory flexibility analysis assessing the impact of
any proposed or final rule on small entities (5 U.S.C. 603 and 604).
Alternatively, under 5 U.S.C. 605(b), the EPA may certify that the rule
will not have a significant impact on a substantial number of small
entities (see 46 FR 8709). Small entities include small businesses,
small not-for-profit enterprises, and governmental entities with
jurisdiction over populations of less than 50,000.
SIP approvals under section 110 and subchapter I, part D of the Act
do not create any new requirements, but simply approve requirements
that the State is already imposing. Therefore, because the Federal SIP-
approval does not impose any new requirements, I certify that it does
not have a significant impact on small entities. Moreover, due to the
nature of the Federal-State relationship under the Act, preparation of
a regulatory flexibility analysis would constitute Federal inquiry into
the economic reasonableness of State action. The Act forbids EPA from
basing its actions concerning SIPs on such grounds. Union Electric Co.
v. U.S. E.P.A., 427 U.S. 246, 256-66 (S.Ct. 1976); 42 U.S.C. section
7410(a)(2).
B. Unfunded Mandates
Under sections 202, 203, and 205 of the Unfunded Mandates Reform
Act of 1995, signed into law on March 22, 1995, the EPA must undertake
various actions in association with proposed or final rules that
include a Federal mandate that may result in estimated costs of $100
million or more to the private sector, or to State, local, or tribal
governments in the aggregate.
Through submission of this SIP or plan revision approved in this
action, the State and any affected local or tribal governments have
elected to adopt the program provided for under sections 110 and 176 of
the Clean Air Act. The rules and commitments approved in this action
may bind State, local, and tribal governments to perform certain
actions and also require the private sector to perform certain duties.
To the extent that the rules and commitments being approved by this
action will impose or lead to the imposition of any mandate upon the
State, local, or tribal governments, either as the owner or operator of
a source or as a regulator, or would impose or lead to the imposition
[[Page 48409]]
of any mandate upon the private sector, the EPA's action will impose no
new requirements; such sources are already subject to these
requirements under State law. Accordingly, no additional costs to
State, local, or tribal governments, or to the private sector, result
from this action. Therefore, the EPA has determined that this final
action does not include a mandate that may result in estimated costs of
$100 million or more to State, local, or tribal governments in the
aggregate or to the private sector.
C. Submission to Congress and the General Accounting Office
Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business
Regulatory Enforcement Fairness Act of 1996, the EPA submitted a report
containing this rule and other required information to the U.S. Senate,
the U.S. House of Representatives and the Comptroller General of the
General Accounting Office prior to publication of the rule in today's
Federal Register. This rule is not a ``major rule'' as defined by 5
U.S.C. 804(2).
D. Procedural Information
This action has been classified as a Table Three action for
signature by the Regional Administrator under the procedures published
in the Federal Register on January 19, 1989 (54 FR 2214-2225), as
revised by a July 10, 1995, memorandum from Ms. Mary Nichols, Assistant
Administrator for Air and Radiation.
E. Petition for Judicial Review
Under section 307(b)(1) of the Act, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by November 12, 1996. Filing a petition for
reconsideration of this final rule by the Regional Administrator does
not affect the finality of this rule for purposes of judicial review;
nor does it extend the time within which a petition for judicial review
may be filed, or postpone the effectiveness of this rule. This action
may not be challenged later in proceedings to enforce its requirements
(see section 307(b)(2)).
Nothing in this action shall be construed as permitting, allowing,
or establishing a precedent for any future request for a revision to
any SIP. Each request for revision to the SIP shall be considered
separately in light of specific technical, economic, and environmental
factors and in relation to relevant statutory and regulatory
requirements.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
General conformity, Hydrocarbons, Incorporation by reference,
Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate
matter, Volatile organic compounds.
Dated: July 24, 1996.
Allyn M. Davis,
Acting Regional Administrator.
Part 52, chapter I, title 40 of the Code of Federal Regulations is
amended as follows:
PART 52--[AMENDED]
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
Subpart GG--New Mexico
2. Section 52.1620 is amended by adding paragraph (c)(60) to read
as follows:
Sec. 52.1620 Identification of Plan.
* * * * *
(c) * * *
(60) A revision to the New Mexico State Implementation Plan for
General Conformity: Albuquerque/Bernalillo County Air Quality Control
Regulation No. 43 ``General Conformity'' as adopted on November 9,
1994, and filed with the State Records and Archives Center on December
16, 1994, was submitted by the Governor on December 19, 1994.
(i) Incorporation by reference.
(A) Albuquerque/Bernalillo County Air Quality Control Regulation
No. 43 ``General Conformity'' as adopted on November 9, 1994, and filed
with the State Records and Archives Center on December 16, 1994.
[FR Doc. 96-23267 Filed 9-12-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-23264 Approval and Promulgation of Implementation Plans for Louisiana: General Conformity Rules
[Federal Register Volume 61, Number 179 (Friday, September 13, 1996)]
[Rules and Regulations]
[Pages 48409-48412]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-23264]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[LA 25-1-6964a; FRL-5449-7]
Approval and Promulgation of Implementation Plans for Louisiana:
General Conformity Rules
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
-----------------------------------------------------------------------
SUMMARY: This action conditionally approves a revision to the Louisiana
State Implementation Plan (SIP) that contains regulations for
implementing and enforcing the general conformity rules which the EPA
promulgated on November 30, 1993. Specifically, the general conformity
rules enable the Louisiana Department of Environmental Quality (LDEQ)
to review conformity of all Federal actions (see 40 CFR part 51 subpart
W--Determining Conformity of General Federal Actions to State or
Federal Implementation Plans) with the control strategy SIP's submitted
for the nonattainment and maintenance areas in Louisiana. This approval
action is intended to streamline the conformity process and allow
direct consultation among agencies at the local levels. The Federal
actions by the Federal Highway Administration and Federal Transit
Administration (under 23 U.S.C. or the Federal Transit Act) are covered
by the transportation conformity rules under 40 CFR part 51, subpart
T--Conformity to State or Federal Implementation Plans of
Transportation Plans, Programs, and Projects Developed, Funded or
Approved Under Title 23 U.S.C. or the Federal Transit Act. The EPA will
act on the State's transportation conformity SIP under a separate
Federal Register document.
The EPA is approving this SIP revision under sections 110(k) and
176 of the Clean Air Act (the Act). The rationale for the approval and
other information are provided in this notice.
DATES: This action is effective on November 12, 1996, unless adverse or
critical comments are received by October 15, 1996. If the effective
date is delayed, timely notice will be published in the Federal
Register.
ADDRESSES: Copies of the State's submittal and other relevant
information are available for inspection during normal business hours
at the following locations. Interested persons wanting to examine these
documents should make an appointment with the appropriate office at
least 24 hours before the visiting day.
Air Planning Section (6PDL), Multimedia Planning and Permitting
Division, Environmental Protection Agency, Region 6, 1445 Ross Avenue,
Dallas, Texas 75202, Telephone: (214) 665-7214
Air and Radiation Docket and Information Center, Environmental
Protection Agency, 401 M Street, S.W., Washington, D.C. 20460
Air Quality Division, Louisiana Department of Environmental Quality,
7290 Bluebonnet Boulevard, Baton Rouge, Louisiana 70810, Telephone:
(504) 765-0219
FOR FURTHER INFORMATION CONTACT: Mr. J. Behnam, P. E., Air Planning
Section (6PDL), Multimedia Planning and Permitting Division ,
Environmental Protection Agency, Region 6, 1445 Ross
[[Page 48410]]
Avenue, Dallas, Texas 75202, telephone (214) 665-7247.
SUPPLEMENTARY INFORMATION:
I. Background
Conformity provisions first appeared in the Act as amended in 1977
(Public Law 95-95). Although these provisions did not define
conformity, they provided that no Federal department could engage in,
support in any way or provide financial assistance for, license or
permit, or approve any activity which did not conform to a SIP that has
been approved or promulgated for the nonattainment or maintenance
areas.
The 1990 Amendments of the Act expanded the scope and content of
the conformity provisions by defining conformity to an implementation
plan. Conformity is defined in section 176(c) of the Act as conformity
to the SIP's purpose of eliminating or reducing the severity and number
of violations of the National Ambient Air Quality Standards and
achieving expeditious attainment of such standards, and that such
activities will not: (1) cause or contribute to any new violation of
any standard in any area, (2) increase the frequency or severity of any
existing violation of any standard in any area, or (3) delay timely
attainment of any standard or any required interim emission reductions
or other milestones in any area.
The Act requires the EPA to promulgate criteria and procedures for
determining conformity of all other Federal actions in the
nonattainment or maintenance areas (actions other than those under
Title 23 U.S.C. or the Federal Transit Act ) to a SIP. The criteria and
procedures developed for this purpose are called ``general conformity''
rules. The rules pertaining to actions under Title 23 U.S.C. or the
Federal Transit Act were published in a separate Federal Register
notice on November 24, 1993 (see 58 FR 62188). The EPA published the
final general conformity rules on November 30, 1993 (58 FR 63214) and
are codified under 40 CFR Part 51 Subpart W--Determining Conformity of
General Federal Actions to State or Federal Implementation Plans. The
general conformity rules require the States and local air quality
agencies (where applicable) to adopt and submit a general conformity
SIP revision to the EPA not later than November 30, 1994.
II. Evaluation of State's Submission
A. Evaluation of the State Rules
In response to the Federal Register notice of November 30, 1993,
the Governor of Louisiana submitted a SIP revision which included the
general conformity rules adopted by the Louisiana Department of
Environmental Quality. The general conformity SIP revision is
applicable to all nonattainment and maintenance classifications under
the Act. The following paragraphs present the results of EPA's review
and evaluation of the Louisiana general conformity SIP revision.
On November 10, 1994, the Governor of Louisiana submitted a SIP
revision in compliance with 40 CFR Part 51 Subpart W that contained the
State general conformity rules. The SIP revision was adopted by the
State and published in the Louisiana Register on November 20, 1994,
after appropriate public participation and interagency consultation.
The LDEQ adopted the Federal general conformity rules verbatim with the
exception of limited changes and additional definitions, where
necessary, to create consistency with the local processes, procedures,
and area- specific terms or names. These minor modifications and
additional clarifications do not in any way alter the effect,
implementation, and enforcement of the Federal conformity requirements
in the State nonattainment and maintenance areas except for the
provision discussed in section II(B) of this notice.
B. Conditions and Commitments
Review of the State rules indicated that section 1405(B) of the
State rule allows the State Administrative authority to approve changes
to the emissions estimating methods and use of new or modified models
in the air quality and conformity analyses. This is contrary to 40 CFR
51.859 of the EPA general conformity rule which recommends use of the
EPA approved procedures and models, and retains the EPA's approval
authority for any deviation from the recommended provisions. In
addition, section 1411 of the State rule which contains identical
requirements as EPA's 40 CFR 51.859, requires approval of the EPA
Regional Administrator for use of the modified emissions estimating
methods and models if they are deviations from the EPA's recommended
procedures or models. Therefore, the EPA can not approve this SIP
revision unless this inconsistency has been corrected in section
1405(B) of the State's general conformity rule.
After the EPA's consultation with the State, the State has agreed
to modify section 1405(B) of its conformity rule by removing the
inconsistency discussed above. In a letter dated December 5, 1995, from
the Assistant Secretary of LDEQ to the EPA Region 6 Administrator, the
State commits to make the necessary correction in section 1405(B) and
submit a SIP revision to the EPA within twelve (12) months from the
date of this document, September 15, 1997. The EPA accepted this
commitment from the State because the EPA believes that the State has
shown a good faith effort in complying with the SIP requirements and
this minor inconsistency was not intentionally added to the
regulations. The State's commitment letter will allow the EPA to
proceed with a conditional approval while the State is preparing the
appropriate corrections for submission of a SIP revision.
The EPA has determined that LDEQ's general conformity rule meets
the Federal requirements except the provisions of section 1405(B) as
cited above. Therefore, the EPA is conditionally approving this SIP
revision until the State makes the appropriate corrections and submits
a SIP revision before the date specified above. If the State does not
submit a SIP revision for correction of section 1405(B) by the date
specified in section II(B) of this notice, this conditional approval
will automatically be converted to a disapproval on the date specified
above and as further discussed in section III of this notice.
III. Final Action
The EPA is conditionally approving a revision to the Louisiana
general conformity SIP revision based on the rationale elaborated in
this action. The general conformity rule is applicable to all
nonattainment and maintenance areas. The EPA has evaluated this SIP
revision and has determined that the State has fully adopted the
provisions of the Federal general conformity rules in accordance with
40 CFR Part 51 Subpart W, with one exception as noted in section II of
this notice. The State has undertaken appropriate public participation
and comprehensive interagency consultations during development and
adoption of the rules at the local level.
The EPA is approving this SIP revision, based on the State's
December 5, 1995, commitment letter and on the condition that the State
will adopt and submit a revised general conformity rule which will
contain the corrections detailed in this notice (see section II) within
twelve months of this final approval action, but not later than
September 15, 1997. If the State fails to submit a SIP revision, as
committed in the letter of December 5, 1995, for correction of section
1405(B) by September 15, 1997, this conditional approval under section
110(k) will
[[Page 48411]]
automatically be converted to a disapproval on that date and the
sanctions clock will begin. If the State does not submit a SIP, and the
EPA does not approve the SIP on which the disapproval was based within
18 months of the disapproval, the EPA must impose the sanctions under
section 179 of the Act.
The EPA is publishing this action without prior proposal because
the EPA views this as a noncontroversial amendment and anticipates no
adverse comments. However, in a separate document in this Federal
Register publication, the EPA is proposing to approve the SIP revision
should adverse or critical comments be filed. This action will be
effective November 12, 1996, unless adverse or critical comments
concerning this action are submitted and postmarked by October 15,
1996. If the EPA receives such comments, this action will be withdrawn
before the effective date by publishing a subsequent document that will
withdraw the final action. All public comments received concerning this
action will then be addressed in a subsequent final rule based on this
action serving as a proposed rule. The EPA will not institute a second
comment period on this action. Any parties interested in commenting on
this action should do so at this time. If no such comments are received
on this action, the public is advised that this action will be
effective November 12, 1996.
IV. Administrative Requirements
A. Regulatory Flexibility
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., the EPA
must prepare a regulatory flexibility analysis assessing the impact of
any proposed or final rule on small entities (5 U.S.C. 603 and 604).
Alternatively, under 5 U.S.C. 605(b), the EPA may certify that the rule
will not have a significant impact on a substantial number of small
entities (see 46 FR 8709). Small entities include small businesses,
small not-for-profit enterprises, and governmental entities with
jurisdiction over populations of less than 50,000.
Conditional approvals under section 110 and subchapter I, part D of
the Act do not create any new requirements, but simply approve
requirements that the State is already imposing. Therefore, because the
Federal SIP-approval does not impose any new requirements, the EPA
certifies that it does not have a significant impact on small entities.
Moreover, due to the nature of the Federal-State relationship under the
Act, preparation of a regulatory flexibility analysis would constitute
Federal inquiry into the economic reasonableness of State action. The
Act forbids the EPA from basing its actions concerning SIPs on such
grounds. Union Electric Co. v. U.S. E.P.A., 427 U.S. 246, 256-66 (S.Ct.
1976); 42 U.S.C. section 7410(a)(2). The Office of Management and
Budget has exempted this action from review under Executive Order
12866.
If conditional approval is converted to a disapproval under Section
110(k), based on the State's failure to meet the commitment, it will
not affect any existing State requirements applicable to small
entities. Federal disapproval of the State submittal does not affect
its State-enforceability. Moreover, the EPA's disapproval of the
submittal does not impose a new Federal requirement. Therefore, the EPA
certifies that such a disapproval will not have a significant impact on
a substantial number of small entities because it does not remove
existing State requirements, nor does it substitute a new Federal
requirement.
B. Unfunded Mandates
Under sections 202, 203, and 205 of the Unfunded Mandates Reform
Act of 1995, signed into law on March 22, 1995, the EPA must undertake
various actions in association with proposed or final rules that
include a Federal mandate that may result in estimated costs of $100
million or more to the private sector, or to State, local, or tribal
governments in the aggregate.
Through submission of this SIP or plan revision approved in this
action, the State and any affected local or tribal governments have
elected to adopt the program provided for under sections 110 and 176 of
the Clean Air Act. The rules and commitments approved in this action
may bind State, local, and tribal governments to perform certain
actions and also require the private sector to perform certain duties.
To the extent that the rules and commitments being approved by this
action will impose or lead to the imposition of any mandate upon the
State, local, or tribal governments, either as the owner or operator of
a source or as a regulator, or would impose or lead to the imposition
of any mandate upon the private sector, the EPA's action will impose no
new requirements; such sources are already subject to these
requirements under State law. Accordingly, no additional costs to
State, local, or tribal governments, or to the private sector, result
from this action. Therefore, the EPA has determined that this final
action does not include a mandate that may result in estimated costs of
$100 million or more to State, local, or tribal governments in the
aggregate or to the private sector.
C. Submission to Congress and the General Accounting Office
Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business
Regulatory Enforcement Fairness Act of 1996, the EPA submitted a report
containing this rule and other required information to the U.S. Senate,
the U.S. House of Representatives and the Comptroller General of the
General Accounting Office prior to publication of the rule in today's
Federal Register. This rule is not a ``major rule'' as defined by 5
U.S.C. 804(2).
D. Procedural Information
This action has been classified as a Table Three action for
signature by the Regional Administrator under the procedures published
in the Federal Register on January 19, 1989 (54 FR 2214-2225), as
revised by a July 10, 1995, memorandum from Ms. Mary Nichols, Assistant
Administrator for Air and Radiation. The Office of Management and
Budget has exempted this regulatory action from Executive Order 12866
review.
E. Petitions for Judicial Review
Under section 307(b)(1) of the Act, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by November 12, 1996. Filing a petition for
reconsideration of this final rule by the Regional Administrator does
not affect the finality of this rule for purposes of judicial review;
nor does it extend the time within which a petition for judicial review
may be filed, or postpone the effectiveness of this rule. This action
may not be challenged later in proceedings to enforce its requirements
(see section 307(b)(2)).
Nothing in this action shall be construed as permitting, allowing,
or establishing a precedent for any future request for a revision to
any SIP. Each request for revision to the SIP shall be considered
separately in light of specific technical, economic, and environmental
factors and in relation to relevant statutory and regulatory
requirements.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
General conformity, Hydrocarbons, Incorporation by reference,
Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate
matter, Volatile organic compounds.
[[Page 48412]]
Dated: July 24, 1996.
Allyn M. Davis,
Acting Regional Administrator.
Part 52, chapter I, title 40 of the Code of Federal Regulations is
amended as follows:
PART 52--[AMENDED]
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
Subpart T--Louisiana
2. Section 52.970 is amended by adding paragraph (c)(67) to read as
follows:
Sec. 52.970 Identification of plan.
* * * * *
(c) * * *
(67) A revision to the Louisiana State Implementation Plan for
General Conformity: LAC 33:III. CHAPTER 14. SUBCHAPTER A ``Determining
Conformity of General Federal Actions to State or Federal
Implementation Plan'' as adopted by the Louisiana Department of
Environmental Quality Secretary and published in the Louisiana
Register, Vol. 20, No. 11, 1268, November 20, 1994, was submitted by
the Governor on November 10, 1994.
(i) Incorporation by reference.
(A) Louisiana General Conformity: LAC 33:III. CHAPTER 14.
SUBCHAPTER A ``Determining Conformity of General Federal Actions to
State or Federal Implementation Plan'' as adopted by the Louisiana
Department of Environmental Quality Secretary and published in the
Louisiana Register, Vol. 20, No. 11, 1268, November 20, 1994.
3. Section 52.994 is added to read as follows:
Sec. 52.994 Conditional approvals.
(a) General Conformity. A letter, dated December 5, 1995, from
Assistant Secretary of the Louisiana Department of Environmental
Quality to the EPA Regional Administrator, commits the State to make
corrections in section 1405(B) for restoring the EPA's authority in
certain sections of the rule. Specifically, the letter states that:
The State of Louisiana submitted a State Implementation Plan
(SIP) for General Conformity on November 30, 1994. The SIP review
conducted by EPA General Counsel identified an inconsistency with
the federal rule.
EPA's General Counsel advised that under 40 CFR 51.859 and LAC
33:III.1411, administrative authority belongs to EPA; and clarifies
that all requirements of Section 51.859 (State's 1411) are
applicable to any analyses required in 40 CFR 51.859 (State's LAC
33:III.1405). To clarify that requirements of Section 1411 are
applicable to Section 1405 and to correct the inconsistency, the
sentence cited in EPA's review will be changed to read as follows:
`Emissions from federal actions must be determined using methods
described in Section 1411 of this Subchapter.' Since Section 1411
gives administrative authority to EPA regional administrator, no
further clarification will be needed.
The State commits to make the above rule change within one year
from the Federal Register publication of final notice of conditional
approval to Louisiana's General Conformity SIP.
(b) (reserved)
[FR Doc. 96-23264 Filed 9-12-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-23258 Office of the Secretary; Multifamily and Single Family Nonjudicial Foreclosure Procedures Streamlining
[Federal Register Volume 61, Number 179 (Friday, September 13, 1996)]
[Rules and Regulations]
[Pages 48546-48562]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-23258]
[[Page 48545]]
_______________________________________________________________________
Part III
Department of Housing and Urban Development
_______________________________________________________________________
24 CFR Parts 27 and 29
Streamlining Multifamily and Single Family Nonjudicial Foreclosure
Procedures; Final Rule
Federal Register / Vol. 61, No. 179 / Friday, September 13, 1996 /
Rules and Regulations
[[Page 48546]]
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
24 CFR Parts 27 and 29
[Docket No. FR-4110-F-01]
RIN 2501-AC29
Office of the Secretary; Multifamily and Single Family
Nonjudicial Foreclosure Procedures Streamlining
AGENCY: Office of the Secretary, HUD.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This final rule is a part of HUD's regulatory reinvention
initiative. It combines the current rules for multifamily and single
family nonjudicial foreclosure at 24 CFR parts 27 and 29, respectively,
into separate subparts of part 27, thereby eliminating a CFR part. In
addition, this rule streamlines the multifamily requirements in the
current part 27, which repeats substantial portions of the authorizing
statute, and removes certain single family requirements in the current
part 29 that are more restrictive than the authorizing statute.
EFFECTIVE DATE: October 15, 1996.
FOR FURTHER INFORMATION CONTACT: With respect to Single Family Housing:
Bruce S. Albright, Office of General Counsel, U.S. Department of
Housing and Urban Development, Room 9240, Washington, DC 20410, (202)
708-0080. A telecommunications device for the hearing impaired (TTY) is
available at (202) 708-3259. (These are not toll-free numbers.)
With respect to Multifamily Housing: Herbert Goldblatt, Office of
General Counsel, U.S. Department of Housing and Urban Development, Room
10184, Washington, DC 20410, (202) 708-3200. A telecommunications
device for the hearing impaired (TTY) is available at (202) 708-3259.
(These are not toll-free numbers.)
SUPPLEMENTARY INFORMATION:
I. General Background
On March 4, 1995, President Clinton issued a memorandum to all
Federal departments and agencies regarding regulatory reinvention. In
response to this memorandum, the Department of Housing and Urban
Development conducted a page-by-page review of its regulations to
determine which can be eliminated, consolidated, or otherwise improved.
HUD has determined that the regulations for the Nonjudicial Foreclosure
of Multifamily Mortgages at 24 CFR part 27 can be improved and
streamlined by eliminating unnecessary provisions. The regulations for
Nonjudicial Foreclosure of Single Family Mortgages at 24 CFR part 29
were already issued in streamlined form in a final rule published on
November 15, 1995 (60 FR 57489). The Department has determined that
these single family provisions may appropriately be consolidated with
the multifamily provisions as a separate subpart in 24 CFR part 27.
This rule also removes certain single family requirements, as explained
below in this preamble, that are more restrictive than the authorizing
statute.
The combined statutory and regulatory procedures for conducting
nonjudicial foreclosures have been placed in appendices to this final
rule. Appendix A provides a Guide for the multifamily procedures;
Appendix B provides a Guide for the Single Family provisions. The final
rule will be codified in the Code of Federal Regulations; the
appendices will not be codified. However, the appropriate appendix will
be included in information to be provided to foreclosure commissioners,
and which will be available to the public. HUD is striving to keep
communications about requirements as clear, simple and timely as
possible, and the Guides in the appendices present such a format.
II. Multifamily Rule Changes
Several provisions in the multifamily nonjudicial foreclosure
regulations repeat statutory language from the Multifamily Mortgage
Foreclosure Act of 1981 (the Act) (12 U.S.C. 3701 et seq.). It is
unnecessary to maintain statutory requirements in the Code of Federal
Regulations (CFR), since those requirements are otherwise fully
accessible and binding. Furthermore, if regulations contain statutory
language, HUD must amend the regulations whenever Congress amends the
statute. Therefore, this rule will remove repetitious statutory
language and, where appropriate, replace it with a citation to the
specific statutory section.
Also being deleted from the regulatory text of part 27 is language
that is only advisory, such as the list of examples of terms which the
Secretary may require the purchaser to agree to in the current
Sec. 27.20(c).
III. Single Family Rule Changes
The single family requirements in the current part 29 have already
been streamlined in a final rule published on November 15, 1995 (60 FR
57484). These requirements are moved in this final rule to become
subpart B of part 27, and part 29 is removed.
As a result of the initial use of this new authority to foreclose
mortgages by nonjudicial procedures, the Department has noted three
areas where the regulations at 24 CFR Secs. 29.103(b)(2), 29.109(b) and
29.111(a) are more restrictive than the authorizing statute, the Single
Family Mortgage Foreclosure Act of 1994 (the Statute), 12 U.S.C. 3751-
3768. Because these restrictions present problems for efficient and
cost-effective implementation of the Statute, they are being removed.
The regulatory provisions in question, discussed below, require
inclusion of the description of the property as contained in the
security instrument in the Notice of Default and Foreclosure Sale; the
presence of the designated foreclosure commissioner at the foreclosure
sale; and the service by publication of the Notice of Default and
Foreclosure Sale prior to the revised date of an adjourned foreclosure
sale.
Property Description in the Notice of Default and Foreclosure Sale
In 12 U.S.C. 3757(4), the Notice of Default and Foreclosure Sale is
to include, among other items, ``* * * the street address or a
description of the location of the property, and a description of the
security property sufficient to identify the property to be sold.''
[Underlining provided.] The provisions of the existing regulation on
this point, at 24 CFR 29.103(b)(2), are more restrictive than the
Statute. The regulatory provisions state that the Notice of Default and
Foreclosure Sale must contain, among other things, ``[t]he legal
description of the security property as contained in the mortgage
agreement.'' [Underlining provided.] HUD has found that in some
jurisdictions, the description contained in the security instrument can
be very lengthy, in fact, much longer than would be necessary to
sufficiently identify the property to be sold at the foreclosure sale.
Requiring an unnecessarily lengthy legal description can, in some
instances, result in additional expense in publishing the Notice of
Default and Foreclosure Sale, resulting in increased costs to the
insurance funds.
In order to correct this situation, Sec. 29.103(b)(2) of the
existing rule is revised at Sec. 27.103(b)(2) of this rule to conform
the regulation to the less restrictive language in the statute.
Presence of the Foreclosure Commissioner at the Sale
While section 369B(b) of the Multifamily Housing Mortgage
Foreclosure Act of 1981 (12 U.S.C. 3710), pertaining to the conduct of
the sale, specifically requires the attendance of the foreclosure
commissioner at the foreclosure sale, the provisions of the
[[Page 48547]]
Single Family Mortgage Foreclosure Act of 1994 governing the conduct of
the sale are silent on attendance by the commissioner at the sale, see
12 U.S.C. 3760. Furthermore, Section 3760(b)(1)(C) of 12 U.S.C.
specifically provides that ``The foreclosure commissioner may serve as
auctioneer, or, in accordance with regulations of the Secretary, may
employ an auctioneer to be paid from the commission provided for in
section 3761(5).'' At section 3761(2) of 12 U.S.C., the statutory
authority governing foreclosure costs provides for the payment of costs
arising from ``[m]ileage * * * for posting notices and for the
foreclosure commissioner's or auctioneer's attendance at the sale * *
*.'' [Underlining provided.]
The regulations at 24 CFR 29.109(b) presently provide that the
foreclosure commissioner or, an employee of the commissioner, if the
commissioner is not a natural person, must attend the foreclosure sale.
This has been found to be restrictive in situations where a sole single
family property is a great distance from a foreclosure commissioner's
location. This results in the commissioner having to spend an
inordinate amount of time and travel expense in order to personally
attend the sale or, in the alternative, it results in the
unavailability of foreclosure commissioners to accept such case
referrals. The regulation is therefore amended in this rule by not
including the language of Sec. 29.109(b).
Service by Publication of Notice of an Adjourned Foreclosure Sale
The Statute at 12 U.S.C. 3760(c)(2) requires service by publication
and mailing of the revised Notice of Default and Foreclosure Sale when
a sale is adjourned to a later date, and permits publication to be made
on any of three separate days before the revised date of foreclosure
sale. The current section Sec. 29.111(a) requires publication of the
Notice of Default and Foreclosure Sale to be made on any of three
consecutive days prior to the revised date of foreclosure sale so long
as the first publication is made at least seven days before the date to
which the sale has been adjourned. This requirement could in some
circumstances be impossible to comply with, because it does not take
into account cases in which there are no daily newspapers of general
circulation that would permit publication on three consecutive days.
The requirement in Sec. 29.111(a) for the first publication to be made
at least seven days before the sale is also not part of the Statute,
which only makes service by mail subject to the seven days requirement.
This rule, at Sec. 27.111(a), returns to the statutory language
permitting publication to be made on any of three separate days before
the revised date of foreclosure sale. In addition, to give full
implementation to the Statute, which allows adjournment of the
foreclosure sale for ``not less than 9 and not more than 31 days,''
this rule takes into account cases in which the frequency of
publication of newspapers of general circulation would not permit
publication on three separate days before the date to which the sale
has been adjourned. To avoid the frustration of the statutory provision
that permits adjournments of not less than 9 days, this rule provides
that if there is no newspaper of general circulation that would permit
publication on any of three separate days before the revised date of
foreclosure sale, the Notice of Default and Foreclosure Sale must be
posted, not less than nine days before the date to which the sale has
been adjourned, at the courthouse of any county or counties in which
the property is located, and at the place where the sale is to be held.
This provision is modeled on the exception to publication by posting
provision in the Statute at 12 U.S.C. 3758(3)(B), and avoids such a
Statute-frustrating result as not being able to adjourn a foreclosure
sale for less than 21 days in an area where a newspaper is published
only weekly.
IV. Findings and Certifications
Justification for Final Rulemaking
HUD generally publishes a rule for public comment before issuing a
rule for effect, in accordance with its own regulations on rulemaking
in 24 CFR part 10. However, part 10 provides for exceptions to the
general rule if the agency finds good cause to omit advance notice and
public participation. The good cause requirement is satisfied when
prior public procedure is ``impracticable, unnecessary, or contrary to
the public interest'' (24 CFR 10.1). HUD finds that good cause exists
to publish this rule for effect without first soliciting public
comment. This rule merely removes unnecessary regulatory provisions and
does not establish or affect substantive policy. Therefore, prior
public comment is unnecessary.
Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 establishes
requirements for Federal agencies to assess the effects of their
regulatory actions on State, local, local and tribal governments and
the private sector. This rule does not impose any Federal mandates on
any State, local or tribal governments or the private sector within the
meaning of the Unfunded Mandates Reform Act of 1995.
Regulatory Flexibility Act
The Secretary, in accordance with the Regulatory Flexibility Act
(5 U.S.C. 605(b)), has reviewed and approved this rule, and in so doing
certifies that this rule will not have a significant economic impact on
a substantial number of small entities. This rule merely streamlines
regulations by removing unnecessary provisions. The rule will have no
adverse or disproportionate economic impact on small businesses.
Environmental Impact
This rulemaking does not have an environmental impact. This
rulemaking simply amends an existing regulation by consolidating and
streamlining provisions. It does not change the environmental review
procedures or the physical impact of the program or the projects
assisted under the regulations being amended.
Executive Order 12612, Federalism
The General Counsel, as the Designated Official under section 6(a)
of Executive Order 12612, Federalism, has determined that this rule
will not have substantial direct effects on States or their political
subdivisions, or the relationship between the Federal government and
the States, or on the distribution of power and responsibilities among
the various levels of government. No programmatic or policy changes
that would affect the relationship between the Federal Government and
State and local governments will result from this rule.
Executive Order 12606, The Family
The General Counsel, as the Designated Official under Executive
Order 12606, The Family, has determined that this rule will not have
the potential for significant impact on family formation, maintenance,
or general well-being, and thus is not subject to review under the
Order. No significant change in existing HUD policies or programs will
result from promulgation of this rule.
List of Subjects
24 CFR Part 27
Administrative practice and procedure, Loan programs--housing and
community development.
[[Page 48548]]
24 CFR Part 29
Administrative practice and procedure, Loan programs--housing and
community development.
Accordingly, under the authority 420 U.S.C. 3535(d) subtitle A of
title 24 of the Code of Federal Regulations is amended as follows:
1. Part 27 is revised to read as follows:
PART 27--NONJUDICIAL FORECLOSURE OF MULTIFAMILY AND SINGLE FAMILY
MORTGAGES
Subpart A--Nonjudicial Foreclosure of Multifamily Mortgages
Sec.
27.1 Purpose.
27.2 Scope and applicability.
27.3 Definitions.
27.5 Prerequisites to foreclosure.
27.10 Designation of a foreclosure commissioner.
27.15 Notice of default and foreclosure sale.
27.20 Conditions of foreclosure sale.
27.25 Termination or adjournment of foreclosure sale.
27.30 Conduct of the sale.
27.35 Foreclosure costs.
27.40 Disposition of sale proceeds.
27.45 Transfer of title and possession.
27.50 Management and disposition by the Secretary.
Subpart B--Nonjudicial Foreclosure of Single Family Mortgages
27.100 Purpose, Scope and Applicability.
27.101 Definitions.
27.102 Designation of foreclosure commissioner and substitute
commissioner.
27.103 Notice of default and foreclosure sale.
27.105 Service of Notice of Default and Foreclosure Sale.
27.107 Presale reinstatement.
27.109 Conduct of sale.
27.111 Adjournment or cancellation of sale.
27.113 Foreclosure costs.
27.115 Disposition of sales proceeds.
27.117 Transfer of title and possession.
27.119 Redemption rights.
27.121 Record of foreclosure and sale.
27.123 Deficiency judgment.
Authority: 12 U.S.C. 1715b, 3701-3717, 3751-3768; 42 U.S.C.
1452b, 3535(d).
Subpart A--Nonjudicial Foreclosure of Multifamily Mortgages
Sec. 27.1 Purpose.
The purpose of this subpart is to implement requirements for the
administration of the Multifamily Mortgage Foreclosure Act of 1981 (the
Act) (12 U.S.C. 3701-3717), that clarify, or are in addition to, the
requirements contained in the Act, which are not republished here and
must be consulted in conjunction with the requirements of this subpart.
The Act creates a uniform Federal remedy for foreclosure of multifamily
mortgages. Under a delegation of authority published on February 5,
1982 (47 FR 5468), the Secretary has delegated to the HUD General
Counsel his powers under the Act to appoint a foreclosure commissioner
or commissioners and to substitute therefor, to fix the compensation of
commissioners, and to promulgate implementing regulations.
Sec. 27.2 Scope and applicability.
(a) Under the Act and this subpart, the Secretary may foreclose on
any defaulted Secretary-held multifamily mortgage encumbering real
estate in any State. The Secretary may use the provisions of these
regulations to foreclose on any multifamily mortgage regardless of when
the mortgage was executed.
(b) The Secretary may, at the Secretary's option, use other
procedures to foreclose defaulted multifamily mortgages, including
judicial foreclosure in Federal court and nonjudicial foreclosure under
State law. This subpart applies only to foreclosure procedures
authorized by the Act and not to any other foreclosure procedures the
Secretary may use.
Sec. 27.3 Definitions.
The definitions contained in the Act (at 12 U.S.C. 3702) shall
apply to this subpart, in addition to and as further clarified by the
following definitions. As used in this subpart:
General Counsel means the General Counsel of the Department of
Housing and Urban Development;
Multifamily mortgage does not include a mortgage covering a
property on which there is located a one- to four-family residence,
except when the one- to four-family residence is subject to a mortgage
pursuant to section 202 of the Housing Act of 1959 (12 U.S.C. 1701q),
or section 811 (42 U.S.C. 8013) of the National Affordable Housing Act.
The definition of multifamily mortgage also includes a mortgage taken
by the Secretary in connection with the previous sale of the project by
the Secretary (purchase money mortgage).
Sec. 27.5 Prerequisites to foreclosure.
Before commencement of a foreclosure under the Act and this
subpart, HUD will provide to the mortgagor an opportunity informally to
present reasons why the mortgage should not be foreclosed. Such
opportunity may be provided before or after the designation of the
foreclosure commissioner but before service of the notice of default
and foreclosure.
Sec. 27.10 Designation of a foreclosure commissioner.
(a) When the Secretary determines that a multifamily mortgage
should be foreclosed under the Act and this subpart, the General
Counsel will select and designate one or more foreclosure commissioners
to conduct the foreclosure and sale. The method of selection and
determination of the qualifications of the foreclosure commissioner
shall be at the discretion of the General Counsel, and the execution of
a designation pursuant to paragraph (b) of this section shall be
conclusive evidence that the commissioner selected has been determined
to be qualified by the General Counsel.
(b) After selection of a foreclosure commissioner, the General
Counsel shall designate the commissioner in writing to conduct the
foreclosure and sale of the particular multifamily mortgage. The
written designation shall be duly acknowledged and shall state the name
and business or residential address of the commissioner and any other
information the General Counsel deems necessary. The designation shall
be effective upon execution by the General Counsel or his designate.
Upon receipt of the designation, the commissioner shall demonstrate
acceptance by signing the designation and returning a signed copy to
the General Counsel.
(c) The General Counsel may at any time, with or without cause,
designate a substitute commissioner to replace a previously designated
commissioner. Designation of a substitute commissioner shall be in
writing and shall contain the same information and be made effective in
the same manner as the designation of the original commissioner. Upon
designation of a substitute commissioner, the substitute commissioner
shall serve a copy of the written notice of designation upon the
persons listed at sections 369(1) (A) through (C) of the Act (12 U.S.C.
3708(1) (A) through (C)) either by mail, in accordance with section
369(1) of the Act (12 U.S.C. 3708(1)), except that the time limitations
in that section will not apply, or by any other manner which in the
substitute commissioner's discretion is conducive to giving timely
notice of substitution.
Sec. 27.15 Notice of default and foreclosure sale.
(a) Within 45 days after accepting his or her designation to act as
commissioner, the commissioner shall commence the foreclosure by
serving a Notice of Default and Foreclosure Sale.
[[Page 48549]]
(b) The Notice of Default and Foreclosure Sale shall contain the
following information:
(1) The Notice shall state that all deposits and the balance of the
purchase price shall be paid by certified or cashier's check. The
Notice shall state that no deposit will be required of the Secretary
when the Secretary bids at the foreclosure sale.
(2) Any terms and conditions to which the purchaser at the
foreclosure sale must agree under Sec. 27.20. The Notice need not
describe at length each and every pertinent term and condition,
including any required use agreements and deed covenants, if it
describes these terms and conditions in a general way and if it states
that the precise terms will be available from the commissioner upon
request.
(c) The Notice need not be mailed to mortgagors who have been
released from all obligations under the mortgage.
(d) In deciding which newspaper or newspapers to select as general
circulation newspapers for purposes of publication of the required
notice, the commissioner need not select the newspaper with the largest
circulation.
(e) In addition to Notice posting requirements included in the Act,
the Notice shall also be posted in the project office and in such other
appropriate conspicuous places as the commissioner deems appropriate
for providing notice to all tenants. Posting shall not be required if
the commissioner in his or her discretion finds that the act of posting
is likely to lead to a breach of the peace or may result in the
increased risk of vandalism or damage to the property. Any such finding
will be made in writing. Entry on the premises by the commissioner for
the purpose of posting shall be privileged as against all other
persons.
(f) When service of the Notice of Default and Foreclosure Sale is
made by mail, the commissioner shall at the same time and in the same
manner serve a copy of the instrument by which the General Counsel,
under Sec. 27.10(b), has designated him or her to act as commissioner.
(g) At least 7 days before the foreclosure sale, the commissioner
will record both the instrument designating him or her to act as
commissioner and the Notice of Default and Foreclosure Sale in the same
office or offices in which the mortgage was recorded.
Sec. 27.20 Conditions of foreclosure sale.
(a) The requirements of section 367(b)(2)(A) of the Act (12 U.S.C.
3706(b)(2)(A)) apply if a majority of the residential units in a
property subject to foreclosure sale pursuant to the Act and this
subpart are occupied by residential tenants either on the date of the
foreclosure sale or on the date on which the General Counsel designates
the foreclosure commissioner.
(b) Terms which the Secretary may find appropriate to require
pursuant to section 367(b) of the Act (12 U.S.C. 3706(b)), and such
other provisions of law as may be applicable, may include provisions
relating to use and ownership of the project property, tenant admission
standards and procedures, rent schedules and increases, and project
operation and maintenance. In determining terms which may be
appropriate to require, the Secretary shall consider:
(1) The history of the project, including the purposes of the
program under which the mortgage insurance or assistance was provided,
and any other program of HUD under which the project was developed or
otherwise assisted and the probable causes of project failure resulting
in its default;
(2) A financial analysis of the project, including an appraisal of
the fair market value of the property for its highest and best use;
(3) A physical analysis of the project, including the condition of
the structure and grounds, the need for rehabilitation or repairs, and
the estimated costs of any such rehabilitation or repairs;
(4) The income levels of the occupants of the project;
(5) Characteristics, including rental levels, of comparable housing
in the area, with particular reference to whether current conditions
and discernible trends in the area fairly indicate a likelihood that,
for the foreseeable future after foreclosure and sale, the project will
continue to provide rental or cooperative housing and market rentals
obtainable in the project will be affordable by low- or moderate-income
persons;
(6) The availability of or need for rental housing for low- and
moderate-income persons in the area, including actions being taken or
projected to be taken to address such needs and the impact of such
actions on the project;
(7) An assessment of the number of occupants who might be displaced
as a result of the manner of disposition;
(8) The eligibility of the occupants of the property for rental
assistance under any program administered by HUD and the availability
of funding for such assistance if necessary in order that the units
occupied by such occupants will remain available to and affordable by
such persons, or if necessary in order to assure the financial
feasibility of the project after foreclosure and sale subject to the
terms to be required by the Secretary; and
(9) Such other factors relating to the project as the Secretary
shall consider appropriate.
(c) Terms which the Secretary may require to be agreed to by the
purchaser pursuant to section 367(b) of the Act (12 U.S.C. 3706(b))
shall generally not be more restrictive, or binding for a longer
duration, than the terms by which the mortgagor was bound prior to the
foreclosure. For example: If the mortgage being foreclosed was held by
the Secretary under section 312 of the Housing Act of 1964 (42 U.S.C.
1452b), any terms required by the Secretary pursuant to this section
shall be in effect no longer than five years after the completion of
the rehabilitation work funded by the section 312 loan. No terms shall
be required pursuant to this section if the foreclosure sale occurs
more than five years after the completion of such rehabilitation work
(signified by the due date for commencement of amortization payments in
the section 312 loan note).
(d) The limitation contained in paragraph (c) of this section
applies only to such terms as the Secretary may require the purchaser
to agree to, as a condition and term of the sale, under paragraph (a)
of this section. Nothing contained in paragraph (c) of this section
shall prevent the Secretary and the purchaser from entering into a
subsidy agreement under any program administered by the Secretary
containing terms binding upon either party which are longer in duration
than would be permitted to be required by paragraph (c) of this
section.
(e) Any terms required by the Secretary to be agreed to by the
purchaser as a condition and term of sale under this section and
section 367(b) of the Act (12 U.S.C. 3706(b)) shall be embodied in a
use agreement to be executed by the Secretary and the purchaser. Such
terms also may be included, or referred to, in appropriate covenants
contained in the deed to be delivered by the foreclosure commissioner
under Sec. 27.45. Terms required by the Secretary pursuant to this
section shall be stated or described in the Notice of Default and
Foreclosure Sale under Sec. 27.15.
Sec. 27.25 Termination or adjournment of foreclosure sale.
(a) Before withdrawing the security property from foreclosure under
section 369A(a) of the Act (12 U.S.C. 3709(a)), the commissioner shall
notify the Secretary of the proposed withdrawal by telephone or
telegram and shall provide the Secretary with a written statement of
[[Page 48550]]
the reasons for the proposed withdrawal along with all documents
submitted by the mortgagor in support of the proposed withdrawal. Upon
receipt of this statement, the Secretary shall have 10 days within
which to demonstrate orally or in writing why the security property
should not be withdrawn from foreclosure. The Secretary shall provide
the mortgagor with a copy of any statement prepared by the Secretary in
opposition to the proposed withdrawal at the same time the statement is
submitted to the commissioner. If the Secretary receives the
commissioner's written statement less than 10 days before the scheduled
foreclosure sale, the sale shall automatically be postponed for 14
days. Under these circumstances, notice of the rescheduled sale shall
be served as described in section 369B(c) of the Act (12 U.S.C.
3710(c)).
(b) The commissioner may not withdraw the security property from
foreclosure under section 369A(a) of the Act (12 U.S.C. 3709(a)) more
than once unless the Secretary consents in writing to such withdrawal.
(c) The commissioner shall, in the case of a sale adjourned to a
later date, mail a copy of the revised Notice of Default and
Foreclosure Sale to the Secretary at least seven days before the date
to which the sale has been adjourned.
(d) If upon application by the mortgagor, the commissioner refuses
to withdraw the property from foreclosure under section 369A(a) of the
Act (12 U.S.C. 3709(a)), the commissioner shall provide the mortgagor
and the Secretary with a written statement of the reasons for the
refusal.
Sec. 27.30 Conduct of the sale.
(a) The commissioner shall accept written one-price sealed bids
from any party including the Secretary so long as those bids conform to
the requirements described in the Notice of Default and Foreclosure
Sale. The commissioner shall announce the name of each such bidder and
the amount of the bid. The commissioner shall accept oral bids from any
party, including parties who submitted one-price sealed bids, if those
oral bids conform to the requirements described in the Notice of
Default and Foreclosure Sale. The commissioner will announce the amount
of the high bid and the name of the successful bidder before the close
of the sale.
(b) Relatives of the commissioner who may not bid at the
foreclosure sale include parents, siblings, spouses and children.
Related business entities which may not bid include entities or
concerns whose relationship with the commissioner at the time the
commissioner is designated is such that, directly or indirectly, one
concern or individual formulates, directs, or controls the other
concern; or has the power to formulate, direct, or control the other
concern; or has the responsibility and authority either to prevent in
the first instance, or promptly to correct, the offensive conduct of
the other concern. Business concerns are also affiliates of each other
when a third party is similarly situated with respect to both concerns.
(c) If the commissioner employs an auctioneer to conduct the
foreclosure sale, the auctioneer must be a licensed auctioneer, an
officer of State or local government, or any other person who commonly
conducts foreclosure sales in the area in which the security property
is located.
Sec. 27.35 Foreclosure costs.
Pursuant to section 369C(5) of the Act (12 U.S.C. 3711(5)), a
commission to the foreclosure commissioner for the conduct of the
foreclosure will be paid in an amount to be determined by the General
Counsel. A commission may be allowed to the commissioner
notwithstanding termination of the sale or appointment of a substitute
commissioner before the sale takes place.
Sec. 27.40 Disposition of sale proceeds.
(a) The priority of the Secretary's lien shall be determined by the
Federal first-in-time first-in-right rule. State laws affording
priority to liens recorded after the mortgage are preempted.
(b) If there is more than one party holding a lien or assessment
payable from sales proceeds, the claim of each party holding the same
kind of lien or assessment will be given the relative priority to which
it would be entitled under the law of the State in which the security
property is located.
(c) The commissioner will keep such records as will permit the
Secretary to verify the costs claimed under section 369C of the Act (12
U.S.C. 3711), and otherwise to audit the commissioner's disposition of
the sale proceeds.
Sec. 27.45 Transfer of title and possession.
(a) If the Secretary is the successful bidder, the foreclosure
commissioner shall issue a deed to the Secretary upon receipt of the
amount needed to pay the costs listed in sections 369D (1) through (3)
of the Act (12 U.S.C. 3712(1) through (3)). If the Secretary is not the
successful bidder, the foreclosure commissioner shall issue a deed to
the purchaser upon receipt of the entire purchase price and execution
by the Secretary and the purchaser of any use agreement referred to in
Sec. 27.20(e). Any covenants reflecting terms required by Sec. 27.20
shall be contained in the commissioner's deed.
(b) Subject to any terms required to be agreed to by Sec. 27.20,
any commercial tenant and any residential tenant remaining in
possession after the expiration of his or her lease or after the
passage of one year, whichever event occurs first, shall be deemed a
tenant at sufferance and may be evicted in accordance with applicable
State or local law.
Sec. 27.50 Management and disposition by the Secretary.
When the Secretary is the purchaser of the security property, the
Secretary shall manage and dispose of it in accordance with section 203
of the Housing and Community Development Amendments of 1978, as
amended, 12 U.S.C. 1701z-11, and in accordance with 24 CFR part 290.
Subpart B--Nonjudicial Foreclosure of Single Family Mortgages
Sec. 27.100 Purpose, Scope and Applicability.
(a) Purpose. The purpose of this subpart is to implement
requirements for the administration of the Single Family Mortgage
Foreclosure Act of 1994 (the Statute), 12 U.S.C. 3751-3768, that
clarify, or are in addition to, the requirements contained in the
Statute, which are not republished here and must be consulted in
conjunction with the requirements of this subpart.
(b) Scope. The Secretary may foreclose on any defaulted single
family mortgage described in the Statute regardless of when the
mortgage was executed.
(c) Applicability. The Secretary may, at the Secretary's option,
use other procedures to foreclose defaulted single family mortgages,
including judicial foreclosure in State or Federal Court, and
nonjudicial foreclosures under State law or any other Federal law. This
subpart applies only to foreclosure procedures authorized by the
Statute and not to any other foreclosure procedures the Secretary may
use.
Sec. 27.101 Definitions.
The definitions contained in the Statute (at 12 U.S.C. 3752) shall
apply to this subpart, in addition to and as further clarified by the
following definitions. As used in this subpart:
County means a political subdivision of a State or Territory of the
United States, created to aid in the administration of State law for
the purpose of local self government, and
[[Page 48551]]
includes a parish or any other equivalent subdivision.
Mortgage is as defined in the Statute except that the reference to
property as ``(real, personal or mixed)'' means ``any property (real or
mixed real and personal).''
Mortgage agreement is as defined in the Statute, and also means any
other similar instrument or instruments creating the security interest
in the real estate for the repayment of the note or debt instrument.
Mortgagor is as defined in the Statute, except that the reference
to ``trustee'' means ``trustor.''
Record; Recorded means to enter or entered in public land record
systems established under State statutes for the purpose of imparting
constructive notice to purchasers of real property for value and
without knowledge, and includes ``register'' and ``registered'' in the
instance of registered land, and ``file'' and its variants in the
context of entering documents in public land records.
Secretary means the Secretary of Housing and Urban Development,
acting by and through any authorized designee exclusive of the
foreclosure commissioner.
Security Property is as defined in the statute except that the
reference to property as ``(real, personal or mixed)'' means ``any
property (real or mixed real and personal).''
Sec. 29.102 Designation of foreclosure commissioner and substitute
commissioner.
(a) The Secretary may designate foreclosure commissioners,
including substitute commissioners, as set forth in the Statute.
(b) The method of selection and determination of the qualifications
of the foreclosure commissioner shall be at the discretion of the
Secretary. The execution of a designation pursuant to this section
shall be conclusive evidence that the commissioner selected has been
determined to be qualified by the Secretary. The designation is
effective upon execution.
Sec. 27.103 Notice of default and foreclosure sale.
(a) The foreclosure commissioner shall commence the foreclosure
under the procedures set forth in the Statute.
(b) The Notice of Default and Foreclosure Sale (Notice) shall
include, in addition to the provisions as required by the Statute:
(1) The foreclosure commissioner's telephone number;
(2) A description of the security property sufficient to identify
the property to be sold;
(3) The date the mortgage was recorded;
(4) Identification of the failure to make payment, including the
entire amount delinquent as of a date specified, a statement generally
describing the other costs that must be paid if the mortgage is to be
reinstated, the due date of the earliest principal installment payment
remaining wholly unpaid as of the date on which the notice is issued
upon which the foreclosure is based, or a description of any other
default or defaults upon which foreclosure is based, and the
acceleration of the secured indebtedness; and
(5) The bidding and payment requirements for the foreclosure sale,
including the time and method of payment of the balance of the
foreclosure purchase price, that all deposits and the balance of the
purchase price shall be paid by certified or cashier's check, and that
no deposit will be required of the Secretary when the Secretary bids at
the foreclosure sale.
Sec. 27.105 Service of Notice of Default and Foreclosure Sale.
(a) The Notice of Default and Foreclosure Sale shall be served in
accordance with the provisions of the Statute. When notice is sent by
mail, multiple mailings are not required to be sent to any party with
multiple capacities, e.g., an original mortgagor who is the security
property owner and lives in one of the units. The date of the receipt
for the postage paid for the mailing may serve as proof of the date of
mailing of the notice.
(b) Notice need not be mailed to any mortgagors who have been
released from all obligations under the mortgage.
Sec. 27.107 Presale reinstatement.
(a) The foreclosure commissioner shall withdraw the security
property from foreclosure and cancel the foreclosure sale only in
accordance with the provisions of the Statute and as more fully
provided in paragraphs (b) and (c) of this section in regard to presale
reinstatements.
(b) To obtain a presale reinstatement in cases involving a monetary
default, there must be tendered to the foreclosure commissioner before
public auction is completed all amounts which would be due under the
mortgage agreement if payments under the mortgage had not been
accelerated and all costs of foreclosure incurred for which payment
from the proceeds of foreclosure is provided in the Statute, and the
foreclosure commissioner must find that there are no nonmonetary
defaults; provided, however, that the Secretary may refuse to cancel a
foreclosure sale pursuant to this subparagraph if the current mortgagor
or owner of record has, on one or more previous occasions, caused a
foreclosure of the mortgage, commenced pursuant to the Statute and this
subpart or otherwise, to be canceled by curing a default.
(c) To obtain a presale reinstatement in cases involving a
nonmonetary default:
(1) The foreclosure commissioner, upon application of the mortgagor
before the date of foreclosure sale, must find that all nonmonetary
defaults are cured and that there are no monetary defaults; and
(2) There must be tendered to the foreclosure commissioner before
public auction is completed all amounts due under the mortgage
agreement (excluding all amounts which would be due under the mortgage
agreement if the mortgage payments had been accelerated), including all
amounts of expenditures secured by the mortgage and all costs of
foreclosure incurred for which payment would be made from the proceeds
of foreclosure as provided in the Statute.
(d) Before withdrawing the security property from foreclosure, the
foreclosure commissioner shall notify the Secretary of the proposed
withdrawal by telephone or other telecommunication device and shall
also provide the Secretary with a written statement of the reasons for
the proposed withdrawal along with all documents submitted by the
mortgagor in support of the proposed withdrawal. Upon receipt of this
statement, the Secretary shall have ten (10) days in which to
demonstrate why the security property should not be withdrawn from
foreclosure, and if the Secretary makes this demonstration, the
property shall not be withdrawn from foreclosure. The Secretary shall
provide the mortgagor with a copy of any statement prepared by the
Secretary in opposition to the proposed withdrawal at the same time the
statement is submitted to the foreclosure commissioner. If the
Secretary receives the foreclosure commissioner's written statement
less than 10 days before the scheduled foreclosure sale, the sale shall
automatically be adjourned for 14 days, during which time it may be
cancelled. Notice of the re-scheduled sale, if any, shall be served as
described in Sec. 27.111.
Sec. 27.109 Conduct of sale.
(a) The foreclosure sale shall be conducted in a manner and at a
time and place as identified in the Notice of Default and Foreclosure
Sale and in
[[Page 48552]]
accordance with the provisions of the Statute.
(b) In addition to bids made in person at the sale, the foreclosure
commissioner shall accept written one-price sealed bids from any party,
including the Secretary, for entry by announcement at the sale so long
as those bids conform to the requirements described in the Notice of
Default and Foreclosure Sale. The foreclosure commissioner shall
announce the name of each such bidder and the amount of the bid. The
commissioner shall accept oral bids from any party, including parties
who submitted one-price sealed bids, if those oral bids conform to the
requirements in the Notice of Default and Foreclosure Sale. Before the
close of the sale the commissioner shall announce the amount of the
high bid and the name of the successful bidder. If the successful
bidder fails to comply with the terms of the sale, the HUD Field Office
representative will provide instructions to the commissioner about
offering the property to the second highest bidder, or having a new
sale, or other instruction at the discretion of the HUD representative.
(c) Prohibited participants. Relatives of the foreclosure
commissioner who may not bid include parents, siblings, spouses and
children. A related business entity that may not bid or whose employees
may not bid is one whose relationship (at the time the foreclosure
commissioner is designated and during the term of service as
foreclosure commissioner) with the entity of the foreclosure
commissioner is such that, directly or indirectly, one entity
formulates, directs, or controls the other entity; or has the power to
formulate, direct, or control the other entity; or has the
responsibility and authority to prevent, or promptly to correct, the
offensive conduct of the other entity.
(d) Auctioneers. If the commissioner employs an auctioneer to
conduct the foreclosure sale, the auctioneer must be a licensed
auctioneer, an officer of State or local government, or any other
person who commonly conducts foreclosure sales in the area in which the
security property is located.
Sec. 27.111 Adjournment or cancellation of sale.
(a) The foreclosure commissioner may, before or at the time of the
foreclosure sale, adjourn or cancel the foreclosure sale in accordance
with the provisions of the Statute. The publication of the Notice of
Default and Foreclosure Sale, revised pursuant to the Statute, may be
made on any of three separate days before the revised date of
foreclosure sale. If there is no newspaper of general circulation that
would permit publication on any of three separate days before the
revised date of foreclosure sale, the Notice of Default and Foreclosure
Sale must be posted, not less than nine days before the date to which
the sale has been adjourned, at the courthouse of any county or
counties in which the property is located, and at the place where the
sale is to be held. The commissioner must also, in the case of a sale
adjourned to a later date, mail a copy of the revised Notice of Default
and Foreclosure Sale to the Secretary at least seven days before the
date to which the sale has been adjourned.
(b) When a substitute commissioner is designated by the Secretary
to replace a previously designated foreclosure commissioner, the sale
shall continue without prejudice unless the substitute commissioner
finds, in that commissioner's sole discretion, that continuation of the
foreclosure sale will unfairly affect the interests of the mortgagor.
Any such finding shall be in writing. If the substitute commissioner
makes such a finding, the substitute commissioner shall cancel or
adjourn the sale.
Sec. 27.113 Foreclosure costs.
A commission may be allowed to the foreclosure commissioner
notwithstanding termination of the sale or appointment of a substitute
commissioner before the sale takes place.
Sec. 27.115 Disposition of sales proceeds.
The foreclosure commissioner will keep such records as will permit
the Secretary to verify the costs claimed, and otherwise to enable the
Secretary to audit the foreclosure commissioner's disposition of the
sale proceeds.
Sec. 27.117 Transfer of title and possession.
(a) If the Secretary is the successful bidder, the foreclosure
commissioner shall issue a deed to the Secretary upon receipt of the
amount needed to pay the costs of tax liens and prior liens, as set
forth in 12 U.S.C. 3762(a)(2) and (a)(3). If the Secretary is not the
successful bidder, the foreclosure commissioner shall issue a deed to
the purchaser or purchasers upon receipt of the entire purchase price
in accordance with the terms of the sale as provided in the Notice of
Default and Foreclosure Sale.
(b) The register of deeds or other appropriate official in the
county where the property is located shall, upon tendering of the
customary recording fees, accept all instruments pertaining to the
foreclosure which are submitted by the foreclosure commissioner for
recordation. The instruments to be accepted shall include, but not be
limited to, the foreclosure commissioner's deed. If the foreclosure
commissioner elects to include the recitations required under the
Statute (12 U.S.C. 3764) in an affidavit or an addendum to the deed,
the affidavit or addendum shall be accepted along with the deed for
recordation. The Clerk of the Court or other appropriate official shall
cancel all liens as requested by the foreclosure commissioner.
Sec. 27.119 Redemption rights.
Only for purposes of redemption rights under the Statute, a
foreclosure shall be considered completed upon the date and at the time
of the foreclosure sale.
Sec. 27.121 Record of foreclosure and sale.
The statements regarding the foreclosed mortgage required to
establish a sufficient record shall include the date the mortgage was
recorded. The statements regarding the service of the Notice of Default
and Foreclosure Sale shall include the names and addresses of the
persons to whom the Notice was mailed and the date on which the Notice
was mailed, the name of the newspaper in which the Notice was published
and the dates of publication, and the date on which service by posting,
if required, was accomplished.
Sec. 27.123 Deficiency judgment.
If the price at which the security property is sold at the
foreclosure sale is less than the unpaid balance of the debt secured by
such property after disposition of sale proceeds in accordance with the
order of priority provided under the Statute, the Secretary may refer
the matter to the Attorney General who may commence an action or
actions against any and all debtors to recover the deficiency, unless
such an action is specifically prohibited by the mortgage.
PART 29--[REMOVED]
2. Part 29 is removed.
Dated: August 28, 1996.
Henry G. Cisneros,
Secretary.
Note: The following appendices A and B will not be codified in
title 24 of the Code of Federal Regulations.
Appendix A: Nonjudicial Foreclosure of Multifamily Mortgages--Guide
Sec.
1. Purpose.
2. Scope and applicability.
3. Definitions.
[[Page 48553]]
4. Prerequisites to foreclosure.
5. Designation of a foreclosure commissioner.
6. Notice of default and foreclosure sale.
7. Conditions of foreclosure sale.
8. Termination or adjournment of foreclosure sale.
9. Conduct of the sale.
10. Foreclosure costs.
11. Disposition of sale proceeds.
12. Transfer of title and possession.
13. Redemption rights.
14. Record of foreclosure and sale.
15. Management and disposition by the Secretary.
16. Computation of time.
1. Purpose
The purpose of this guide is to present, in a single document,
the statutory and regulatory requirements of the Multifamily
Mortgage Foreclosure Act of 1981 (the Act) (12 U.S.C. 3701-3717).
Although it presents the regulatory and statutory requirements in a
combined format, this guide is a secondary source for these
requirements. The Code of Federal Regulations (CFR), at 24 CFR part
27, subpart A, is the primary, governing source for regulatory
requirements, and the Act is the primary, governing source for
statutory requirements. Any reference in this Guide to the
provisions of the Act includes the requirements of 24 CFR part 27,
subpart A.
The Act creates a uniform Federal remedy for foreclosure of
multifamily mortgages. Under a delegation of authority published on
February 5, 1982 (47 FR 5468), the Secretary has delegated to the
HUD General Counsel his powers under the Act to appoint a
foreclosure commissioner or commissioners and to substitute
therefor, to fix the compensation of commissioners, and to
promulgate implementing regulations.
2. Scope and Applicability
(a) Under the Act, the Secretary may foreclose on any defaulted
Secretary-held multifamily mortgage encumbering real estate in any
State, regardless of when the mortgage was executed.
(b) The Secretary may, at the Secretary's option, use other
procedures to foreclose defaulted multifamily mortgages, including
judicial foreclosure in Federal court and nonjudicial foreclosure
under State law. The requirements described in this Guide apply only
to foreclosure procedures authorized by the Act and not to any other
foreclosure procedures the Secretary may use.
3. Definitions
As used in this Guide:
County means county as defined in section 2 of title I, United
States Code.
General Counsel means the General Counsel of the Department of
Housing and Urban Development.
Mortgage means a deed of trust, mortgage, deed to secure debt,
security agreement, or any other form of instrument under which any
interest in property, real, personal or mixed, or any interest in
property including leaseholds, life estates, reversionary interests,
and any other estates under applicable State law, is conveyed in
trust, mortgaged, encumbered, pledged, or otherwise rendered subject
to a lien, for the purpose of securing the payment of money or the
performance of an obligation.
Mortgage agreement means the note or debt instrument and the
mortgage instrument, deed of trust instrument, trust deed, or
instrument or instruments creating the mortgage, including any
instruments incorporated by reference therein (including any
applicable regulatory agreement), and any instrument or agreement
amending or modifying any of the foregoing.
Mortgagor means the obligor, grantor, or trustor named in the
mortgage agreement and, unless the context otherwise indicates,
includes the current owner of record of the security property
whether or not personally liable on the mortgage debt.
Multifamily mortgage means a mortgage held by the Secretary,
covering any property pursuant to:
(1) Section 608 of the National Housing Act (12 U.S.C. 1743);
(2) Section 801 of the National Housing Act (12 U.S.C. 1748);
(3) Title II of the National Housing Act (12 U.S.C. 1707-1715z-
20);
(4) Title X of the National Housing Act (12 U.S.C. 1749aa);
(5) Section 312 of the Housing Act of 1964, as it existed
immediately before its repeal by section 289 of the Cranston-
Gonzalez National Affordable Housing Act (42 U.S.C. 1452b);
(6) Section 202 of the Housing Act of 1959, as it existed
immediately before its amendment by section 801 of the Cranston-
Gonzalez National Affordable Housing Act (12 U.S.C. 1701q);
(7) Section 202 of the Housing Act of 1959, as amended by
section 801 of the Cranston-Gonzalez National Affordable Housing Act
(12 U.S.C. 1701q); and
(8) Section 811 of the Cranston-Gonzalez National Affordable
Housing Act (42 U.S.C. 8013).
Multifamily mortgage does not include a property on which there
is located a one- to four-family residence, except when the one- to
four-family residence is subject to a mortgage pursuant to section
202 of the Housing Act of 1959, or section 811 of the National
Affordable Housing Act. The definition of multifamily mortgage also
includes a mortgage taken by the Secretary in connection with the
previous sale of the project by the Secretary (purchase money
mortgage).
Person includes any individual, group of individuals,
association, partnership, corporation, or organization.
Record and recorded include register and registered in the
instance of registered land.
Secretary means the Secretary of Housing and Urban Development.
Security property means the property, real, personal or mixed,
or an interest in property, including leaseholds, life estates,
reversionary interest and any other estates under applicable State
law, together with fixtures and other interests subject to the lien
of the mortgage under applicable State law.
State means the several States, the District of Columbia, the
Commonwealth of Puerto Rico, the territories and possessions of the
United States, and the Trust Territory of the Pacific Islands, and
Indian tribes as defined by the Secretary.
4. Prerequisites to Foreclosure
(a) The Secretary may commence foreclosure under the Act upon
the breach of a covenant or condition in the mortgage agreement for
which foreclosure is authorized under the mortgage. No such
foreclosure may be commenced unless any previously pending
proceeding, judicial or nonjudicial, separately instituted by the
Secretary to foreclose the mortgage in a manner other than under the
Act, has been withdrawn, dismissed or otherwise terminated. The
Secretary shall not institute any separate foreclosure proceedings,
judicial or nonjudicial, during the pendency of a foreclosure
pursuant to the Act. Nothing in the Act shall preclude the Secretary
from enforcing any right, other than foreclosure, under applicable
State law, including any right to obtain a monetary judgment.
Nothing in the Act shall preclude the Secretary from foreclosing
under the Act where the Secretary has obtained or is seeking any
other remedy available pursuant to Federal or State Law or under the
mortgage agreement, including, but not limited to the appointment of
a receiver; mortgagee-in-possession status; relief under an
assignment of rents; or transfer to a nonprofit entity in accordance
with section 202 of the Housing Act of 1959 (as amended by section
801 of the Cranston-Gonzalez National Affordable Housing Act), or
section 811 of the Cranston-Gonzalez National Affordable Housing
Act.
(b) Before commencement of a foreclosure under the Act, HUD will
provide to the mortgagor an opportunity informally to present
reasons why the mortgage should not be foreclosed. Such opportunity
may be provided before or after the designation of the foreclosure
commissioner but before service of the notice of default and
foreclosure.
5. Designation of a Foreclosure Commissioner
(a) When the Secretary determines that a multifamily mortgage
should be foreclosed under the Act, the General Counsel will select
and designate a foreclosure commissioner to conduct the foreclosure
and sale. In order to conduct the foreclosure, the foreclosure
commissioner has a nonjudicial power of sale. The commissioner, if a
natural person, shall be a resident of the State in which the
security property is located. If a natural person is designated as
commissioner, he or she shall be designated by name, except if the
commissioner is designated in his or her capacity as an official or
employee of the State or local government where the security
property is located, the designation may be made by title or
position instead of by name. If not a natural person, the
commissioner must be duly authorized to transact business under the
laws of the State in which the security property is located. The
commissioner shall be a person who is determined by the General
Counsel to be responsible, financially sound, and competent to
conduct the foreclosure. The foreclosure commissioner may be an
individual, group of individuals, association, partnership,
corporation or organization. The method of selection and
determination of the
[[Page 48554]]
qualifications of the foreclosure commissioner shall be at the
discretion of the General Counsel, and the execution of a
designation pursuant to paragraph (b) of this section shall be
conclusive evidence that the commissioner selected has been
determined to be qualified by the General Counsel.
(b) After selection of a foreclosure commissioner, the General
Counsel shall designate the commissioner in writing to conduct the
foreclosure and sale of the particular multifamily mortgage. The
written designation shall be duly acknowledged and shall state the
name and business or residential address of the commissioner and any
other information the General Counsel deems necessary. The
designation shall be effective upon execution by the General Counsel
or his designate. Upon receipt of the designation, the commissioner
shall demonstrate acceptance by signing the designation and
returning a signed copy to the General Counsel.
(c) The General Counsel may designate more than one commissioner
to foreclose a multifamily mortgage.
(d) The General Counsel may at any time, with or without cause,
designate a substitute commissioner to replace a previously
designated commissioner. Designation of a substitute commissioner
shall be in writing and shall contain the same information and be
made effective in the same manner as the designation of the original
commissioner. Upon designation of a substitute commissioner, the
substitute commissioner shall serve a copy of the written notice of
designation upon the persons listed at sections 6.(c) (1) through
(3) of this Guide either by mail, in accordance with section 6.(c)
of this Guide, except that the time limitations in that section will
not apply, or by any other manner which in the substitute
commissioner's discretion is conducive to giving timely notice of
substitution.
(e) The Secretary shall be the guarantor of payment of any
judgment against the foreclosure commissioner for damages based on
the commissioner's failure properly to perform the commissioner's
duties. As between the Secretary and the mortgagor, the Secretary
shall bear the risk of any financial default by the foreclosure
commissioner. In the event that the Secretary makes any payment
pursuant to this paragraph, the Secretary shall be fully subrogated
to the rights satisfied by such payment.
6. Notice of Default and Foreclosure Sale
(a) Within 45 days after accepting his or her designation to act
as commissioner, the commissioner shall commence the foreclosure by
serving a Notice of Default and Foreclosure Sale.
(b) The Notice of Default and Foreclosure Sale shall contain the
following information which, except for paragraphs (b) (2) and (9)
of this section, will be supplied to the commissioner by the
Secretary.
(1) Name and address of the foreclosure commissioner.
(2) Date of the Notice.
(3) Names of the Secretary, the original mortgagor and the
original mortgagee.
(4) A description of the location of the security property, or
portion thereof to be sold, which is sufficient to identify it
including, if appropriate, the street address.
(5) The date of the mortgage.
(6) The name of the office or offices in which the mortgage is
recorded.
(7) The book and page in which the mortgage was recorded or, if
appropriate, the mortgage's document or accession number.
(8) A description of the mortgagor's failure to make payment,
including the due date of the earliest installment payment remaining
wholly unpaid as of the date of the Notice or, if appropriate, of
the other default or defaults upon which foreclosure is based; and a
statement that the secured debt has been accelerated.
(9) The date, exact time and place of the foreclosure sale. The
sale shall not be scheduled for a date less than 30 days after the
due date of the earliest unpaid installment or the earliest
occurrence of a nonmonetary default. The sale must be scheduled to
begin at a time between the hours of 9:00 a.m. and 4:00 p.m. local
time on a day other than Sunday or a public holiday as defined by 5
U.S.C. 6103(a) or State law. The sale must be scheduled for (i) a
place where real estate foreclosure auctions are customarily held in
the county or one of the counties in which the property to be sold
is located, or (ii) a courthouse in such a county, or (iii) a site
at or on the property to be sold. Sale of property located in more
than one county may be held in any one of the counties in which any
part of the security property is situated.
(10) A statement that the foreclosure is being conducted in
accordance with the Act.
(11) The costs, if any, to be paid by the purchaser upon
transfer of title.
(12) The bidding and payment requirements for the foreclosure
sale, including the required deposit, the method of deposit, and the
time and method of payment for the balance of the purchase price.
The Notice shall state that all deposits and the balance of the
purchase price shall be paid by certified or cashier's check. The
Notice shall state that no deposit will be required of the Secretary
when the Secretary bids at the foreclosure sale.
(13) Any terms and conditions to which the purchaser at the
foreclosure sale must agree, as listed in section 7 of this Guide.
The Notice need not describe at length each and every pertinent term
and condition, including any required use agreements and deed
covenants, if it describes these terms and conditions in a general
way and if it states that the precise terms will be available from
the commissioner upon request.
(c) The commissioner shall serve the Notice of Default and
Foreclosure Sale upon the following persons in the following manner,
and no additional notice shall be required to be served
notwithstanding any notice requirements of State or local law:
(1) By certified or registered mail, return receipt requested,
sent, at least 21 days before the original scheduled date of the
foreclosure sale, to the owner of record of the security property as
of 45 days before the original scheduled date of the foreclosure
sale. The Notice shall be mailed to the owner at the address shown
in the mortgage or to the address of the security property, or, in
the commissioner's discretion, to any address believed to be that of
the owner; and
(2) By certified or registered mail, return receipt requested,
sent, at least 21 days before the original scheduled date of the
foreclosure sale, to the original mortgagor and all subsequent
mortgagors of record and all other persons who appear on the public
record or in the mortgage agreement to be liable for all or part of
the mortgage debt. The Notice need not be mailed to mortgagors who
have been released from all obligations under the mortgage. The
Notice shall be mailed to the mortgagor at the address shown in the
mortgage, or to the address of the property, or, in the
commissioner's discretion, to any address believed to be that of the
mortgagor or mortgagors; and
(3) By certified or registered mail, return receipt requested,
sent, at least 10 days before the original scheduled date of the
foreclosure sale, to all persons having liens of record on the
security property which were placed on record at least 45 days
before the scheduled foreclosure sale. The Notice shall be mailed to
lien holders at their address of record, or to any address the
commissioner believes to be that of the lien holder; and
(4) By publication of a copy of the Notice of Default and
Foreclosure Sale once a week during three successive calendar weeks
in a newspaper of general circulation in the county or counties in
which the security property is located. To the extent practicable,
the newspaper or newspapers chosen shall have circulation which is
conducive to achieving notice of foreclosure by publication. In
deciding which newspaper or newspapers have such circulation, the
commissioner need not select the newspaper with the largest
circulation. The date of the last publication shall be not less than
four nor more than twelve days before the sale date. If there is no
newspaper of general circulation in the county or counties in which
the security property is located, service shall be made by posting
the Notice of Default and Foreclosure Sale in at least three public
places in each such county at least 21 days prior to the date of
sale. The Notice of Default and Foreclosure Sale which is published
pursuant to this paragraph may omit a description of the default, as
otherwise required by paragraph (b)(8) of this section, if the
commissioner, in his or her discretion, so determines; and
(5) By posting a copy of the Notice of Default and Foreclosure
Sale in a prominent place at or near the security property for at
least 15 consecutive days before the foreclosure sale. If the
property to be sold consists of two or more noncontiguous parcels of
land, a copy of the Notice shall be posted in a prominent place on
each such parcel. If the property consists of two or more separate
buildings, a copy of the Notice shall be posted in a prominent place
on each such building. The Notice shall also be posted in the
project office and in such other appropriate conspicuous places as
the commissioner deems appropriate for providing notice to all
tenants. Posting shall not be required if the commissioner in his or
her discretion finds that the act of posting is likely to lead to a
breach of the peace or may result in the increased risk of vandalism
or
[[Page 48555]]
damage to the property. Any such finding will be made in writing.
Entry on the premises by the commissioner for the purpose of posting
shall be privileged as against all other persons.
(d) Service made under paragraphs (c) (1), (2), and (3) of this
section is deemed to have been made upon mailing, whether or not the
Notice was received and whether or not a return receipt is received
or the letter containing the Notice is returned.
(e) When service of the Notice of Default and Foreclosure Sale
is made pursuant to paragraph (c) (1), (2), or (3) of this section,
the commissioner shall at the same time and in the same manner serve
a copy of the instrument by which the General Counsel, under section
5(b) of this Guide, has designated him or her to act as
commissioner.
(f) At least 7 days before the foreclosure sale, the
commissioner will record both the instrument designating him or her
to act as commissioner and the Notice of Default and Foreclosure
Sale in the same office or offices in which the mortgage was
recorded.
7. Conditions of Foreclosure Sale
(a) If a majority of the residential units in a property subject
to foreclosure sale pursuant to the Act are occupied by residential
tenants either on the date of the foreclosure sale or on the date on
which the General Counsel designates the foreclosure commissioner,
the Secretary shall require, as a condition and term of the sale,
that the purchaser at a foreclosure sale (other than the Secretary)
agree to continue to operate the project in accordance with the
terms of the program under which the mortgage insurance or
assistance was provided, or any applicable regulatory or other
agreement in effect with respect to such property immediately prior
to the time of foreclosure sale as the Secretary shall find
appropriate. If a majority of the residential units are not so
occupied, at either such time, the Secretary, in his or her
discretion, may require as a condition and term of the sale, that
the purchaser (other than the Secretary) agree to continue to
operate the property in accordance with such terms described above
as the Secretary shall find appropriate.
(b) Terms which the Secretary may find appropriate to require
pursuant to the Act and such other provisions of law as may be
applicable may include provisions relating to use and ownership of
the project property, tenant admission standards and procedures,
rent schedules and increases, and project operation and maintenance.
In determining terms which may be appropriate to require, the
Secretary shall consider:
(1) The history of the project, including the purposes of the
program under which the mortgage insurance or assistance was
provided, and any other program of HUD under which the project was
developed or otherwise assisted and the probable causes of project
failure resulting in its default;
(2) A financial analysis of the project, including an appraisal
of the fair market value of the property for its highest and best
use;
(3) A physical analysis of the project, including the condition
of the structure and grounds, the need for rehabilitation or
repairs, and the estimated costs of any such rehabilitation or
repairs;
(4) The income levels of the occupants of the project;
(5) Characteristics, including rental levels, of comparable
housing in the area, with particular reference to whether current
conditions and discernible trends in the area fairly indicate a
likelihood that, for the foreseeable future after foreclosure and
sale, the project will continue to provide rental or cooperative
housing and market rentals obtainable in the project will be
affordable by low- or moderate-income persons;
(6) The availability of or need for rental housing for low- and
moderate-income persons in the area, including actions being taken
or projected to be taken to address such needs and the impact of
such actions on the project;
(7) An assessment of the number of occupants who might be
displaced as a result of the manner of disposition;
(8) The eligibility of the occupants of the property for rental
assistance under any program administered by HUD and the
availability of funding for such assistance if necessary in order
that the units occupied by such occupants will remain available to
and affordable by such persons, or if necessary in order to assure
the financial feasibility of the project after foreclosure and sale
subject to the terms to be required by the Secretary; and
(9) Such other factors relating to the project as the Secretary
shall consider appropriate.
(c) Terms which the Secretary may require to be agreed to by the
purchaser pursuant to the Act shall generally not be more
restrictive, or binding for a longer duration, than the terms by
which the mortgagor was bound prior to the foreclosure. For example:
(1) If the mortgage being foreclosed was previously insured by
the Secretary under section 608, or 801, or title II or X of the
National Housing Act; or assisted under section 202 of the Housing
Act of 1959, as it existed before its amend
FR Doc. 96-23258 Office of the Secretary; Multifamily and Single Family Nonjudicial Foreclosure Procedures Streamlining
ment by section 801 of
the Cranston-Gonzalez National Affordable Housing Act, any terms
required by the Secretary pursuant to the Act shall be in effect no
longer than the earliest date on which the mortgagor could have
prepaid the mortgage debt without the Secretary's consent, or the
maturity date of the mortgage, whichever is earlier. No terms shall
be required pursuant to the Act if, under the terms of the mortgage,
the mortgagor could have prepaid the mortgage debt in full without
the Secretary's consent on or before the date of the foreclosure
sale.
(2) If the mortgage being foreclosed was taken by the Secretary
in conjunction with the previous sale of the project by the
Secretary (purchase money mortgage), any terms required by the
Secretary pursuant to the Act shall be in effect no longer than the
earliest date on which the mortgagor under the Purchase Money
Mortgage could have prepaid the mortgage debt in full without the
Secretary's consent, or the maturity date of the mortgage, whichever
is earlier. No terms shall be required pursuant to the Act if the
mortgagor could have prepaid the mortgage debt in full without the
Secretary's consent on or before the date of the foreclosure sale.
(3) If the mortgage being foreclosed covers a project which is
governed by a use agreement executed under section 1(d)(1) of the
Housing and Community Development Amendments of 1978, as amended (12
U.S.C. 1715z-1a); section 202 of the Housing Act of 1959, as amended
by section 801 of the Cranston-Gonzalez National Affordable Housing
Act (12 U.S.C. 1701q); section 811 of the Cranston-Gonzalez National
Affordable Housing Act (42 U.S.C. 8013); or section 225(b) of the
Emergency Low Income Housing Preservation Act of 1987 (12 U.S.C.
17151), any terms required by the Secretary under the Act shall be
in effect no longer than the maturity date of the mortgage.
(4) If the mortgage being foreclosed was held by the Secretary
under section 312 of the Housing Act of 1964, any terms required by
the Secretary pursuant to the Act shall be in effect no longer than
five years after the completion of the rehabilitation work funded by
the section 312 loan. No terms shall be required pursuant to the Act
if the foreclosure sale occurs more than five years after the
completion of such rehabilitation work.
(5) If the mortgage being foreclosed covers a project which is
governed by a use agreement executed under section 222(b) of the
Low-Income Housing Preservation and Resident Homeownership Act of
1990 (12 U.S.C. 4112), any terms required by the Secretary under the
Act shall be in effect for the remaining useful life of the project.
Remaining useful life has the same meaning given the term in Sec. 24
CFR 248.101.
(d) The limitations contained in paragraph (c) of this section
apply only to such terms as the Secretary may require the purchaser
to agree to, as a condition and term of the sale, under paragraph
(a) of this section. Nothing contained in paragraph (c) of this
section shall prevent the Secretary and the purchaser from entering
into a subsidy agreement under any program administered by the
Secretary containing terms binding upon either party which are
longer in duration than would be permitted to be required by
paragraph (c) of this section.
(e) Any terms required by the Secretary to be agreed to by the
purchaser as a condition and term of sale under the Act shall be
embodied in a use agreement to be executed by the Secretary and the
purchaser. Such terms also may be included, or referred to, in
appropriate covenants contained in the deed to be delivered by the
foreclosure commissioner as described in section 12 of this Guide.
Terms required by the Secretary shall be stated or described in the
Notice of Default and Foreclosure Sale served, published and posted
in accordance with section 6 of this Guide.
8. Termination or Adjournment of Foreclosure Sale
(a) Except as provided in paragraphs (d), (e), and (f) of this
section, the commissioner shall withdraw the security property from
foreclosure and cancel the foreclosure sale only if:
(1) The Secretary so directs the commissioner; or
(2) The commissioner finds, upon application of the mortgagor at
least three
[[Page 48556]]
business days prior to the scheduled sale, that the default or
defaults upon which the foreclosure is based did not exist when the
Notice of Default and Foreclosure Sale was served; or
(3) (i) In the case of a monetary default, the entire amount of
principal and interest which would be due if payments under the
mortgage had not been accelerated is tendered to the commissioner
before the public auction is completed, and the commissioner finds
that there are no nonmonetary defaults;
(ii) In the case of a nonmonetary default, the commissioner,
upon application of the mortgagor before the date of foreclosure
sale, finds that all nonmonetary defaults have been cured and that
there are no monetary defaults; and
(iii) There is tendered to the commissioner before public
auction is completed, all amounts due under the mortgage agreement
excluding additional amounts which would have been due if mortgage
payments had been accelerated, all expenditures secured by the
mortgage, and all foreclosure costs incurred for which payment from
foreclosure proceeds is authorized, as described in section 10 of
this Guide.
(b) Before withdrawing the security property from foreclosure as
described in paragraph (a) (2) or (3) of this section, the
commissioner shall notify the Secretary of the proposed withdrawal
by telephone or telegram and shall provide the Secretary with a
written statement of the reasons for the proposed withdrawal along
with all documents submitted by the mortgagor in support of the
proposed withdrawal. Upon receipt of this statement, the Secretary
shall have 10 days within which to demonstrate orally or in writing
why the security property should not be withdrawn from foreclosure.
The Secretary shall provide the mortgagor with a copy of any
statement prepared by the Secretary in opposition to the proposed
withdrawal at the same time the statement is submitted to the
commissioner. If the Secretary receives the commissioner's written
statement less than 10 days before the scheduled foreclosure sale,
the sale shall automatically be postponed for 14 days. Under these
circumstances, notice of the rescheduled sale shall be served as
described in paragraph (d) of this section.
(c) The commissioner may not withdraw the security property from
foreclosure as described in paragraph (a)(3) of this section more
than once unless the Secretary consents in writing to such
withdrawal.
(d) Before or at the time of sale, the foreclosure commissioner
may, in his or her discretion, determine that circumstances are not
conducive to a sale which is fair to the mortgagor and the
Secretary, or that additional time is necessary to determine if the
sale should be terminated as described in paragraph (a) (2) or (3)
of this section. If the commissioner makes such a determination, he
or she may adjourn the foreclosure to a later time on the scheduled
sale date or to a date not less than nine nor more than 24 days
later than the scheduled sale date. If the sale is adjourned to a
later hour on the scheduled sale date, no additional notice of the
sale is required. If the sale is adjourned to a later date, a
revised Notice of Default and Foreclosure Sale reciting that the
sale has been adjourned to a specific new date and containing any
other corrections the commissioner deems appropriate shall be served
in accordance with the provisions of section 6.(c) of this Guide,
except that publication under section 6(c)(4) may be made on any of
three separate days prior to the revised date of foreclosure sale so
long as the first publication is made at least seven days before the
revised sale date, and mailing under section 6(c) (1) through (3)
may be made at any time at least seven days before the date to which
the foreclosure sale has been adjourned. The commissioner shall
also, in the case of a sale adjourned to a later date, mail a copy
of the revised Notice of Default and Foreclosure Sale to the
Secretary at least seven days before the date to which the sale has
been adjourned.
(e) If the General Counsel designates a substitute commissioner
less than 48 hours before the foreclosure sale, the sale shall be
terminated and a new foreclosure commenced by serving a new Notice
of Default and Foreclosure Sale, in accordance with section 6.(c) of
this Guide.
(f) If the General Counsel designates a substitute commissioner
48 hours or more before the foreclosure sale, the foreclosure will
continue without prejudice unless the substitute commissioner in his
or her sole discretion finds that continuation of the foreclosure
sale will unfairly affect the interests of the mortgagor. If the
substitute commissioner makes such a finding, the substitute
commissioner shall cancel the sale or adjourn it according to the
provisions of paragraph (d) of this section.
(g) If the commissioner cancels the foreclosure, the mortgage
will continue in effect as if the mortgage debt had not been
accelerated.
(h) If the commissioner cancels the foreclosure sale, a new
foreclosure may be subsequently commenced as provided under the Act.
(i) If upon application by the mortgagor, the commissioner
refuses to withdraw the property from foreclosure as described in
paragraphs (a)(2) and (a)(3)(ii) of this section, the commissioner
shall provide the mortgagor and the Secretary with a written
statement of the reasons for the refusal.
9. Conduct of the Sale
(a) The foreclosure commissioner shall conduct the foreclosure
sale at public auction in a manner fair to both the mortgagor and
the Secretary and consistent with the provisions of the Act. The
commissioner shall attend the foreclosure sale in person or, if the
Commissioner is not a natural person, through a duly authorized
employee. If more than one commissioner has been designated, at
least one shall attend the sale. The commissioner shall accept
written one-price sealed bids from any party including the Secretary
so long as those bids conform to the requirements described in the
Notice of Default and Foreclosure Sale which are contained in
section 6.(b)(12) of this Guide. The commissioner shall announce the
name of each such bidder and the amount of the bid. The commissioner
shall accept oral bids from any party, including parties who
submitted one-price sealed bids, if those oral bids conform to the
requirements described in the Notice of Default and Foreclosure Sale
which are contained in section 6.(b)(12) of this Guide. The
commissioner will announce the amount of the high bid and the name
of the successful bidder before the close of the sale.
(b) Notwithstanding the provisions of paragraph (a) of this
section, neither the commissioner nor any relative, related business
entity or employee shall be permitted to bid at the foreclosure
sale. Relatives of the commissioner who may not bid include parents,
siblings, spouses and children. Related business entities which may
not bid include entities or concerns whose relationship with the
commissioner at the time the commissioner is designated is such
that, directly or indirectly, one concern or individual formulates,
directs, or controls the other concern; or has the power to
formulate, direct, or control the other concern; or has the
responsibility and authority either to prevent in the first
instance, or promptly to correct, the offensive conduct of the other
concern. Business concerns are also affiliates of each other when a
third party is similarly situated with respect to both concerns.
(c) If a natural person, the commissioner may serve as
auctioneer or, in the commissioner's discretion, may employ an
auctioneer to conduct the sale. If the commissioner employs an
auctioneer to conduct the foreclosure sale, the auctioneer must be a
licensed auctioneer, an officer of State or local government, or any
other person who commonly conducts foreclosure sales in the area in
which the security property is located. The commissioner will
compensate any such auctioneer from the proceeds of the fee he or
she collects as described in section 10(e) of this Guide.
10. Foreclosure Costs
Before any claim may be satisfied from the sale proceeds, those
proceeds shall be used to pay the following costs:
(a) Advertising and postage expenses incurred in serving the
Notice of Default and Foreclosure Sale under section 6.(c) (1)
through (4) of this Guide;
(b) Mileage by the most reasonable road distance for posting the
Notice of Default and Foreclosure Sale under section 6.(c)(5) of
this Guide and for the foreclosure commissioner's attendance at the
sale. The mileage shall be paid at a rate provided in 28 U.S.C.
1921;
(c) Reasonable and necessary costs incurred for title and lien
record searches;
(d) The necessary out-of-pocket costs incurred by the
commissioner for recording documents; and
(e) A commission to the foreclosure commissioner for the conduct
of the foreclosure in an amount to be determined by the General
Counsel. A commission may be allowed to the commissioner
notwithstanding termination of the sale or appointment of a
substitute commissioner before the sale takes place.
11. Disposition of Sale Proceeds
(a) The proceeds of the foreclosure sale shall be used in the
following order:
[[Page 48557]]
(1) To pay the costs listed in section 10 of this Guide;
(2) To pay valid tax liens or assessments on the security
property which have priority over the foreclosed mortgage;
(3) To pay liens recorded prior to the recording of the
foreclosed mortgage which are required to be paid in conformity with
the Notice of Default and Foreclosure Sale;
(4) To pay service charges and advancements for taxes,
assessments and property insurance premiums which were made under
the terms of the foreclosed mortgage;
(5) To pay the interest due under the mortgage debt;
(6) To pay the unpaid principal balance secured by the mortgage
(including expenditures for the necessary protection, preservation
and repair of the security property as authorized under the mortgage
agreement and interest thereon if provided in the mortgage
agreement);
(7) To pay any late charges;
(8) To pay any liens recorded after the foreclosed mortgage; and
(9) To pay the surplus to the mortgagor.
(b) The priority of the Secretary's lien shall be determined by
the Federal first-in-time first-in-right rule. State laws affording
priority to liens recorded after the mortgage are preempted.
(c) If the mortgagor entitled to the surplus cannot be located,
or if the surplus available is insufficient to pay all claimants and
the claimants to the surplus cannot agree on its disposition, or if
a claimant to the proceeds of the sale disagrees with the
commissioner's proposed disposition of the proceeds, the
commissioner may deposit the disputed funds with a legally
authorized official or court. If such a procedure for the deposit of
disputed funds is not available, and the foreclosure commissioner
files a bill of interpleader or is sued as a stakeholder to
determine entitlement to such funds, the foreclosure commissioner's
necessary costs in taking or defending such action shall be
deductible from the disputed funds.
(d) If there is more than one party holding a lien or assessment
described in paragraph (a) (2), (3) or (8) of this section, the
claim of each party holding the same kind of lien or assessment will
be given the relative priority to which it would be entitled under
the law of the State in which the security property is located.
(e) The commissioner will keep such records as will permit the
Secretary to verify the costs claimed under section 10 of this
Guide, and otherwise to audit the commissioner's disposition of the
sale proceeds.
12. Transfer of Title and Possession
(a) If the Secretary is the successful bidder, the foreclosure
commissioner shall issue a deed to the Secretary upon receipt of the
amount needed to pay the costs listed in section 11.(a) (1) through
(3) of this Guide. If the Secretary is not the successful bidder,
the foreclosure commissioner shall issue a deed to the purchaser
upon receipt of the entire purchase price and execution by the
Secretary and the purchaser of any use agreement referred to in
section 7(e) of this Guide. The deed shall convey all of the
Secretary's rights, title and interest in the security property as
well as the rights of the commissioner, the mortgagor, and any other
person claiming by, through, or under them. Any required covenants
reflecting terms described in section 7 of this Guide shall be
contained in the commissioner's deed. No judicial proceeding shall
be required ancillary or supplementary to the procedures provided in
this part to assure the validity of the conveyance or confirmation
of such conveyance.
(b) The commissioner shall deliver possession of the security
property to the purchaser at the same time he or she delivers the
deed. The purchaser's possession of the security property shall be
subject to any interests senior to that of the mortgage and to the
terms of any existing residential lease for the remaining term of
the lease or for one year, whichever is shorter. Subject to any
required terms described in section 7 of this Guide, any commercial
tenant and any residential tenant remaining in possession after the
expiration of his or her lease or after the passage of one year,
whichever event occurs first, shall be deemed a tenant at sufferance
and may be evicted in accordance with applicable State or local law.
(c) When the commissioner conveys the property to the Secretary,
no tax shall be imposed or collected with respect to the
commissioner's deed, whether as a tax upon the instrument itself or
upon the privilege of conveying or transferring title to the
property.
(d) The registrar of deeds or other appropriate official in the
county where the property is located shall, upon tendering of the
customary recording fees, accept all instruments pertaining to the
foreclosure which are submitted by the commissioner for recordation.
The instruments to be accepted shall include, but not be limited to,
the commissioner's deed and the commissioner's affidavit, both of
which are described in section 14 of this Guide.
(e) Failure to collect or pay a tax described in paragraph (c)
of this section shall not be grounds for refusing to record the
commissioner's deed, for failing to recognize such recordation or
for denying enforcement of the deed in any State or Federal court.
13. Redemption Rights
The mortgagor or others will have no right to redeem the
mortgage after the foreclosure sale. The mortgagor or others will
have no right to possession of the security property after the
foreclosure sale based on a right of redemption.
14. Record of Foreclosure and Sale
(a) The deed to the purchaser shall contain the following
recitals:
(1) A statement that the foreclosed mortgage was held by the
Secretary;
(2) The details of the service of the Notice of Default and
Foreclosure Sale described in section 6(c) of this Guide, including
the names and addresses of persons to whom the Notice was mailed and
the dates on which the Notice was mailed, names of newspapers in
which and dates on which the Notice was published, and the date on
which service by posting was accomplished;
(3) A statement that the foreclosure was conducted in accordance
with the Act and with the terms of the Notice of Default and
Foreclosure Sale;
(4) The costs of the foreclosure as described in section 10 of
this Guide; and
(5) The name of the successful bidder and the amount of the
successful bid.
(b) The commissioner may, in his or her discretion, make these
recitations in an affidavit or addendum to the deed rather than in
the body of the deed.
15. Management and Disposition by the Secretary
When the Secretary is the purchaser of the security property,
the Secretary shall manage and dispose of it in accordance with
section Sec. 203 of the Housing and Community Development Amendments
of 1978, 12 U.S.C. 1701z-11, and in accordance with 24 CFR part 290.
16. Computation of Time
Periods of time provided for in this Guide shall be calculated
in consecutive calendar days including the day or days on which the
actions or events occur or are to occur. Any such period of time
includes the day on which an event occurs or is to occur.
Appendix B: Nonjudicial Foreclosure of Single Family Mortgages--
Guide
Sec.
1. Purpose.
2. Scope and applicability.
3. Definitions.
4. Designation of foreclosure commissioner.
5. Prerequisites to foreclosure.
6. Commencement of foreclosure.
7. Notice of default and foreclosure sale.
8. Service of notice of default and foreclosure sale.
9. Presale reinstatement.
10. Conduct of sale.
11. Adjournment or cancellation of sale.
12. Validity of sale.
13. Foreclosure costs.
14. Disposition of sale proceeds.
15. Transfer of title and possession.
16. Redemption rights.
17. Record of foreclosure and sale.
18. Effect of sale.
19. Computation of time.
20. Deficiency judgment.
1. Purpose
The purpose of this guide is to present, in a single document,
the statutory and regulatory requirements of the Single Family
Mortgage Foreclosure Act of 1994 (the Statute), 12 U.S.C.
Secs. 3751-3768. Although it presents the regulatory and statutory
requirements in a combined format, this guide is a secondary source
for these requirements. The Code of Federal Regulations (CFR), at 24
CFR part 27, subpart B, is the primary, governing source for
regulatory requirements, and the Statute is the primary, governing
source for statutory requirements. Any reference in this Guide to
the provisions of the Statute includes the requirements of 24 CFR
part 27, subpart B.
The Statute creates a uniform Federal remedy for foreclosure of
certain single family mortgages which are held by the
[[Page 48558]]
Secretary of Housing and Urban Development pursuant to Title I of
the National Housing Act, 12 U.S.C. 1702 et seq., Title II of the
National Housing Act, 12 U.S.C. 1707 et seq., or Section 312 of the
Housing Act of 1964, 42 U.S.C. 1452b (as it existed before repeal).
The Secretary's powers under the Statute to appoint a foreclosure
commissioner or commissioners and substitute commissioners, and to
fix the compensation of commissioners have been delegated to the HUD
General Counsel.
The availability of uniform and more expeditious procedures,
with no right of redemption in the mortgagor or others, for the
foreclosure of these mortgages by the Department, will ameliorate
the negative consequences of the disparate State laws under which
mortgages covering one- to four-family residential properties are
foreclosed on behalf of HUD. The long periods of time that are
required under State law to complete foreclosure of such mortgages
lead to deterioration in the condition of the properties involved,
necessitate substantial Federal holding expenditures, increase the
risk of vandalism, fire loss, depreciation, damage, and waste with
respect to the properties, and adversely affect the neighborhoods in
which the properties are located. These consequences seriously
impair the ability of HUD to protect Federal financial interests in
the properties and frustrate attaining the objectives of the
underlying Federal program authority. Use of this nonjudicial
foreclosure procedure will also reduce unnecessary litigation, which
contributes to already overcrowded court calendars, by removing many
foreclosures from the courts.
2. Scope and Applicability
(a) Scope. Under the Statute, HUD may foreclose on any defaulted
single family mortgage (as defined in section 3, below) encumbering
real estate in any State regardless of when the mortgage was
executed.
(b) Applicability. HUD, at its discretion, may use other
procedures to foreclose defaulted single family mortgages, including
judicial foreclosure in State or Federal Court, and nonjudicial
foreclosures under State law or any other Federal law.
3. Definitions
As used in this guide--
Statute means the Single Family Mortgage Foreclosure Act of
1994.
Bona fide purchaser means a purchaser for value in good faith
and without notice of any adverse claim, and who acquires the
security property free of any adverse claim.
County means a political subdivision of a State or Territory of
the United States, created to aid in the administration of state law
for the purpose of local self-government, and includes a parish or
any other equivalent subdivision.
Mortgage means a deed of trust, mortgage, deed to secure debt,
security agreement, or any other form of instrument under which any
property (real or mixed real and personal), or any interest in
property (including leaseholds, reversionary interests, and any
other estates under applicable State law), is conveyed in trust,
mortgaged, encumbered, pledged, or otherwise rendered subject to a
lien for the purpose of securing the payment of money or the
performance of an obligation.
Mortgage agreement means the note or debt instrument and the
mortgage instrument, deed of trust instrument, trust deed, or any
other similar instrument or instruments creating the security
interest in the real estate for the repayment of the note or debt
instrument, including any instrument incorporated by reference
therein and any instrument or agreement amending or modifying any of
the foregoing.
Mortgagor means the debtor, obligor, grantor, or trustor named
in the mortgage agreement and, unless the context otherwise
indicates, includes the current owner of record of the security
property whether or not such owner is personally liable on the
mortgage debt.
Owner means any person who has an ownership interest in the
property and includes heirs, devisees, executors, administrators,
and other personal representatives, and trustees of testamentary
trusts if the owner of record is deceased.
Person includes any individual, group of individuals,
association, partnership, corporation, or organization.
Record; Recorded means to enter or entered in public land record
systems established under State statutes for the purpose of
imparting constructive notice to purchasers of real property for
value and without actual knowledge, and includes ``register'' and
``registered'' in the instance of registered land, and ``file'' and
its variants in the context of entering documents in public land
records.
Secretary means the Secretary of Housing and Urban Development,
acting by and through any authorized designee exclusive of the
foreclosure commissioner.
Security property means the property (real or mixed real and
personal) or an interest in property (including leaseholds, life
estates, reversionary interests, and any other estates under
applicable law), together with fixtures and other interests subject
to the lien of the mortgage under applicable law.
Single family mortgage means a mortgage that covers property on
which there is located a 1- to 4- family residence, and that:
(1) Is held by the Secretary pursuant to title I or title II of
the National Housing Act (12 U.S.C. 1701 et seq.); or
(2) Secures a loan obligated by the Secretary under section 312
of the Housing Act of 1964 as it existed before the repeal of that
section by section 289 of the Cranston-Gonzalez National Affordable
Housing Act. A mortgage securing such a loan that covers property
containing nonresidential space and a 1- to 4-family dwelling is not
subject to foreclosure under the Statute.
State means:
(1) The several States;
(2) The District of Columbia;
(3) The Commonwealth of Puerto Rico;
(4) The United States Virgin Islands;
(5) Guam;
(6) American Samoa;
(7) The Northern Mariana Islands; and
(8) Indian tribes, meaning any Tribe, band, group or nation,
including Alaskan Indians, Aleuts, and Eskimos, and any Alaskan
Native Village of the United States that is considered an eligible
recipient under Title I of the Indian Self-Determination and
Education Assistance Act (25 U.S.C. 450) or was considered an
eligible recipient under the State and Local Fiscal Assistance Act
of 1972 (31 U.S.C. 1221) before repeal of that Act. Eligible
recipients under the Indian Self-Determination and Education
Assistance Act are determined by the Bureau of Indian Affairs.
4. Designation of Foreclosure Commissioner
(a) The Secretary may designate a person or persons to serve as
a foreclosure commissioner for the purpose of foreclosing single
family mortgages, and such a foreclosure commissioner has a
nonjudicial power of sale as provided under the Statute.
(b) The foreclosure commissioner, if a natural person, must be a
resident of the State in which the security property is located and,
if not a natural person, the foreclosure commissioner must be duly
authorized to transact business under laws of the State in which the
security property is located. No person shall be designated as a
foreclosure commissioner unless that person is determined by the
Secretary to be responsible, financially sound, and competent to
conduct a foreclosure. The method of selection and determination of
the qualifications of the foreclosure commissioner are at the
discretion of the Secretary, and the execution of a designation
pursuant to the Statute is conclusive evidence that the commissioner
selected has been determined to be qualified by the Secretary.
(c) The Secretary designates a foreclosure commissioner by
executing a written designation stating the name and business or
residential address of the commissioner, except that if a person is
designated in his or her capacity as an official or employee of a
government or corporate entity, such a person may be designated by
his or her unique title or position instead of by name. The
designation is effective upon execution.
(d) The Secretary may designate, with or without cause, a
substitute foreclosure commissioner to replace a previously
designated foreclosure commissioner, by the procedure contained in
paragraph (c) of this section, above.
(1) A substitution of the foreclosure commissioner may be made
at any time prior to the time of the foreclosure sale, and the
foreclosure shall continue without prejudice, unless the substitute
commissioner, in that commissioner's sole discretion, finds that
continuation of the foreclosure sale will unfairly affect the
interests of the mortgagor. Any such finding must be in writing. If
the substitute commissioner makes such a finding, the substitute
commissioner will cancel the foreclosure sale, or adjourn the sale
as explained in section 11, below.
(2) If a substitute commissioner is designated, a copy of the
written notice of the designation referred to in paragraph (c) of
this section must be served:
(i) By mail, as described in section 8, below (except that the
minimum time periods between mailing and the date of the foreclosure
sale do not apply); or
[[Page 48559]]
(ii) In any other manner which, in the substitute foreclosure
commissioner's sole discretion, is conducive to achieving timely
notice of such substitution.
5. Prerequisites to Foreclosure
(a) The Secretary may commence foreclosure of a single family
mortgage under the Statute upon the breach of a covenant or
condition in the mortgage agreement.
(b) No foreclosure under the Statute may be commenced unless any
previously pending judicial or nonjudicial proceeding that has been
separately instituted by the Secretary to foreclose the mortgage in
a manner other than under the Statute has been withdrawn, dismissed,
or otherwise terminated.
(c) The Secretary will not institute any separate foreclosure
proceeding concerning a property while it is the subject of a
foreclosure pursuant to the Statute.
(d) The Statute does not preclude the Secretary from enforcing
any right, other than foreclosure, under applicable Federal or State
law, including any right to obtain a monetary judgment, or
foreclosing under the Statute if the Secretary has obtained or is
seeking any other remedy available pursuant to Federal or State law,
or under the mortgage agreement.
6. Commencement of Foreclosure
If the Secretary determines that the prerequisites to
foreclosure set forth in section 5 are satisfied, the Secretary may
direct the foreclosure commissioner to commence foreclosure of the
mortgage. Upon such request, the foreclosure commissioner will
commence foreclosure of the mortgage in accordance with section 7,
below.
7. Notice of Default and Foreclosure Sale
The commissioner commences the foreclosure by serving a Notice
of Default and Foreclosure Sale. The Notice sets forth the name,
address and telephone number of the foreclosure commissioner and the
date on which the Notice was issued, along with the following
information:
(a) The current mortgagee (that is, the Secretary), the original
mortgagee (if other than the Secretary), and the original mortgagor.
(b) A description of the security property sufficient to
identify the property to be sold.
(c) The date of the mortgage, the date the mortgage was
recorded, the office in which the mortgage is recorded, and the
liber and folio numbers or other appropriate description of the
location of recordation of the mortgage.
(d) Identification of the failure to make payment, including the
entire amount delinquent as of a date specified, a statement
generally describing the other costs that must be paid if the
mortgage is to be reinstated, the due date of the earliest principal
installment payment remaining wholly unpaid as of the date on which
the Notice is issued upon which the foreclosure is based, or a
description of any other default or defaults upon which foreclosure
is based, and the acceleration of the secured indebtedness.
(e) The date, time, and location of the foreclosure sale.
(f) A statement that the foreclosure is being conducted in
accordance with the Statute.
(g) A description of the types of costs, if any, to be paid by
the purchaser upon transfer of title.
(h) The bidding and payment requirements for the foreclosure
sale, including the amount and method of deposit to be required at
the foreclosure sale, and the time and method of payment of the
balance of the foreclosure purchase price. The Notice must state
that all deposits and the balance of the purchase price must be paid
by certified or cashier's check. The Notice must also state that no
deposit will be required of the Secretary when the Secretary bids at
the foreclosure sale.
(i) Any other appropriate terms of sale or information as the
Secretary may determine.
8. Service of Notice of Default and Foreclosure Sale
The foreclosure commissioner will serve the Notice of Default
and Foreclosure Sale upon the following persons and in the following
manner, and no additional notice will be required to be served,
notwithstanding any notice requirements of any State or local law:
(a) Filing the notice. The Notice of Default and Foreclosure
Sale must be filed not less than 21 days before the date of the
foreclosure sale in the manner authorized for filing a notice of an
action concerning real property according to the law of the State in
which the security property is located, or if none, in the manner
authorized by Section 3201 of title 28, United States Code.
(b) Notice by mail.
(1) The Notice must be sent by certified or registered mail,
postage prepaid, return receipt requested, to the following (except
that multiple mailings are not required to be sent to any party with
multiple capacities, e.g., an original mortgagor who is the security
property owner and lives in one of the units):
(i) The current security property owner of record, as the record
existed 45 days before the date originally set for the foreclosure
sale, whether or not the notice describes a sale adjourned as
provided in the Statute. The Notice must be mailed not less than 21
days before the date of the foreclosure sale to the current owner at
the last address known to the Secretary or the foreclosure
commissioner or, if none, to the address of the security property,
or, at the discretion of the foreclosure commissioner, to any other
address believed to be that of the current owner.
(ii) The original mortgagor and all subsequent mortgagors of
record or other persons who appear on the basis of the record to be
liable for part or all of the mortgage debt, as the record existed
45 days before the date originally set for the foreclosure sale,
whether or not the notice describes a sale adjourned as provided in
the Statute, except that the Notice need not be mailed to any
mortgagors who have been released from all obligations under the
mortgage. Notice under this subsection must be mailed not less than
21 days before the date of the foreclosure sale to the last known
address of the mortgagors or, if none, to the address of the
security property, or, at the discretion of the foreclosure
commissioner, to any other address believed to be that of such
mortgagors.
(iii) All dwelling units in the security property, whether or
not the Notice describes a sale adjourned as provided in this part.
Notice under this subsection shall be mailed not less than 21 days
before the date of the foreclosure sale. If the names of the
occupants of the security property are not known to the Secretary,
or if the security property has more than one dwelling, the Notice
must be posted at the security property not less than 21 days before
the foreclosure sale.
(iv) All persons holding liens of record upon the security
property, as the record existed 45 days before the date originally
set for the foreclosure sale, whether or not the notice describes a
sale adjourned as provided in the Statute. Notice under this
subsection must be mailed not less than 21 days before the date of
the foreclosure sale to each such lienholder's address of record,
or, at the discretion of the foreclosure commissioner, to any other
address believed to be that of such lienholder.
(2) Notice by mail is deemed duly given upon mailing, whether or
not received by the addressee and whether or not a return receipt is
received or the notice is returned. The date of the receipt for the
postage paid for the mailing may serve as proof of the date of
mailing of the notice.
(c) Publication.
(1) A copy of the Notice of Default and Foreclosure Sale must be
published once a week during three successive calendar weeks before
the date of the foreclosure sale. Such publication must be in a
newspaper or newspapers having general circulation in the county or
counties in which the security property being sold is located. A
legal newspaper that is accepted as a newspaper of legal record in
the county or counties in which the security property being sold is
located is a newspaper having general circulation for the purposes
of this paragraph.
(2) If there is no newspaper of general circulation published at
least weekly in the county or counties in which the security
property being sold is located, copies of the Notice of Default and
Foreclosure Sale must be posted, not less than 21 days before the
date of the foreclosure sale, at the courthouse of any county or
counties in which the security property is located and at the place
where the sale is to be held.
9. Presale Reinstatement
(a) Except as provided in paragraph (d) of section 4 (above),
paragraph (b) of this section, and section 11 (below), the
foreclosure commissioner will withdraw the security property from
foreclosure and cancel the foreclosure sale only if:
(1) The Secretary directs the foreclosure commissioner to do so
before or at the time of the sale; or
(2) The foreclosure commissioner finds, upon application of the
mortgagor not less than three business days before the date of the
sale, that the default or defaults upon which the foreclosure is
based did not exist at the time of service of the Notice of Default
and Foreclosure Sale; or
(3) In the case of a foreclosure involving a monetary default,
there is tendered to the
[[Page 48560]]
foreclosure commissioner before public auction is completed all
amounts that would be due under the mortgage agreement if payments
under the mortgage had not been accelerated, all costs of
foreclosure incurred for which payment from the proceeds of
foreclosure is provided in section 13 (below), and the foreclosure
commissioner finds that there are no nonmonetary defaults; provided,
however, that the Secretary may refuse to cancel a foreclosure sale
pursuant to this subparagraph if the current mortgagor or owner of
record has, on one or more previous occasions, caused a foreclosure
of the mortgage, commenced pursuant to the Statute or otherwise, to
be canceled by curing a default; or
(4) In the case of a foreclosure involving a nonmonetary
default:
(i) The foreclosure commissioner, upon application of the
mortgagor before the date of foreclosure sale, finds that all
nonmonetary defaults are cured and that there are no monetary
defaults; and
(ii) There is tendered to the foreclosure commissioner before
public auction is completed all amounts due under the mortgage
agreement (excluding all amounts which would be due under the
mortgage agreement if the mortgage payments had been accelerated),
including all amounts of expenditures secured by the mortgage and
all costs of foreclosure incurred for which payment would be made
from the proceeds of foreclosure.
(b) Before withdrawing the security property from foreclosure
under subparagraphs (a)(2), (a)(3), or (a)(4) of this section, the
foreclosure commissioner must notify the Secretary of the proposed
withdrawal by telephone or other telecommunication device and must
also provide the Secretary with a written statement of the reasons
for the proposed withdrawal along with all documents submitted by
the mortgagor in support of the proposed withdrawal. Upon receipt of
this statement, the Secretary has ten (10) days in which to
demonstrate why the security property should not be withdrawn from
foreclosure, and if the Secretary makes this demonstration, the
property will not be withdrawn from foreclosure. The Secretary will
provide the mortgagor with a copy of any statement prepared by the
Secretary in opposition to the proposed withdrawal at the same time
the statement is submitted to the foreclosure commissioner. If the
Secretary receives the foreclosure commissioner's written statement
less than 10 days before the scheduled foreclosure sale, the sale
will automatically be adjourned for 14 days, during which time it
may also be cancelled. Under these circumstances, notice of the
rescheduled sale, if any, will be served as described in section
11(c), below.
(c) If the foreclosure commissioner cancels the foreclosure, the
mortgage will continue in effect as though acceleration had not
occurred.
(d) Cancellation of a foreclosure sale will have no effect on
the commencement of a subsequent foreclosure proceeding.
(e) The foreclosure commissioner must file a notice of
cancellation in the same place and manner provided for filing the
Notice of Default and Foreclosure Sale as provided in section 8.
10. Conduct of Sale
(a) The foreclosure sale will be conducted in a manner and at a
time and place as identified in the Notice of Foreclosure and Sale
and more fully described in this section. The sale will be scheduled
for a date 30 or more days after the due date of the earliest unpaid
installment as described in section 7(d), above, or the earliest
occurrence of a nonmonetary default. The sale will be held at public
auction and must be scheduled to begin at a time between the hours
of 9:00 a.m. and 4:00 p.m. local time. The sale will be scheduled
for a place where foreclosure real estate auctions are customarily
held in the county or counties in which the property to be sold is
located, or at a courthouse therein, or at or on the property to be
sold. If the security property is situated in two counties, the sale
may be held in any one of the counties in which any part of the
security property is situated.
(b) The foreclosure commissioner will conduct the foreclosure
sale in a manner that is fair to both the mortgagor and the
Secretary (see section 12, below) and consistent with the provisions
of the Statute.
(c) In addition to bids made in person at the sale, the
foreclosure commissioner will accept written one-price sealed bids
from any party, including the Secretary, for entry by announcement
at the sale so long as those bids conform to the requirements
described in the Notice of Default and Foreclosure Sale. The
foreclosure commissioner will announce the name of each bidder and
the amount of the bid. The commissioner will accept oral bids from
any party, including parties who submitted one-price sealed bids, if
those oral bids conform to the requirements in the Notice of Default
and Foreclosure Sale. Before the close of the sale, the commissioner
will announce the amount of the high bid and the name of the
successful bidder.
(d) Notwithstanding the provisions of paragraph (d) of this
section, neither the foreclosure commissioner nor any relative,
related business entity, or employee is permitted to bid in any
manner on the security property subject to the foreclosure sale,
except that the foreclosure commissioner or an auctioneer may be
directed by the Secretary to enter a bid on the Secretary's behalf.
Relatives of the foreclosure commissioner who may not bid include
parents, siblings, spouses and children. A related business entity
that may not bid or whose employees may not bid is one whose
relationship (at the time the foreclosure commissioner is designated
and during the term of service as foreclosure commissioner) with the
entity of the foreclosure commissioner is such that, directly or
indirectly, one entity formulates, directs, or controls the other
entity; or has the power to formulate, direct, or control the other
entity; or has the responsibility and authority to prevent, or
promptly to correct, the offensive conduct of the other entity.
(e) The commissioner may serve as an auctioneer, or the
commissioner may employ an auctioneer to conduct the sale. If the
commissioner employs an auctioneer to conduct the foreclosure sale,
the auctioneer must be a licensed auctioneer, an officer of State or
local government, or any other person who commonly conducts
foreclosure sales in the area in which the security property is
located. The commissioner will compensate an auctioneer from the
proceeds of the commission described in section 13(e), below.
(f) The foreclosure commissioner may require a bidder to make a
deposit in an amount or percentage set by the foreclosure
commissioner and stated in the Notice of Default and Foreclosure
Sale before the bid is accepted.
(g) A successful bidder at the foreclosure sale who fails to
comply with the terms of the sale may be required to forfeit the
cash deposit or, at the election of the foreclosure commissioner
after consultation with the Secretary, will be liable to the
Secretary for any costs incurred as a result of such failure. If the
successful bidder fails to comply with the terms of the sale, the
HUD Field Office representative will provide instructions to the
commissioner about offering the property to the second highest
bidder, or having a new sale, or other instruction at the discretion
of the HUD representative.
11. Adjournment or Cancellation of Sale
(a) The foreclosure commissioner may, before or at the time of
the foreclosure sale, adjourn or cancel the foreclosure sale if the
foreclosure commissioner determines, in the foreclosure
commissioner's discretion, that:
(1) Circumstances are not conducive to a sale which is fair to
the mortgagor and the Secretary, or
(2) Additional time is necessary to determine whether the
security property should be withdrawn from foreclosure, as provided
in section 9, above.
(b) The foreclosure commissioner may adjourn a foreclosure sale
to a later hour the same day by announcing or posting, at the
original place of sale, the new time and place of the foreclosure
sale, which must be held between 9:00 a.m. and 4:00 p.m. at the
original place of sale.
(c) Except as provided in paragraph (b) of this section, the
foreclosure commissioner may adjourn a foreclosure sale for not less
than 9 and not more than 31 days, in which case the foreclosure
commissioner must serve a Notice of Default and Foreclosure Sale
that is revised to state that the foreclosure sale has been
adjourned to a specified date between the hours of 9:00 a.m. and
4:00 p.m. The revised Notice may include any other information the
foreclosure commissioner deems appropriate. Such Notice must be
served by publication and mailing as provided in section 8, above,
except that publication may be made on any of three separate days
before the revised date of foreclosure sale. If there is no
newspaper of general circulation that would permit publication on
any of three separate days before the revised date of foreclosure
sale, the Notice of Default and Foreclosure Sale must be posted, not
less than nine days before the date to which the sale has been
adjourned, at the courthouse of any county or counties in which the
property is located, and at the place where the sale is to be held.
The
[[Page 48561]]
commissioner must also, in the case of a sale adjourned to a later
date, mail a copy of the revised Notice of Default and Foreclosure
Sale to the Secretary at least seven days before the date to which
the sale has been adjourned.
(d) When a substitute commissioner is designated by the
Secretary to replace a previously designated foreclosure
commissioner, the sale shall continue without prejudice unless the
substitute commissioner finds, in that commissioner's sole
discretion, that continuation of the foreclosure sale will unfairly
affect the interests of the mortgagor. Any such finding shall be in
writing. If the substitute commissioner makes such a finding, the
substitute commissioner shall cancel or adjourn the sale.
12. Validity of Sale
Any foreclosure sale held in accordance with the Statute and its
regulations is conclusively presumed to have been conducted in a
fair, legal, and reasonable manner. The sale price is conclusively
presumed to be reasonable and equal to the fair market value of the
property.
13. Foreclosure Costs
The following foreclosure costs are paid from the sale proceeds,
or from other available sources if sales proceeds are insufficient,
before satisfaction of any other claim to the sale proceeds:
(a) Advertising costs and postage expenses incurred in giving
notice described in sections 8 and 11, above.
(b) Mileage by the most reasonable road distance for posting
notices described in section 8, above, and for the foreclosure
commissioner's or auctioneer's attendance at the sale. The mileage
is paid at the rate provided in 28 U.S.C. 1821.
(c) Reasonable and customary costs incurred for title and lien
record searches.
(d) The necessary out-of-pocket costs incurred by the
foreclosure commissioner for recording documents.
(e) A commission for the foreclosure commissioner (if the
foreclosure commissioner is not an employee of the United States)
for the conduct of the foreclosure in an amount to be determined by
the Secretary. A commission may be allowed to the foreclosure
commissioner notwithstanding termination of the sale or appointment
of a substitute commissioner before the sale takes place.
14. Disposition of Sale Proceeds
(a) The proceeds of the foreclosure sale are paid out in the
following order:
(1) To cover the costs of foreclosure described in section 13,
above.
(2) To pay valid tax liens or assessments on the security
property as provided in the Notice of Default and Foreclosure Sale.
(3) To pay any liens recorded before the recording of the
foreclosed mortgage which are required to be paid in conformity with
the Notice of Default and Foreclosure Sale.
(4) To pay service charges and advances for taxes, assessments,
and property insurance premiums which were made under the terms of
the foreclosed mortgage.
(5) To pay the interest due under the mortgage debt.
(6) To pay the unpaid principal balance secured by the mortgage
(including expenditures for the necessary protection, preservation,
and repair of the security property as authorized under the mortgage
agreement and interest thereon if provided in the mortgage
agreement).
(7) To pay any late charges or fees.
(b) Any surplus proceeds from a foreclosure sale will be
applied, after payment of the items described in paragraph (a) of
this section, in the order as follows:
(1) To pay any liens recorded after the foreclosed mortgage in
the order of priority under the law of the State in which the
security property is located.
(2) To pay the surplus to the mortgagor.
(c) If the person to whom surplus proceeds are to be paid cannot
be located, or if the surplus available is insufficient to pay all
claimants and the claimants cannot agree on the allocation of the
surplus, or if any person claiming an interest in the mortgage
proceeds disagrees with the foreclosure commissioner's proposed
disposition of the disputed proceeds, the foreclosure commissioner
may deposit the disputed funds with a legally authorized official or
court. If a procedure for the deposit of disputed funds is not
available, and the foreclosure commissioner files a bill of
interpleader or is sued as a stakeholder to determine entitlement to
such funds, the foreclosure commissioner's necessary costs in taking
or defending such action are deductible from the disputed funds.
(d) The foreclosure commissioner will keep such records as will
permit the Secretary to verify the costs claimed, and otherwise to
enable the Secretary to audit the foreclosure commissioner's
disposition of the sale proceeds.
15. Transfer of Title and Possession
(a) If the Secretary is the successful bidder, the foreclosure
commissioner will issue a deed to the Secretary upon receipt of the
amount needed to pay the costs of tax liens and prior liens. See
sections 14(a)(2) and (a)(3), above.
(b) If the Secretary is not the successful bidder, the
foreclosure commissioner will issue a deed to the purchaser or
purchasers upon receipt of the entire purchase price in accordance
with the terms of the sale as provided in the Notice of Default and
Foreclosure Sale.
(c) The deed or deeds issued by the foreclosure commissioner
shall be without warranty or covenants to the purchaser or
purchasers. Notwithstanding any State law to the contrary, delivery
of a deed by the foreclosure commissioner is a conveyance of the
property and constitutes passage of good and marketable title to the
mortgaged property. No judicial proceedings are required ancillary
or supplementary to the procedures provided under the Statute and
its regulations to assure the validity of the conveyance or
confirmation of such conveyance. The purchaser of property under the
Statute is presumed to be a bona fide purchaser.
(d) A purchaser at a foreclosure sale held pursuant to the
Statute is entitled to possession upon passage of title under
paragraph (c) of this section, subject to any interest or interests
that are not barred, as described in section 18, below. Any person
remaining in possession of the property after the passage of title
is deemed a tenant at sufferance subject to eviction under
applicable law.
(e) If a purchaser dies before execution and delivery of the
deed conveying the property to the purchaser, the foreclosure
commissioner will execute and deliver the deed to a legal
representative of the decedent purchaser's estate upon payment of
the purchase price in accordance with the terms of sale. Such
delivery to the representative of the purchaser's estate will have
the same effect as if accomplished during the lifetime of the
purchaser.
(f) When the foreclosure commissioner conveys the property to
the Secretary, no tax may be imposed or collected with respect to
the foreclosure commissioner's deed, including any tax customarily
imposed upon the deed instrument or upon the conveyance or transfer
of title to the property.
(g) The register of deeds or other appropriate official in the
county where the property is located must, upon tendering of the
customary recording fees, accept all instruments pertaining to the
foreclosure which are submitted by the foreclosure commissioner for
recordation. The instruments to be accepted include, but are not
limited to, the foreclosure commissioner's deed. If the foreclosure
commissioner elects to include the recitations described in section
17(a), below, in an affidavit or an addendum to the deed as
described in section 17(b), below, the affidavit or addendum must be
accepted for recordation. Failure to collect or pay a tax as
described in paragraph (f) of this section are not grounds for
refusing to record such instruments, for failing to recognize such
recordation as imparting notice, or for denying the enforcement of
such instruments and their provisions in any State or Federal Court.
(h) The Clerk of the Court or other appropriate official must
cancel all liens as requested by the foreclosure commissioner.
16. Redemption Rights
(a) There is no right of redemption, or right of possession
based upon a right of redemption, in the mortgagor or others
subsequent to a foreclosure completed pursuant to the Statute. In
regard to the pre-emption of State laws regarding rights of
redemption, a foreclosure is considered completed upon the date and
at the time of the foreclosure sale.
(b) Section 204(l) of the National Housing Act, 42 U.S.C.
1710(l), and section 701 of the Department of Housing and Urban
Development Reform Act of 1989, 42 U.S.C. 1452c, do not apply to
mortgages foreclosed under the Statute.
17. Record of Foreclosure and Sale
(a) The foreclosure commissioner must include in the recitals of
the deed to the purchaser, or in an affidavit or addendum to the
deed, the following items:
(1) The date, time, and place of the foreclosure sale.
[[Page 48562]]
(2) A statement that the foreclosed mortgage was held by the
Secretary.
(3) The date of the foreclosed mortgage, the date of the
recording of the mortgage that was foreclosed, the office in which
the mortgage was recorded, and the liber and folio numbers or other
appropriate description of the recordation of the mortgage.
(4) The details of the service of the Notice of Default and
Foreclosure Sale, including the names and addresses of the persons
to whom the Notice was mailed and the date on which the Notice was
mailed, the name of the newspaper in which the Notice was published
and the dates of publication, and the date on which service by
posting, if required, was accomplished.
(5) The date and place of filing the Notice of Default and
Foreclosure Sale.
(6) A statement that the foreclosure was conducted in accordance
with the provisions of the Statute and with the terms of the Notice
of Default and Foreclosure Sale.
(7) The name of the successful bidder and the amount of the
successful bid.
(b) The foreclosure commissioner may, in his or her discretion,
make the recitations in paragraph (a) of this section in the deed or
in an affidavit or addendum to the deed, either of which is to be
recorded with the deed as provided in the Statute.
(c) The items set forth in paragraph (a) of this section are
prima facie evidence of the truth of such facts in any Federal or
State court and evidence a conclusive presumption in favor of bona
fide purchasers and encumbrancers for value without notice.
Encumbrancers for value include liens placed by lenders who provide
the purchaser with purchase money in exchange for a security
interest in the newly-conveyed property.
18. Effect of Sale
A sale made and conducted as prescribed in the Statute to a bona
fide purchaser bars all claims upon, or with respect to, the
property sold for the following persons:
(a) Any person to whom the Notice of Default and Foreclosure
Sale was mailed as provided under the Statute, and the heir,
devisee, executor, administrator, successor or assignee claiming
under any such person.
(b) Any person claiming any interest in the property subordinate
to that of the mortgage if such person had actual knowledge of the
foreclosure sale.
(c) Any person claiming any interest in the property whose
assignment, mortgage, or other conveyance was not duly recorded or
filed in the proper place for recording or filing, or whose judgment
or decree was not duly docketed or filed in the proper place for
docketing or filing, before the date on which the notice of the
foreclosure sale was first served by publication, as described in
section 8(c), above, and the executor, administrator, or assignee of
such a person.
(d) Any person claiming an interest in the property under a
statutory lien or encumbrance created subsequent to the recording or
filing of the mortgage being foreclosed, and attaching to the title
or interest of any person designated in any of the foregoing
paragraphs.
19. Computation of Time
Periods of time provided for in the Statute are calculated in
consecutive calendar days including the day or days on which the
actions or events occur, or are to occur. Any such period of time
includes the day on which an event occurs or is to occur.
20. Deficiency Judgment
If the price at which the security property is sold at the
foreclosure sale is less than the unpaid balance of the debt secured
by such property after deducting payments in the order described in
section 14, above, the Secretary may refer the matter to the
Attorney General who may commence an action or actions against any
and all debtors to recover the deficiency, the only limitation on
such action being a prohibition against pursuit of a deficiency that
is specifically set forth in the mortgage.
[FR Doc. 96-23258 Filed 9-12-96; 8:45 am]
BILLING CODE 4210-32-P
Complete official Federal Register PDF
FR Doc. 96-23228 Rules of Practice and Procedure; Applications for a Stay or Review of Actions of Bank Clearing Agencies
[Federal Register Volume 61, Number 179 (Friday, September 13, 1996)]
[Rules and Regulations]
[Pages 48402-48403]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-23228]
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FEDERAL DEPOSIT INSURANCE CORPORATION
12 CFR Parts 308 and 342
RIN 3064-AB81
Rules of Practice and Procedure; Applications for a Stay or
Review of Actions of Bank Clearing Agencies
AGENCY: Federal Deposit Insurance Corporation (FDIC).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Federal Deposit Insurance Corporation (FDIC) has conducted
a review of its regulations pursuant to Section 303 of the Riegle
Community Development and Regulatory Improvement Act of 1994. As a
result, the FDIC is deleting its rules and regulations which pertain to
Applications for a Stay or Review of Actions of Bank Clearing Agencies,
and replacing them with new, more concise provisions. At the same time,
the FDIC is moving those shorter provisions to a new subpart, which
contains the FDIC's Rules of Practice and Procedure. The changes are
intended to streamline the FDIC's regulations and to remove duplicative
provisions, while maintaining uniformity in approach among the other
banking agencies and the Securities and Exchange Commission (SEC).
EFFECTIVE DATE: October 15, 1996.
FOR FURTHER INFORMATION CONTACT: John F. Harvey, Trust Review Examiner,
(202) 898-6762, or Andrea Winkler, Counsel, (202) 736-0762, Federal
Deposit Insurance Corporation, 550 17th Street, N.W., Washington, D.C.
20429.
SUPPLEMENTARY INFORMATION:
I. Background
The Securities Exchange Act of 1934 (Exchange Act) (15 U.S.C. 78 et
seq.) requires the registration of clearing agencies and implements a
system of self-regulation by registered clearing agencies. Registered
clearing agencies have the authority to impose certain disciplinary
sanctions upon participants, to deny participation in the clearing
agency, or to prohibit or limit a participant's access to services
provided by clearing agencies. (15 U.S.C. 78q-1 (b)(3)(g), (b)(5)(C)).
Persons aggrieved by such adverse actions by clearing agencies may
request a stay of such action or may appeal the action to the
appropriate regulatory agency. The FDIC is the appropriate regulatory
agency with regard to FDIC-insured banks (other than members of the
Federal Reserve System), when the appropriate regulatory agency for the
clearing agency is not the SEC. The Office of the Comptroller of the
Currency (OCC) and the Board of Governors of the Federal Reserve System
(FRB) have similar regulatory responsibilities with regard to banks
under their jurisdiction.
The FDIC's current regulations are contained in Part 342 of its
Rules and Regulations. (12 CFR Part 342) Those regulations are
identical in substance to the regulations of the SEC. (17 CFR 240.19d-2
to 240.19d-3) Therefore, the FDIC is shortening its regulatory
provisions by deleting those provisions contained in Part 342 which are
the same as those contained in the regulations of the SEC. Instead, the
FDIC is including a cross-reference to the SEC regulations in new
Subpart S to Part 308 of its Rules and Regulations.
II. Section-by-Section Summary
Part 308--Rules of Practice and Procedure
Subpart S--Applications for a Stay or Review of Actions of Bank
Clearing Agencies
Section 308.400 Scope
This section is identical to current section 342.1 of the FDIC's
regulations and sets forth the authority for the regulations and the
entities to which the regulations apply.
Section 308.401 Applications for Stays of Disciplinary Sanctions or
Summary Suspensions by a Bank Clearing Agency
This section has been shortened to reflect that applications for a
stay of a disciplinary action pursuant to section 17(b)(3)(G) of the
Exchange Act, or summary suspension or limitation or prohibition of
access to services under section 17(b)(5)(C) of the Exchange Act, may
be filed with the Corporation according to the procedures set forth in
the regulations of the SEC (17 CFR 240.19d-2), which are identical in
substance to those currently contained in Sec. 342.2 of the FDIC's
regulations. References to the Commission in the regulations of the SEC
will be deemed to be references to the Corporation for purposes of this
section.
Section 308.402 Applications for Review of Final Disciplinary
Sanctions, Denials of Participation, or Prohibitions or Limitations of
Access to Services Imposed by Bank Clearing Agencies
This section has been shortened to reflect that an application to
the Corporation under section 19(d)(2) of the Exchange Act for review
of any final disciplinary sanctions, denials of participation, or
prohibitions or limitations of access to services imposed by bank
clearing agencies shall be conducted according to the procedures set
forth in the regulations of the SEC (17 CFR 240.19d-3), which are
identical in substance to those currently contained in Sec. 342.3 of
the FDIC's regulations. References to the Commission in the regulations
of the SEC will be deemed references to the Corporation for purposes of
this section.
III. Regulatory Flexibility Act
Chapter 6 of Title 5 of the United States Code which pertains to
``The Analysis of Regulatory Functions'' does not apply to the final
rule regarding Part 342. The revision to Part 342 is not a ``rule'' for
purposes of that statute (see 5 U.S.C. 601(2)) as it is not a rule for
which the FDIC is required to publish a general notice of proposed
rulemaking under section 553(b) of Title 5 of the United States Code.
This is because the final rule contains only technical changes and
makes no substantive or procedural changes to existing rules, and
therefore, the FDIC has determined for good cause that public notice
and comment is unnecessary, and that the rule should be published in
final form.
IV. Small Business Regulatory Enforcement Fairness Act
The Small Business Regulatory Enforcement Fairness Act of 1996
(Pub. L. 104-121, 104th Cong., 2d Sess. (1996)) provides generally for
agencies to report rules to Congress and for Congress to review the
rules. The reporting requirement is triggered in instances where the
FDIC issues a final rule as defined by the Administrative Procedure Act
at 5 U.S.C. 551. The FDIC will file the appropriate reports pursuant to
the statute.
The Office of Management and Budget has determined that this final
revision
[[Page 48403]]
to Part 342 does not constitute a ``major'' rule as defined by the
statute.
V. Exemption From Public Notice and Comment
Because the FDIC finds that the new rules are the same in substance
as those currently found in Part 342, and that the changes are purely
technical in nature, the FDIC has determined for good cause that public
notice and comment is unnecessary, and that the rule should be
published in final form.
VI. Effective Date
The Administrative Procedure Act (5 U.S.C. 551 et seq.) provides
that regulations shall become effective thirty days after their
publication in the Federal Register. 5 U.S.C. 553. Thus, this amendment
to Part 308 and Part 342 of the FDIC's regulations shall become
effective on October 15, 1996.
List of Subjects
12 CFR Part 308
Administrative practice and procedure, Banks, banking, Claims,
Crime, Equal access to justice, Lawyers, Penalties, State nonmember
banks.
12 CFR Part 342
Administrative practice and procedure, Banks, banking.
For the reasons set out in the preamble, and under the authority of
12 U.S.C. 1819, chapter III of title 12 of the Code of Federal
Regulations is amended as set forth below:
PART 308--RULES OF PRACTICE AND PROCEDURE
1. The authority citation for part 308 is revised to read as
follows:
Authority: 5 U.S.C. 504, 554-557; 12 U.S.C. 93(b), 164, 505,
1817, 1818, 1820, 1831o, 1972, 3102, 3108(a), 3909, 4717; 15 U.S.C.
78 (h) and (i), 78o-4(c), 78o-5, 78q-1, 78s, 78u, 78u-2, 78u-3, and
78w; 31 U.S.C. 330, 5321; 42 U.S.C. 4012a.
2. A new Subpart S comprising Secs. 308.400 through 308.402 is
added to Part 308 to read as follows:
Subpart S--Applications for a Stay or Review of Actions of Bank
Clearing Agencies
Sec.
308.400 Scope.
308.401 Applications for stays of disciplinary sanctions or summary
suspensions by a bank clearing agency.
308.402 Applications for review of final disciplinary sanctions,
denials of participation, or prohibitions or limitations of access
to services imposed by bank clearing agencies.
Subpart S--Applications for a Stay or Review of Actions of Bank
Clearing Agencies
Sec. 308.400 Scope.
This subpart is issued by the Corporation pursuant to sections
17A(b)(3)(g), 17A(b)(5)(C), 19 and 23 of the Securities Exchange Act of
1934 (Exchange Act), as amended (15 U.S.C. 78q-1 (b)(3)(g), (b)(5)(C),
78s, 78w). It applies to applications by banks insured by the
Corporation (other than members of the Federal Reserve System) for a
stay or review of certain actions by clearing agencies registered under
the Exchange Act, for which the Securities and Exchange Commission
(Commission) is not the appropriate regulatory agency under section
3(a)(34)(B) of the Exchange Act (bank clearing agencies).
Sec. 308.401 Applications for stays of disciplinary sanctions or
summary suspensions by a bank clearing agency.
Applications to the Corporation for a stay of disciplinary action
imposed by registered clearing agencies pursuant to section 17(b)(3)(G)
of the Exchange Act, or summary suspension or limitation or prohibition
of access under section 17(b)(5)(C) of the Exchange Act shall be made
according to the rules adopted by the Commission (17 CFR 240.19d-2).
References to the ``Commission'' in 17 CFR 240.19d-2 are deemed to
refer to the ``Corporation.''
Sec. 308.402 Applications for review of final disciplinary sanctions,
denials of participation, or prohibitions or limitations of access to
services imposed by bank clearing agencies.
Proceedings on an application to the Corporation under section
19(d)(2) of the Exchange Act for review of any final disciplinary
sanctions, denials of participation, or prohibitions or limitations of
access to services imposed by bank clearing agencies shall be conducted
according to the procedures set forth in rules adopted by the
Commission (17 CFR 240.19d-3). References to the ``Commission'' in 17
CFR 240.19d-3 are deemed to refer to the ``Corporation.''
PART 342--[REMOVED AND RESERVED]
1. Part 342 is removed and reserved.
By order of the Board of Directors.
Dated at Washington, DC, this 13th day of August 1996.
Federal Deposit Insurance Corporation.
Jerry L. Langley,
Executive Secretary.
[FR Doc. 96-23228 Filed 9-12-96; 8:45 am]
BILLING CODE 6714-01-P
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