issue-1996-07-22•Federal Register final rules — 1996-07-22
Federal Register final rules — 1996-07-22
issue-1996-07-22Federal Register final rules — 1996-07-22Regulation
Published Federal Register documents, not public-inspection drafts. The GPO XML/text rendition is a research aid; the linked complete official PDF retains the printed layout and all graphics. Graphics are retained in that PDF and are not independently reproduced in this text rendition. Publication does not establish that every provision remains legally in force.
FR Doc. 96-18698 Railroad Accident Reporting
[Federal Register Volume 61, Number 141 (Monday, July 22, 1996)]
[Rules and Regulations]
[Page 37842]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18698]
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DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
49 CFR Part 225
[FRA Docket No. RAR-4, Notice No. 14]
Railroad Accident Reporting
[RIN 2130-AA58]
AGENCY: Federal Railroad Administration (FRA).
ACTION: Notice of Open Meeting.
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SUMMARY: On June 18, 1996, FRA published a final rule (61 FR 30940)
amending the railroad accident reporting regulations at 49 CFR Part
225. The amendments to these regulations are effective January 1, 1997.
Railroads are required to use the FRA Guide for Preparing Accidents/
Incidents Reports (FRA Guide) when preparing the numerous required
monthly reports and forms submitted to FRA. Instructions contained in
the FRA Guide are provided to assist railroads in meeting this
obligation. Various changes and revisions to the FRA Guide are
necessary due to the revisions of the accident reporting regulations.
FRA thus gives notice of an open meeting to discuss revisions to
the FRA Guide. Among the primary objectives of this meeting are to
develop new codes for the Railroad Injury and Illness Summary
(Continuation Sheet) (Form FRA F 6180.55a); to design new record
layouts for magnetic media and electronic submission of reports to FRA;
and to discuss and recommend any other changes to the FRA Guide
necessary to implement the revisions to the accident reporting
regulations. FRA invited all interested parties including
representatives of the Association of American Railroads (AAR)
Information Exchange Forum on Uniformity in Reporting Committee, rail
labor associations, trade associations, members of the public, as well
as any other interested party. FRA may schedule additional meetings to
the extent that interest is expressed by parties.
DATES: The meeting is scheduled to commence at 8:30 a.m. on Tuesday,
July 30th and to conclude at 3:00 p.m. on Thursday, August 1st. It is
anticipated that the meeting will conclude at 4:00 p.m. on Tuesday,
July 30th and on Wednesday, July 31st.
ADDRESSES: The meeting will be held at the Hall of States Conference
Center, 444 North Capitol Street, NW., Washington, DC 20001. The room
number for the meeting will be posted in the lobby of this building.
The meeting is open to the public on a first-come, first-served basis.
FOR FURTHER INFORMATION CONTACT:
Robert L. Finkelstein, Staff Director, Office of Safety Analysis,
Office of Safety, FRA, 400 Seventh Street, SW., Washington, DC 20590
(telephone 202-501-4863 or 202-366-0543); or Marina C. Appleton, Trial
Attorney, Office of Chief Counsel, FRA, 400 Seventh Street, SW.,
Washington, DC 20590 (telephone 202-366-0628).
Issued in Washington, DC., on July 17, 1996.
Donald M. Itzkoff,
Deputy Federal Railroad Administrator.
[FR Doc. 96-18698 Filed 7-19-96; 8:45 am]
BILLING CODE 4910-06-M
Complete official Federal Register PDF
FR Doc. 96-18564 Atlantic Swordfish Fishery; Drift Gillnet Closure Postponement
[Federal Register Volume 61, Number 141 (Monday, July 22, 1996)]
[Rules and Regulations]
[Pages 37842-37843]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18564]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 630
[I.D. 062796B]
Atlantic Swordfish Fishery; Drift Gillnet Closure Postponement
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Closure postponement.
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SUMMARY: NMFS postpones the closure of the drift gillnet fishery for
swordfish in the Atlantic Ocean, including the Gulf of Mexico and
Caribbean Sea. On July 9, 1996, NMFS announced a closure date of July
17, 1996. However, NMFS has determined that the adjusted second
semiannual subquota for swordfish that may be harvested by drift
gillnet will not be reached on or before July 17, 1996, as was
previously determined. This closure postponement will allow vessels to
continue to fish and is necessary to allow the quota to be reached.
EFFECTIVE DATE: This postponement action is effective July 17, 1996.
The closure that published on July 9, 1996 at 61 FR 35971 is postponed
until 2330 hours, local time, July 19, 1996, and will be in effect
through 2400 hours, local time, November 30, 1996.
FOR FURTHER INFORMATION CONTACT: Ronald G. Rinaldo, 301-713- 2347.
SUPPLEMENTARY INFORMATION: The Atlantic swordfish fishery is managed
under the authority of the Magnuson Fishery Conservation and Management
Act (16 U.S.C. 1801 et seq.) and the Atlantic Tunas Convention Act (16
U.S.C. 971 et seq.).
The 1996 swordfish Total Allowable Catch (TAC) allows for an
Atlantic swordfish drift gillnet subquota of 22.5 mt dressed weight
(49,604 lb) for the January 1 to June 30 period, and a subquota of
23.45 mt dressed weight (51,698 lb) for the July 1 to November 30
period. NMFS estimates that approximately 33,183 lb (15.0 mt) were
caught during the first period subquota. As required under applicable
regulations, the remaining portion of the
[[Page 37843]]
first period subquota (16,421 lb) has been carried over to the second
period, for an adjusted second period subquota of 30.9 mt dressed
weight, or 68,119 lb. NMFS estimates that approximately 13,818 lb
remain of the adjusted second period subquota as of this date.
Based on projected catch rates, NMFS had previously announced a
closure date of July 17, 1996 (61 FR 35971). Because of Hurricane
Bertha, many of the vessels were unable to fish for a number of days
and the quota is not expected to be reached on or before July 17, 1996,
as was previously estimated. Given the approximately 13,818 lb remains
of the second period subquota and current fishery catches averaging
approximately 7,000 lb per day, NMFS estimates that the quota will be
reached on or before July 19, 1996. Hence, action is being taken to
postpone the fishery closure to be effective 2330 hours on July 19,
1996 through 2400 hours November 30, 1996.
During this closure of the drift gillnet fishery: (1) No one aboard
a vessel using or having on board a drift gillnet may fish for
swordfish from the North Atlantic swordfish stock; (2) no more than two
swordfish per trip may be possessed on board vessel using or having on
board a drift gillnet in the North Atlantic Ocean, including the Gulf
of Mexico and Caribbean Sea, north of 5 deg. N. lat., or landed in an
Atlantic, Gulf of Mexico, or Caribbean coastal state.
Classification
This action is required by 50 CFR 630.25(a) and is exempt from
review under E.O. 12866.
Dated: July 17, 1996.
Richard H. Schaefer,
Director, Office of Fisheries Conservation and Management, National
Marine Fisheries Service.
[FR Doc. 96-18564 Filed 7-17-96; 4:47 pm]
BILLING CODE 3510-22-F
Complete official Federal Register PDF
FR Doc. 96-18554 Hostage Situation Management
[Federal Register Volume 61, Number 141 (Monday, July 22, 1996)]
[Rules and Regulations]
[Page 38042]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18554]
[[Page 38041]]
_______________________________________________________________________
Part VII
Department of Justice
_______________________________________________________________________
Bureau of Prisons
_______________________________________________________________________
28 CFR Parts 552 and 571
Hostage Situation Management and Release Preparation Program;
Regulations Revision; Final Rules
Federal Register / Vol. 61, No. 141 / Monday, July 22, 1996 / Rules
and Regulations
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[[Page 38042]]
DEPARTMENT OF JUSTICE
Bureau of Prisons
28 CFR Part 552
[BOP-1061-F]
RIN 1120-AA55
Hostage Situation Management
AGENCY: Bureau of Prisons, Justice.
ACTION: Final rule.
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SUMMARY: In this document, the Bureau of Prisons is revising its
regulations on hostage situations to remove unnecessary or redundant
procedural details. The intent of this amendment is the continued
secure and efficient operation of the Bureau and its institutions.
EFFECTIVE DATE: July 22, 1996.
ADDRESSES: Office of General Counsel, Bureau of Prisons, HOLC Room 754,
320 First Street, NW., Washington, DC 20534.
FOR FURTHER INFORMATION CONTACT: Roy Nanovic, Office of General
Counsel, Bureau of Prisons, phone (202) 514-6655.
SUPPLEMENTARY INFORMATION: The Bureau of Prisons is amending its
regulations on hostage situations (28 CFR part 552, subpart D). A final
rule on this subject was published in the Federal Register on October
25, 1990 (55 FR 39852).
The Bureau's regulations on hostage situations previously contained
details relating to command structure (former Sec. 552.31) and hostage
family services (former Sec. 552.34). For the reasons discussed below,
the Bureau believes it unnecessary to retain these provisions in its
regulations.
A hostage situation understandably may be considered an
institutional emergency which poses a threat to human life or safety.
Provisions in the regulations on the Bureau's purpose and scope in such
situations (Sec. 552.30), on negotiations (former Sec. 552.32), and on
regard for orders by captive staff (former Sec. 552.33) may well serve
to deter the taking of hostages, in so far as those who might so intend
have notice of the Bureau's resolve. These provisions have therefore
been recodified as Secs. 552.30 through 552.32. The provisions in
former Secs. 552.31 and 552.34 on command structure and on hostage
family services do not serve this same purpose and are therefore deemed
inappropriate for retention in the regulations. These provisions are
more appropriately maintained in internal directives which may more
efficiently respond to the specifics of a particular hostage situation.
The cross reference provisions in former Sec. 552.35 on the media are
recodified as Sec. 552.33.
Because these amendments are administrative in nature and do not
impose additional restrictions on inmates, the Bureau finds good cause
for exempting the provisions of the Administrative Procedure Act (5
U.S.C. 553) requiring notice of proposed rulemaking, the opportunity
for public comment, and delay in effective date. Members of the public
may submit comments concerning this rule by writing to the previously
cited address. These comments will be considered but will receive no
response in the Federal Register.
The Bureau of Prisons has determined that this rule is not a
significant regulatory action for the purpose of E.O. 12866, and
accordingly this rule was not reviewed by the Office of Management and
Budget. After review of the law and regulations, the Director, Bureau
of Prisons has certified that this rule, for the purpose of the
Regulatory Flexibility Act (5 U.S.C. 601 et seq.), does not have a
significant economic impact on a substantial number of small entities,
within the meaning of the Act. Because this rule pertains to the
correctional management of offenders committed to the custody of the
Attorney General or the Director of the Bureau of Prisons, its economic
impact is limited to the Bureau's appropriated funds.
List of Subjects in 28 CFR Part 552
Prisoners.
Kathleen M. Hawk,
Director, Bureau of Prisons.
Accordingly, pursuant to the rulemaking authority vested in the
Attorney General in 5 U.S.C. 552(a) and delegated to the Director,
Bureau of Prisons in 28 CFR 0.96(p), part 552 in subchapter C of 28
CFR, chapter V is amended as set forth below.
SUBCHAPTER C--INSTITUTIONAL MANAGEMENT
PART 552--CUSTODY
1. The authority citation for 28 CFR part 552 is revised to read as
follows:
Authority: 5 U.S.C. 301; 18 U.S.C. 3621, 3622, 3624, 4001, 4042,
4081, 4082 (Repealed in part as to offenses committed on or after
November 1, 1987), 5006-5024 (Repealed October 12, 1984 as to
offenses committed after that date), 5039; 28 U.S.C. 509, 510; 28
CFR 0.95-0.99.
2. Subpart D of part 552 is revised to read as follows:
Subpart D--Hostage Situation Management
Sec.
552.30 Purpose and scope.
552.31 Negotiations.
552.32 Hostages
552.33 Media.
Subpart D--Hostage Situation Management
Sec. 552.30 Purpose and scope.
The Bureau of Prisons primary objectives in all hostage situations
are to safely free the hostage(s) and to regain control of the
institution.
Sec. 552.31 Negotiations.
The Warden is not ordinarily involved directly in the negotiation
process. Instead, this responsibility is ordinarily assigned to a team
of individuals specifically trained in hostage negotiation techniques.
(a) Negotiators have no decision-making authority in hostage
situations, but rather serve as intermediaries between hostage takers
and command center staff.
(b) During the negotiation process, the following items are non-
negotiable: release of captors from custody, providing of weapons,
exchange of hostages, and immunity from prosecution.
Sec. 552.32 Hostages.
Captive staff have no authority and their directives shall be
disregarded.
Sec. 552.33 Media.
The Warden shall assign staff to handle all news releases and news
media inquiries in accordance with the rule on Contact with News Media
(see 28 CFR 540.65).
[FR Doc. 96-18554 Filed 7-19-96; 8:45 am]
BILLING CODE 4410-05-P
Complete official Federal Register PDF
FR Doc. 96-18553 Release Preparation Program
[Federal Register Volume 61, Number 141 (Monday, July 22, 1996)]
[Rules and Regulations]
[Pages 38042-38043]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18553]
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DEPARTMENT OF JUSTICE
28 CFR Part 571
[BOP-1055-F]
RIN 1120-AA51
Release Preparation Program
AGENCY: Bureau of Prisons, Justice.
ACTION: Final rule.
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SUMMARY: In this document, the Bureau of Prisons is revising its
regulations on inmate release preparation to allow for exceptions at an
administrative maximum security institution. This amendment is intended
to provide for the continued secure, orderly, and efficient operation
of the Bureau and its institutions.
EFFECTIVE DATE: July 22, 1996.
ADDRESSES: Office of General Counsel, Bureau of Prisons, HOLC Room 754,
320 First Street, NW., Washington, DC 20534.
[[Page 38043]]
FOR FURTHER INFORMATION CONTACT: Roy Nanovic, Office of General
Counsel, Bureau of Prisons, phone (202) 514-6655.
SUPPLEMENTARY INFORMATION: The Bureau of Prisons is amending its
regulations on the release preparation program (28 CFR part 571,
subpart B). A final rule on this subject was published in the Federal
Register July 11, 1994 (59 FR 35456).
Current regulations in Sec. 571.10 affirm the establishment of a
standardized release preparation program for all sentenced inmates
reintegrating into the community from Bureau facilities. Inmates who
have demonstrated an inability to function in a less restrictive
environment without being a threat to others, or to the secure and
orderly operation of the institution may be placed in an administrative
maximum security facility. At present, the Bureau operates one
administrative maximum security facility at Florence, Colorado (ADX
Florence). Upon completion of the special programming at ADX Florence,
an inmate ordinarily would be assigned to another Bureau institution
before release.
Given the unique mission of ADX Florence and the problems posed by
the behavior patterns of the inmates assigned to that institution, the
Bureau deems it impracticable to require operation of the standardized
release preparation program at that facility. Access to the full
standardized release preparation program remains available at all other
Bureau facilities and may serve as additional incentive for the inmate
to complete special programming at the administrative maximum security
institution. The Bureau is therefore amending Sec. 571.10 to allow the
Warden of an administrative maximum security institution to make
exceptions to the standardized release preparation program.
Because these changes are necessary for the secure, orderly, and
efficient correctional management of the institution and because they
do not impose further restrictions on inmates beyond those appropriate
to the security level, the Bureau finds good cause for exempting the
provisions of the Administrative Procedure Act (5 U.S.C. 553) requiring
notice of proposed rulemaking, the opportunity for public comment, and
delay in effective date. Members of the public may submit comments
concerning this rule by writing to the previously cited address. These
comments will be considered but will receive no response in the Federal
Register.
The Bureau of Prisons has determined that this rule is not a
significant regulatory action for the purpose of E.O. 12866, and
accordingly this rule was not reviewed by the Office of Management and
Budget. After review of the law and regulations, the Director, Bureau
of Prisons, has certified that this rule, for the purpose of the
Regulatory Flexibility Act (Pub. L. 96-354), does not have a
significant impact on a substantial number of small entities. Because
this rule pertains to the correctional management of offenders
committed to the custody of the Attorney General or the Director of the
Bureau of Prisons, its economic impact is limited to the Bureau's
appropriated funds.
List of Subjects in 28 CFR Part 571
Prisoners.
Kathleen M. Hawk,
Director, Bureau of Prisons.
Accordingly, pursuant to the rulemaking authority vested in the
Attorney General in 5 U.S.C. 552(a) and delegated to the Director,
Bureau of Prisons, in 28 CFR 0.96(p), part 571 in subchapter D of 28
CFR, chapter V is amended as set forth below.
SUBCHAPTER D--COMMUNITY PROGRAMS AND RELEASE
PART 571--RELEASE FROM CUSTODY
1. The authority citation for 28 CFR part 571 continues to read as
follows:
Authority: 5 U.S.C. 301; 18 U.S.C. 3565, 3568-3569 (Repealed in
part as to offenses committed on or after November 1, 1987), 3582,
3621, 3622, 3624, 4001, 4042, 4081, 4082 (Repealed in part as to
offenses committed on or after November 1, 1987), 4161-4166 and
4201-4218 (Repealed as to offenses committed on or after November 1,
1987), 5006-5024 (Repealed October 12, 1984 as to offenses committed
after that date), 5031-5042; 28 U.S.C. 509, 510; U.S. Const., Art.
II, Sec. 2; 28 CFR 0.95-0.99, 1.1-1.10.
2. Section 571.10 is revised to read as follows:
Sec. 571.10 Purpose and scope.
The Bureau of Prisons recognizes that an inmate's preparation for
release begins at initial commitment and continues throughout
incarceration and until final release to the community. This subpart
establishes a standardized release preparation program for all
sentenced inmates reintegrating into the community from Bureau
facilities. Exception to this subpart may be made by the Warden of a
Bureau facility which has been designated as an administrative maximum
security institution.
[FR Doc. 96-18553 Filed 7-19-96; 8:45 am]
BILLING CODE 4410-05-P
Complete official Federal Register PDF
FR Doc. 96-18545 Rules of Origin for Textile and Apparel Products
[Federal Register Volume 61, Number 141 (Monday, July 22, 1996)]
[Rules and Regulations]
[Pages 37817-37818]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18545]
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DEPARTMENT OF THE TREASURY
Customs Service
19 CFR Part 102
[T.D. 96-56]
Rules of Origin for Textile and Apparel Products
AGENCY: U.S. Customs Service, Department of the Treasury.
ACTION: Final rule.
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SUMMARY: This document sets forth technical corrections to the Customs
Regulations which govern the determination of the country of origin of
textile and apparel products for purposes of laws enforced by Customs.
The changes involve an updating of certain tariff subheading references
and the correction of an error in the text of one tariff shift rule.
EFFECTIVE DATE: July 22, 1996.
FOR FURTHER INFORMATION CONTACT: Phil Robins, Office of Regulations and
Rulings (202-482-7029).
SUPPLEMENTARY INFORMATION:
Background
On September 5, 1995, Customs published T.D. 95-69 in the Federal
Register (60 FR 46188) containing final amendments to the Customs
Regulations to set forth standards governing the determination of the
country of origin of textile and apparel products for purposes of laws
enforced by Customs. The regulatory amendments primarily implemented
the provisions of section 334 of the Uruguay Round Agreements Act
(Public Law 103-465, 108 Stat. 4809) and included a new Sec. 102.21 (19
CFR 102.21) which covers the majority of the section 334 provisions and
applies to goods entered, or withdrawn from warehouse, for consumption
on or after July 1, 1996.
Section 102.21(b)(5) defines a ``textile or apparel product'' as a
good classifiable in specified chapters, headings or subheadings of the
Harmonized Tariff Schedule of the United States (HTSUS). Section
102.21(c) sets forth the general rules for determining the country of
origin of a textile or apparel product and, in paragraph (c)(2), allows
for the determination of the country of origin of a good on the basis
of a tariff classification change and/or other requirement specified
for the good in paragraph (e). Paragraph (e) of Sec. 102.21
incorporates a table consisting of a list of HTSUS headings and
subheadings together with corresponding specified tariff shift and/or
other requirements.
The HTSUS references in the Sec. 102.21 texts were based on the
1995 version of the HTSUS. However, the 1996 version of the HTSUS
incorporates a number of subheading number changes as a result of
amendments made to the international Harmonized System, one of which
involved the redesignation of subheading 7019.10 as subheading 7019.19
and another of which involved the replacement of subheading 7019.20 by
new subheadings 7019.40-7019.59. Accordingly, this document makes the
following changes within the Sec. 102.21 texts to conform them to the
1996 HTSUS: (1) in the list of HTSUS headings and subheadings in
paragraph (b)(5), ``7019.10.15'' is changed to read ``7019.19.15'' and
``7019.10.28'' is changed to read ``7019.19.28'' and ``7019.20'' is
changed to read ``7019.40-59''; (2) in the table under paragraph (e),
in the ``HTSUS'' column, ``7019.10.15'' is changed to read
``7019.19.15'' and ``7019.10.28'' is changed to read ``7019.19.28'' and
``7019.20'' is changed to read ``7019.40-7019.59'', and in the
corresponding specific rules in the ``Tariff shift and/or other
requirements'' column, each reference to ``7019.10.15'' is changed to
read ``7019.19.15'' and each reference to ``7019.10.28'' is changed to
read ``7019.19.28'' and the reference to ``7019.20'' is changed to read
``7019.40 through 7019.59''; and (3) also in the ``Tariff shift and/or
other requirements'' column in the table under paragraph (e), in the
second tariff shift rule for newly designated subheadings 7019.19.15
and 7019.19.28, the exception clause is changed to read ``except from
subheading 7019.19.30 through 7019.19.90, 7019.31.00 through
7019.39.50, and 7019.90''.
In addition, it is noted that in the table under paragraph (e) of
Sec. 102.21, the tariff shift rule for newly designated subheadings
7019.40-7019.59 (which cover woven fabrics of rovings and other woven
fabrics) specifies a change from any other ``heading'' and includes a
proviso that the change must be the result of a fabric-making process.
It is further noted that heading 7019 (which covers glass fibers and
articles thereof) includes subheadings for glass fiber rovings
(subheading 7019.12.00) and yarns (subheadings 7019.19.05-7019.19.28)
which are the products from which the fabrics of subheadings 7019.40-
7019.59 are made and without which those fabrics could not exist.
Therefore, by specifying a change from any other ``heading'' (that is,
any heading other than heading 7019) rather than a change from any
other ``subheading'' (so as to allow a change from subheadings
7019.12.00 and 7019.19.05-7019.19.28), the tariff shift rule for
subheadings 7019.40-7019.59 has no substantive utility because the rule
disallows the very tariff shifts that would be involved in producing
the goods covered by those subheadings. Accordingly, this document
amends the tariff shift rule for subheadings 7019.40-7019.59 to refer
to a change from any other ``subheading'' in order to correct this
obvious drafting error.
Executive Order 12866, Regulatory Flexibility Act, and Inapplicability
of Notice and Delayed Effective Date Requirements
This document does not meet the criteria for a ``significant
regulatory action'' as specified in Executive Order 12866. In addition,
pursuant to the provisions of the Regulatory Flexibility Act (5 U.S.C.
601 et seq.), it is certified that the amendments will not have a
significant economic impact on a substantial number of small entities
because the amendments either merely conform the regulations to
existing statutory provisions or correct an obvious error. For the same
reasons and in view of the July 1, 1996, effective date of the
regulatory provisions to which these amendments relate, it is
determined pursuant to the provisions of 5 U.S.C. 553(b)(B) that notice
and public procedures thereon are unnecessary and contrary to the
public interest, and it is determined pursuant to the provisions of 5
U.S.C. 553(d)(3) that good cause exists for dispensing with a delayed
effective date.
Drafting Information
The principal author of this document was Francis W. Foote, Office
of Regulations and Rulings, U.S. Customs Service. However, personnel
from other offices participated in its development.
List of Subjects in 19 CFR Part 102
Customs duties and inspections, Imports, Reporting and
recordkeeping requirements, Rules of origin, Trade agreements.
Amendments to the Regulations
Accordingly, for the reasons stated above, Part 102, Customs
Regulations (19 CFR Part 102), is amended as set forth below.
[[Page 37818]]
PART 102--RULES OF ORIGIN
1. The authority citation for Part 102 continues to read as
follows:
Authority: 19 U.S.C. 66, 1202 (General Note 20, Harmonized
Tariff Schedule of the United States), 1624, 3314, 3592.
Sec. 102.21 [Amended]
2. Section 102.21(b)(5) is amended by removing the listings
``7019.10.15'' and ``7019.10.28'' and ``7019.20'' and adding, in their
place in numerical order, the listings ``7019.19.15'' and
``7019.19.28'' and ``7019.40-59''.
3. In Sec. 102.21(e), the table is amended by removing the entries
for HTSUS 7019.10.15 and HTSUS 7019.10.28 and HTSUS 7019.20 and adding,
in their place, entries for HTSUS 7019.19.15 and HTSUS 7019.19.28 and
HTSUS 7019.40-7019.59 to read as follows:
Sec. 102.21 Textile and apparel products.
* * * * *
(e) * * *
------------------------------------------------------------------------
HTSUS Tariff shift and/or other requirements
------------------------------------------------------------------------
* * * *
* * *
7019.19.15.................. (1) If the good is of filaments, a change
to subheading 7019.19.15 from any other
heading, provided that the change is the
result of an extrusion process.
(2) If the good is of staple fibers, a
change to subheading 7019.19.15 from any
other subheading, except from subheading
7019.19.30 through 7019.19.90, 7019.31.00
through 7019.39.50, and 7019.90, and
provided that the change is the result of
a spinning process.
7019.19.28.................. (1) If the good is of filaments, a change
to subheading 7019.19.28 from any other
heading, provided that the change is the
result of an extrusion process.
(2) If the good is of staple fibers, a
change to subheading 7019.19.28 from any
other subheading, except from subheading
7019.19.30 through 7019.19.90, 7019.31.00
through 7019.39.50, and 7019.90, and
provided that the change is the result of
a spinning process.
7019.40-7019.59............. A change to subheading 7019.40 through
7019.59 from any other subheading,
provided that the change is the result of
a fabric-making process.
* * * *
* * *
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George J. Weise,
Commissioner of Customs.
Approved: June 17, 1996.
John P. Simpson,
Deputy Assistant Secretary of the Treasury.
[FR Doc. 96-18545 Filed 7-19-96; 8:45 am]
BILLING CODE 4820-02-P
Complete official Federal Register PDF
FR Doc. 96-18531 CFR Chapter Name Change
[Federal Register Volume 61, Number 141 (Monday, July 22, 1996)]
[Rules and Regulations]
[Page 37814]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18531]
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DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Chapter III
[Docket No. 28636]
CFR Chapter Name Change
AGENCY: Federal Aviation Administration, DOT.
ACTION: Final rule; request for comment.
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SUMMARY: This document renames the chapter heading of Chapter III,
Title 14, Code of Federal Regulations. The office of the Associate
Administrator for Commercial Space Transportation, Department of
Transportation became part of the Federal Aviation Administration on
November 15, 1995. As published, Chapter III of 14 Code of Federal
Regulations does not describe commercial space activities as being part
of the Federal Aviation Administration. It is therefore necessary to
rename the chapter heading to reflect that administrative change.
DATES: This final rule is effective July 22, 1996. Comments on the
final rule must be received by August 21, 1996.
ADDRESSES: Comments on this final rule should be mailed, in triplicate,
to Federal Aviation Administration, Office of the Chief Counsel,
Attention: Rules Docket (AGC-200), Docket No. 28636, 800 Independence
Avenue, SW., Washington, DC 20591. Comments delivered must be marked
Docket No. 28636. Comments may be examined in room 915G weekdays
between 8:30 a.m. and 5 p.m., except on Federal holidays.
FOR FURTHER INFORMATION CONTACT:
Laura Montgomery of the Office of the Chief Counsel, Federal Aviation
Administration, U.S. Department of Transportation, 400 7th Street, SW.,
Room 10424, Washington, DC 20590. Telephone number: (202) 366-9305.
SUPPLEMENTARY INFORMATION: Effective November 15, 1995, the Commercial
Space Transportation organization was transferred from the Office of
the Secretary to the Federal Aviation Administration, where it now
operates as the FAA's seventh line of business. Transfer of
Delegations, 60 FR 62762 (Dec. 7, 1995). With the redelegation of
authority, the Director of the Office of Commercial Space
Transportation became the FAA's Associate Administrator for Commercial
Space Transportation. Accordingly, the heading of Chapter III of 14
Code of Federal Regulations is changed to reflect that the implementing
regulations for commercial space transportation are now administered
through the FAA.
In consideration of the foregoing, and under the authority of 49
U.S.C. 70101 through 70119 and 49 CFR 1.45, the Federal Aviation
Administration revises the heading of Chapter III, 14 Code of Federal
Regulations to read as follows:
CHAPTER III--COMMERCIAL SPACE TRANSPORTATION, FEDERAL AVIATION
ADMINISTRATION, DEPARTMENT OF TRANSPORTATION (PARTS 400 TO 499)
Issued in Washington, DC, on July 17, 1996.
Donald P. Byrne,
Assistant Chief Counsel for Regulations, Federal Aviation
Administration.
[FR Doc. 96-18531 Filed 7-19-96; 8:45 am]
BILLING CODE 4910-13-M
Complete official Federal Register PDF
FR Doc. 96-18515 Federal Employees Health Benefits Program: Payment of Premiums for Periods of Leave Without Pay or Insufficient Pay
[Federal Register Volume 61, Number 141 (Monday, July 22, 1996)]
[Rules and Regulations]
[Pages 37807-37810]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18515]
========================================================================
Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
Prices of new books are listed in the first FEDERAL REGISTER issue of each
week.
========================================================================
Federal Register / Vol. 61, No. 141 / Monday, July 22, 1996 / Rules
and Regulations
[[Page 37807]]
OFFICE OF PERSONNEL MANAGEMENT
5 CFR Part 890
RIN 3206-AG66
Federal Employees Health Benefits Program: Payment of Premiums
for Periods of Leave Without Pay or Insufficient Pay
AGENCY: Office of Personnel Management.
ACTION: Interim rule with request for comments.
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SUMMARY: The Office of Personnel Management is issuing an interim
regulation to require Federal agencies to provide employees entering
leave without pay (LWOP) status, or whose pay is insufficient to cover
their FEHB premium payments, written notice of their opportunity to
continue their FEHB coverage. Employees who want to continue their
enrollment must sign a form agreeing to pay their premiums directly to
their agency on a current basis, or to incur a debt to be withheld from
their future salary. The purpose of this interim regulation is to
ensure that employees who are entering LWOP status, or whose pay is
insufficient to pay their FEHB premiums, are fully informed when they
decide whether or not to continue their FEHB coverage.
DATES: This interim regulation is effective August 21, 1996. We must
receive comments on or before September 20, 1996.
ADDRESSES: Send written comments to Lucretia F. Myers, Assistant
Director for Insurance Programs, Retirement and Insurance Service,
Office of Personnel Management, P.O. Box 57, Washington, DC 20044; or
deliver to OPM, Room 3451, 1900 E Street NW., Washington, DC; or FAX to
(202) 606-0633.
FOR FURTHER INFORMATION CONTACT: Robert G. Iadicicco, (202) 606-0004.
SUPPLEMENTARY INFORMATION: On May 10, 1994, OPM issued a regulation in
the Federal Register [59 FR 24062] that proposed a number of changes to
the Federal Employees Health Benefits (FEHB) Program that would result
in better service to enrollees. One of the changes proposed
establishing a requirement that agencies inform employees entering
leave without pay status (LWOP), (or any other type of nonpay status,
except periods of nonpay resulting from a lapse of appropriations), or
receiving pay insufficient to cover their FEHB premium payments, of the
options of continuing or terminating their FEHB coverage, and if
continuing, of paying premiums directly on a current basis or incurring
a debt to be withheld from future salary. The proposal intended to
ensure employees are fully aware of these alternatives. Furthermore,
because the proposal would establish a procedure under which the
employee voluntarily arranges to have the debt recovered from salary in
a specified amount after returning to duty or after salary increases to
cover the amount of the health benefits contributions, the involuntary
offset provisions of 5 U.S.C. 5514 and subpart K of 5 CFR part 550
would not apply.
On November 23, 1994, OPM issued a regulation in the Federal
Register (59 FR 60294) that put into effect all of the changes proposed
in the May 10, 1994, regulation except the requirement that agencies
inform employees entering LWOP status, or receiving pay insufficient to
cover their FEHB premium payments, of the options of continuing or
terminating their FEHB coverage. This interim regulation covers the
requirement.
We received comments from two Federal agencies and one retiree
organization. One commenter agreed that employees need to be advised of
the options they have to continue FEHB coverage while they are in LWOP
status or when their pay is insufficient, but had a concern. Their
concern was that the proposal did not clearly state what would happen
to the FEHB enrollment of employees who go on LWOP status or whose pay
is insufficient if they did not elect in writing to continue or
terminate their FEHB enrollment.
We have addressed this concern by amending the proposal to require
employing offices to provide employees with a written notice of the
options of continuing or terminating their FEHB coverage. The
enrollments of employees who do not return a signed form to their
employing office within 31 days after the day they receive the notice
are terminated. The termination is retroactive to the end of the last
pay period in which the premium was withheld from pay.
The employees and covered family members, if any, are entitled to
the 31-day temporary extension of coverage and may convert to an
individual contract for health benefits. In addition, employees who are
prevented by circumstances beyond their control from timely returning a
signed form to the employing office may request the employing office to
reinstate their coverage. Therefore, employees who through no fault of
their own are not able to return a signed form to the employing office
within 31 days are protected by the temporary extension of coverage and
their right to request reinstatement of their coverage. Employees who
terminate their enrollment may enroll upon their return to pay status.
One commenter agreed that the change should resolve some of the
past problems and clarify agency and employee responsibilities, but
that continued monitoring by OPM and agency staff of operating
personnel offices' administration of the FEHB enrollment procedures for
employees in LWOP status will be required. We agree continued
monitoring is still required, and note that it is the responsibility of
agencies' staff to monitor their employing offices' procedures for
employees who enter LWOP status to ensure employees receive the
information required by this regulation.
One commenter disagreed with OPM's statement that the involuntary
offset provisions of 5 U.S.C. 5514 and subpart K of 5 CFR part 550
would not apply under this regulation. The involuntary offset
provisions require agencies to follow due process procedures such as
giving employees written notice and an opportunity for a hearing before
collecting debts from their pay. Section 550.1102(b) of subpart K of 5
CFR part 550 states, ``This subpart and 5 U.S.C. 5514 apply in
recovering certain debts by administrative offset, except where the
employee consents to the recovery, from
[[Page 37808]]
the current pay account of an employee.'' (emphasis added). Because
this regulation requires employees entering LWOP status or receiving
pay insufficient to cover their FEHB premiums to consent in writing to
the recovery of the debt they are incurring by continuing their FEHB
coverage, the involuntary offset provisions of 5 U.S.C. 5514 and
subpart K of 5 CFR part 550 do not apply.
On December 30, 1994, and June 1, 1995, OPM issued interim and
final regulations in the Federal Register (59 FR 67605 and 60 FR
28511), respectively, that eliminated the requirement for the use of
certified mail, return receipt requested, when notifying certain
enrollees that their enrollment in the FEHB Program will be terminated
due to nonpayment of premiums unless the payment is received within 15
days. This interim regulation further amends 5 CFR 890.502 to eliminate
the requirement for the use of certified mail, return receipt
requested, for the following circumstances: (1) Annuitants whose FEHB
premiums exceed the amount of their annuities; (2) surviving spouses in
receipt of a lump-sum basic employee death benefit under the Federal
Employees Retirement System; and (3) employees in LWOP status in excess
of 365 days.
On June 17, 1994, and December 27, 1994, OPM issued proposed and
final regulations in the Federal Register (59 FR 31171 and 59 FR 66434)
that delegated from OPM to Federal agencies the authority to reconsider
disputes over coverage and enrollment issues in the Federal Employees'
Group Life Insurance and the FEHB Programs and to make retroactive as
well as prospective corrections of errors. This interim regulation
amends 5 CFR 890.502, 890.808, and 890.1109 to conform with the
delegation of authority to Federal agencies.
Regulatory Flexibility Act
I certify that this regulation will not have a significant economic
impact on a substantial number of small entities because it primarily
affects Federal employees, annuitants, and former spouses.
List of Subjects in 5 CFR Part 890
Administrative practice and procedure, Government employees, Health
facilities, Health insurance, Health professions, Hostages, Iraq,
Kuwait, Lebanon, Reporting and recordkeeping requirements, Retirement.
U.S. Office of Personnel Management.
James B. King,
Director.
Accordingly, OPM is amending 5 CFR part 890 as follows:
PART 890--FEDERAL EMPLOYEES HEALTH BENEFITS PROGRAM
1. The authority citation for part 890 continues to read as
follows:
Authority: 5 U.S.C. 8913; Sec. 890.803 also issued under 50
U.S.C. 403p, 22 U.S.C. 4069c and 4069c-1; subpart L also issued
under sec. 599C of Pub. L. 101-513, 104 Stat. 2064, as amended.
Sec. 890.301 [Amended]
2. In Sec. 890.301, paragraph (c) is amended by removing
``Sec. 890.304(a)(5)'' and adding in its place
``Sec. 890.304(a)(1)(v)''.
3. In Sec. 890.502, paragraphs (a), (b), (c), (d), and (e) are
revised; paragraphs (f) and (h) are removed, and paragraph (g) is
redesignated as paragraph (f), to read as follows:
Sec. 890.502 Employee and annuitant withholdings and contributions
and direct payment of premiums.
(a) Employee and annuitant withholdings and contributions. (1)
Except as provided in paragraphs (a)(2) and (g) of this section, an
employee or annuitant is responsible for payment of the employee or
annuitant share of the cost of enrollment for every pay period during
which the enrollment continues. An employee or annuitant incurs an
indebtedness due the United States in the amount of the proper employee
or annuitant withholding required for each pay period that health
benefits withholdings or direct premium payments are not made but
during which the enrollment continues.
(2) An individual is not required to pay withholdings for the
period between the end of the pay period in which he or she separates
from service and the commencing date of an immediate annuity, if later.
(3) Temporary employees who are eligible to enroll under 5 U.S.C.
8906a must pay the full subscription charges including both the
employee share and the Government contribution. Employees with
provisional appointments under Sec. 316.403 are not considered eligible
for coverage under 5 U.S.C. 8906a for the purpose of this paragraph
(a)(3).
(4) The employing office must determine the withholding for
employees whose annual pay is paid during a period shorter than 52
workweeks on an annual basis and prorate the withholding over the
number of installments of pay regularly paid during the year.
(5) The employing office must make the withholding required from
enrolled survivor annuitants in the following order. First, withhold
from the annuity of a surviving spouse, if any. If that annuity is less
than the withholding required, the employing office must make the
withholding to the extent necessary from the annuity of the children,
if any, in the following order. First, withhold from the annuity of the
youngest child, and if necessary, then from the annuity of the next
older child, in succession, until the withholding is satisfied.
(6) Surviving spouses in receipt of a basic employee death benefit
under 5 U.S.C. 8442(b)(1)(A) and annuitants whose health benefits
premiums exceed the amount of their annuities may pay their portion of
the health benefits premium directly to the retirement system acting as
their employing office in accordance with procedures set out in
paragraph (d) of this section.
(b) Procedures when employee enters LWOP status or pay is
insufficient to cover premium. As soon as the employing office is aware
of an employee whose premium payments cannot be made because the
employee will be entering or has entered leave without pay status, (or
any other type of nonpay status, except periods of nonpay resulting
from a lapse of appropriations), or the employee's pay is insufficient
to cover the premiums, the employing office must inform the employee of
the available health benefits options.
(1) The employing office must provide the employee written notice
of the options and consequences as described in paragraphs (b)(2) (i)
and (ii) of this section. If the employing office cannot give the
notice required by this paragraph (b)(1) to the employee directly, it
must send the notice by first class mail. A notice that is mailed is
deemed to be received 5 days after the date of the notice.
(2) The employee must elect in writing either to continue health
benefits coverage or terminate it. The employee may continue his or her
health benefits coverage by choosing one of the options listed in this
paragraph (b)(2) and returning the signed form to the employing office
within 31 days from the day he or she receives the notice (45 days for
an employee residing overseas). When an employee mails the signed form,
the date of the postmark is deemed to be the date the notice is
returned to the employing office. If an employee elects
[[Page 37809]]
to continue coverage, he or she must elect in writing either to--
(i) Agree to pay the premium directly to the agency on a current
basis. The employee must agree that if he or she does not pay the
premiums, upon returning to employment or upon pay becoming sufficient
to cover the premiums, the employing office will deduct, in addition to
the current pay period's premiums, an amount equal to the premiums for
a pay period during which the employee was in LWOP status. The
employing office will continue using this method to deduct the accrued
unpaid premiums from salary until the debt is recovered in full. The
employee must also agree that if he or she does not return to work or
the employing office cannot recover the debt in full from salary, the
employing office may recover the debt from whatever other sources it
normally has available for recovery of a debt to the United States, or
(ii) Agree upon returning to employment or upon pay becoming
sufficient to cover the premiums, the employing office will deduct, in
addition to the current pay period's premiums, an amount equal to the
premiums for a pay period during which the employee was in LWOP status.
The employing office will continue using this method to deduct the
accrued unpaid premiums from salary until the debt is recovered in
full. The employee must also agree that if he or she does not return to
work or the employing office cannot recover the debt in full from
salary, the employing office may recover the debt from whatever other
sources it normally has available for recovery of a debt to the United
States.
(3) Except as provided under paragraph (b)(4) of this section, if
the employee does not return the signed form within 31 days after the
day he or she receives the notice (45 days for employees residing
overseas) the employing office terminates the enrollment according to
paragraph (b)(5) of this section. The employing office must give the
employee written notification of the termination.
(4) If the employee is prevented by circumstances beyond his or her
control from returning a signed form to the employing office within the
time frame under paragraph (b)(2) of this section, he or she may
request reinstatement of coverage by writing to the employing office.
The employee must describe the circumstances that prevented timely
notice and file the request within 30 calendar days from the date the
employing office gives the employee notification of the termination.
The employing office determines if the employee is eligible for
reinstatement of coverage. If the determination is affirmative, the
employing office reinstates the coverage of the employee retroactive to
the date of termination. If the determination is negative, the employee
may request a review of the decision from the employing agency as
provided under Sec. 890.104.
(5) Terminations of enrollment under paragraphs (b)(2) and (3) of
this section are retroactive to the end of the last pay period in which
the premium was withheld from pay. The employee and covered family
members, if any, are entitled to the temporary extension of coverage
for conversion and may convert to an individual contract for health
benefits. An employee whose coverage is terminated may enroll upon his
or her return to duty in a pay status in a position in which the
employee is eligible for coverage under this part.
(c) Procedures when an agency underwithholds. (1) An agency that
withholds less than the proper health benefits contributions from an
individual's pay, annuity, or compensation must submit an amount equal
to the sum of the uncollected contributions and any applicable agency
contributions required under section 8906 of title 5, United States
Code, to OPM for deposit in the Employees Health Benefits Fund.
(2) The agency must make the deposit to OPM described in paragraph
(c)(1) of this section as soon as possible, but no later than 60
calendar days after the date the employing office determines the amount
of the underdeduction that has occurred, regardless of whether or when
the agency recovers the underdeduction. A subsequent agency
determination whether to waive collection of the overpayment of pay
caused by failure to properly withhold employee health benefits
contributions shall be made in accordance with 5 U.S.C. 5584 as
implemented by 4 CFR chapter I, subchapter G, unless the agency
involved is excluded from application of 5 U.S.C. 5584, in which case
any applicable authority to waive the collection may be used.
(d) Direct premium payments for annuitants. (1) If an annuity,
excluding an annuity under Subchapter III of Chapter 84 (Thrift Savings
Plan), is too low to cover the health benefits premium due or if a
surviving spouse receives a basic employee death benefit, the
retirement system must provide information to the annuitant or
surviving spouse regarding the available plans and notify him or her in
writing of the opportunity to either: enroll in any plan in which the
enrollee's share of the premium is not in excess of the annuity; or
make payment of the premium directly to the retirement system.
(2) The retirement system must establish a method for accepting
direct payment for health benefits premiums from surviving spouses who
have received or are currently receiving basic employee death benefits
as well as from annuitants whose annuities are too low to cover their
health premiums. The annuitant or surviving spouse must continue to
make direct payment of the health benefits premium even if the annuity
increases to the extent that it covers the premium.
(3) The annuitant or surviving spouse must pay to the retirement
system his or her share of the premium for the enrollment for every pay
period during which the enrollment continues, exclusive of the 31-day
temporary extension of coverage for conversion provided in
Sec. 890.401. The annuitant or surviving spouse must pay after each pay
period in which he or she is covered in accordance with a schedule
established by the retirement system. If the retirement system does not
receive payment by the date due, the retirement system must notify the
annuitant or surviving spouse in writing that continuation of coverage
depends upon payment being made within 15 days (45 days for annuitants
or surviving spouses residing overseas) after receipt of the notice. If
no subsequent payments are made, the retirement system terminates the
enrollment 60 days (90 days for annuitants or surviving spouses
residing overseas) after the date of the notice. An annuitant or
surviving spouse whose enrollment terminates because of nonpayment of
premium may not reenroll or reinstate coverage, except as provided in
paragraph (d)(4) of this section.
(4) If the annuitant or surviving spouse is prevented by
circumstances beyond his or her control from paying within 15 days
after receipt of the notice, he or she may request reinstatement of
coverage by writing to the retirement system. The annuitant or
surviving spouse must describe the circumstances that prevented timely
notice and file the request within 30 calendar days from the date of
termination. The retirement system determines whether the surviving
spouse or annuitant is eligible for reinstatement of coverage. If the
determination is affirmative, the retirement system reinstates the
coverage of the surviving spouse or annuitant retroactive to the date
of termination. If the determination is negative, the surviving spouse
or
[[Page 37810]]
annuitant may request a review of the decision from the retirement
system as provided under Sec. 890.104.
(5) Termination of enrollment for failure to pay premiums within
the time frame established in accordance with paragraph (d)(3) of this
section is retroactive to the end of the last pay period for which
payment has been timely received.
(6) The retirement system will submit all direct premium payments
along with its regular health benefits premiums to OPM in accordance
with procedures established by that office.
(e) Direct payment of premiums during periods of LWOP status in
excess of 365 days. (1) An employee who is granted leave without pay
under subpart L of part 630 of this chapter which exceeds the 365 days
of continued coverage under Sec. 890.303(e) must pay the employee
contributions directly to the employing office on a current basis.
(2) Payment must be made after the pay period in which the employee
is covered in accordance with a schedule established by the employing
office. If the employing office does not receive the payment by the
date due, the employing office must notify the employee in writing that
continuation of coverage depends upon payment being made within 15 days
(45 days for employees residing overseas) after receipt of the notice.
If no subsequent payments are made, the employing office terminates the
enrollment 60 days (90 days for enrollees residing overseas) after the
date of the notice.
(3) If the employee was prevented by circumstances beyond his or
her control from making payment within the time frame specified in
paragraph (e)(2) of this section, he or she may request reinstatement
of the coverage by writing to the employing office. The employee must
describe the circumstances that prevented timely notice and file the
request within 30 calendar days from the date of termination.
(4) The employing office determines whether the employee is
eligible for reinstatement of coverage. If the determination is
affirmative, the employing office reinstates the coverage of the
employee retroactive to the date of termination. If the determination
is negative, the employee may request a review of the decision from the
employing agency as provided under Sec. 890.104.
(5) An employee whose coverage is terminated under paragraph (e)(2)
of this section may enroll upon his or her return to duty in a pay
status in a position in which the employee is eligible for coverage
under this part.
* * * * *
4. In Sec. 890.808, the last sentence of paragraph (d)(2) is
revised to read as follows:
Sec. 890.808 Employing office responsibilities.
* * * * *
(d) * * *
(2) * * * If the determination is negative, the individual may
request a review of the decision from the employing agency as provided
under Sec. 890.104.
* * * * *
5. In Sec. 890.1109, the last sentence of paragraph (d)(2) is
revised to read as follows:
Sec. 890.1109 Premium payments
* * * * *
(d) * * *
(2) * * * If the determination is negative, the individual may
request a review of the decision from the employing agency as provided
under Sec. 890.104.
[FR Doc. 96-18515 Filed 7-19-96; 8:45 am]
BILLING CODE 6325-01-P
Complete official Federal Register PDF
FR Doc. 96-18466 Nectarines and Fresh Peaches Grown in California; Assessment Rate
[Federal Register Volume 61, Number 141 (Monday, July 22, 1996)]
[Rules and Regulations]
[Pages 37812-37813]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18466]
-----------------------------------------------------------------------
DEPARTMENT OF AGRICULTURE
7 CFR Parts 916 and 917
[Docket No. FV96-916-1 IFR]
Nectarines and Fresh Peaches Grown in California; Assessment Rate
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Interim final rule with request for comments.
-----------------------------------------------------------------------
SUMMARY: This interim final rule establishes an assessment rate for the
Nectarine Administrative Committee and the Peach Commodity Committee
(Committees) under Marketing Order Nos. 916 and 917 for the 1996-97 and
subsequent fiscal periods. The Committees are responsible for local
administration of the marketing orders which regulate the handling of
nectarines and fresh peaches grown in California. Authorization to
assess nectarine and fresh peach handlers enable the Committees to
incur expenses that are reasonable and necessary to administer the
programs.
DATES: Effective on March 1, 1996. Comments received by August 21,
1996, will be considered prior to issuance of a final rule.
ADDRESSES: Interested persons are invited to submit written comments
concerning this rule. Comments must be sent in triplicate to the Docket
Clerk, Fruit and Vegetable Division, AMS, USDA, P.O. Box 96456, room
2523-S, Washington, DC 20090-6456, FAX (202) 720-5698. Comments should
reference the docket number and the date and page number of this issue
of the Federal Register and will be available for public inspection in
the Office of the Docket Clerk during regular business hours.
FOR FURTHER INFORMATION CONTACT: Mary Kate Nelson, Marketing Assistant,
California Marketing Field Office, Fruit and Vegetable Division, AMS,
USDA, 2202 Monterey Street, suite 102B, Fresno, California 93721, (209)
487-5901, FAX (209) 487-5906, or Kenneth G. Johnson, Marketing
Specialist, Marketing Order Administration Branch, Fruit and Vegetable
Division, AMS, USDA, P.O. Box 96456, room 2523-S, Washington, DC 20090-
6456, telephone (202) 720-5127, FAX (202) 720-5698. Small businesses
may request information on compliance with this regulation by
contacting: Jay Guerber, Marketing Order Administration Branch, Fruit
and Vegetable Division, AMS, USDA, P.O. Box 96456, Room 2523-S,
Washington, DC 20090-6456; telephone: (202) 720-2491, Fax # (202) 720-
5698.
SUPPLEMENTARY INFORMATION: This rule is issued under Marketing
Agreement No. 916 and Order No. 916, both as amended (7 CFR part 916),
regulating the handling of nectarines grown in California, and
Marketing Agreement No. 917 and Order No. 917, both as amended (7 CFR
part 917), regulating the handling of fresh peaches grown in
California, hereinafter referred to as the ``orders.'' The marketing
agreements and orders are effective under the Agricultural Marketing
Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter
referred to as the ``Act.''
The Department of Agriculture (Department) is issuing this rule in
conformance with Executive Order 12866.
This rule has been reviewed under Executive Order 12778, Civil
Justice Reform. Under the marketing orders now in effect, California
nectarine and fresh peach handlers are subject to assessments. Funds to
administer the orders are derived from such assessments. It is intended
that the assessment rates as issued herein will be applicable to all
assessable nectarines and peaches beginning March 1, 1996, and
continuing until amended, suspended, or terminated. This rule will not
preempt any State or local laws, regulations, or policies, unless they
present an irreconcilable conflict with this rule.
The Act provides that administrative proceedings must be exhausted
before parties may file suit in court. Under section 608c(15)(A) of the
Act, any handler subject to an order may file with the Secretary a
petition stating that the order, any provision of the order, or any
obligation imposed in connection with the order is not in accordance
with law and request a modification of the order or to be exempted
therefrom. Such handler is afforded the opportunity for a hearing on
the petition. After the hearing the Secretary would rule on the
petition. The Act provides that the district court of the United States
in any district in which the handler is an inhabitant, or has his or
her principal place of business, has jurisdiction to review the
Secretary's ruling on the petition, provided an action is filed not
later than 20 days after the date of the entry of the ruling.
Pursuant to requirements set forth in the Regulatory Flexibility
Act (RFA), the Agricultural Marketing Service (AMS) has considered the
economic impact of this rule on small entities.
The purpose of the RFA is to fit regulatory actions to the scale of
business subject to such actions in order that small businesses will
not be unduly or disproportionately burdened. Marketing orders issued
pursuant to the Act, and the rules issued thereunder, are unique in
that they are brought about through group action of essentially small
entities acting on their own behalf. Thus, both statutes have small
entity orientation and compatibility.
There are approximately 1,800 producers of nectarines and peaches
in the production area and approximately 300 handlers subject to
regulation under the marketing order. Small agricultural producers have
been defined by the Small Business Administration (13 CFR 121.601) as
those having annual receipts less than $500,000, and small agricultural
service firms are defined as those whose annual receipts are less than
$5,000,000. The majority of nectarine and fresh peach producers and
handlers may be classified as small entities.
The nectarine and peach marketing orders provide authority for the
Committees, with the approval of the Department, to formulate annual
budgets of expenses and collect assessments from handlers to administer
the programs. The members of the Committees are producers and handlers
of California nectarines and fresh peaches. They are familiar with the
Committees' needs and with the costs for goods and services in their
local area and are thus in a position to formulate appropriate budgets
and assessment rates. The assessment rates are formulated and discussed
in public meetings. Thus, all directly affected persons have an
opportunity to participate and provide input.
The Nectarine Administrative Committee met on May 2, 1996, and
unanimously recommended 1996-97 expenditures of $3,682,728 and an
assessment rate of $0.1850 per 25-pound container or equivalent of
nectarines. In comparison, last year's budgeted expenditures were
$3,683,031. The assessment rate of $0.1850 is the same as last year's
established rate. Major expenditures recommended by the Committee for
the 1996-97 year include $1,326,376 for domestic market development,
$972,300 for inspection, $342,250 in salaries and benefits, and
$120,870 for research.
The Peach Commodity Committee met on May 1, 1996, and unanimously
recommended 1996-97 expenditures of $3,722,757 and an assessment rate
of
[[Page 37813]]
$0.1900 per 25-pound container or equivalent of fresh peaches. In
comparison, last year's budgeted expenditures were $3,736,531. The
assessment rate of $0.1900 is the same as last year's established rate.
Major expenditures recommended by the Committee for the 1996-97 year
include $1,326,376 for domestic market development, $991,500 for
inspection, $342,250 in salaries and benefits, and $120,870 for
research.
The assessment rates recommended by the Committees were derived by
dividing anticipated expenses by expected shipments of California
nectarines and fresh peaches. Nectarine shipments for the year are
estimated at 17,266,000 25-pound containers or equivalent which should
provide $3,194,210 in assessment income, and fresh peach shipments for
the year are estimated at 17,250,000 25-pound containers or equivalent
which should provide $3,277,500 in assessment income. Income derived
from handler assessments, the Plum Commodity Committee, and the Pear
Field Service, along with interest income and funds from the
Committees' authorized reserves, will be adequate to cover budgeted
expenses. Funds in the reserves will be kept within the maximum
permitted by the orders.
While this rule will impose some additional costs on handlers, the
costs are in the form of uniform assessments on all handlers. Some of
the additional costs may be passed on to producers. However, these
costs will be offset by the benefits derived by the operation of the
marketing order. Therefore, the AMS has determined that this rule will
not have a significant economic impact on a substantial number of small
entities.
The assessment rates established in this rule will continue in
effect indefinitely unless modified, suspended, or terminated by the
Secretary upon recommendation and information submitted by the
Committees or other available information.
Although these assessment rates are effective for an indefinite
period, the Committees will continue to meet prior to or during each
fiscal period to recommend budgets of expenses and consider
recommendations for modification of their assessment rates. The dates
and times of Committee meetings are available from the Committees or
the Department. Committee meetings are open to the public and
interested persons may express their views at these meetings. The
Department will evaluate the Committees' recommendations and other
available information to determine whether modification of the
assessment rates are needed. Further rulemaking will be undertaken as
necessary. The Committees' 1996-97 budgets and those for subsequent
fiscal periods will be reviewed and, as appropriate, approved by the
Department.
After consideration of all relevant material presented, including
the information and recommendation submitted by the Committees and
other available information, it is hereby found that this rule, as
hereinafter set forth, will tend to effectuate the declared policy of
the Act.
Pursuant to 5 U.S.C. 553, it is also found and determined upon good
cause that it is impracticable, unnecessary, and contrary to the public
interest to give preliminary notice prior to putting this rule into
effect, and that good cause exists for not postponing the effective
date of this rule until 30 days after publication in the Federal
Register because: (1) The Committees need to have sufficient funds to
pay their expenses which are incurred on a continuous basis; (2) the
1996-97 fiscal period began on March 1, 1996, and the marketing orders
require that the rates of assessment for each fiscal period apply to
all assessable nectarines and peaches handled during such fiscal
period; (3) handlers are aware of this action which was unanimously
recommended by the Committees at public meetings and are similar to
other assessment rate actions issued in past years; and (4) this
interim final rule provides a 30-day comment period, and all comments
timely received will be considered prior to finalization of this rule.
List of Subjects
7 CFR Part 916
Marketing agreements, Nectarines, Reporting and recordkeeping
requirements.
7 CFR Part 917
Marketing agreements, Peaches, Pears, Reporting and recordkeeping
requirements.
For the reasons set forth in the preamble, 7 CFR parts 916 and 917
are amended as follows:
PART 916--NECTARINES GROWN IN CALIFORNIA
1. The authority citation for 7 CFR part 916 continues to read as
follows:
Authority: 7 U.S.C. 601-674.
2. A new subpart--Assessment Rates and a new Sec. 916.234 are added
to read as follows:
Note: This section will appear in the Code of Federal
Regulations.
Subpart--Assessment Rates
Sec. 916.234 Assessment rate.
On and after March 1, 1996, an assessment rate of $0.1850 per 25-
pound container or equivalent of nectarines is established for
California nectarines.
PART 917--FRESH PEARS AND PEACHES GROWN IN CALIFORNIA
1. The authority citation for 7 CFR part 917 continues to read as
follows:
Authority: 7 U.S.C. 601-674.
2. A new subpart--Assessment Rates and a new Sec. 917.258 are added
to read as follows:
Note: This section will appear in the Code of Federal
Regulations.
Subpart--Assessment Rates
Sec. 917.258 Assessment rate.
On and after March 1, 1996, an assessment rate of $0.1900 per 25-
pound container or equivalent of fresh peaches is established for
California fresh peaches.
Dated: July 15, 1996.
Robert C. Keeney,
Director, Fruit and Vegetable Division.
[FR Doc. 96-18466 Filed 7-19-96; 8:45 am]
BILLING CODE 3410-02-P
Complete official Federal Register PDF
FR Doc. 96-18465 Oranges and Grapefruit Grown in the Lower Rio Grande Valley in Texas; Assessment Rate
[Federal Register Volume 61, Number 141 (Monday, July 22, 1996)]
[Rules and Regulations]
[Pages 37810-37812]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18465]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 906
[Docket No. FV96-906-1 IFR]
Oranges and Grapefruit Grown in the Lower Rio Grande Valley in
Texas; Assessment Rate
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Interim final rule with request for comments.
-----------------------------------------------------------------------
SUMMARY: This interim final rule establishes an assessment rate for the
Texas Valley Citrus Committee (Committee) under Marketing Order No. 906
for the 1996-97 and subsequent fiscal period. The Committee is
responsible for local administration of the marketing order which
regulates the handling of oranges and grapefruit grown in the Lower Rio
Grande Valley in Texas. Authorization to assess orange and grapefruit
handlers enables the Committee to incur expenses that are reasonable
and necessary to administer the program.
DATES: Effective on August 1, 1996. Comments received by August 21,
1996, will be considered prior to issuance of a final rule.
ADDRESSES: Interested persons are invited to submit written comments
concerning this rule. Comments must be sent in triplicate to the Docket
Clerk, Fruit and Vegetable Division, AMS, USDA, P.O. Box 96456, room
2523-S, Washington, DC 20090-6456, FAX (202) 720-5698. Comments should
reference the docket number and the date and page number of this issue
of the Federal Register and will be available for public inspection in
the Office of the Docket Clerk during regular business hours.
FOR FURTHER INFORMATION CONTACT: Belinda G. Garza, McAllen Marketing
Field Office, Fruit and Vegetable Division, AMS, USDA, 1313 E.
Hackberry, McAllen, TX 78501, telephone (210) 682-2833, FAX (210) 682-
5942, or Charles L. Rush, Marketing Order Administration Branch, Fruit
and Vegetable Division, AMS, USDA, P.O. Box 96456, room 2523-S,
Washington, DC 20090-6456, telephone (202) 690-3670, FAX (202) 720-
5698. Small businesses may request information on compliance with this
regulation by contacting: Jay Guerber, Marketing Order Administration
Branch, Fruit and Vegetable Division, AMS, USDA, P.O. Box 96456, Room
2523-S, Washington, D.C. 20090-6456; telephone: (202) 720-2491, Fax#
(202) 720-5698.
SUPPLEMENTARY INFORMATION: This rule is issued under Marketing
Agreement and Order No. 906 (7 CFR part 906), regulating the handling
of oranges and grapefruit grown in the Lower Rio Grande Valley in
Texas, hereinafter referred to as the ``order.'' The marketing
agreement and order are effective under the Agricultural Marketing
Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter
referred to as the ``Act.''
The Department of Agriculture (Department) is issuing this rule in
conformance with Executive Order 12866.
This rule has been reviewed under Executive Order 12778, Civil
Justice Reform. Under the marketing order now in effect, handlers in
the Lower Rio Grande Valley in Texas are subject to assessments. Funds
to administer the order are derived from such assessments. It is
intended that the assessment rate as issued herein will be applicable
to all assessable oranges and grapefruit beginning August 1, 1996, and
continuing until amended, suspended, or terminated. This rule will not
preempt any State or local laws, regulations, or policies, unless they
present an irreconcilable conflict with this rule.
The Act provides that administrative proceedings must be exhausted
before parties may file suit in court. Under section 608c(15)(A) of the
Act, any handler subject to an order may file
[[Page 37811]]
with the Secretary a petition stating that the order, any provision of
the order, or any obligation imposed in connection with the order is
not in accordance with law and request a modification of the order or
to be exempted therefrom. Such handler is afforded the opportunity for
a hearing on the petition. After the hearing the Secretary would rule
on the petition. The Act provides that the district court of the United
States in any district in which the handler is an inhabitant, or has
his or her principal place of business, has jurisdiction to review the
Secretary's ruling on the petition, provided an action is filed not
later than 20 days after the date of the entry of the ruling.
Pursuant to requirements set forth in the Regulatory Flexibility
Act (RFA), the Agricultural Marketing Service (AMS) has considered the
economic impact of this rule on small entities.
The purpose of the RFA is to fit regulatory actions to the scale of
business subject to such actions in order that small businesses will
not be unduly or disproportionately burdened. Marketing orders issued
pursuant to the Act, and the rules issued thereunder, are unique in
that they are brought about through group action of essentially small
entities acting on their own behalf. Thus, both statutes have small
entity orientation and compatibility.
There are approximately 2,000 producers of oranges and grapefruit
in the production area and 19 handlers subject to regulation under the
marketing order. Small agricultural producers have been defined by the
Small Business Administration (13 CFR 121.601) as those having annual
receipts of less than $500,000, and small agricultural service firms
are defined as those whose annual receipts are less than $5,000,000.
The majority of orange and grapefruit producers and handlers may be
classified as small entities.
The Texas orange and grapefruit marketing order provides authority
for the Committee, with the approval of the Department, to formulate an
annual budget of expenses and collect assessments from handlers to
administer the program. The members of the Committee are producers and
handlers of Texas oranges and grapefruit. They are familiar with the
Committee's needs and with the costs for goods and services in their
local area and are thus in a position to formulate an appropriate
budget and assessment rate. The assessment rate is formulated and
discussed in a public meeting. Thus, all directly affected persons have
an opportunity to participate and provide input.
The Committee met on May 29, 1996, and recommended 1996-97
expenditures of $1,085,130 and an assessment rate of $0.125 per 7/10
bushel carton of oranges and grapefruit. In comparison, last year's
budgeted expenditures were $1,008,643. The assessment rate of $0.125 is
$0.025 higher than last year's established rate. Major expenditures
recommended by the Committee for the 1996-97 fiscal year include
$712,800 for advertising, and $174,000 for the Mexican Fruit Fly
support program. Budgeted expenses for these items in 1995-96 were
$500,000 for advertising, and $174,000 for Mexican Fruit Fly support
program.
The assessment rate recommended by the Committee was derived by
dividing anticipated expenses by expected shipments of Texas oranges
and grapefruit. Texas orange and grapefruit shipments for the year are
estimated at 8 million cartons which should provide $1,000,000 in
assessment income. Income derived from handler assessments, along with
interest income and funds from the Committee's authorized reserve, will
be adequate to cover budgeted expenses. Funds in the reserve will be
kept within the maximum permitted by the order.
While this rule will impose some additional costs on handlers, the
costs are in the form of uniform assessments on all handlers. Some of
the additional costs may be passed on to producers. However, these
costs will be offset by the benefits derived by the operation of the
marketing order. Therefore, the AMS has determined that this rule will
not have a significant economic impact on a substantial number of small
entities. Interested persons are invited to submit information on the
regulatory and informational impacts of this action on small business.
The assessment rate established in this rule will continue in
effect indefinitely unless modified, suspended, or terminated by the
Secretary upon recommendation and information submitted by the
Committee or other available information.
Although this assessment rate is effective for an indefinite
period, the Committee will continue to meet prior to or during each
fiscal period to recommend a budget of expenses and consider
recommendations for modification of the assessment rate. The dates and
times of Committee meetings are available from the Committee or the
Department. Committee meetings are open to the public and interested
persons may express their views at these meetings. The Department will
evaluate Committee recommendations and other available information to
determine whether modification of the assessment rate is needed.
Further rulemaking will be undertaken as necessary. The Committee's
1996-97 budget and those for subsequent fiscal periods will be reviewed
and, as appropriate, approved by the Department.
After consideration of all relevant material presented, including
the information and recommendation submitted by the Committee and other
available information, it is hereby found that this rule, as
hereinafter set forth, will tend to effectuate the declared policy of
the Act.
Pursuant to 5 U.S.C. 553, it is also found and determined upon good
cause that it is impracticable, unnecessary, and contrary to the public
interest to give preliminary notice prior to putting this rule into
effect, and that good cause exists for not postponing the effective
date of this rule until 30 days after publication in the Federal
Register because: (1) The Committee needs to have sufficient funds to
pay its expenses which are incurred on a continuous basis; (2) the
1996-97 fiscal period begins on August 1, 1996, and the marketing order
requires that the rate of assessment for each fiscal period apply to
all assessable oranges and grapefruit handled during such fiscal
period; (3) handlers are aware of this action which was recommended by
the Committee at a public meeting and is similar to other assessment
rate actions issued in past years; and (4) this interim final rule
provides a 30-day comment period, and all comments timely received will
be considered prior to finalization of this rule.
List of Subjects in 7 CFR Part 906
Marketing agreements, Grapefruit, Oranges, Reporting and
recordkeeping requirements.
For the reasons set forth in the preamble, 7 CFR part 906 is
amended as follows:
PART 906--ORANGES AND GRAPEFRUIT GROWN IN THE LOWER RIO GRANDE
VALLEY IN TEXAS
1. The authority citation for 7 CFR part 906 continues to read as
follows:
Authority: 7 U.S.C. 601-674.
2. Section 906.235 is added to read as follows:
Note: This section will appear in the Code of Federal
Regulations.
Sec. 906.235 Assessment rate.
On and after August 1, 1996, an assessment rate of $0.125 per 7/10
bushel carton is established for oranges
[[Page 37812]]
and grapefruit grown in the Lower Rio Grande Valley in Texas.
Dated: July 15, 1996.
Robert C. Keeney,
Director, Fruit and Vegetable Division.
[FR Doc. 96-18465 Filed 7-19-96; 8:45 am]
BILLING CODE 3410-02-P
Complete official Federal Register PDF
FR Doc. 96-18446 Radio Broadcasting Services; Clewiston, Fort Myers Villas, Indiantown, Jupiter, Key Colony Beach, Key Largo, Marathon and Naples, FL
[Federal Register Volume 61, Number 141 (Monday, July 22, 1996)]
[Rules and Regulations]
[Pages 37840-37841]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18446]
-----------------------------------------------------------------------
FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 73
[MM Docket No. 93-136; RM-8161, RM-8309 & RM-8310]
Radio Broadcasting Services; Clewiston, Fort Myers Villas,
Indiantown, Jupiter, Key Colony Beach, Key Largo, Marathon and Naples,
FL
AGENCY: Federal Communications Commission.
ACTION: Final rule; application for review.
-----------------------------------------------------------------------
SUMMARY: This action dismisses an Application for Review filed by Palm
Beach Radio Broadcasters, Inc., WSUV, Inc. and GGG Broadcasting, Inc.
(``Joint Petitioners'') in response to a Memorandum Opinion and Order.
See 60 FR 32120, June 20, 1995. On May 21, 1996, Joint Petitioners
withdrew the
[[Page 37841]]
Application for Review filed in this proceeding pursuant to Section
1.420(j) of the Commission's Rules.
EFFECTIVE DATE: July 22, 1996.
FOR FURTHER INFORMATION CONTACT: Kathleen Scheuerle, Mass Media Bureau,
(202) 418-2180.
SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's
Memorandum Opinion and Order, MM Docket No. 93-136, adopted June 27,
1996, and released June 28, 1996. The full text of this Commission
decision is available for inspection and copying during normal business
hours in the Commission's Reference Center (Room 239), 1919 M Street,
NW., Washington, DC. The complete text of this decision may also be
purchased from the Commission's copy contractors, International
Transcription Services, Inc., 2100 M Street, NW., Suite 140,
Washington, DC 20037, (202) 857-3800.
List of Subjects in 47 CFR Part 73
Radio broadcasting.
Federal Communications Commission.
Bruce A. Romano,
Deputy Chief, Policy and Rules Division, Mass Media Bureau.
[FR Doc. 96-18446 Filed 7-19-96; 8:45 am]
BILLING CODE 6712-01-F
Complete official Federal Register PDF
FR Doc. 96-18445 Radio Broadcasting Services; Fredericksburg, Helotes and Castroville, TX
[Federal Register Volume 61, Number 141 (Monday, July 22, 1996)]
[Rules and Regulations]
[Page 37840]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18445]
-----------------------------------------------------------------------
FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 73
[MM Docket No. 94-125; RM-8534, RM-8575]
Radio Broadcasting Services; Fredericksburg, Helotes and
Castroville, TX
AGENCY: Federal Communications Commission.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This document rescinds the Report and Order in this
proceeding. See 60 FR 32298, published June 21, 1995.
EFFECTIVE DATE: August 20, 1996.
FOR FURTHER INFORMATION CONTACT: Robert Hayne, Mass Media Bureau, (202)
776-1654.
SUPPLEMENTAL INFORMATION: This is a synopsis of the Commission's Order
in MM Docket No. 94-125, adopted June 28, 1996, and released July 5,
1996. The full text of this decision is available for inspection and
copying during normal business hours in the FCC Dockets Branch (Room
230), 1919 M Street, NW., Washington, DC. The complete text of this
decision may also be purchased from the Commission's copy contractor,
International Transcription Service, (202) 857-3800, 2100 M Street,
NW., Washington, DC 20037.
List of Subjects in 47 CFR Part 73
Radio broadcasting.
Federal Communications Commission.
Bruce A. Romano,
Deputy Chief, Policy and Rules Division, Mass Media Bureau.
[FR Doc. 96-18445 Filed 7-19-96; 8:45 am]
BILLING CODE 6712-01-F
Complete official Federal Register PDF
FR Doc. 96-18444 Radio Broadcasting Services; Green River, WY
[Federal Register Volume 61, Number 141 (Monday, July 22, 1996)]
[Rules and Regulations]
[Page 37840]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18444]
=======================================================================
-----------------------------------------------------------------------
FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 73
[MM Docket No. 96-63; RM-8777]
Radio Broadcasting Services; Green River, WY
AGENCY: Federal Communications Commission.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Commission, at the request of Wagonwheel Communications
Corporation, allots Channel 268C at Green River, Wyoming, as the
community's first local aural transmission service. See 61 FR 15442,
March 8, 1996. Channel 268C can be allotted to Green River in
compliance with the Commission's minimum distance separation
requirements at city reference coordinates. The coordinates for Channel
268C at Green River are North Latitude 41-31-36 and West Longitude 109-
28-06. With this action, this proceeding is terminated.
DATES: Effective August 26, 1996. The window period for filing
applications will open on August 26, 1996, and close on September 26,
1996.
FOR FURTHER INFORMATION CONTACT: Sharon P. McDonald, Mass Media Bureau,
(202) 418-2180.
SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's
Report and Order, MM Docket No. 96-63, adopted July 3, 1996, and
released July 12, 1996. The full text of this Commission decision is
available for inspection and copying during normal business hours in
the FCC Reference Center (Room 239), 1919 M Street, NW., Washington,
DC. The complete text of this decision may also be purchased from the
Commission's copy contractors, International Transcription Service,
Inc., (202) 857-3800, 2100 M Street, NW., Suite 140, Washington, DC
20037.
List of Subjects in 47 CFR Part 73
Radio broadcasting.
Part 73 of title 47 of the Code of Federal Regulations is amended
as follows:
PART 73--[AMENDED]
1. The authority citation for part 73 continues to read as follows:
Authority: Sections 303, 48 Stat., as amended, 1082; 47 U.S.C.
154, as amended.
Sec. 73.202 [Amended]
2. Section 73.202(b), the Table of FM Allotments under Wyoming, is
amended by adding Green River, Channel 268C.
Federal Communications Commission.
John A. Karousos,
Chief, Allocations Branch, Policy and Rules Division, Mass Media
Bureau.
[FR Doc. 96-18444 Filed 7-19-96; 8:45 am]
BILLING CODE 6712-01-F
Complete official Federal Register PDF
FR Doc. 96-18437 Drug Labeling; Sodium Labeling for Over-the-Counter Drugs; Extension of Comment Period
[Federal Register Volume 61, Number 141 (Monday, July 22, 1996)]
[Rules and Regulations]
[Page 38046]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18437]
[[Page 38045]]
_______________________________________________________________________
Part VIII
Department of Health and Human Services
_______________________________________________________________________
Food and Drug Administration
_______________________________________________________________________
21 CFR Parts 201 and 331
Drug Labeling; Sodium Labelling for Over-the-Counter Drugs; and
Labelling of Orally Ingested Over-the-Counter Drug Products Containing
Calcium, Magnesium, and Potassium; Extension of Comment Periods; Final
and Proposed Rules
Federal Register / Vol. 61, No. 141 / Monday, July 22, 1996 / Rules
and Regulations
=======================================================================
-----------------------------------------------------------------------
[[Page 38046]]
DEPARTMENT OF HEALTH AND HUMAN SERVICES
Food and Drug Administration
21 CFR Parts 201 and 331
[Docket No. 90N-0309]
RIN 0910-AA63
Drug Labeling; Sodium Labeling for Over-the-Counter Drugs;
Extension of Comment Period
AGENCY: Food and Drug Administration, HHS.
ACTION: Final rule; extension of comment period.
-----------------------------------------------------------------------
SUMMARY: The Food and Drug Administration (FDA) is extending to
September 20, 1996, the period for comments on amending the final rule
for sodium labeling for over-the-counter (OTC) drug products that was
published in the Federal Register of April 22, 1996. In the document,
FDA asked for comments on whether the final rule should be amended to
include sodium content labeling for OTC rectal laxative, vaginal,
dentifrice, mouthwash, and mouth rinse drug products. FDA is taking
this action in response to a request to extend the period for comments
to allow interested persons additional time to comment on this matter.
DATES: Written comments by September 20, 1996.
ADDRESSES: Submit written comments to the Dockets Management Branch
(HFA-305), Food and Drug Administration, 12420 Parklawn Dr., rm. 1-23,
Rockville, MD 20857.
FOR FURTHER INFORMATION CONTACT: William E. Gilbertson, Center for Drug
Evaluation and Research (HFD-105), Food and Drug Administration, 5600
Fishers Lane, Rockville, MD 20857, 301-827-2304.
SUPPLEMENTARY INFORMATION: In the Federal Register of April 22, 1996
(61 FR 17798), FDA issued a final rule on sodium labeling for OTC drug
products with opportunity for comments on whether the final rule should
be amended to include sodium content labeling for OTC rectal laxative,
vaginal, dentifrice, mouthwash, and mouth rinse drug products.
Interested persons were given until July 22, 1996, to submit comments
on labeling for those products. The final rule amends the general
labeling provisions for OTC drug products to: (1) Require that the
sodium content of all OTC drug products intended for oral ingestion be
included in labeling when the product contains 5 milligrams (mg) or
more sodium per a single dose; (2) require that all OTC drug products
intended for oral ingestion containing more than 140 mg sodium in the
labeled maximum daily dose bear a general warning that persons who are
on a sodium-restricted diet should not take the product unless directed
by a doctor; and (3) provide for the voluntary use of certain terms
(``sodium free,'' ``very low sodium,'' and ``low sodium'') relating to
an OTC drug product's sodium content per labeled maximum daily dose.
FDA issued the final rule in order to provide uniform sodium content
labeling for all OTC drug products intended for oral ingestion (whether
marketed under an OTC drug monograph, an approved application, or no
application), and to provide for the voluntary use in OTC drug product
labeling of the same terms used to describe sodium content in food
labeling.
On June 18, 1996, Nonprescription Drug Manufacturers Association
(NDMA), a trade association of nonprescription drug manufacturers,
requested a 60-day extension to file comments and new information. NDMA
stated that to fully address the issue of sodium labeling for OTC
rectal laxative, vaginal, dentifrice, mouthwash, and mouth rinse drug
products, its members needed this additional time because six different
task groups needed to look at these drug classes in coordination with
task groups from the Cosmetic, Toiletry and Fragrance Association. NDMA
also raised a number of questions on the final rule, which FDA has
answered in a recent feedback letter (Ref. 1).
FDA has carefully considered the request and acknowledges the broad
scope of the proposal. The agency considers an extension of time for
comments to be in the public interest. This will allow all interested
persons additional time to evaluate whether products other than those
intended for oral ingestion should be covered by the sodium labeling
regulation. The agency is therefore extending the time for comment for
an additional 60 days.
-Interested persons may, on or before September 20, 1996, submit to
the Dockets Management Branch (address above) written comments
regarding sodium labeling for OTC rectal laxative, vaginal, dentifrice,
mouthwash, and mouth rinse drug products. Three copies of any comments
are to be submitted, except that individuals may submit one copy.
Comments are to be identified with the docket number found in brackets
in the heading of this document. Received comments may be seen in the
office above between 9 a.m. and 4 p.m. Monday through Friday.
Reference
The following reference has been placed on display in the Dockets
Management Branch (HFA-305), Food and Drug Administration, 12420
Parklawn Dr., rm. 1-23, Rockville, MD 20857, and may be seen by
interested persons between 9 a.m. and 4 p.m., Monday through Friday.
(1) Letter from D. Bowen, FDA, to R. W. Soller, NDMA, July 15,
1996, in Docket No. 90N-0309 Dockets Management Branch.
Dated: July 15, 1996.
William K. Hubbard,
Associate Commissioner for Policy Coordination.
[FR Doc. 96-18437 Filed 7-19-96; 8:45 am]
BILLING CODE 4160-01-F
Complete official Federal Register PDF
FR Doc. 96-18431 Defense Federal Acquisition Regulation Supplement; Petroleum Products From Caribbean Basin Countries
[Federal Register Volume 61, Number 141 (Monday, July 22, 1996)]
[Rules and Regulations]
[Pages 37841-37842]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18431]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
48 CFR Parts 225 and 252
[DFARS Case 96-D312]
Defense Federal Acquisition Regulation Supplement; Petroleum
Products From Caribbean Basin Countries
AGENCY: Department of Defense (DoD).
ACTION: Interim rule with request for comment.
-----------------------------------------------------------------------
SUMMARY: The Director of Defense Procurement has issued an interim rule
amending the Defense Federal Acquisition Regulation Supplement (DFARS)
to fully implement Section 8094 of the Fiscal Year 1994 Defense
Appropriations Act (Public Law 103-139). Section 8094 requires that the
Department of Defense consider all qualified bids from any eligible
country under the Caribbean Basin Economic Recovery Act as if they were
offers from designated countries under the Trade Agreements Act.
DATES: Effective date: July 22, 1996.
Comment date: Comments on the interim rule should be submitted in
writing to the address shown below on or before September 20, 1996, to
be considered in the formulation of the final rule.
ADDRESSES: Interested parties should submit written comments to:
Defense Acquisition Regulations Council, Attn: Ms. Amy Williams, PDUSD
(A&T) DP (DAR), IMD 3D139, 3062 Defense Pentagon, Washington, DC 20301-
3062. Telefax number (703) 602-0350. Please cite DFARS Case 96-D312 in
all correspondence related to this issue.
FOR FURTHER INFORMATION CONTACT: Ms. Amy Williams, (703) 602-0131.
SUPPLEMENTARY INFORMATION:
A. Background
This interim rule implements Section 8094 of the Fiscal Year 1994
Defense Appropriations Act (Pub. L. 103-139). This requirement was
originally implemented at DFARS 225.401, 225.403(m)(4), and 225.403-70
under DFARS Case 93-D312. The final rule was published in the Federal
Register on May 5, 1994 (59 FR 23169). The implementation at DFARS
225.403(m)(4) was limited to contracts awarded during fiscal year 1994.
Because Section 8094 of Pub. L. 103-139 does not contain time limits,
this rule removes the time limit at 225.403(m)(4). In addition, this
rule amends DFARS 225.403-70 and 252.225-7007 to clarify that the
definition of Caribbean Basin country end products includes petroleum
and any end product derived from petroleum.
B. Regulatory Flexibility Act
This interim rule is not expected to have a significant economic
impact on a substantial number of small entities within the meaning of
the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because
petroleum and products derived from petroleum are already subject to
the Trade Agreements Act. The consideration of Caribbean Basin country
offers of petroleum and products derived from petroleum is not expected
to significantly affect the petroleum market in this country.
Furthermore, the Trade Agreements Act and the Caribbean Basin Economic
Recovery Act apply only to acquisitions exceeding $190,000 in value. An
initial Regulatory Flexibility Analysis has therefore not been
performed. Comments are invited from small businesses and other
interested parties. Comments from small entities concerning the
affected DFARS subparts will be considered in accordance with Section
610 of the Act. Such comments must be submitted separately and cite
DFARS Case 96-D312 in correspondence.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply. This interim rule does
not impose any new information collection requirements which require
the approval of the Office of Management and Budget under 44 U.S.C.
3501, et seq.
D. Determination to Issue an Interim Rule
A determination has been made under the authority of the Secretary
of Defense that compelling reasons exist to promulgate this interim
rule prior to affording the public an opportunity to comment. This
action is necessary to fully implement Section 8094 of the Fiscal Year
1994 Defense Appropriations Act (Pub. L. 103-139). Comments received in
response to the publication of this interim rule will be considered in
formulating the final rule.
List of Subjects in 48 CFR Parts 225 and 252
Government procurement.
Michele P. Peterson,
Executive Editor, Defense Acquisition Regulations Council.
Therefore, 48 CFR Parts 225 and 252 are amended as follows:
1. The authority citation for 48 CFR Parts 225 and 252 continues to
read as follows:
Authority: 41 U.S.C. 421 and 48 CFR Chapter 1.
PART 225--FOREIGN ACQUISITION
2. Section 225.403 is amended by removing paragraph (m)(4) and by
adding in its place paragraph (g)(4) to read as follows:
225.403 Exceptions.
* * * * *
(g) (4) In accordance with Section 8094 of the Fiscal Year 1994
Defense Appropriations Act (Public Law 103-139), the exception for
petroleum and any product derived from petroleum does not apply.
3. Section 225.403-70 is amended by revising the introductory text
to read as follows:
225.403-70 Products subject to trade agreement acts.
Foreign end products subject to the Trade Agreements Act and NAFTA
are those in the following Federal supply groups (FSG). If a product is
not in one of the listed groups, the Trade Agreements Act and NAFTA do
not apply. The definition of Caribbean Basin country end products in
FAR 25.401 excludes those end products which are not eligible for duty-
free treatment
[[Page 37842]]
under 19 U.S.C. 2703(b). However, 225.401 expands the definition of
Caribbean Basin country end products to include petroleum and any
product derived from petroleum. The list of products has been annotated
to indicate those products which are eligible for designated and NAFTA
countries, but are not presently eligible for Caribbean Basin
countries.
* * * * *
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
4. Section 252.225-7007 is amended by revising the clause date to
read ``(JUL 1996)''; by revising the introductory text of paragraph
(a)(1)(ii); by adding the word ``and'' at the end of paragraph
(a)(1)(ii)(C); by revising paragraph (a)(1)(ii)(D); and by removing
paragraph (a)(1)(ii)(E). The revised text reads as follows:
252.225-7007 Trade Agreements.
* * * * *
(a)* * *
(1)* * *
(ii) Excludes products, other than petroleum and any product
derived from petroleum, that are not granted duty-free treatment under
the Caribbean Basin Economic Recovery Act (19 U.S.C. 2703(b)). These
exclusions presently consist of--
* * * * *
(D) Watches and watch parts (including cases, bracelets, and
straps) of whatever type, including, but not limited to, mechanical,
quartz digital, or quartz analog, if such watches or watch parts
contain any material which is the product of any country to which
Harmonized Tariff Schedule column 2 rates of duty apply.
* * * * *
[FR Doc. 96-18431 Filed 7-19-96; 8:45 am]
BILLING CODE 5000-04-M
Complete official Federal Register PDF
FR Doc. 96-18429 Fisheries of the Exclusive Economic Zone Off Alaska; Correction
[Federal Register Volume 61, Number 141 (Monday, July 22, 1996)]
[Rules and Regulations]
[Page 37843]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18429]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
50 CFR Part 679
[Docket No. 960531152-6152-01; I.D. 042996B]
RIN 0648-AI18
Fisheries of the Exclusive Economic Zone Off Alaska; Correction
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Correction to final regulations.
-----------------------------------------------------------------------
SUMMARY: This document contains a correction to final regulations (I.D.
042996B), which were published Wednesday, June 19, 1996 (61 FR 31228).
The regulations related to consolidation of six parts in title 50 of
the CFR.
EFFECTIVE DATE: July 1, 1996.
FOR FURTHER INFORMATION CONTACT: William Bellows, 301-713-2344.
SUPPLEMENTARY INFORMATION:
Background
The final regulations that are the subject of this correction
consolidated several sections of regulations in parts 671, 672, 673,
675, 676, 677, and 679. The consolidation was effected as part of the
President's Regulatory Reform Initiative. The final rule reorganized
management measures into a more logical and cohesive order, removed
duplicative and outdated provisions, and made editorial changes for
readability, clarity, and achieved uniformity in regulatory language.
It was not intended to make substantive changes to existing
regulations.
Need for Correction
As published, the final rule contained a paragraph that was
proposed in another agency rulemaking but had not yet been adopted as
final. Therefore, inclusion of the paragraph in the consolidated rule
would constitute a substantive change, in spite of the fact that the
preamble stated that no such changes were made. The paragraph was
inadvertantly placed in the rule.
Correction of Publication
Accordingly, the publication on June 19, 1996, of the final
regulations (I.D. 042996B), which was the subject of FR Doc. 96-14593,
is corrected as follows:
Sec. 679.32 [Corrected]
On page 31269, in the first column, in Sec. 679.32, paragraph
(e)(1)(vi) is removed and reserved.
Authority: 16 U.S.C. 773 et seq. and 1801 et seq.
Dated: July 15, 1996.
Gary Matlock,
Program Management Officer, National Marine Fisheries Service.
[FR Doc. 96-18429 Filed 7-19-96; 8:45 am]
BILLING CODE 3510-22-F
Complete official Federal Register PDF
FR Doc. 96-18428 Fisheries Off West Coast States and in the Western Pacific; Correction
[Federal Register Volume 61, Number 141 (Monday, July 22, 1996)]
[Rules and Regulations]
[Page 37843]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18428]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
50 CFR Part 660
[Docket No. 960614176-6176-01; I.D. 050796A]
RIN 0648-AI18
Fisheries Off West Coast States and in the Western Pacific;
Correction
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Correction to final rule.
-----------------------------------------------------------------------
SUMMARY: This document corrects an error in Sec. 660.323 (a)(2)(ii) in
the final rule concerning Fisheries Off West Coast States and in the
Western Pacific, published July 2, 1996 (61 FR 34570).
EFFECTIVE DATE: July 1, 1996.
FOR FURTHER INFORMATION CONTACT: Cheri Sexton McCarty, NMFS, 301-713-
2341.
SUPPLEMENTARY INFORMATION:
Background
The final rule document 96-16234 beginning on page 34570 in the
issue of Tuesday, July 2, 1996, in Sec. 660.323(a)(2)(ii), incorrectly
indicates that the starting date of the regular season for nontrawl
sablefish is August 6. This error needs to be corrected to ensure that
the public is aware that the correct starting date of the fishery is
September 1.
Correction of Publication
Accordingly, the publication on July 2, 1996, of the final rule
document (I.D. 050796A), which was the subject of FR Doc. 96-16234, is
corrected as follows:
Sec. 660.323 [Corrected]
On page 34594, in the second column, in Sec. 660.323, paragraph
(a)(2)(ii), in the first sentence, the date ``August 6'' is corrected
to read ``September 1''.
Dated: July 15, 1996.
Gary Matlock,
Program Management Officer, National Marine Fisheries Service.
[FR Doc. 96-18428 Filed 7-19-96; 8:45 am]
BILLING CODE 3510-22-F
Complete official Federal Register PDF
FR Doc. 96-18402 Distance Learning and Telemedicine Grant Program; Correction
[Federal Register Volume 61, Number 141 (Monday, July 22, 1996)]
[Rules and Regulations]
[Pages 37813-37814]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18402]
-----------------------------------------------------------------------
DEPARTMENT OF AGRICULTURE
Rural Utilities Service
7 CFR Part 1703
RIN 0572-AB22
Distance Learning and Telemedicine Grant Program; Correction
AGENCY: Rural Utilities Service, USDA.
ACTION: Correction to final regulation.
-----------------------------------------------------------------------
SUMMARY: This document contains corrections to the final regulation on
the distance learning and telemedicine grant program which was
published Thursday, June 27, 1996, (61 FR 33622). Due to inadvertent
errors in the final rule that may prove to be misleading, the Rural
Utilities Service (RUS) is publishing this correction.
EFFECTIVE DATE: June 27, 1996.
FOR FURTHER INFORMATION CONTACT: Barbara L. Eddy, Deputy Assistant
Administrator, Telecommunications Program, (202) 720-9549.
SUPPLEMENTARY INFORMATION:
Background
RUS published a final rule in the Federal Register on Thursday,
June 27,
[[Page 37814]]
1996, that amended its regulations on the distance learning and
telemedicine grant program that provides grants for distance learning
and telemedicine projects benefiting rural areas.
Need for Correction
As published, the final regulation contains errors which may prove
to be misleading and are in need of clarification.
Correction of Publication
Accordingly, the publication on June 27, 1996 of the final
regulation is corrected as follows:
Sec. 1703.107 [Corrected]
1. On page 33629, in the third column, in Sec. 1703.107, remove
between paragraphs (a)(2) and (a)(3).
Sec. 1703.117 [Corrected]
2. On page 33634, in the second column, in Sec. 1703.117, in
paragraph (e)(8), under ``Example Calculation'', Steps (3), (4) and (5)
are corrected to read as follows:
* * * * *
(e) * * *
(8) * * *
Example Calculation. * * *
Step (3) Greenbriar County, ERS Rural-Urban Continuum Scale
category 6=35 points;
Lewis County, ERS Rural-Urban Continuum Scale category 7=40
points;
Fayette County, ERS Rural-Urban Continuum Scale category 5=20
points.
Step (4) Midway site-35 points x 33%=11.6 points.
Lewistown site-40 points x 33%=13.2 points.
Rocky Creek site-20 points x 33%=6.6 points.
Step (5) 11.6+13.2+6.6=31.4 total weighted average score.
* * * * *
Sec. 1703.118 [Corrected]
3. On page 33635, second column, in Sec. 1703.118, in paragraph
(a)(3), second to the last line, correct ``Sec. 1703.107(h)'' to read
``Sec. 1703.107(e)''.
Robert Peters,
Acting Administrator.
[FR Doc. 96-18402 Filed 7-19-96; 8:45 am]
BILLING CODE 3410-15-M
Complete official Federal Register PDF
FR Doc. 96-18395 Airworthiness Directives; Pratt & Whitney Wasp Series and R-1340 Series (Military) Reciprocating Engines
[Federal Register Volume 61, Number 141 (Monday, July 22, 1996)]
[Rules and Regulations]
[Pages 37814-37817]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18395]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
14 CFR Part 39
[Docket No. 95-ANE-26; Amendment 39-9693; AD 96-15-02]
RIN 2120-AA64
Airworthiness Directives; Pratt & Whitney Wasp Series and R-1340
Series (Military) Reciprocating Engines
AGENCY: Federal Aviation Administration, DOT.
ACTION: Final rule; request for comments.
-----------------------------------------------------------------------
SUMMARY: This amendment adopts a new airworthiness directive (AD) that
is applicable to Pratt & Whitney Wasp series and R-1340 series
(military) reciprocating engines. This action requires initial and
repetitive visual and dye penetrant inspections of the crankshaft
counterweights for cracks, and replacement of cracked crankshaft
counterweights with improved crankshaft counterweights. This amendment
is prompted by reports of crankshaft counterweight cracking. The
actions specified in this AD are intended to prevent engine failure due
to crankshaft counterweight failure, which could result in damage to or
loss of the aircraft.
DATES: Effective August 12, 1996.
The incorporation by reference of certain publications listed in
the regulations is approved by the Director of the Federal Register as
of August 12, 1996.
Comments for inclusion in the Rules Docket must be received on or
before September 20, 1996.
ADDRESSES: Submit comments in triplicate to the Federal Aviation
Administration (FAA), New England Region, Office of the Assistant Chief
Counsel, Attention: Rules Docket No. 95-ANE-26, 12 New England
Executive Park, Burlington, MA 01803-5299. Comments may also be
submitted to the Rules Docket by using the following Internet address:
``[email protected]''. All comments must contain the
Docket No. in the subject line of the comment.
The service information referenced in this AD may be obtained from
Air Tractor, Inc., Olney Municipal Airport, Olney, TX 76374; telephone
(817) 564-5616, fax (817) 564-2348. This
[[Page 37815]]
information may be examined at the FAA, New England Region, Office of
the Assistant Chief Counsel, 12 New England Executive Park, Burlington,
MA; or at the Office of the Federal Register, 800 North Capitol Street,
NW., suite 700, Washington, DC.
FOR FURTHER INFORMATION CONTACT: Richard D. Karanian, Aerospace
Engineer, Special Certification Office, FAA, Rotorcraft Directorate,
2601 Meacham Blvd., Fort Worth, TX 76137-4298; telephone (817) 222-
5195, fax (817) 222-5959.
SUPPLEMENTARY INFORMATION: The Federal Aviation Administration (FAA)
has received reports of counterweight cracking on Air Tractor, Inc.,
Part Number (P/N) 90114 Parts Manufacturer Approval (PMA) replacement
crankshafts installed on Pratt & Whitney (PW) Wasp series and R-1340
series (military) reciprocating engines. Cracks have been found in
three rear counterweights, P/N 90134, immediately adjacent to the 4\1/
2\ order flyweight, or dynamic counterweight. In two cases, the cracks
were observed during overhaul inspections after a normal runout; in one
case, Air Tractor, Inc. has advised the FAA that a counterweight crack
may have caused or contributed to an engine failure during agricultural
spraying operations in Argentina. This condition, if not corrected,
could result in engine failure due to crankshaft counterweight failure,
which could result in damage to or loss of the aircraft.
The manufacturer advised the FAA of the crankshaft counterweight
failure in Argentina and the possible connection between this failure
and a crack found in a second crankshaft counterweight with 900 hours
in agricultural service in the United States. Air Tractor, Inc.
released an initial Service Letter (SL), Snow Engineering Co. SL No.
134, dated November 29, 1994, advising all owners of Air Tractor, Inc.
PMA crankshafts to perform within the next 10 hours time in service
(TIS) a visual and dye penetrant inspection of the crankshaft
counterweights to detect cracking. This SL detailed an inspection
procedure which required the removal of one cylinder to gain access to
the crankshaft. Air Tractor, Inc. demonstrated this inspection
procedure to the FAA on November 28, 1994.
In January and February 1995, Air Tractor, Inc. performed an engine
test at their facility to demonstrate a reasonable interval for engine
operation between inspections. The test consisted of cutting through
the counterweight at the location where cracks were initially found and
running the engine at a series of loads simulating actual flight loads
for 202.5 hours (recording tachometer) without failure. This test was
run using an FAA-approved test procedure with FAA oversight.
Based on this experience, Air Tractor, Inc. has issued Snow
Engineering Co. SL No. 135, dated February 1, 1995, that supersedes the
inspection requirements of Snow Engineering Co. SL No. 134; however,
the rework procedure described in Snow Engineering Co. SL No. 134
remains in effect for the purpose of this AD. The FAA has reviewed and
approved the technical contents of Snow Engineering Co. SL No. 135,
dated February 1, 1995, that describes procedures for an initial
inspection of crankshaft counterweights prior to 300 hours TIS, with
repetitive inspections every 150 hours TIS. Snow Engineering Co. SL No.
134 describes replacement of crankshaft counterweights, P/N 90133 and
90134, with redesigned FAA-PMA crankshaft counterweights, P/N 90133-1
and 90134-1 at the next overhaul or if a crack is found during an
inspection. Air Tractor, Inc. has advised the FAA that it will replace
crankshaft counterweights in accordance with Snow Engineering Co. SL
No. 134, dated November 29, 1994, on all crankshafts delivered to their
facility under warranty, free of charge.
Air Tractor, Inc. has advised the FAA that crankshafts manufactured
and shipped after November 18, 1994, incorporate the FAA-approved
redesigned crankshaft counterweights, P/N 90133-1 and 90134-1, and are
not subject to inspections. Only Air Tractor, Inc. crankshaft
counterweights, P/N 90133-1 and 90134-1, are eligible for installation
in accordance with the rework procedures described in Snow Engineering
Co. SL No. 134. No other parts are currently approved for installation
in compliance with this AD.
Since an unsafe condition has been identified that is likely to
exist or develop on other engines of the same type design, this AD is
being issued to prevent engine failure due to crankshaft counterweight
failure, which could result in damage to or loss of the aircraft. This
AD requires initial and repetitive visual and dye penetrant inspections
of the crankshaft counterweights for cracks, and replacement of
crankshaft counterweights with improved crankshaft counterweights if a
crack is found during inspection, at the next overhaul, or at the next
crankshaft removal, whichever occurs first. The actions are required to
be accomplished in accordance with the SL described previously.
Since a situation exists that requires the immediate adoption of
this regulation, it is found that notice and opportunity for prior
public comment hereon are impracticable, and that good cause exists for
making this amendment effective in less than 30 days.
Comments Invited
Although this action is in the form of a final rule that involves
requirements affecting flight safety and, thus, was not preceded by
notice and an opportunity for public comment, comments are invited on
this rule. Interested persons are invited to comment on this rule by
submitting such written data, views, or arguments as they may desire.
Communications should identify the Rules Docket number and be submitted
in triplicate to the address specified under the caption ADDRESSES. All
communications received on or before the closing date for comments will
be considered, and this rule may be amended in light of the comments
received. Factual information that supports the commenter's ideas and
suggestions is extremely helpful in evaluating the effectiveness of the
AD action and determining whether additional rulemaking action would be
needed.
Comments are specifically invited on the overall regulatory,
economic, environmental, and energy aspects of the rule that might
suggest a need to modify the rule. All comments submitted will be
available, both before and after the closing date for comments, in the
Rules Docket for examination by interested persons. A report that
summarizes each FAA-public contact concerned with the substance of this
AD will be filed in the Rules Docket.
Commenters wishing the FAA to acknowledge receipt of their comments
submitted in response to this notice must submit a self-addressed,
stamped postcard on which the following statement is made: ``Comments
to Docket Number 95-ANE-26.'' The postcard will be date stamped and
returned to the commenter.
The regulations adopted herein will not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this final
rule does not have sufficient federalism implications to warrant the
preparation of a Federalism Assessment.
The FAA has determined that this regulation is an emergency
regulation that must be issued immediately to
[[Page 37816]]
correct an unsafe condition in aircraft, and is not a ``significant
regulatory action'' under Executive Order 12866. It has been determined
further that this action involves an emergency regulation under DOT
Regulatory Policies and Procedures (44 FR 11034, February 26, 1979). If
it is determined that this emergency regulation otherwise would be
significant under DOT Regulatory Policies and Procedures, a final
regulatory evaluation will be prepared and placed in the Rules Docket.
A copy of it, if filed, may be obtained from the Rules Docket at the
location provided under the caption ADDRESSES.
List of Subjects in 14 CFR Part 39
Air transportation, Aircraft, Aviation safety, Incorporation by
reference, Safety.
Adoption of the Amendment
Accordingly, pursuant to the authority delegated to me by the
Administrator, the Federal Aviation Administration amends part 39 of
the Federal Aviation Regulations (14 CFR part 39) as follows:
PART 39--AIRWORTHINESS DIRECTIVES
1. The authority citation for part 39 continues to read as follows:
Authority: 49 USC 106(g), 40113, 44701.
Sec. 39.13 [Amended]
2. Section 39.13 is amended by adding the following new
airworthiness directive:
96-15-02 Pratt & Whitney: Amendment 39-9693. Docket 95-ANE-26.
Applicability: Pratt & Whitney (PW) Wasp Models S1H1 and S3H1,
and Model R-1340-AN-1 (military) reciprocating engines,
incorporating Air Tractor, Inc. Parts Manufacturer Approval (PMA)
crankshafts, Part Number (P/N) 90114. These engines are installed on
but not limited to the following aircraft: Ag Cat Corporation
(formerly Schweizer Aircraft Corporation) Models G-164A, G-164B, and
G-164C; Air Tractor, Inc. Models AT-301 and AT-401; Ayres
Corporation Models 600 S-2C, 600 S2D, S-2R, S2R-R1340; EMAIR Model
MA-1; North American Aviation, Inc. Models BC-1A, AT-6, AT-6A, AT-
6B, AT-6C, AT-6D, AT-6F, and T-6G; and Transland Model Ag-2.
Note: This airworthiness directive (AD) applies to each engine
identified in the preceding applicability provision, regardless of
whether it has been modified, altered, or repaired in the area
subject to the requirements of this AD. For engines that have been
modified, altered, or repaired so that the performance of the
requirements of this AD is affected, the owner/operator must request
approval for an alternative method of compliance in accordance with
paragraph (h) of this AD. The request should include an assessment
of the effect of the modification, alteration, or repair on the
unsafe condition addressed by this AD; and, if the unsafe condition
has not been eliminated, the request should include specific
proposed actions to address it.
Compliance: Required as indicated, unless accomplished
previously.
To prevent engine failure due to crankshaft counterweight
failure, which could result in damage to or loss of the aircraft,
accomplish the following:
(a) For crankshafts with 290 or more hours time in service (TIS)
on the effective date of this AD, perform an initial visual and dye
penetrant inspection of the crankshaft counterweights for cracks
within 10 hours TIS after the effective date of this AD in
accordance with Snow Engineering Co. Service Letter (SL) No. 135,
dated February 1, 1995. If cracks are found, prior to further
flight, remove from service and rework the crankshaft by replacing
cracked counterweights in accordance with the rework procedures
described in Snow Engineering Co. SL No. 134, dated November 29,
1994, or replace with a serviceable part.
(b) For crankshafts with less than 290 hours TIS on the
effective date of this AD, perform an initial visual and dye
penetrant inspection of the crankshaft counterweights for cracks
prior to accumulating 300 hours total TIS on the crankshaft, in
accordance with Snow Engineering Co. SL No. 135, dated February 1,
1995. If cracks are found, prior to further flight, remove from
service and rework the crankshaft by replacing cracked
counterweights in accordance with the rework procedures described in
Snow Engineering Co. SL No. 134, dated November 29, 1994, or replace
with a serviceable part.
(c) For crankshafts that have not been reworked in accordance
with the rework procedures described in Snow Engineering Co. SL No.
134, dated November 29, 1994, perform repetitive visual and dye
penetrant inspections of the crankshaft counterweights for cracks,
at intervals not to exceed 150 hours TIS since last inspection, in
accordance with Snow Engineering Co. SL No. 135, dated February 1,
1995. If cracks are found, prior to further flight remove from
service and rework the crankshaft by replacing cracked
counterweights in accordance with the rework procedures described in
Snow Engineering Co. SL No. 134, dated November 29, 1994, or replace
with a serviceable part.
(d) If a cylinder assembly is removed for any reason, perform a
visual and dye penetrant inspection of the crankshaft counterweights
for cracks in accordance with Snow Engineering Co. SL No. 135, dated
February 1, 1995. If cracks are found, prior to further flight,
remove from service and rework the crankshaft by replacing cracked
counterweights in accordance with the rework procedures described in
Snow Engineering Co. SL No. 134, dated November 29, 1994, or replace
with a serviceable part. Count the 150 hours TIS interval for the
repetitive inspections in accordance with paragraph (c) of this AD
at cylinder assembly removal.
(e) At the next overhaul after the effective date of this AD, or
at the next crankshaft removal, whichever occurs first, remove from
service and replace crankshaft counterweights in accordance with the
rework procedures described in Snow Engineering Co. SL No. 134,
dated November 29, 1994. Incorporation of the improved crankshaft
counterweights, Air Tractor, Inc. P/N 90133-1 and 90134-1,
constitutes terminating action to the repetitive inspections
required by paragraph (c) of this AD.
(f) No action is required for reworked and new manufactured
crankshafts incorporating improved crankshaft counterweights, Air
Tractor, Inc. P/N 90133-1 and 90134-1, which are indelibly marked on
the counterweight front and rear surfaces.
(g) No action is required for other FAA-approved crankshafts
besides those manufactured by Air Tractor, Inc. However, intermixing
of Air Tractor, Inc. and other crankshaft assembly parts other than
PW crankshaft assembly parts is prohibited.
Note: Air Tractor, Inc. Top Drawing No. 90U4 permits use of PW
components, and virtually all Air Tractor, Inc. crankshafts have
some PW parts installed.
(h) An alternative method of compliance or adjustment of the
compliance time that provides an acceptable level of safety may be
used if approved by the Manager, Special Certification Office. The
request should be forwarded through an appropriate FAA Maintenance
Inspector, who may add comments and then send it to the Manager,
Special Certification Office.
Note: Information concerning the existence of approved
alternative methods of compliance with this airworthiness directive,
if any, may be obtained from the Special Certification Office.
(i) Special flight permits may be issued in accordance with
sections 21.197 and 21.199 of the Federal Aviation Regulations (14
CFR 21.197 and 21.199) to operate the aircraft to a location where
the inspections can be accomplished.
(j) The actions required by this AD shall be done in accordance
with the following service documents:
------------------------------------------------------------------------
Document No. Pages Date
------------------------------------------------------------------------
Snow Engineering Co., SL No. 134..... 1-5 November 29, 1994.
Total pages: 5
Snow Engineering Co., SL No. 135..... 1-4 February 1, 1995.
Total pages: 4
------------------------------------------------------------------------
This incorporation by reference was approved by the Director of
the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR
part 51. Copies may be obtained from Air Tractor, Inc., Olney
Municipal Airport, Olney, TX 76374; telephone (817) 564-5616, fax
(817) 564-2348. Copies may be inspected at the FAA, New England
Region, Office of the Assistant Chief Counsel, 12 New England
Executive Park, Burlington, MA; or at the Office of the Federal
Register, 800 North Capitol Street, NW., suite 700, Washington, DC.
(k) This amendment becomes effective on August 12, 1996.
[[Page 37817]]
Issued in Burlington, Massachusetts, on July 12, 1996.
Jay J. Pardee,
Manager, Engine and Propeller Directorate, Aircraft Certification
Service.
[FR Doc. 96-18395 Filed 7-19-96; 8:45 am]
BILLING CODE 4910-13-U
Complete official Federal Register PDF
FR Doc. 96-18356 Office of the Assistant Secretary for Public and Indian Housing; Regulatory Reinvention: Streamlining the Public Housing; Development Regulations
[Federal Register Volume 61, Number 141 (Monday, July 22, 1996)]
[Rules and Regulations]
[Pages 38014-38022]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18356]
[[Page 38013]]
_______________________________________________________________________
Part V
Department of Housing and Urban Development
_______________________________________________________________________
24 CFR Part 941
Office of the Assistant Secretary for Public and Indian Housing;
Regulatory Reinvention: Streamlining the Public Housing Development
Regulations; Interim Rule
Federal Register / Vol. 61, No. 141 / Monday, July 22, 1996 / Rules
and Regulations
=======================================================================
-----------------------------------------------------------------------
[[Page 38014]]
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
24 CFR Part 941
[Docket No. FR-3569-I-01]
RIN 2577-AB37
Office of the Assistant Secretary for Public and Indian Housing;
Regulatory Reinvention: Streamlining the Public Housing; Development
Regulations
AGENCY: Office of the Assistant Secretary for Public and Indian
Housing, HUD.
ACTION: Interim rule.
-----------------------------------------------------------------------
SUMMARY: This rule amends HUD's regulations for the Public Housing
Development program. In an effort to comply with the President's
regulatory reform initiatives, this rule streamlines these regulations
by eliminating provisions that repeat statutory provisions or are
otherwise unnecessary, as well as revising provisions to allow greater
flexibility to PHAs in carrying out development programs, allowing them
to certify compliance with some requirements. This interim rule will
make the Public Housing Development regulations clearer and more
concise.
DATES: Effective Date: August 21, 1996, except that Secs. 941.101,
941.205, 941.301, 941.303, 941.304, and 941.404 shall not become
effective until the OMB approval of the information collections
contained in those sections are announced by a separate publication in
the Federal Register.
Comments due date: September 20, 1996.
ADDRESSES: Interested persons are invited to submit comments regarding
this interim rule to the Rules Docket Clerk, Office of General Counsel,
Room 10278, Department of Housing and Urban Development, 451 Seventh
Street, S.W., Washington, D.C. 20410. Communications should refer to
the above docket number and title. A copy of each communication
submitted will be available for public inspection and copying between
7:30 a.m. and 5:30 p.m. weekdays at the above address. FAXED comments
will not be accepted.
FOR FURTHER INFORMATION CONTACT: William J. Flood, Director, Office of
Capital Improvements, Department of Housing and Urban Development, 451
Seventh Street, SW., Washington, DC 20410, telephone number (202) 708-
1640 (this is not a toll-free number). For hearing-and speech-impaired
persons, this number may be accessed via text telephone by dialing the
Federal Information Relay Service at 1-800-877-8339.
SUPPLEMENTARY INFORMATION:
Information Collection Requirements
The information collection requirements contained in this rule, as
described in Sec. 941.101, are the subject of OMB control numbers 2577-
0024, 2577-0033, 2577-0036, and 2577-0039. All of these approval
numbers are currently under review, under the Paperwork Reduction Act
of 1995 (42 U.S.C. 3501-3520), except for 2577-0036, for which a 90-day
extension was granted, effective through 8/31/96. The information
collection notices for these requirements were published on April 4,
1996 (61 FR 15081 and 15101) and on May 9, 1996 (61 FR 21202).
In accordance with the Paperwork Reduction Act, an agency may not
conduct or sponsor, and a person is not required to respond to, a
collection of information unless the collection displays a valid
control number.
I. 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 public housing
development program can be improved and streamlined by eliminating
unnecessary provisions.
Although current funding for public housing development is limited,
the regulations for the program are still needed to govern the current
pipeline of projects for which funds have been obligated. In addition,
current legislation allows modernization funds to be used for
developing new units, which requires public housing development
regulations for implementation.
Several provisions in the regulations repeat statutory language
from the U.S. Housing Act of 1937. 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
interim rule removes repetitious statutory language and replaces it
with a citation to the specific statutory section for easy reference.
Several other provisions in the regulations apply to more than one
program, and these provisions have been in different subparts. This
repetition is unnecessary, and updating these scattered provisions is
cumbersome and often creates confusion. Therefore, this interim rule
consolidates these duplicative provisions, maintaining appropriate
cross-references for the reader's convenience.
Some provisions in the regulations are now obsolete and have been
removed. Lastly, some provisions in the regulations are not regulatory
requirements. For example, several sections in the regulations contain
nonbinding guidance or explanations. While this information is very
helpful to recipients, HUD will more appropriately provide this
information through guidance or other materials rather than maintain it
in the CFR.
The major changes to the rule were made in order to further the
Department's determination that newly developed public housing units
should be attractive and marketable and should assist PHAs to end the
social and economic isolation of low income people and to promote
economic independence.
II. Specific changes
A. Expansion of Development Methods
Language that has limited development methods to the conventional,
turnkey, and acquisition methods is being removed, and PHAs are being
authorized to use any generally accepted method of development.
Two methods described, in addition to the three authorized in the
current regulation, are the force account method and the mixed-finance
method (see new Sec. 941.102). With respect to a PHA that proposes to
develop public housing units using the force account method, the rule
specifies that HUD must determine, before development of a full
proposal, that the PHA has the capability to develop successfully the
public housing units using the force account method. A PHA using the
mixed-finance method must submit and implement its proposal in
accordance with subpart F of this part, which deals only with that
development method. This expansion of development methods gives more
flexibility to PHAs in the development of public housing units.
B. Expansion of Funding Sources
This rule adds reference to the use of modernization funds as a new
funding
[[Page 38015]]
source for development, under certain circumstances (see new
Sec. 941.102(b)). A provision is also added requiring execution of an
Annual Contributions Contract to govern the use of federal funds used,
including modernization funds (see new Sec. 941.302). Donations are
also specifically referenced as a possible funding source for PHA
public housing development.
C. Flexibility for Approval of Replacement Housing Sites
This rule (at new Sec. 941.202(c)(2)) specifically authorizes
construction of public housing units following demolition of public
housing units, on the original site or in the same neighborhood,
exempting such construction from the review concerning minority or
poverty concentration (that otherwise would be required by
Sec. 941.202(c)) if one of several criteria are satisfied:
(1) The number of public housing units to be constructed is no more
than 50 percent of the number of units in the original project;
(2) In the case of replacement of a currently occupied project, the
number of public housing units being constructed is the minimum number
needed to house current residents who want to remain at the site; or
(3) The public housing units being constructed constitute no more
than twenty-five units.
The Department believes that addition of these first two criteria
is desirable to permit the demolition and reconstruction of replacement
units on sites that are readily available, but at lower density levels
than the original project. That policy has been endorsed by language in
the Fiscal Year 1995 Rescission Act, Pub. L. No. 104-19, 104 Stat. 194,
approved July 27, 1995. The inclusion of the third criterion will
permit replacement on site where the number of units being demolished
is itself small, in which case the Department would not expect that
replacement of twenty-five of the units would have an effect of
concentrating low-income or minority families in the area.
D. Site Acquisition Requirements
This rule eliminates the ``limited proposal'' (under existing
Sec. 941.404(n)), which has been used by PHAs as an expedited means of
acquiring HUD/VA/RTC and certain other scattered site properties. The
Department believes that its adoption in this rulemaking of a
streamlined procedure for the development of all public housing (and
not just certain types of housing), renders obsolete the separate
limited proposal procedure. HUD also has added a new, optional
provision, at Sec. 941.303, that authorizes a PHA to acquire land on
which to construct a project following submission and approval of an
abbreviated ``site acquisition'' proposal. However, HUD must approve
all contracts for the purchase of property, regardless of the amount
involved or the development method being used.
E. PHA Certifications
PHAs with a satisfactory record of performance are permitted to
certify compliance with certain HUD requirements under this rule, in
order to reduce the amount of HUD review required (see new
Sec. 941.402). For example, a PHA is permitted to certify that the
design and construction plans are in accordance with HUD's design and
construction standards, and that the bidding procedures are in
accordance with Federal procurement requirements.
F. Consolidation of Application and Proposal Provisions
The provisions of Subparts C and D concerning applications and
proposals are consolidated into a new Subpart C. Detail in the current
regulations on selection of applications is removed, substituting a
reference to publication of information pertaining to fund allocation,
application deadlines, selection criteria and procedures through
publication of a Notice of Funding Availability, should new funding
become available (see new Secs. 941.301 through 941.306). [Subpart E on
project development is consequently redesignated as Subpart D.]
The information sought from HAs concerning costs at the proposal
stage is being modified to request that information about demolition
and associated relocation costs be separately identified with respect
to a site that is being acquired for public housing and a site of
existing public housing. This will allow HUD to make appropriate
comparisons with private market development costs.
G. HUD Review of Performance
A new process for HUD review of PHA performance and sanctions for
poor performance is added (see new Sec. 941.501), which parallels that
being used in the Modernization Program. These new provisions place the
emphasis on isolating poor performance and providing technical
assistance where it is needed as the initial HUD response. The rule
gives HUD authority to establish certain review thresholds through
notice of deficiency or corrective action order procedures.
H. Subpart F
Subpart F, which was first authorized in an interim rule published
on May 2, 1996 (61 FR 19708) specifies the conditions and procedures
for the mixed-finance development method. Since this rule revises many
of the sections to which Sec. 941.602 of that rule referred, this rule
revises those cross-references. In addition, the Department anticipates
making additional changes in subpart F to streamline its provisions
further. That action may be taken in a combined final rule issued to
conclude the rulemaking initiated by both that interim rule and this
interim rule.
III. Justification for Interim Rulemaking
HUD generally publishes a rule for public comment before issuing a
rule for effect, in accordance with its own regulations on rulemaking
in 24 CFR part 10. However, part 10 provides for exceptions to the
general rule if the agency finds good cause to omit advance notice and
public participation. The good cause requirement is satisfied when
prior public procedure is ``impracticable, unnecessary, or contrary to
the public interest'' (24 CFR 10.1). HUD finds that good cause exists
to publish this rule for effect without first soliciting public
comment. HUD believes that it would be contrary to the public interest
to delay the effectiveness of the rule to solicit comment, since it
will streamline numerous existing HUD requirements and delegate
significant responsibility to PHAs with respect to implementation of
their development programs.
Delegation of responsibility to PHAs is fully consistent with the
policy and objectives of the United States Housing Act of 1937, as set
forth in section 2 of that Act, which states in relevant part: ``It is
the policy of the United States * * * to assist the several States and
their political subdivisions * * * to remedy the acute shortage of
decent, safe, and sanitary dwellings for families of lower income and,
consistent with the objectives of this Act, to vest in local public
housing agencies the maximum amount of responsibility in the
administration of their housing programs * * *.'' The streamlining
changes to the development program are designed primarily to eliminate
multiple layers of HUD reviews for those PHAs that HUD believes can
develop public housing units without the need for detailed HUD
oversight. Troubled PHAs and other PHAs that HUD believes would benefit
from more detailed oversight would remain subject to existing HUD
review and approval
[[Page 38016]]
requirements for their development programs.
By revising the program, in this matter, HUD believes that
competent PHAs will be able to more expeditiously develop public
housing units and, accordingly, to more efficiently respond to the
housing needs of low income families in their jurisdictions. Troubled
PHAs and other PHAs that may benefit from more detailed HUD oversight
will continue to be subject to existing HUD review and approval
requirements for their development programs. HUD believes that this
dichotomy in the development process will significantly benefit low-
income families.
Although issuing the rule for effect, HUD is soliciting public
comment concerning these changes, and the comments will be reviewed for
possible future changes to the rule in a final version.
IV. Other Matters
Regulatory Flexibility Act
The Secretary, in accordance with the Regulatory Flexibility Act (5
U.S.C. 605(b)), has reviewed and approved this interim rule, and in so
doing certifies that this rule will not have a significant economic
impact on a substantial number of small entities. HUD believes that
this rule will further the public interest since the rule will
streamline numerous existing HUD requirements and delegate significant
responsibility to PHAs with respect to implementation of their
development programs.
Environmental Impact
A Finding of No Significant Impact with respect to the environment
was made in accordance with HUD regulations in 24 CFR part 50 that
implement section 102(2)(C) of the National Environmental Policy Act of
1969 (42 U.S.C. 4332). This Finding is available for public inspection
between 7:30 a.m. and 5:30 p.m. weekdays in the Office of the Rules
Docket Clerk, Office of General Counsel, Room 10276, Department of
Housing and Urban Development, 451 Seventh Street, SW, Washington, DC.
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. To the extent that the programmatic
changes that will result from this rule will have any effect, they will
positively affect the relationship between the Federal Government and
State and local governments in that the rule delegates to the PHA (a
creature of state law) greater responsibility with respect to
implementation of its development program.
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. The only effect that the rule is likely to have on families is
that it may expedite replacement of public housing units that cannot be
maintained as decent, safe, and sanitary housing.
Regulatory Review
This interim rule was reviewed by the Office of Management and
Budget under Executive Order 12866 as a significant regulatory action.
Any changes made in this interim rule as a result of that review are
clearly identified in the docket file for this interim rule, which is
available for public inspection in the HUD's Office of the Rules Docket
Clerk, Room 10276, 451 Seventh Street, SW., Washington, DC 20410-0500.
List of Subjects in 24 CFR Part 941
Grant programs--housing and community development, Loan programs--
housing and community development, Public housing.
Catalog
The Catalog of Federal Domestic Assistance number for the program
affected by this rule is 14.850.
Accordingly, 24 CFR part 941 is amended as follows:
PART 941--PUBLIC HOUSING DEVELOPMENT
1. The authority citation for part 941 continues to read as
follows:
Authority: 42 U.S.C. 1437b, 1437c, 1437g, and 3535(d).
2. Sections 941.101 and 941.102 are revised to read as follows:
Sec. 941.101 Purpose and scope.
(a) Purpose. The U.S. Housing Act of 1937 (Act), 42 U.S.C. 1437,
authorizes HUD to assist public housing agencies (PHAs) with the
development and operation of low-income housing projects and financial
assistance in the form of grants (42 U.S.C. 1437c, 1437g, and 1437l).
The purpose of the program is to develop units which serve the needs of
public housing residents over the long term and have the lowest
possible life cycle costs, taking into account future operating and
replacement costs, as well as original capital investments.
(b) Scope. This part is the regulation under which a PHA develops
low-income housing (excluding Indian housing), herein called public
housing.
(c) Approved information collections. The following sections of
this part have been approved by the Office of Management and Budget in
accordance with the Paperwork Reduction Act of 1995 (42 U.S.C. 3501-
3520) and assigned the OMB approval numbers indicated:
------------------------------------------------------------------------
Approval
No. Sections
------------------------------------------------------------------------
2577-0024.. 941.304(j).
2577-0033.. 941.301, 941.303, 941.304 except para. (j), 941.402,
941.606, 941.610.
2577-0036.. 941.304, except para. (j).
2577-0039.. 941.205, 941.404.
------------------------------------------------------------------------
Sec. 941.102 Development methods and funding.
(a) Methods. A PHA may use any generally accepted method of
development including, but not limited to, conventional, turnkey,
acquisition with or without rehabilitation, mixed-finance, and force
account.
(1) Conventional. Under this method, the PHA is responsible for
selecting a site or property and designing the project. The PHA
advertises for competitive bids to build or rehabilitate the
development on the PHA-owned site. The PHA awards a construction
contract in accordance with 24 CFR part 85. The contractor receives
progress payments from the PHA during construction or rehabilitation
and a final payment upon completion of the project in accordance with
the construction contract. The conventional method may be used for
either new construction or rehabilitation.
(2) Turnkey. The turnkey method involves the advertisement and
selection of a turnkey developer by the PHA, based on the best housing
package for a site or property owned or to be purchased by the
developer. Following HUD approval of the PHA's full proposal, the
developer prepares the design and construction documents. The PHA and
the developer execute the contract of sale to implement the PHA's full
proposal. The developer is responsible for providing a completed
[[Page 38017]]
housing project, which includes obtaining construction financing. Upon
completion of project construction or rehabilitation in accordance with
the contract of sale, the PHA purchases the development from the
developer. This method may be used for either new construction or
rehabilitation.
(3) Acquisition. The acquisition method involves a purchase of
existing property that requires little or no repair work. Any needed
repair work is completed after acquisition, either by the PHA
contracting to have the work done or by having the staff of the PHA
perform the work.
(4) Mixed-finance. This method involves financing from both public
and private sources and may involve ownership of the public housing
units by an entity other than the PHA. This method of development may
be carried out by a PHA only in accordance with the requirements set
forth in subpart F.
(5) Force account. The force account method involves use of PHA
staff to carry out new construction or rehabilitation. A PHA may only
develop a full proposal based on the force account method if HUD has
determined that the PHA has the capability to develop successfully the
public housing units using this method.
(b) Funding. A PHA may develop public housing with:
(1) Development funds reserved by HUD for that purpose;
(2) Modernization funds under section 14 of the Act (42 U.S.C.
1437l), to the extent authorized by law and under procedures approved
by HUD; and/or
(3) Funds available to it from any other source, consistent with
Sec. 941.306(c), or as may be otherwise approved by HUD.
(c) Limit on number of units. (1) General. A PHA may not develop
public housing pursuant to this part beyond the lesser of the number of
units that the PHA had under ACC on August 21, 1996, or the number of
units for which it was receiving operating subsidy on that date, unless
authorized by HUD. HUD may condition such authorization on the PHA's
agreement that such incremental units, once developed, will be
ineligible for capital and/or operating subsidies from HUD.
(2) Replacement housing units. With respect to units constructed to
replace public housing units that were demolished or disposed of, a PHA
may use (in whole or in part) funding from non-HUD sources or from HUD
funding not provided under the Act. However, development of such units
must be approved by HUD in advance for them to be eligible for
inclusion under the ACC.
3. Section 941.103 is amended as follows:
a. By removing the definitions of ``Allocation area'',
``Application'', ``Central city allocation area'', ``Community'',
``Field Office'', ``Housing Assistance Plan'', ``Household type'', and
``Housing type''.
b. By removing the parenthetical phrase ``(in the form prescribed
by HUD)'' from the definitions of ``Construction Contract'' and
``Contract of sale'';
c. By revising the definition of ``Proposal'' to read as set forth
below; and
d. By removing from the definition of ``Total development cost
(TDC)'' the term ``the Field Office'' and adding in its place the term
``HUD'', and by removing from that definition the parenthetical
sentence at the end ``(See 24 CFR 941.204)''.
Sec. 941.103 Definitions.
* * * * *
Proposal. A document submitted by a PHA to HUD, in accordance with
subpart C of this part, for approval of the development of a public
housing project. As used in this part, ``proposal'' refers to both the
``site acquisition proposal'' (Sec. 941.303), and the ``full proposal''
(Sec. 941.304), unless specifically indicated otherwise.
* * * * *
4. Section 941.201 is amended as follows:
a. By removing from paragraph (a) the term ``The field office'' and
adding in its place the term ``HUD'';
b. By redesignating paragraph (c) as paragraph (d); and
c. By adding a new paragraph (c), to read as follows:
Sec. 941.201 PHA eligibility.
* * * * *
(c) Troubled PHAs. Unless HUD determines that a PHA that has been
classified as troubled or modernization-troubled, in accordance with 24
CFR part 901, has adequate capacity to develop public housing units,
the PHA so classified shall engage a HUD-approved program manager to
develop and implement the PHA's proposal. HUD shall review the
solicitation and the selection before award of a contract is made by
such a PHA.
* * * * *
5. Section 941.202 is amended:
a. By redesignating paragraphs (c)(1) introductory text, (c)(1)(i),
(c)(1)(ii), and (c)(2), as paragraphs (c)(1)(i) introductory text,
(c)(1)(i)(A), (c)(1)(i)(B), and (c)(1)(ii), respectively;
b. By redesignating the introductory text of paragraph (c) as the
introductory text of paragraph (c)(1);
c. By adding a new paragraph (c)(2) to read as set forth below;
d. Removing paragraph (c)(3); and
e. In paragraph (f), by removing the phrase ``local housing
assistance plan approved by the field office'' and adding in its place
the phrase ``local plan approved by HUD''.
Sec. 941.202 Site and neighborhood standards.
* * * * *
(c) * * *
(2) Notwithstanding any other provision of this paragraph (c),
public housing units constructed after demolition of public housing
units may be built on the original public housing site, or in the same
neighborhood, if one of the following criteria is satisfied:
(i) The number of public housing units being constructed is no more
than 50 percent of the number of units in the original project;
(ii) In the case of replacement of a currently occupied project,
the number of public housing units being constructed is the minimum
number needed to house current residents who want to remain at the
site; or
(iii) The public housing units being constructed constitute no more
than twenty-five units.
* * * * *
6. Section 941.203 is revised to read as follows:
Sec. 941.203 Design and construction standards.
(a) Physical structures shall be designed, constructed and equipped
so as to improve or harmonize with the neighborhoods they occupy, meet
contemporary standards of modest comfort and liveability, promote
security, and be attractive and marketable to the people they are
intended to serve. Building design and construction shall strive to
encourage in residents a proprietary sense, whether or not
homeownership is intended or contemplated.
(b) Projects must comply with:
(1) A national building code, such as Uniform Building Code,
Council of American Building Officials Code, or Building Officials
Conference of America Code;
(2) Applicable State and local laws, codes, ordinances, and
regulations; and
(3) Other Federal requirements, including any Federal fire-safety
requirements and HUD minimum property standards (e.g., 24 CFR part 200,
subpart S, and Sec. 941.208).
(c) Projects for families with children shall consist to the
maximum extent
[[Page 38018]]
practicable of low-density housing (e.g., non-elevator structures,
scattered sites or other types of low-density developments appropriate
in the community).
(d) High-rise elevator structures shall not be provided for
families with children regardless of density, unless the PHA
demonstrates and HUD determines that there is no practical alternative.
High-rise buildings for the elderly may be used if the PHA demonstrates
and HUD determines that such construction is appropriate, taking into
consideration land costs, the safety and security of the prospective
occupants, and the availability of community services.
Sec. 941.204 [Removed]
7. Section 941.204 is removed.
8. Section 941.205 is revised to read as follows:
Sec. 941.205 PHA contracts.
(a) ACC requirements. In order to be considered as eligible project
expenses, all development related contracts entered into by the PHA
shall provide for compliance with the provisions of the ACC.
(b) Contract forms. HUD may prescribe the form of any development
related contracts, and the PHA shall use such forms. If a form is not
prescribed, the PHA may develop its own form; however, it must contain
all applicable federal requirements.
(c) When HUD approval is required. The PHA is authorized to execute
all development-related contracts without prior HUD review or approval
with the exception of:
(1) All forms of site or property acquisition contracts regardless
of development method; and
(2) Contracts whose amount exceeds a contract approval threshold
established by HUD for that PHA; and
(3) A contract for the selection of a program manager to develop
and implement the PHA's proposal (see Sec. 941.201(c)).
(d) Each PHA shall certify before executing any contract with a
contractor that the contractor is not suspended, debarred, or otherwise
ineligible under 24 CFR part 24. The PHA also shall ensure that all
subgrantees, contractors, and subcontractors select only contractors
who are not listed as suspended, debarred, or otherwise ineligible
under 24 CFR part 24.
Sec. 941.206 [Removed]
9. Section 941.206 is removed.
10. Section 941.208 is revised to read as follows:
Sec. 941.208 Other Federal requirements.
(a) General. The PHA shall be subject to all statutory, regulatory,
and executive order requirements applicable to public housing
development (see, e.g., 24 CFR parts 5, 8, 35, 50, and 965), as may be
more fully described by HUD in notices, handbooks, or other guidance.
(b) Lead-based paint. In addition to the applicable requirements of
24 CFR part 35, all existing properties constructed prior to 1978 and
proposed to be acquired for family projects under this part shall be
tested for lead-based paint on applicable surfaces, as defined in 24
CFR part 965. If lead based paint is found, the cost of testing and
abatement shall be considered when justifying new construction or
meeting maximum total development cost limitations. For any units
containing lead-based paint, compliance with 24 CFR part 965, subpart
H, is required, and abatement shall be completed prior to occupancy.
11. Subpart C is revised to read as follows:
Subpart C--Application and Proposal
Sec.
941.301 Application.
941.302 Annual contributions contract; drawdowns and advances.
941.303 Site acquisition proposal.
941.304 Full proposal content.
941.305 Technical processing and approval.
941.306 Maximum development cost.
Subpart C--Application and Proposal
Sec. 941.301 Application.
If funding is made available for public housing development, HUD
will provide information about fund allocation, application deadline,
and selection criteria and procedures through a Notice of Funding
Availability (NOFA).
Sec. 941.302 Annual contributions contract; drawdowns and advances.
(a) A PHA wishing to develop public housing shall execute an ACC or
ACC amendment covering the entire amount of reserved development funds
or the amount of modernization funds (under section 14 of the Act, 42
U.S.C. 1437l) it proposes to use in accordance with this part. This ACC
or ACC amendment must be executed by both the PHA and HUD before funds
can be provided to the PHA.
(b) Until HUD has approved a PHA's full proposal, a PHA may only
draw down funds under the ACC for pre-development costs for materials
and services related to proposal preparation and submission.
Expenditures for pre-development costs shall not exceed three percent
of the total development cost stated in the executed ACC.
(c) HUD may approve the following in writing:
(1) Amounts in excess of three percent of TDC for pre-development
costs; and/or
(2) Drawdown of funds to enable a PHA to acquire a site after
approval by HUD of the PHA's site acquisition proposal, in accordance
with Sec. 941.303.
(d) After HUD approval of the full proposal, the PHA may draw down
additional funds under the ACC to develop the public housing units in
accordance with the approved full proposal.
Sec. 941.303 Site acquisition proposal.
When a PHA determines that it is necessary to acquire land for
development through new construction, it may spend funds authorized
under this part to acquire development sites. HUD must approve a PHA's
proposed use of funds before it may acquire sites in this manner. A PHA
must submit the following documents for HUD review and approval, in
accordance with the standards set forth in Sec. 941.305:
(a) Justification. A justification for acquiring land prior to PHA
proposal approval;
(b) Site information. An identification and description of the
proposed site, site plan, neighborhood, and evidence of PHA control of
the site for at least sixty (60) days after proposal submission.
(c) Zoning. Evidence that construction or rehabilitation is
permitted by current zoning ordinances or regulations or evidence to
indicate that needed rezoning is likely and will not delay the project.
(d) Development schedule. A copy of the PHA development schedule,
including the PHA architect estimates of the time required to complete
each major development stage.
(e) Environmental assessment. All available environmental
information on the proposed development (to expedite the HUD
environmental review).
(f) Appraisal. An appraisal of the proposed site by an independent,
state-certified appraiser.
Sec. 941.304 Full proposal content.
Each full proposal shall include at a minimum the following:
(a) Project description. A description of the housing, including
the number of units, schematic drawings of the proposed building and
unit plans, outline specifications or rehabilitation work write-ups,
and the types and amounts of non-dwelling space to be provided;
[[Page 38019]]
(b) Description of development method. A description of the PHA's
proposed development method, and a demonstration by the PHA that it
will be able to use this method successfully to develop the public
housing units. If the PHA proposes to use the turnkey method, it must
submit a Board-approved certification that the developer was selected
as the result of a public solicitation for proposals and that the
selection was based on an objective rating system, using such factors
as site location, project design, price, and developer experience. If
the PHA proposes to use the acquisition method, the PHA must submit a
certification by the PHA and owner that the property was not
constructed with the intent that it would be sold to the PHA. If the
PHA proposes to use the mixed-finance method, it should have consulted
with HUD on its plans. If the PHA proposes to use the force account
method to develop the public housing units, it must have already
received approval from HUD of its capability to carry out the
development successfully in this manner;
(c) Site information. An identification and description of the
proposed site, site plan, neighborhood, and evidence of PHA or turnkey
developer control of the site for at least sixty (60) days after
proposal submission;
(d) Project costs. (1) Categories of cost. The detailed budget of
the costs of developing the project, in accordance with the form
prescribed by HUD. With respect to costs of demolition and relocation,
the description must distinguish between costs related to existing
public housing property and costs related to acquisition of a new
public housing site;
(2) Budget and payment schedule. A budget that identifies the
sources of funding for relocation benefits, and a payment schedule
anticipated to be provided under a construction contract;
(e) Appraisal. An appraisal of the proposed site or property by an
independent, state-certified appraiser;
(f) Financial feasibility. Identification of funds sufficient to
complete the development, including a reasonable contingency;
(g) Zoning. Evidence that construction or rehabilitation is
permitted by current zoning ordinances or regulations or evidence to
indicate that needed rezoning is likely and will not delay the project;
(h) Facilities. A statement addressing the adequacy of existing
facilities and services for the prospective occupants of the project, a
description of public improvements needed to ensure the viability of
the proposed project with a description of the sources of funds
available to carry out such improvements, and, if applicable, a
statement addressing the minority enrollment and capacity of the school
system to absorb the number of school-aged children expected to reside
in the project;
(i) Relocation. A certification by the PHA that it will comply with
all applicable Federal relocation requirements;
(j) Life-cycle analysis. For new construction and substantial
rehabilitation, the criteria to be used in equipping the proposed
project(s) with heating and cooling systems, and which shall include a
life-cycle cost analysis of the installation, maintenance and operating
costs of such systems pursuant to section 13 of the Act (42 U.S.C.
1437k);
(k) Project development schedule. A copy of the PHA development
schedule, including the PHA architect or turnkey developer estimates of
the time required to complete each major development stage;
(l) Environmental assessment. All available environmental
information on the proposed development (to expedite the HUD
environmental review);
(m) Occupancy and operation policies. Statement of all PHA policies
and practices that will be used in occupancy and operation that
contribute to an overall objective of ending the social and economic
isolation of low income people and promoting their economic
independence;
(n) New construction certification. If a PHA's proposal involves
new construction, evidence of compliance with section 6(h) of the Act
in one of the following two ways:
(1) Submission of a PHA comparison of the cost of new construction
in the neighborhood where the PHA proposes to construct the housing and
the cost of acquisition of existing housing (with or without
rehabilitation) in the same neighborhood; or
(2) Certification by the PHA, accompanied by supporting
documentation, that there is insufficient existing housing in the
neighborhood to develop public housing through acquisition; and
(o) Additional HUD-requested information. Any additional
information that may be needed for HUD to determine whether it can
approve the proposal pursuant to Sec. 941.305.
Sec. 941.305 Technical processing and approval.
(a) Standards. HUD shall review the full proposal, submitted in
accordance with Sec. 941.304, and the site acquisition proposal,
submitted in accordance with Sec. 941.303, to determine whether each
proposal complies with all statutory, executive order, and regulatory
requirements applicable to public housing development including, if
applicable, the comments received as a result of Intergovernmental
Review. In addition, HUD shall carry out any necessary statutory and
executive order reviews with respect to the proposal under review. If
HUD determines that the proposal under review is acceptable, it shall
notify the PHA in writing and shall forward to it for execution an ACC
(or ACC amendment). If the PHA already has executed an ACC (or ACC
amendment) for the entire reserved amount, HUD shall notify the PHA
that it is authorized to draw down funds in accordance with
Sec. 941.302.
(b) Approved proposal. Units developed under this part shall be
developed only in accordance with an approved proposal.
(c) Approved amendments. Material changes in the approved proposal,
including any increase in the budget or any change in the payment
schedule, require an amendment to the proposal, which must be approved
by HUD. The determination of what constitutes a material change will be
made by HUD.
Sec. 941.306 Maximum development cost.
(a) Limit on approved HUD funds to Total Development Cost. No funds
provided by HUD pursuant to the Act may be used to pay costs in excess
of the TDC without the written approval of HUD. Approval of a higher
project cost will only be given upon the following demonstration by the
PHA:
(1) That the excess costs are reasonable and necessary to develop a
modest non-luxury project consistent with the standards set forth in
this part, providing for efficient project design, durability, energy
conservation, safety, security, economical maintenance, and healthy
family life in a neighborhood environment; and
(2) That the PHA has the funds available to pay for such excess
costs.
(b) Determination of maximum TDC. HUD will determine the maximum
total development cost (TDC) in accordance with section 6 of the Act.
The maximum TDC for a development is calculated by multiplying the
number of units for each bedroom size and structure type in the project
times the applicable unit TDC limit for the bedroom size and structure
type and adding the resulting amounts for all units in the project.
(c) Donations. Donations from other funding sources may be obtained
by the PHA to supplement project costs which otherwise could not be
included,
[[Page 38020]]
provided that the added funds are not used for items that would result
in substantially increased operating, maintenance or replacement costs,
and the HUD certification required under section 102 of the HUD Reform
Act (42 U.S.C. 3545) can be made in accordance with 24 CFR part 12
(subpart D). Although donations are not subject to the TDC limitations
set forth in paragraph (a) of this section, donations must be included
in the project development cost budget, and legally acceptable written
commitments for such donations must be provided by the PHA for HUD
approval.
12. Subpart D is revised to read as follows:
Subpart D--Project Development
Sec.
941.401 Site and property acquisition.
941.402 Project design and construction.
941.403 Acceptance of work and contract settlement.
941.404 Completion of development.
Subpart D--Project Development
Sec. 941.401 Site and property acquisition.
(a) Applicability. The provisions of this section apply to projects
being developed under the conventional, acquisition, and force account
methods, and may apply to other development methods, as deemed
appropriate by HUD.
(b) Purchase agreement. The purchase agreement shall reflect any
conditions established by HUD, such as the site engineering studies
that must be completed to determine whether the site is suitable for
development of the project.
(c) Title.--(1) General. After HUD approves the site or property
acquisition contract and notifies the PHA that it is authorized to take
title, the PHA shall obtain title in accordance with the following
certification. The PHA shall certify to HUD that it obtained a title
insurance policy that guaranteed that the title was good and marketable
before taking title and that it promptly recorded the deed and
declaration of trust in the form prescribed by HUD.
(2) Limitation. After HUD notifies a PHA that has been determined
to be troubled or modernization troubled in accordance with part 901 of
this chapter, or a PHA that has for other reasons been notified in
writing that it may not use the procedure specified in paragraph (c)(1)
of this section, that the site or property acquisition contract has
been approved, the PHA shall submit to HUD evidence that title to the
site or property is good and marketable. If HUD approves the title
evidence, it will inform the PHA that it is authorized to acquire title
to the site or property. The PHA shall record promptly the deed and
declaration of trust in the form prescribed by HUD, and HUD may require
the PHA to submit evidence of such recordation.
Sec. 941.402 Project design and construction.
(a) Compliance with HUD construction standards and Federal
procurement requirements.
(1) General. A PHA may certify that its proposed design and
construction plans for the development are in accordance with HUD's
design and construction standards at Sec. 941.203, and that its bidding
procedures are in accordance with Federal procurement requirements.
(2) Limitation. In the case of a PHA determined to be troubled or
modernization troubled in accordance with part 901 of this chapter or a
PHA that has for other reasons been notified in writing that it may not
use the procedure specified in paragraph (a)(1) of this section, the
PHA must submit the proposed design and construction plans and its
bidding procedures (unless HUD notifies the PHA that it may use the
certification procedure specified in paragraph (a)(1) of this section).
(b) Contract administration. The PHA shall be responsible for
contract administration and shall contract for the services of an
architect, or other person licensed under State law, to assist and
advise the PHA in contract administration and inspections to assure
that the work is done in accordance with HUD requirements. A HUD
representative may periodically visit the project site to monitor PHA
contract administration.
(c) Prevailing wage rates. See Sec. 965.101 of this chapter.
Sec. 941.403 Acceptance of work and contract settlement.
(a) Notification of completion. The contractor or developer shall
notify the PHA in writing when the contract work, including any
approved off-site work, will be completed and ready for inspection.
(b) Acceptance. (1) General. A PHA may carry out the final
inspection of the work and may accept the completed work. If, upon
inspection, the PHA determines that the work is complete and
satisfactory, except for work that is appropriate for delayed
completion, the work shall be accepted by the PHA. The PHA shall
certify to HUD before it pays the contractor or developer that it has
inspected the work and determined that it is acceptable and in
compliance with the construction contract or contract of sale and HUD
requirements. The PHA shall determine any hold-back for items of
delayed completion, and the amount due and payable for the work that
has been accepted including any conditions precedent to payment that
are stated in the construction contract or contract of sale. The
contractor or developer shall be paid for items of delayed construction
only after inspection and acceptance of this work by the PHA.
(2) Limitation. In the case of a PHA determined to be troubled or
modernization troubled in accordance with part 901 of this chapter or a
PHA that has for other reasons been notified in writing that it may not
use the procedure specified in paragraph (b)(1) of this section, the
procedure described in paragraph (b)(1) of this section will be
followed, except that HUD must concur in the necessary PHA
determinations and approvals.
(c) Guarantees and warranties. The construction contract or
contract of sale shall specify the project guaranty period and amounts
to be withheld and shall provide for assignment to the PHA of all
manufacturer and supplier warranties required by the construction
documents. The PHA shall inspect each dwelling unit and the overall
project approximately three months after the beginning of the project
guaranty period and three months before its expiration and also as may
be necessary to exercise its rights before expiration of any
warranties. The PHA shall require repair or replacement, prior to the
expiration of the guaranty or warranty periods, of any defective items.
(d) Title to turnkey projects. (1) General. When the work has been
inspected and accepted on a turnkey project, in accordance with
paragraph (b) of this section, the PHA is authorized to take title to
the completed project in accordance with the following certification.
The PHA shall certify to HUD that it obtained a title insurance policy
that guaranteed that the title was good and marketable before taking
title and that it promptly recorded the deed and declaration of trust
in the form prescribed by HUD.
(2) Limitation. After inspection and acceptance of the work in
accordance with paragraph (b) of this section, a PHA that has been
determined to be troubled or modernization troubled in accordance with
part 901 of this chapter, or a PHA that has for other reasons been
notified in writing that it may not use the procedure specified in
paragraph (d)(1) of this section shall submit to HUD evidence that
title to the completed project is good and marketable. If HUD approves
the title evidence, it will inform the PHA that it
[[Page 38021]]
is authorized to acquire title to the completed project. The PHA shall
record promptly the deed and declaration of trust in the form
prescribed by HUD, and HUD may require submission of evidence of such
recordation.
Sec. 941.404 Completion of development.
(a) When all development has been completed and paid for, but not
later than 12 months after the end of the initial operating period
unless a longer period is approved by HUD, the PHA shall submit a
statement of the actual development cost. For this purpose, the initial
operating period with respect to each project is the period commencing
with the date of initiation of the project and ending with the earliest
of the following three dates: the end of the calendar quarter in which
ninety-five percent of the dwelling units in the project are occupied;
the end of the calendar quarter that is six, seven, or eight months
after the date of full availability of the project; or the end of the
calendar quarter next preceding the date of physical completion of the
project.
(b) HUD shall review the statement and establish the actual
development cost of the project, which becomes the maximum total
development cost for purposes of the ACC.
13. Subpart E is revised to read as follows:
Subpart E--Performance Review
Sec. 941.501 HUD review of PHA performance; sanctions.
(a) HUD determination. HUD shall carry out such reviews of the
performance of each PHA as may be necessary or appropriate to make the
determinations required by this paragraph (a), taking into
consideration all available evidence.
(1) Conformity with PHA proposal. HUD shall determine whether the
PHA has carried out its activities under this subpart in a timely
manner and in accordance with its approved proposal.
(i) In making this determination, HUD shall review the PHA's
performance under previous inspections, audit findings and other
sources to determine whether the development activities undertaken
during the period under review conform substantially to the activities
specified in the approved PHA proposal. HUD also shall review a PHA's
development schedule to determine whether the PHA has carried out its
development activities in a timely manner;
(ii) HUD shall review a PHA's performance to determine whether the
activities carried out comply with the requirements of the Act, and
other applicable laws and regulations.
(2) Continuing capacity. HUD shall determine whether the PHA has a
continuing capacity to carry out its development plan in a timely
manner. The primary factors to be considered in arriving at a
determination that a PHA has a continuing capacity are those described
in paragraph (a)(1) of this section (``conformity with PHA proposal'').
HUD shall give particular attention to PHA efforts to accelerate the
progress of the program and to prevent the recurrence of past
deficiencies or noncompliance with applicable laws and regulations.
(b) Notice of deficiency. Based on HUD reviews of PHA performance
and findings of any of the deficiencies in paragraph (d) of this
section, HUD may issue to the PHA a notice of deficiency stating the
specific program requirements that the PHA has violated and requesting
the PHA to take any of the actions specified in paragraph (e) of this
section.
(c) Corrective action order. (1) Based on HUD reviews of PHA
performance and findings of any of the deficiencies in paragraph (d) of
this section, HUD may issue to the PHA a corrective action order,
whether or not a notice of deficiency has been issued previously with
respect to the specific deficiency on which the corrective action order
is based. HUD may order corrective action at any time by notifying the
PHA of the specific program requirements that the PHA has violated, and
specifying that any of the corrective actions listed in paragraph (e)
of this section must be taken. HUD shall design corrective action to
prevent a continuation of the deficiency, mitigate any adverse effects
of the deficiency to the extent possible, or prevent a recurrence of
the same or similar deficiencies;
(2) Before ordering corrective action, HUD shall notify the PHA and
give it an opportunity to consult with HUD regarding the proposed
action;
(3) Any corrective action ordered by HUD shall become a condition
of the grant agreement (ACC);
(d) Basis for corrective action. HUD may order a PHA to take
corrective action only if it determines:
(1) The PHA has not carried out its activities under the
development program in a timely manner and in accordance with its
approved proposal, or HUD requirements, as determined in paragraph
(a)(l) of this section;
(2) The PHA does not have a continuing capacity to carry out its
proposal in a timely manner or in accordance with its proposal or HUD
requirements, as determined in paragraph (a)(2) of this section;
(3) The PHA has failed to repay HUD for amounts awarded under the
development programs that were improperly expended;
(e) Types of corrective action. HUD may direct a PHA to take one or
more of the following corrective actions:
(1) Submit additional information:
(i) Concerning the PHA's administrative, planning, budgeting,
accounting, management, and evaluation functions to determine the cause
for a PHA not meeting the standards in paragraphs (a)(1) or (a)(2) of
this section;
(ii) Explaining any steps the PHA is taking to correct the
deficiencies;
(iii) Documenting that PHA activities were not inconsistent with
the PHA's proposal or other applicable laws, regulations or program
requirements; and
(iv) Demonstrating that the PHA has a continuing capacity to carry
out the proposal in a timely manner;
(2) Submit schedules for completing the work identified in its
proposal and report periodically on its progress in meeting the
schedules;
(3) Notwithstanding 24 CFR 941.205(c), 24 CFR 941.402(a) and 24 CFR
85.36(g), submit to HUD documents for prior approval, which may
include, but are not limited to:
(i) Complete design, construction and bid documents (prior to
soliciting bids);
(ii) Complete rehabilitation drawings/specifications or work write-
ups;
(iii) Development budgets, including modifications;
(iv) Proposed award of contracts, including construction contracts,
turnkey contracts of sale, letters of commitment, and contracts with
the architect/engineer (prior to execution);
(4) Submit additional material in support of one or more of the
statements, resolutions, and certifications submitted as part of the
PHA proposal, or periodic performance report;
(5) Not incur financial obligations, or to suspend payments for one
or more activities;
(6) Reimburse, from non-HUD sources, one or more program accounts
for any amounts improperly expended;
(f) Failure to take corrective action. In cases where HUD has
ordered corrective action and the PHA has failed to take the required
actions within a reasonable time, as specified by HUD, HUD may take one
or more of the following steps:
(1) Terminate future draw downs and/or advances to the PHA. In such
case, the amount of advances made to the PHA shall be repaid by the PHA
from
[[Page 38022]]
any funds or assets available for that purpose;
(2) Require alternative management of development functions by an
entity other than the PHA;
(3) Cancel the fund reservation if the PHA fails to start (begin
construction or rehabilitation), or complete (acquisition) within 30
months from the date of the fund reservation pursuant to section 5(k)
of the Act;
(4) Recapture for good cause any grant amounts previously provided
to a PHA, based upon a determination that the PHA has failed to comply
with the requirements of the development program.
(g) Right to appeal. Before taking any of the actions described in
paragraph (f) of this section, HUD shall notify the PHA and give it an
opportunity, within a prescribed period of time, to present any
arguments or additional facts and data concerning the proposed action.
14. Section 941.602(a) is revised to read as follows:
Sec. 941.602 Applicability of other requirements.
(a) Relationship of this subpart to other requirements in 24 CFR
part 941. The requirements contained in this subpart apply only to the
development of public housing units using mixed-finance development
methods under this subpart and to the operation of public housing units
that are owned, or that will be owned, by an owner entity under this
subpart. Other requirements for the development of public housing, as
set forth in subparts A through E of this part, shall not apply to the
development of public housing units pursuant to this subpart, except as
may be required by HUD. Applicable requirements include, but shall not
be limited to, the following:
(1) Section 941.103 (``Definitions'') (definitions of the following
terms only shall apply to this subpart: ``Annual Contributions Contract
(ACC),'' ``cooperation agreement,'' ``design documents,''
``reformulation,'' and ``Total Development Cost (TDC).''
(2) Section 941.201 (``PHA eligibility'') (except that specific
requirements governing the cooperation agreement, as set forth in
Sec. 941.201(c), shall be determined in accordance with this subpart);
(3) Section 941.202 (``Site and neighborhood standards'');
(4) Section 941.203 (``Design and construction standards'');
(5) Section 941.205 (``PHA contracts'') (except that the reference
to ``development related contracts entered into by the PHA'' shall be
construed to mean ``development related contracts entered into by the
PHA or the owner entity'');
(6) Section 941.207 (``Relocation and acquisition'');
(7) Section 941.208 (``Other Federal requirements'');
(8) Section 941.209 (``Audit'');
(9) Section 941.306 (``Maximum development cost'');
(10) Section 941.402 (``Project design and construction'');
(11) Section 941.403 (``Acceptance of work and contract
settlement'');
(12) Section 941.404 (``Completion of development''); and
(13) Section 941.501 (``HUD review of PHA performance;
sanctions'').
* * * * *
Dated: June 11, 1996.
Kevin Emanuel Marchman,
Acting Assistant Secretary for Public and Indian Housing.
[FR Doc. 96-18356 Filed 7-17-96; 3:59 pm]
BILLING CODE 4210-33-P
Complete official Federal Register PDF
FR Doc. 96-18334 Amendments to Rules of Practice and Procedure
[Federal Register Volume 61, Number 141 (Monday, July 22, 1996)]
[Rules and Regulations]
[Pages 37818-37833]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18334]
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INTERNATIONAL TRADE COMMISSION
19 CFR Parts 201 and 207
Amendments to Rules of Practice and Procedure
AGENCY: United States International Trade Commission.
ACTION: Final rulemaking.
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SUMMARY: The United States International Trade Commission (the
Commission) hereby amends its Rules of Practice and Procedure
concerning antidumping and countervailing duty investigations and
reviews in 19 CFR parts 201 and 207. The amendments have two purposes.
First, they conform the Commission's rules, on a permanent basis, to
the requirements of the Uruguay Round Agreements Act (URAA). Second,
the amendments will improve the effectiveness and efficiency of the
Commission's procedures in conducting antidumping and countervailing
duty investigations and reviews.
DATES: In accordance with the 30-day advance publication requirement
imposed by 5 U.S.C. 553(d), the effective date of these rules is August
21, 1996.1
\1\ Commissioner Newquist and Commissioner Bragg disapproved the
issuance of these final rules. Their reasons for disapproval are set
forth in Memorandum CO67- and 71-T-007, copies of which are
available on request from the Office of the Secretary, 202-205-2000.
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FOR FURTHER INFORMATION CONTACT: Marc A. Bernstein, Office of General
Counsel, United States International Trade Commission, telephone 202-
205-3087. Hearing-impaired individuals are advised that information on
this matter can be obtained by contacting the Commission's TDD terminal
on 202-205-1810.
SUPPLEMENTARY INFORMATION:
Background
The URAA was enacted on December 8, 1994. It contains provisions
which, inter alia, amend Title VII of the Tariff Act of 1930, as
amended (the Act) (19 U.S.C. 1671 et seq.) concerning antidumping and
countervailing duty investigations and reviews. Enactment of the URAA
necessitated that the Commission amend its rules concerning Title VII
practice and procedure.
Commission rules to implement new legislation ordinarily are
promulgated in accordance with the rulemaking procedures of section 553
of the Administrative Procedure Act (APA) (5 U.S.C. 551 et seq.), which
entails the following steps: (1) Publication of a notice of proposed
rulemaking; (2) solicitation of public comment on the proposed rules;
(3) Commission review of such comments prior to developing final rules;
and (4) publication of final rules thirty days prior to their effective
date. See 5 U.S.C. 553. That procedure could not be utilized in this
instance because the new legislation was enacted on December 8, 1994,
and became effective on January 1, 1995. Because it was not possible to
complete the section 553 rulemaking prior to the effective date of the
new legislation, the Commission adopted interim rules that came into
effect at the same time as the URAA. These interim amendments to part
207 of the Commission's rules of practice and procedure were published
in the Federal Register on January 3, 1995. 60 FR 18 (Jan. 3, 1995).
The Commission additionally requested comment on the interim rules.
Both as a result of comments received in response to the notice of
interim rulemaking and as a result of the Commission's own independent
examination of its procedures in antidumping and countervailing duty
investigations and reviews, the Commission decided to propose permanent
changes to its part 201 and 207 rules. The Commission published a
Notice of Proposed Rulemaking (NOPR) in the Federal Register on October
3, 1995. 60 FR 51748 (Oct. 3, 1995). In the NOPR, the Commission
proposed to issue as final rules all but one of the interim rules that
were published in the January 3, 1995, Federal Register notice; it
further proposed changes to several of these rules. The Commission also
proposed amendments to several rules
[[Page 37819]]
that were not the subject of the interim rulemaking procedure. Some of
these changes were intended to implement the new requirements of the
URAA, while others were intended to improve generally the efficiency
and effectiveness of the Commission's investigative process. The
Commission also described in its NOPR several changes to internal
agency procedures which did not require rulemaking to implement. The
Commission additionally requested comment on the proposed rules.
Comments on the proposed rules were submitted by Rep. Phil English
of the U.S. House of Representatives, the American Iron and Steel
Institute (AISI), the American Yarn Spinners Association (AYSA), the
Customs and International Trade Bar Association (CITBA), the Korean
Foreign Trade Association (KFTA), the Lawyers' Committee of the Fair
Trade Forum (Fair Trade Forum), and the Union of Needletrade,
Industrial and Textile Employees, AFL-CIO (UNITE). The following law
firms also filed comments: Aitken Irvin Lewin Berlin Vrooman & Cohn,
representing the Pro Trade Group (Pro Trade); Collier, Shannon, Rill &
Scott, representing 15 clients (Collier); 2 Dewey Ballantine,
representing the Coalition for Fair Lumber Imports (Lumber Coalition);
a joint submission by Dewey Ballantine and Skadden, Arps, Slate,
Meagher & Flom on behalf of six producers of flat-rolled steel (Flat-
Rolled Steel); 3 Hale and Dorr, representing Micron Technology,
Inc. (Micron); King & Spalding, representing the Cement Alliance for
Free Trade (Cement Alliance); Ober, Kaler, Grimes & Shriver, on its own
behalf (Ober); Pepper, Hamilton & Scheetz, representing Gouvernement du
Quebec (Quebec); Schagrin Associates, representing Weirton Steel Corp.
and Committee on Pipe and Tube Imports (Schagrin); Stewart and Stewart,
representing the Timken Co. and the Torrington Co. (Stewart); and
Wiley, Rein & Fielding, representing four domestic producers of carbon
steel wire rod (Steel Wire Rod).4 The Commission's response to
those comments pertinent to the subjects addressed in this rulemaking
notice is provided below in the section-by-section analysis of the
rulemaking amendments. The Commission notes here that it carefully
considered the comments it received and, partly in response to those
comments, determined not to adopt certain proposed rules that were
identified by commenters as being overly burdensome. The Commission
stresses that it has sought to revise the Title VII investigative
procedure to improve and streamline data collection and make better use
of the limited time allotted by the statute. The Commission appreciates
the time and effort taken by the commenters to share their experiences
and views, and believes that those comments have contributed to
improved final rules.
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\2\ American Beekeeping Federation, Inc.; American Honey
Producers Association; Bicycle Manufacturers Association of America;
Coalition for Fair Atlantic Salmon Trade; Copper & Brass Fabricators
Council; Footwear Industries of America; Fresh Garlic Producers
Association; Leather Industries of America; Nacco Materials Handling
Group, Inc.; National Pasta Association; National Pork Producers
Council; Specialty Steel Industry of North America; Specialty Tubing
Group; Tanners' Countervailing Duty Coalition; Vemco Corp; Verson
Division of Allied Products Corp.
\3\ AK Steel Corp., Bethlehem Steel Corp., Inland Steel
Industries, Inc., LTV Steel Co., National Steel Corp., and U.S.
Steel Group, a unit of USX Corp.
\4\ GS Industries, Inc., Co-Steel Raritan, Inc., Atlantic Steel
Co., and Connecticut Steel Corp.
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The Commission has determined that these rules do not meet the
criteria described in section 3(f) of the Executive Order 12866 (58 FR
51735, Oct. 4, 1993) (EO) and thus do not constitute a significant
regulatory action for purposes of the EO. In accordance with the
Regulatory Flexibility Act (5 U.S.C. 601 note), the Commission hereby
certifies that pursuant to 5 U.S.C. 605(b) that the rules set forth in
this notice are not likely to have a significant impact on a
substantial number of small business entities. Moreover, the Commission
maintains that the Regulatory Flexibility Act is inapplicable to this
rulemaking, because it is not one for which a NOPR was required under 5
U.S.C. 553(b) or another statute. Although the Commission chose to
publish such a notice on October 3, 1995, the amended rules are
``agency rules of procedure or practice'' and thus were exempt from the
notice requirement imposed by 5 U.S.C. 553(b). Additionally, these
rules do not contain any new reporting or recordkeeping requirements
that would be subject to the Paperwork Reduction Act of 1995, 44 U.S.C.
3501 et seq.
Overview of the Revised Rules
The amendments to the part 201 and 207 regulations change
Commission practice in antidumping and countervailing duty
investigations and reviews in four principal areas. This section will
provide an overview of the most significant changes. A detailed
analysis of each change and the Commission's responses to the comments
it received to the NOPR are provided in the section-by-section analysis
below.
First, under the revised regulations, the Commission will conduct a
single, continuous antidumping or countervailing duty investigation, in
contrast to the discrete preliminary and final investigations it
currently conducts. The purpose of this change, and certain related
changes discussed below, is to streamline the investigative procedure.
The Commission will continue to reach separate preliminary and final
determinations, as required by statute. The portion of the
investigation preceding issuance of the preliminary determination will
be called the preliminary phase of the investigation. Under new
Sec. 207.18, when the Commission publishes notice of an affirmative
preliminary determination, it will announce commencement of the final
phase of the investigation. (In the event of a preliminary negative
determination or a preliminary determination of negligible imports, the
investigation is terminated.) Pursuant to new Sec. 201.11(a)(2),
parties that entered appearances in the preliminary phase of the
investigation will not need to enter new appearances in the final
phase. However, under new Sec. 201.11(a)(3) parties that did not appear
in the preliminary phase of the investigation may enter an appearance
in the final phase at any time up until 21 days before the scheduled
hearing date.
Commission staff will prepare and circulate to the parties draft
questionnaires for the final phase investigation between the time the
Commission issues its preliminary determination and the time the
Department of Commerce (Commerce) issues its preliminary determination.
The revised rules, unlike the proposed rules, do not specify a
particular date on which the draft questionnaires will be circulated to
the parties, leaving that to the discretion of the Commission's
Director of Operations. Parties' comments on draft questionnaires, if
any, will have to be filed with the Secretary (instead of being
submitted to the Commission's Office of Investigations) and served on
the other parties to the investigation.
The Commission has determined not to implement its proposals for
filing of issues briefs and conducting an issues conference between the
time it issues its preliminary determination and Commerce issues its
preliminary determination. The Commission strongly encourages parties
to use the opportunity for filing comments on draft questionnaires to
identify issues they believe warrant data collection. The earlier that
such issues are identified in
[[Page 37820]]
the course of the investigation, the better able the Commission will be
to take such issues fully into account. Because there will be no issues
brief, the Commission has also determined not to implement its proposal
to impose page limits on prehearing briefs.
If Commerce issues a preliminary affirmative determination, the
Commission will publish in the Federal Register a Notice of Scheduling
for the final phase investigation pursuant to new Sec. 207.21(a). This
Notice of Scheduling will contain the same information (e.g., the date
of the hearing, deadlines for filing briefs) that the Commission
furnishes in the notice of institution of final investigation that it
currently publishes in the Federal Register.
The second principal area of change pertains to regulations
concerning the filing of petitions. The Commission has amended
Sec. 207.10 to require petitioners to serve confidential versions of
the petition more promptly on interested parties whose applications to
enter an administrative protective order (APO) have been approved. The
Commission has also amended Sec. 207.11 to require that petitioners
include in the petition, to the extent reasonably available to the
petitioner: (1) Identification of the proposed domestic like
product(s); (2) a listing of all U.S. producers of each proposed
domestic like product, including street addresses, phone numbers, and
contact persons for each producer; (3) a listing of all U.S. importers
of the subject merchandise, including street addresses and telephone
numbers; (4) identification of each product on which the petitioner
requests the Commission to seek pricing information in its
questionnaires; and (5) information concerning sales and revenues lost
by each petitioning firm. The Commission has determined not to adopt
other proposals made in the NOPR that would have required that
petitions include several additional types of information.
The third principal area of change pertains to final comments
submitted in final phase investigations. Under new Sec. 207.30, the
maximum length of such comments has been increased from 10 pages to 15
pages. Additionally, the amended rule eliminates the provision stating
that the Commission will disregard comments addressing information
disclosed prior to the filing of posthearing briefs.
The fourth principal area of change pertains to treatment of
business proprietary information (BPI). Section 201.6 has been amended
expressly to permit parties and the Commission to provide in public
submissions in certain circumstances nonquantitative characterizations
of quantitative BPI. Provisions in Secs. 201.6 and 207.7 concerning
treatment of BPI not subject to disclosure under APO have been amended.
Section-by-Section Analysis of the Revised Rules
Section 201.6
The Commission has made three principal changes to Sec. 201.6. The
first concerns nonnumerical characterization of certain BPI. The second
concerns provisions governing the filing of BPI not subject to
disclosure under APO. The third concerns appeals from approval by the
Secretary of requests for confidential treatment of submissions to the
Commission.
Nonnumerical Characterization of Numerical BPI. The Commission is
amending Sec. 201.6(a) to allow parties and the Commission publicly to
use non-quantitative characterizations to discuss confidential
statistics unless the submitter of confidential information provides
good cause for confidential treatment of such characterizations. This
revision would apply only to confidential business information (CBI)
and BPI submitted in numerical form; textual CBI and BPI could not be
disclosed in any form.
The amendment to Sec. 201.6(a) is unchanged from that proposed in
the NOPR, except for the addition of a parenthetical to subsection
(a)(2). Nine commenters discussed this proposal. Seven--CITBA, Fair
Trade Forum, KFTA, Quebec, Schagrin, Steel Wire Rod, and Stewart--
stated that they supported the proposal as drafted. Another commenter,
Collier, also expressed support for the proposal, but indicated that
the Commission should clarify the regulation to indicate precisely what
the term ``nonnumerical characterizations'' means, and to describe
what, if any, ``nonnumerical characterizations'' may be made other than
those pertaining to trends. The final commenter, Cement Alliance,
opposed the proposal on the grounds that it would not provide adequate
protection for BPI submitted by one or two parties.
With respect to Cement Alliance's position, the Commission notes
that under the rule a submitter will be able to claim confidential
treatment for good cause shown for nonnumerical characterizations, such
as trend data, of numerical BPI. If such a claim is made, the
information must be treated as confidential until or unless the
Secretary rejects the claim of confidentiality. These provisions should
provide adequate protection for CBI and BPI.
The Commission also wishes to provide, in this preamble, several
examples of how the regulation is intended to operate. As the
regulation states, discussion of trends is a permissible ``nonnumerical
characterization.'' Therefore, if quantitative information such as the
quantity of domestic industry shipments would be confidential, a party
or the Commission may state in a public document whether the quantity
of shipments rose or declined from one year to the next. However, the
public document may not provide information as to the degree or the
absolute level of the decline or the increase. Consequently, while
under new Sec. 201.6(a) a public submission may state that ``shipments
rose from 1995 to 1996,'' the submission should not state that
``shipments increased by 30 percent from 1995 to 1996'' or that
``shipments increased sharply from 1995 to 1996.'' There are also
limited circumstances where discussion of information other than trends
would be a permissible ``nonnumerical characterization.'' Thus, a
public submission may state whether or not an industry was profitable
or unprofitable in a given year, but should avoid characterizing the
degree of industry profitability.
Although the Commission hopes the examples above will provide
guidance to parties, it acknowledges that it cannot generically address
how the amended regulation will apply to every conceivable fact
pattern. The Commission advises parties that are unsure whether
Sec. 201.6(a) permits a specific public disclosure of a ``nonnumerical
characterization'' not to make the disclosure, because counsel who make
a disclosure that is not permitted by the regulation could be liable
for breach of the APO. Of course, parties also may seek the advice of
the investigator or the Secretary.
In the preamble to the NOPR, the Commission requested comment
concerning the practical effects of the amendment to Sec. 201.6(a) in
circumstances where some but not all firms request that nonnumerical
characterizations of their numerical BPI or CBI not be permitted in
public documents. CITBA, Fair Trade Forum, Quebec, and Schagrin, the
commenters addressing this matter, stated the Commission should in such
instances exercise its discretion to determine whether the aggregated
data should be released. The Commission adopts this suggestion, and
will in fact exercise its discretion on an investigation-specific basis
in such circumstances.
[[Page 37821]]
BPI Not Subject to Disclosure under APO. The second change to
Sec. 201.6 concerns BPI not subject to disclosure under APO pursuant to
777(c)(1)(A) of the Act. Under new Sec. 201.6(a)(2), such information
is now defined as ``nondisclosable confidential business information.''
The only comment received with respect to this issue addressed
Sec. 201.6(b)(3)(iv), which concerned the manner in which documents
containing BPI not subject to disclosure under APO should be filed with
the Commission. Stewart expressed the concern that proposed
Sec. 201.6(b)(3)(iv)(C), insofar as it requires double bracketing of
BPI not subject to APO, suggests that ordinary BPI should not be
double-bracketed. It noted that several law firms routinely double
bracket ordinary BPI to effect its redaction by word-processing
software. The Commission believes that, although Stewart's concern is
well-founded, it is nevertheless preferable to have an uniform means
for identifying nondisclosable confidential business information.
Accordingly, amended Sec. 201.6(b)(3)(iv)(C) will require
nondisclosable confidential business information to be identified as
such by triple bracketing. In other respects, the Commission is
adopting the proposals it made in the NOPR.
Appeals from approval of confidential treatment. The Commission is
amending Sec. 201.6(f) to revise the procedure for filing and handling
appeals from approval by the Secretary of requests for confidential
treatment so as to essentially parallel the procedure in Sec. 201.6(e)
for appeals from denials of such requests. This amendment is unchanged
from that proposed in the NOPR and was not addressed by any commenter.
Section 201.11
The Commission has amended Sec. 201.11 in two respects. The first
amendment concerns participation of consumer organizations and
industrial users in antidumping and countervailing duty investigations
and reviews. The second amendment concerns the filing of entries of
appearance.
Consumer Organizations and Industrial Users. The URAA added
Sec. 777(h) to the Act, which requires the Commission to provide an
opportunity for industrial users of subject merchandise, and, if the
merchandise is sold at the retail level, representative consumer
organizations, to submit relevant information concerning material
injury by reason of subject imports. In the NOPR, the Commission
proposed adding a new Sec. 207.9 to the regulations to implement the
requirement of 777(h) that industrial users and consumer organizations
be provided an opportunity to participate in Commission antidumping and
countervailing duty investigations.
Five comments addressed proposed Sec. 207.9. Cement Alliance and
Micron stated that the proposed regulation should be modified so that
it expressly includes the statement, made in the NOPR preamble, that
the rule does not accord interested party status on consumer
organizations and industrial users. The remaining three commenters
requested that the proposal be modified to expand the procedural rights
accorded to consumer organizations and industrial users. Quebec stated
that the rule should accord these entities the right to participate in
hearings. Fair Trade Forum and Pro Trade contended that these entities
should be accorded the ability to obtain information pursuant to APO.
Upon further consideration and review of the comments, the
Commission has determined that proposed Sec. 207.9 is not the most
effective way to implement new section 777(h). Accordingly, the
Commission will not adopt proposed Sec. 207.9. Instead, it is adding a
sentence to Sec. 201.11(a) expressly stating that industrial users and
consumer organizations are entitled to appear in antidumping and
countervailing duty investigations and reviews as ``parties.'' With
party status, such entities are placed on the public service list
pursuant to Sec. 201.11(d), are entitled to participate in hearings
pursuant to Sec. 201.13(c) and in conferences pursuant to Sec. 207.15,
and are entitled to make written submissions pursuant to Sec. 207.15
and renumbered Sec. 207.23. It is the Commission's intention to publish
in its Federal Register notices instituting and scheduling antidumping
and countervailing duty investigations a statement informing consumer
organizations and industrial users of their right to participate as
parties in an investigation.
Section 777(h) does not, however, confer ``interested party''
status on industrial users and consumer organizations. Unless such
entities qualify as interested parties under section 771(9) of the Act,
they do not have the rights that the Act and the Commission regulations
afford to interested parties. In particular, section 777(c) of the Act
authorizes the Commission to make BPI available under APO only to
``interested parties.'' Accordingly, Sec. 201.11(a) does not accord
these additional rights to industrial users and consumer organizations.
Entries of Appearance. The Commission is amending Sec. 201.7(b)
concerning the filing of entries of appearance in several respects. The
first sentence of the current rule, which governs the filing of entries
of appearance in investigations other than antidumping and
countervailing duty investigations, has been renumbered subsection
(b)(1), and revised as proposed in the NOPR.
New Sec. 201.7(b)(2), which governs the filing of entries of
appearance during the preliminary phase of antidumping and
countervailing duty investigations, is adopted as proposed in the NOPR,
except for a technical wording change. This section states that a party
that files an entry of appearance during the preliminary phase of the
investigation need not file an additional entry of appearance during
the final phase of the investigation. The four commenters who addressed
the proposal (Collier, Micron, Quebec, and Steel Wire Rod) each
supported it.
New Sec. 201.7(b)(3) governs the filing of entries of appearance
during the final phase of antidumping and countervailing duty
investigations. It makes several changes to both current practice and
the proposed Sec. 201.7(b)(4) published in the NOPR. (The proposed
Sec. 201.7(b)(3) published in the NOPR has been deleted because it
pertained to the proposed issues brief/issues conference requirement
which the Commission has decided not to adopt.) Under the new rule,
parties that did not file entries of appearance during the preliminary
phase of the investigation may file an entry of appearance in the final
phase of the investigation up until 21 days before the hearing date
listed in Federal Register notice that the Commission will publish
pursuant to Sec. 207.24(b). (Because the final date for filing entries
of appearance will be determined by reference to the hearing date
published in the Federal Register Notice of Final Phase Scheduling,
subsequent rescheduling of the hearing will not serve to adjust the
deadline for filing entries of appearance.)
Section 201.13
The Commission is amending Sec. 201.13(m) to revise a cross-
reference to a regulation that has been renumbered. The amendment is
identical to that proposed in the NOPR.
Section 207.1
In addition to issuing the interim rule in final form, the
Commission is amending Sec. 207.1 to eliminate a reference to former
section 303 of the Act.
[[Page 37822]]
Section 207.2
The Commission is issuing the interim rule in final form.
Section 207.3
The Commission is amending the ``24-hour rule'' governing final
bracketing of BPI in Sec. 207.3(c) to clarify that the only changes
that may be made in the 24-hour BPI version of documents are changes in
bracketing and deletion of BPI. The Commission received three comments
concerning the matter.
Collier requested that the Commission amend the 24-hour rule so
that it is applicable to all submissions in antidumping and
countervailing duty investigations, rather than those submitted
pursuant to an established deadline. The Commission, however, believes
that a submitter not facing a deadline should have ample time to review
a document's bracketing before filing it.
Stewart requested that the Commission adopt some expedited
procedural mechanism to permit parties to correct typographical errors
in briefs, so that a party seeking to correct such errors does not need
to submit a request to the Chairman to accept an untimely-filed
document. However, in the Commission's experience, the burden imposed
upon a party seeking leave to correct typographical errors under the
current procedure has been quite small. Stewart's other comment on this
section (shared by KFTA) requested that the proposed amendment be
redrafted to avoid possible unintended ambiguities. The point is well-
taken, and the Commission has accordingly relocated the parenthetical
clause ``including typographical changes'' in the final rule.
The Commission is also amending Sec. 207.3(b) to change cross-
references to renumbered regulations.
Section 207.4
The Commission is amending Sec. 207.4(a) to eliminate a reference
to section 303 of the Act.
Section 207.7
The Commission is making several amendments to the portions of
Sec. 207.7 addressing BPI not subject to disclosure under APO. Sections
207.7(a)(1) and 207.7(g) have been amended to use the term
``nondisclosable confidential business information'' to refer to such
material. Sections 207.7(f)(2) and 207.7(g) are amended to clarify the
procedures for submitting such information. Each of these provisions,
with the exception of Sec. 207.7(f), which has been further amended to
use the term ``nondisclosable confidential business information,''
follows the proposals made in the NOPR.
The Commission is also amending Secs. 207.7(a)(2) and 207.7(a)(4)
to refer to the ``preliminary phase'' of an investigation, reflecting
its decision to conduct a single, continuous investigation in
antidumping and countervailing duty proceedings. In the NOPR, the
Commission proposed amending Sec. 207.7(a)(2) to authorize the filing
of additional applications for a party that has entered an APO at least
five days before the deadline for filing an issues brief in an
investigation. Because the Commission has determined not to have
parties file issues briefs in investigations, this proposed amendment
to Sec. 207.7(a)(2) has not been adopted.
In their comments, KFTA and Fair Trade Forum requested that the
Commission eliminate altogether the final sentence of Sec. 207.7(a)(2),
which establishes deadlines for the filing of additional applications
for a party that has entered an APO. KFTA and Fair Trade Forum
perceived no justification for this provision. The Commission
disagrees, both because it is necessary to finalize service lists, and
because the Commission requires a comprehensive list of all those
persons having access to BPI in an investigation should a violation of
APO occur. Quebec requested that Sec. 207.7(f) be amended to require
service of BPI submissions on each law firm representing a party in an
investigation containing attorneys subject to APO, but the Commission
believes that the costs of copying and distributing BPI submissions to
more than one firm should be borne by the party deciding to retain
them.
Section 207.8
In its interim rulemaking, the Commission amended Sec. 207.8 to
conform with the URAA. This provision states that the Commission may
use ``facts otherwise available'' whenever any party or any other
person fails to respond adequately to a subpoena or refuses or is
unable to produce information in a timely manner and in the form
required, or otherwise significantly impedes an investigation. In the
NOPR, the Commission proposed issuing this rule in final form.
Pro Trade, in its comments to the NOPR, repeated a comment it made
to the interim rulemaking that the Commission amend this regulation to
limit the instances in which the Commission would use ``facts otherwise
available.'' However, the proposed regulation conforms to the statute
as drafted, so the Commission is not modifying it, although it is
deleting a reference to former section 303 of the Act.
Section 207.10
The Commission is making several technical changes to
Sec. 207.10(a). These changes, which are identical to those proposed in
the NOPR, conform the section's cross-references to the provisions of
the URAA and refer to the ``preliminary phase of the investigation.''
Two commenters, Pro Trade and Fair Trade Forum, requested that the
Commission amend its regulations to require expressly that complete
copies of petitions be filed simultaneously with Commerce and the
Commission. Although the Commission believes that current law and
regulations already require simultaneous filing of the ``complete''
submission with Commerce and the Commission, it agrees with these
commenters that the regulations should expressly state this
requirement. Accordingly, the Commission is amending Sec. 207.10(a) to
make clear that the copy of the petition filed with the Commission
should contain all exhibits, appendices, attachments, and other
materials that are filed with Commerce.
The Commission is also amending Sec. 207.10(b) concerning service
of antidumping and countervailing duty petitions. In the NOPR, the
Commission stated that trade practitioners expressed the concern that
party representatives whose APO applications have been approved prior
to establishment of a service list do not gain access to the
confidential version of the petition quickly enough. The Commission
therefore proposed amending Sec. 207.10(b) to obligate petitioners to
serve the confidential version of the petition more rapidly than under
current practice.
The seven commenters who addressed this proposal were uniformly
supportive of the Commission's stated objective of facilitating more
rapid service of the confidential version of the petition. One
commenter, KFTA, supported the proposal as drafted. The remaining
commenters requested modification of the provision in the proposal
stating that service must be within ``two calendar days.'' The
commenters expressed divergent views on whether requiring holiday or
weekend service would be appropriate, as the proposal would require
when a notification of an approved APO application is sent out on a
Thursday or Friday. Fair Trade Forum contended that requiring weekend
service was appropriate, because counsel generally work on weekends
during a preliminary Commission investigation. It requested
[[Page 37823]]
that the rule be modified to require service within one calendar day.
It further suggested the rule be modified to require that service be by
hand when petitioners' attorney and the attorney to be served are both
located in Washington, DC and by overnight mail otherwise. Pro Trade
also agreed that service should be effected within one calendar day.
The remaining four commenters contended requiring weekend service was
not appropriate. CITBA and Schagrin contended that such a provision
could require petitioners' counsel to incur additional staffing costs
and could inadvertently encourage service by mail. They requested that
the proposal be modified to require service within two business days.
Stewart also advocated such a modification. Quebec agreed that
requiring weekend or holiday service was not appropriate, but requested
that the proposal be amended to require service within one business
day.
After reviewing the comments, the Commission has concluded that
service should be made within two calendar days. Although this may
require weekend service in certain instances, the Commission does not
believe that this is inappropriate in the context of the preliminary
phase of an antidumping or countervailing duty investigation, where
counsel typically work over weekends. The Commission does not feel that
requiring service by hand is appropriate given its cost, though parties
may make any such arrangements among themselves. Of course, service by
hand remains an option that fulfills the service requirement if it is
accomplished within two calendar days.
The Commission has, however, made several changes to its proposed
amendments to Sec. 207.10(b). First, section (b)(1) has been subdivided
into two subsections. Subsection (b)(1)(A) concerns service to parties
whose APO applications have been approved before the Secretary
establishes a service list in an investigation. The petitioner must
serve a confidential version of the petition on these parties within
two calendar days of the time the Secretary notifies it of approval of
an APO application. This notification will be made by facsimile where
practicable.
Subsection (b)(1)(B) concerns service on parties whose APO
applications are approved at or after the time the service list is
established. The petitioner must serve a confidential version of the
petition on these parties within two calendar days of the time the
service list including that party is established.
Section 207.10(b)(2), which is the same as that published in the
NOPR, concerns service of public copies of the petition. The petitioner
must serve public copies of the petition to parties on the public
service list within two calendar days of the time that service list is
established.
Section 207.10(b)(3) requires the petitioner to file a certificate
of service with the Commission after serving the petition.
Section 207.11
The Commission is amending Sec. 207.11 concerning the content of
petitions. The amended regulation imposes several new requirements. In
light of the comments received, the Commission decided to adopt
considerably less extensive revisions than those proposed in the NOPR.
The first sentence of current Sec. 207.11 will be redesignated
Sec. 207.11(a). It is unchanged except for the substitution of a
gender-neutral pronoun for a gender-specific one.
The second sentence of current Sec. 207.11 will be redesignated
Sec. 207.11(b)(1). There is in addition a minor wording change.
New Sec. 207.11(b)(2) outlines specific information that the
petition must contain. Subsection (b)(2)(i) requires identification of
the domestic like product(s) proposed by petitioner. No commenter
objected to this requirement when it was proposed in the NOPR.
Subsection (b)(2)(ii) is a modified version of the subsection that
appeared in the NOPR. As adopted by the Commission, subsection
(b)(2)(ii) requires a listing of all U.S. producers of each proposed
domestic like product including a street address, phone number, and
contact person for each producer. No commenter objected to these
requirements when they were proposed in the NOPR. The Commission
eliminated the requirement proposed in the NOPR that the petition
contain the estimated share of U.S. production for each producer on the
grounds that this information, unlike the other information that will
be required under subsection (b)(2)(ii), is not needed to facilitate
distribution of producers' questionnaires, and might be overly
burdensome to petitioners, as urged by Collier, Schagrin, and Stewart.
Subsection (b)(2)(iii) is also a modified version of the subsection
that appeared in the NOPR. As adopted by the Commission, subsection
(b)(2)(iii) requires a listing of all U.S. importers of the subject
merchandise, including street addresses and phone numbers for each
importer. Although one commenter, Lumber Coalition, criticized this
requirement as excessively burdensome, the requirement that the
petitioner provide a listing of all importers has long been included in
the Department of Commerce's regulations. The Commission's regulation
goes beyond this by also requiring that the petition provide the phone
number and address of each importer. Having such information in the
petition facilitates Commission staff's ability to mail importers'
questionnaires promptly after a petition is received. Because such
information can be obtained from such widely-available sources as
business directories and nationwide CD-ROM telephone directories, the
Commission believes that this requirement will not impose a substantial
burden on petitioners.
The Commission has eliminated from this subsection the requirement
proposed in the NOPR that petitioner provide an estimated share of U.S.
imports for each importer. As Stewart, Collier, and Micron pointed out,
this requirement might have imposed an excessive burden on petitioners
and could be more readily generated by Commission staff during the
course of the investigation. Moreover, Commission staff does not need
market share information to circulate questionnaires promptly.
Subsection (b)(2)(iv) is what appeared in the NOPR as subsection
(b)(2)(v). This requires identification of each product on which the
petitioner requests that the Commission seek pricing information in its
questionnaires. Two comments specifically addressed this provision.
KFTA proposed that the provision be amended to require that petitioner
explain why the products on which it requests pricing data be collected
are representative. The Commission believes this is unnecessary.
Schagrin asserted that the entire provision be deleted in favor of the
current practice whereby Commission staff informally consults with
counsel to select products on which pricing information will be
collected. Schagrin is correct that Commission staff confers with
petitioner's counsel prior to the filing of the petition concerning
selection of products on which pricing data will be sought when
petitioner's counsel makes itself available for such consultations.
However, in some cases the Commission staff has had to wait until after
filing of the petition to conduct such consultations. The new provision
will ensure that petitioner apprises the Commission of its views on the
appropriate products no later than the time the petition is filed. This
will facilitate the Commission staff's ability to prepare and circulate
questionnaires promptly.
[[Page 37824]]
Subsection (b)(2)(v) is what appeared in the NOPR as subsection
(b)(2)(vii). This requires listing all sales or revenues lost by each
petitioning firm during the three years preceding filing of the
petition. The term ``petitioning firm,'' means producers of the
proposed domestic like product(s) that are either members of any
petitioning entity (such as a trade association or ad hoc coalition) or
are themselves petitioners. If a labor union is the sole petitioner,
this requirement is inapplicable.
The Commission received six comments specifically addressing the
lost sales and revenue requirement. Micron and Stewart, which opposed
the proposal, questioned why it was necessary for the Commission to
require that lost sales and revenue information be provided in the
petition when such data have traditionally been sought in the
producer's questionnaire, and would continue to be for non-petitioning
domestic producers. The Commission feels that requiring petitioning
firms to include lost sales and revenue information in the petition
will improve its ability to investigate these firms' lost sales and
revenue information immediately after filing of the petition, instead
of having to wait until questionnaire responses are received, when
staff is under more severe time pressure to analyze all the other
information it is accumulating.
Schagrin stated that the proposed requirement should not serve to
estop petitioners from providing lost sales and revenue information
during the course of the investigation. Nothing in the rule stops
petitioning firms from providing lost sales and revenue information
after filing of the petition when such information was not ``reasonably
available'' to the firms at the time the petition was filed, and the
firms can establish why such information could not be included in the
petition. However, if lost sales and revenue information is
``reasonably available'' to the petitioner when the petition is filed,
it must be included in the petition.
KFTA, Lumber Coalition, and Micron each addressed the question of
documentation in their comments. KFTA, which supported the proposal,
requested that the regulation be amended to require petitioners to
provide documentation corroborating lost sale and revenue allegations.
Although the Commission encourages petitioners to provide all available
documentation to support their lost sales and revenue claims, it does
not believe that a requirement mandating petitioners document their
claims, such as the one sought by KFTA, is appropriate.
Lumber Coalition and Micron asserted that the requirement should be
eliminated because producers do not keep records of sales offers in
many industries. The Commission acknowledges that in some industries
producers may not retain records of offers to sell. In such instances,
however, lost sales and revenue information will not be ``reasonably
available'' to the petitioners and the petitioners need only provide a
certification to this effect pursuant to section (b)(3). That offers to
sell may not be retained in some industries, however, provides an
insufficient basis for eliminating the requirement for information
concerning lost sales and revenue claims with respect to all
industries. When a petitioning firm does have lost sales and revenue
information, it should provide that information.
Quebec, which otherwise supported the proposal, suggested that the
Commission use the term ``sales and revenues claimed to have been
lost'' in lieu of ``sales and revenues lost.'' The Commission opts for
the shorter phrase as more concise.
The provisions that appeared in the NOPR as subsections (b)(2)(iv)
and (b)(2)(vi) would have required a petition to include: (1) A table
providing data pertinent to the condition of the proposed domestic
industry; and (2) a listing of each petitioning firm's ten largest
customers for each proposed domestic like product.
The Commission received a variety of comments on these proposals.
KFTA and Quebec expressed general support. Twelve commenters objected
to these proposals on the grounds that (1) they were not required by
the URAA; (2) they misperceived the Commission's role in conducting
antidumping and countervailing duty investigations, and improperly
shifted the onus of conducting the investigation to petitioners; (3)
they would impose an undue burden on petitioners; (4) they were vague;
and (5) the additional information the Commission would receive would
not reduce its investigative workload. Two commenters, Pro Trade and
Fair Trade Forum, requested that Sec. 207.11 be amended more closely to
track provisions of the World Trade Organization (WTO) Agreements on
Antidumping and Countervailing Measures.
After consideration of the comments, the Commission has concluded
that the benefit it would obtain from the additional information it
would receive pursuant to proposed subsections (b)(2)(iv) and
(b)(2)(vi) is outweighed by the burden that petitioners would face in
providing this information. The Commission further acknowledges that
some of the types of information that would have been required by the
proposed provisions, such as financial information concerning non-
petitioning domestic producers, may not be obtainable by petitioning
firms from their own files or readily accessible public sources.
Accordingly, the Commission has determined not to adopt subsections
(b)(2)(iv) and (b)(2)(vi) proposed in the NOPR. By contrast, for those
new petition requirements that have been adopted, the Commission has
found, as explained above, that the benefits to the Commission's
investigative process will outweigh the generally modest additional
burdens that petitioners will assume in satisfying the requirements.
Additionally, the Commission does not agree with Pro Trade and Fair
Trade Forum that amendments to its regulations concerning the contents
of petitions are required to satisfy United States obligations under
the WTO Agreements. The amendments proposed and adopted by the
Commission were made for the purpose of increasing the efficiency of
Commission investigations, and not on the belief amendments were
required to bring Commission regulations in conformance with either the
URAA or the WTO Agreements.
New section (b)(3) requires that each petition contain a
certification that each item of information specified in section (b)(2)
that the petitioner does not provide was not reasonably available to
it. This section is unchanged from the one proposed in the NOPR.
Collier, Flat-Rolled Steel, Steel Wire Rod, Stewart and UNITE commented
that the ``reasonably available'' standard provides inadequate guidance
to petitioners concerning what efforts they must make to obtain
information. These commenters' remarks focus on proposed provisions in
section (b)(2) that arguably required petitioners to provide in the
petition certain types of information that were neither publicly
available nor in the possession of the petitioning firms themselves.
The Commission has eliminated these provisions from the final rules and
believes that the ``reasonably available'' standard, which has existed
for many years in the Act, provides sufficient guidance to petitioners
concerning the efforts they must undertake to provide the types of
information the Commission will require in petitions. Nonetheless, the
Commission wishes to assure prospective petitioners that whether
certain information is ``reasonably available'' will depend on the
facts in each case, including who the petitioner
[[Page 37825]]
is and the petitioner's resources. It is not the Commission's intention
to require petitioners to expend significant resources collecting
information called for in these new requirements. For purposes of
meeting the petition requirements, information will be considered to be
``reasonably available'' if it is readily accessible from public
sources or is maintained in the regular course of business by
petitioner. Thus, for example, where the petitioner is a trade
association comprised of domestic producers of the proposed domestic
like product, the association likely maintains records that identify
those producers. Such information would be required in the petition.
Where, however, the petitioner is a labor union, detailed information
concerning the location of some domestic producers or their lost sales
and revenues very likely might not be ``reasonably available'' to the
union, and therefore would not have to be provided. Finally, a
petitioner would not be expected to contact domestic producers or
importers to collect the information set forth in the requirements.
New section (b)(4) is the final sentence of current Sec. 207.11.
This has not been changed from the current rules.
Pro Trade requested that the Commission amend its regulations
concerning petitions to include an express provision requiring that the
Commission transmit all information it has received pertinent to the
question of standing to Commerce before Commerce determines whether to
initiate an investigation. The Commission is currently providing to
Commerce, at its request, limited information pertinent to Commerce's
standing determination.
Section 207.12
The Commission is amending Sec. 207.12 to reflect the concept that
the Commission will be conducting a single, continuous investigation in
antidumping and countervailing duty proceedings, as opposed to discrete
``preliminary'' and ``final'' investigations. Each of the ten
commenters that addressed the matter supported the Commission's
proposal that it conduct a single, continuous investigation. The
Commission will continue to render discrete preliminary and final
determinations in its investigation, as required by the Act.
The amendments to Sec. 207.12, which are identical to those
proposed in the NOPR, state that the Commission will commence the
preliminary phase of an investigation when it receives a petition for
imposition of antidumping or countervailing duties. Additionally, a
reference to former section 303 of the Act has been eliminated.
Section 207.13
The Commission is amending Sec. 207.13 has been amended to
incorporate the phrase ``preliminary phase of an investigation.''
Except for the substitution of a gender-neutral noun for a gender-
specific pronoun, the amendment is identical to that proposed in the
NOPR.
Section 207.14
The Commission is amending Sec. 207.14 to eliminate references to
former section 303 of the Act. Additionally, the last sentence of the
section has been amended to eliminate a gender-specific pronoun.
Section 207.18
The Commission is amending Sec. 207.18 to reflect the single,
continuous investigation concept. The amendments to Sec. 207.18 are
identical to those proposed in the NOPR.
The amended provision provides that when the Commission makes an
affirmative preliminary determination, the Federal Register notice of
that determination will further announce commencement of the final
phase of the investigation. Section 207.18 has also been amended to
reflect that, under the URAA, the Commission's preliminary
determination may be that imports are negligible. Additionally, the
final two sentences of current Sec. 207.18 have been relocated to new
Sec. 207.21.
Section 207.20
Section 207.20 is a new provision concerning investigative activity
in which the Commission will engage between the time of its preliminary
determination and the time of the Commerce preliminary determination.
(Current Secs. 207.20 through 207.29 have been renumbered Secs. 207.21
through 207.30.) New Sec. 207.20(a) states that, if the Commission has
reached an affirmative preliminary determination in an antidumping or
countervailing duty investigation, the Commission's Director of
Operations will continue investigative activities pending notice by
Commerce of its preliminary determination. Because, as discussed below,
the Commission will not be receiving an issues brief or conducting an
issues conference, there will be no need for the Commission to publish
a schedule of investigative activities at the time it commences its
final phase investigation. Consequently, the requirement that such a
schedule be published included in Sec. 207.20(a) as it was proposed in
the NOPR has been deleted from the final rule.
New Sec. 207.20(b) states that the Director shall circulate draft
questionnaires for the final phase investigation to the parties to the
investigation and that any party that desires to comment on the draft
questionnaires shall submit comments in writing to the Commission
within a time specified by the Director. This formalizes the current
practice under which Commission staff circulates draft questionnaires
for the final investigation to parties for comment. Under new
Sec. 207.20(b), however, parties' comments must be filed with the
Commission rather than submitted to the Office of Investigations;
consequently, comments must be filed with the Secretary pursuant to
section Sec. 201.8 and be served on all parties on the service list.
The purpose of this change is to increase the transparency of the
investigation.
In the NOPR, the Commission proposed to amend Sec. 207.20(b) to
require that the Director of Operations circulate to the parties draft
questionnaires for the final phase investigation no later than 14 days
after the Commission transmits to Commerce its facts and conclusions on
which the Commission's preliminary determination is based. Although the
commenters who addressed the issue uniformly supported the concept of
distributing draft questionnaires before Commerce issues its
preliminary determination, they expressed disparate views on when the
drafts should be circulated and whether the Commission should formalize
the comment process. KFTA proposed that Commission staff be provided at
least 40 days after transmittal of the preliminary phase investigation
opinion to draft final phase questionnaires; Flat-Rolled Steel
suggested that the questionnaires be circulated six weeks before the
Commerce preliminary determination. CITBA, Collier, and Schagrin
supported retaining current practice with respect to questionnaire
comments. By contrast, Fair Trade Forum, Pro Trade, and Stewart
advocated that the Commission adopt more formalized procedures for the
comment process, but opposed any provision precluding parties from
subsequently making data collection requests not asserted in their
comments on the questionnaires.
The Commission has decided not to issue a regulation specifying the
time at which draft final phase questionnaires will be circulated to
the parties. It has concluded that the scheduling of circulation of
draft questionnaires is best handled as an internal matter on an
[[Page 37826]]
investigation-by-investigation basis. The Commission does anticipate,
however, that draft questionnaires will be circulated several weeks
before the Commerce preliminary determination and that parties will be
afforded adequate time for comment.
The Commission further believes that the more formalized comment
procedures that are contemplated by Sec. 207.20(b) will improve the
investigative process by ensuring that comment procedures are the same
for each investigation and that each party's comments on the
questionnaires are seen by the Commission and by all other parties. The
Commission expects that the parties will use the comment process to
make data collection requests to the Commission for the final phase of
an investigation. At the time the draft questionnaire will be
circulated, the parties should be able to identify the data they desire
the Commission to generate during the final phase of the investigation.
This is particularly true with respect to issues such as domestic like
product and cumulation on which the parties typically will have
asserted detailed arguments, and will have obtained considerable data,
during the preliminary phase of the investigation. Consequently,
parties should make data collection requests in their questionnaire
comments rather than later in the investigation. It is often
impracticable to satisfy new data collection requests made during the
later stages of a final phase investigation, given the need to collect,
verify, and analyze data, release data under APO, and receive comments
from the parties concerning data before the record closes.
The Commission has not included in rule 207.20 the proposals made
in the NOPR for an issues brief and issues conference. Comments
concerning these proposals were almost uniformly negative. One
commenter, KFTA, limited its remarks to opposing the proposed provision
precluding a party from subsequently raising issues not asserted in the
issues brief. The remaining 14 commenters to address the issues brief
and issues conference proposal, representing both petitioner and
respondent interests, opposed the proposals outright. These commenters
complained that the proposed issues brief and issues conference were
unlikely either to narrow issues or simplify the Commission's
investigation but that they would impose considerable burdens on
parties appearing before the Commission. After review of the comments,
the Commission agrees that the burdens that would be imposed by the
proposed issues brief and issues conference likely outweigh the
benefits these additional procedures would confer on the investigative
process. Moreover, as noted earlier, identification of issues and data
collection needs may be accomplished through draft questionnaire
comments.
Section 207.21
New Sec. 207.21, which largely follows current Sec. 207.20,
concerns the Final Phase Notice of Scheduling that the Commission will
issue upon receipt of an affirmative preliminary determination by
Commerce. Section 207.21(a) is identical to current Sec. 207.20(a),
except that references to former section 303 of the Act have been
deleted.
Section 207.21(b) states that the Commission will publish in the
Federal Register a Final Phase Notice of Scheduling at the time it
receives notice of a Commerce affirmative preliminary determination, or
of a Commerce affirmative final determination in an investigation where
the Commerce preliminary determination was negative. The Final Phase
Notice of Scheduling will contain the same information that the
Commission currently provides in the notices of institution of final
investigations that it publishes in the Federal Register.
Sections 207.21 (c) and (d) carry forward provisions codified in
current Sec. 207.18. New Sec. 207.21(d) is the last sentence of
Sec. 207.21(c) as it was proposed in the NOPR; there has been no change
in wording.
Section 207.23
New Sec. 207.23, concerning prehearing briefs, contains several
technical amendments from current Sec. 207.22. These amendments add a
reference to the final phase Notice of Scheduling and delete a
reference to former section 303 of the Act.
In the NOPR, the Commission proposed amending Sec. 207.23 to impose
a 50-page limit on prehearing briefs. The Commission received 14
comments on this proposal, none of which supported the proposal as
drafted. All commenters said a 50-page limit was insufficient. Several
commenters suggested longer page limits; several stated that page
limits should be higher in multiple-country investigations than in
single-country investigations; several said the Commission should
continue not to impose any page limits on prehearing briefs.
The Commission's proposal to impose page limits on prehearing
briefs was premised largely on its belief that the proposed issues
brief would serve to reduce the number of arguments that would need to
be addressed in the prehearing brief. Because the Commission has
determined not to implement its proposal concerning issues briefs,
however, it will continue its current practice of not imposing page
limits on prehearing briefs. Nevertheless, the Commission encourages
parties to keep their prehearing briefs as concise as possible. As
stated in the NOPR, parties should not submit lengthy attachments to
briefs that merely restate arguments presented in the main brief.
Section 207.24
Renumbered Sec. 207.24 is identical to current Sec. 207.23 except
that references to former section 303 of the Act have been deleted,
cross-references to renumbered regulations have been changed, and
gender-specific pronouns have been modified.
Although the Commission did not propose any substantive changes to
renumbered Sec. 207.24, two commenters did request substantive
amendments to this provision. Stewart proposed that the third sentence
of subsection (b), limiting presentation at the hearing to a summary of
the information and arguments presented in the prehearing briefs, and
information not available at the time the prehearing brief is filed, be
stricken. Because the Commission believes that the prehearing brief
should be a party's principal vehicle for asserting its arguments, and
that the hearing functions primarily as a means for each party to
elaborate upon the arguments it has previously asserted in writing, it
will retain this provision.
Quebec requested that the regulation be amended to formalize the
practice of providing petitioners and respondents equal aggregate time
allocations at the hearing. Although Quebec's characterization of
Commission practice is accurate, the Commission does not believe
codification of the practice in the regulations is necessary. Instead,
Commission staff will continue to apprise parties of this practice
during the prehearing conference.
Section 207.25
Renumbered Sec. 207.25 is identical to current Sec. 207.24 except
for two nonsubstantive changes in wording that will conform this
regulation with others. The changes are identical to those proposed in
the NOPR.
Section 207.29
Renumbered Sec. 207.29 is identical to current Sec. 207.28 except
for deletion of a reference to former section 303 of the Act and a
nonsubstantive change in
[[Page 37827]]
wording. The changes are identical to those proposed in the NOPR.
Section 207.30
Renumbered Sec. 207.30 contains four amendments to current interim
Sec. 207.29. The first change increases from ten to 15 pages the
maximum length of the final comments that parties may submit pursuant
to Sec. 207.30(b), as the Commission proposed in the NOPR.
Four commenters addressed the page limits for final comments.
Cement Alliance requested that the 15-page limit be increased by five
pages per additional subject country in multiple-country
investigations. CITBA and Schagrin requested that the page limit be
established as 15 pages per subject country. Quebec requested that the
Commission retain the flexibility to increase the 15-page limit where
appropriate.
The Commission reiterates that the final comments are very limited
in scope, and are meant to enable the parties to address information
released to the parties subsequent to the filing of the posthearing
brief. Because the Commission intends to release factual information
under APO very promptly after receipt, it anticipates that the parties
will receive only a limited amount of information subsequent to filing
of the posthearing brief, whether an investigation involves one or
multiple countries. The Commission therefore concludes that the 15-page
limit for final comments is justified.
The second change is the deletion of the portion of the fourth
sentence of current Sec. 207.29(b) stating that final comments that
contain information disclosed prior to the filing of the posthearing
brief will be disregarded. This provision is being deleted because it
is not statutorily required. Moreover, the Commission believes that
ascertaining precisely at what point in the investigation information
discussed in the comments was released would impose excessive
administrative burdens on it and its staff.
The Commission nevertheless emphasizes that the purpose of the
final comments is to provide an opportunity for parties to comment on
information that they have not previously had an opportunity to
discuss. As previously stated, the strict page limits that are being
imposed on such comments is a reflection of the limited function final
comments serve. The Commission strongly discourages parties from using
the final comments solely or primarily as a device to reiterate
arguments that they have already made in their prehearing briefs,
hearing testimony, and posthearing submissions.
New Sec. 207.30(b) will state, as does current Sec. 207.29(b), that
final comments containing new factual information will be disregarded.
This restriction is required by section 782(g) of the Act. Examples of
``new factual information'' that will not be permitted in comments
submitted pursuant to Sec. 207.30(b) include the following:
New affidavits.
Press clippings, unless the press clipping was submitted
previously for the record.
Information or documentation concerning commercial
transactions, unless the material was submitted previously for the
record.
Updates to charts or tables previously included in the
record that contain information not already in the record.
By contrast, the following examples illustrate information that
would be permitted in final comments pursuant to Sec. 207.30(b).
Example 1. A party submits an affidavit in connection
with its posthearing brief providing new information. Another party
may identify in its final comments material previously submitted
into the record which rebuts or corroborates the assertions in the
affidavit.
Example 2. New questionnaire responses are released to
the parties after the posthearing briefs are filed. A party may
include in its final comments tabular material aggregating the data
in the newly-released questionnaire responses with data in
previously-released questionnaire responses. A compilation of
previously-released information is not ``new information'' for
purposes of either section 782(g) of the Act or Sec. 207.30(b).
The third change is the addition of a provision to new
Sec. 207.30(b) clarifying that the ``24-hour rule'' governing final
bracketing of BPI pertains to comments filed under Sec. 207.30. This
change is identical to the one proposed in the NOPR.
The fourth set of changes are technical changes. These include
changing cross-references to renumbered provisions, and inserting a
reference to the ``final phase'' of an investigation.
The Commission has decided not to make several changes to new rule
207.30 requested by commenters. Cement Alliance, Quebec, and Steel Wire
Rod requested that the Commission include in the regulation a provision
requiring that the Commission release all information a specific number
of days before the final comments are due. As the Commission stated in
the NOPR in responding to similar comments made with respect to the
interim rulemaking, the Commission does not believe that promulgating
regulations requiring release of material to parties at a specific date
is necessary or appropriate.
Cement Alliance, CITBA, and Schagrin asserted that the Commission
should release economic and variance memoranda, as well as the staff
report, to parties before final comments are due. The economic and
variance memoranda are now incorporated into the staff report, the
confidential version of which is released to the parties several days
before the final comments are due. Flat-Rolled Steel contended that
Sec. 207.30 should be amended to require disclosure of methodologies
used in compiling and analyzing questionnaire data, and in accepting or
rejecting lost sales or revenue allegations. However, section 782(g) of
the Act requires only disclosure of ``[i]nformation that is submitted
on a timely basis to the * * * Commission during the course of a
proceeding. * * *'' It does not require the Commission to disclose
every compilation it makes, or methodology it uses. The Commission will
continue to release to the parties in the staff report certain
compilations or explanations of methodology used to compile
information, and to explain its determinations in its written opinions.
Accordingly, the Commission has not made the amendment requested by
Flat-Rolled Steel.
Section 207.40
The Commission is issuing the interim rule in final form.
List of Subjects
19 CFR Part 201
Administrative practice and procedure, Investigations, Imports.
19 CFR Part 207
Administrative practice and procedure, Antidumping, Countervailing
duties, Investigations.
For the reasons stated in the preamble, 19 CFR parts 201 and 207
are amended as set forth below:
PART 201--[AMENDED]
1. The authority citation for part 201 continues to read as
follows:
Authority: Sec. 335 of the Tariff Act of 1930 (19 U.S.C. 1335)
and sec. 603 of the Trade Act of 1974 (19 U.S.C. 2482), unless
otherwise noted.
2. Paragraphs (a), (b), and (f) of Sec. 201.6 are revised to read
as follows:
Sec. 201.6 Confidential business information.
(a) Definitions. (1) Confidential business information is
information which concerns or relates to the trade
[[Page 37828]]
secrets, processes, operations, style of works, or apparatus, or to the
production, sales, shipments, purchases, transfers, identification of
customers, inventories, or amount or source of any income, profits,
losses, or expenditures of any person, firm, partnership, corporation,
or other organization, or other information of commercial value, the
disclosure of which is likely to have the effect of either impairing
the Commission's ability to obtain such information as is necessary to
perform its statutory functions, or causing substantial harm to the
competitive position of the person, firm, partnership, corporation, or
other organization from which the information was obtained, unless the
Commission is required by law to disclose such information. The term
``confidential business information'' includes ``proprietary
information'' within the meaning of section 777(b) of the Tariff Act of
1930 (19 U.S.C. 1677f(b)). Nonnumerical characterizations of numerical
confidential business information (e.g., discussion of trends) will be
treated as confidential business information only at the request of the
submitter for good cause shown.
(2) Nondisclosable confidential business information is privileged
information, classified information, or specific information (e.g.,
trade secrets) of a type for which there is a clear and compelling need
to withhold from disclosure. Special rules for the handling of such
information are set out in Sec. 207.7 of this chapter.
(b) Procedure for submitting business information in confidence.
(1) A request for confidential treatment of business information shall
be addressed to the Secretary, United States International Trade
Commission, 500 E Street SW., Washington, DC 20436, and shall indicate
clearly on the envelope that it is a request for confidential
treatment.
(2) In the absence of good cause shown, any request relating to
material to be submitted during the course of a hearing shall be
submitted at least three (3) working days prior to the commencement of
such hearing.
(3) With each submission of, or offer to submit, business
information which a submitter desires to be treated as confidential
business information, under paragraph (a) of this section, the
submitter shall provide the following, which may be disclosed to the
public:
(i) A written description of the nature of the subject information;
(ii) A justification for the request for its confidential
treatment;
(iii) A certification in writing under oath that substantially
identical information is not available to the public;
(iv) A copy of the document
(A) Clearly marked on its cover as to the pages on which
confidential information can be found;
(B) With information for which confidential treatment is requested
clearly identified by means of brackets; and
(C) With information for which nondisclosable confidential
treatment is requested clearly identified by means of triple brackets
(except when submission of such document is withheld in accord with
paragraph (b)(4) of this section); and
(v) A nonconfidential copy of the documents as required by
Sec. 201.8(d).
(4) The submission of the documents itemized in paragraph (b)(3) of
this section will provide the basis for rulings on the confidentiality
of submissions, including rulings on the confidentiality of submissions
offered to the Commission which have not yet been placed under the
possession, control, or custody of the Commission. The submitter has
the option of providing the business information for which confidential
treatment is sought at the time th
FR Doc. 96-18334 Amendments to Rules of Practice and Procedure
e documents itemized in paragraph
(b)(3) of this section are provided or of withholding them until a
ruling on their confidentiality has been issued.
* * * * *
(f) Appeals from approval of confidential treatment. (1) For good
cause shown, the Commission may grant an appeal from an approval by the
Secretary of a request for confidential treatment of a submission. Any
appeal filed shall be addressed to the Chairman, United States
International Trade Commission, 500 E Street, S.W., Washington, D.C.
20436, shall show that a copy thereof has been served upon the
submitter, and shall clearly indicate that it is a confidential
submission appeal. An appeal may be made within twenty (20) days of the
approval by the Secretary of a request for confidential treatment or
whenever the approval or denial has not been forthcoming within ten
(10) days (excepting Saturdays, Sundays, and Federal legal holidays) of
the receipt of a confidential treatment request, unless an extension
notice in writing with the reasons therefor has been provided the
person requesting confidential treatment.
(2) An appeal will be decided within twenty (20) days of its
receipt (excepting Saturdays, Sundays, and Federal legal holidays)
unless an extension notice, in writing with the reasons therefor, has
been provided the person making the appeal.
* * * * *
3. Paragraphs (a) and (b) of Sec. 201.11 are revised to read as
follows:
Sec. 201.11 Appearance in an investigation as a party.
(a) Who may appear as a party. Any person may apply to appear in an
investigation as a party, either in person or by representative, by
filing an entry of appearance with the Secretary. Each entry of
appearance shall state briefly the nature of the person's reason for
participating in the investigation and state the person's intent to
file briefs with the Commission regarding the subject matter of the
investigation. The Secretary shall promptly determine whether the
person submitting the entry of appearance has a proper reason for
participating in the investigation. In any investigation conducted
under part 207 of this chapter, industrial users, and if the
merchandise under investigation is sold at the retail level,
representative consumer organizations, will be deemed to have a proper
reason for participating in the investigation. If it is found that a
person does not have a proper reason for participating in the
investigation, that person shall be so notified by the Secretary and
shall not be entitled to appear in the investigation as a party. A
person found to have a proper reason for participating in the
investigation shall be permitted to appear in the investigation as a
party, and acceptance of such person's entry of appearance shall be
signified by the Secretary's inclusion of such person on the service
list established pursuant to paragraph (d) of this section.
(b) Time for filing. (1) Except in the case of investigations
conducted under part 207 of this chapter, each entry of appearance
shall be filed with the Secretary not later than twenty-one (21) days
after publication of the Commission's notice of investigation in the
Federal Register.
(2) In the case of investigations conducted under subpart B of part
207 of this chapter, each entry of appearance shall be filed with the
Secretary not later than seven (7) days after publication of the
Commission's notice of investigation in the Federal Register. A party
that files a notice of appearance during such time need not file an
additional notice of appearance during the portion of the investigation
conducted under subpart C of part 207 of this chapter.
(3) Notwithstanding paragraph (b)(2) of this section, a party may
file an entry of appearance during the final phase of an investigation
conducted under part
[[Page 37829]]
207 of this chapter no later than twenty-one (21) days prior to the
hearing date listed in the Federal Register notice published pursuant
to Sec. 207.24(b) of this chapter.
* * * * *
4. Paragraph (m) of Sec. 201.13 is revised to read as follows:
Sec. 201.13 Conduct of nonadjudicative hearings.
* * * * *
(m) Closed sessions. (1) Upon a request filed by a party to the
investigation no later than seven (7) days prior to the date of the
hearing (or three (3) days prior to the date of a conference conducted
under Sec. 207.15 of this chapter) that
(i) Identifies the subjects to be discussed;
(ii) Specifies the amount of time requested; and
(iii) Justifies the need for a closed session with respect to each
subject to be discussed, the Commission (or the Director, as defined in
Sec. 207.2(c) of this chapter, for a conference under Sec. 207.15 of
this chapter) may close a portion of a hearing (or conference under
Sec. 207.15 of this chapter) held in any investigation in order to
allow such party to address confidential business information, as
defined in Sec. 201.6, during the course of its presentation.
(2) In addition, during each hearing held in an investigation
conducted under section 202 of the Trade Act, as amended, or in an
investigation under title VII of the Tariff Act as provided in
Sec. 207.24 of this chapter, following the public presentation of the
petitioner(s) and that of each panel of respondents, the Commission
will, if it deems it appropriate, close the hearing in order to allow
Commissioners to question parties and/or their representatives
concerning matters involving confidential business information.
PART 207--[AMENDED]
5. The authority citation for part 207 is revised to read as
follows:
Authority: 19 U.S.C. 1336, 1671-1677n, 2482, 3513.
6. Section 207.1 is revised to read as follows:
Sec. 207.1 Applicability of part.
Part 207 applies to proceedings of the Commission under section
516A and title VII of the Tariff Act of 1930 (19 U.S.C. 1303, 1516A and
1671-1677n) (the Act), other than investigations under section 783 (19
U.S.C. 1677n), which will be conducted pursuant to procedures specified
by the Office of the United States Trade Representative.
7. The interim rule amending Sec. 207.2 published in the Federal
Register issue of January 3, 1995 at 60 FR 18 is adopted as a final
rule without change.
8. Paragraphs (b) and (c) of Sec. 207.3 are revised to read as
follows:
Sec. 207.3 Service, filing, and certification of documents.
* * * * *
(b) Service. Any party submitting a document for inclusion in the
record of the investigation shall, in addition to complying with
Sec. 201.8 of this chapter, serve a copy of each such document on all
other parties to the investigation in the manner prescribed in
Sec. 201.16 of this chapter. If a document is filed before the
Secretary's issuance of the service list provided for in Sec. 201.11 of
this chapter or the administrative protective order list provided for
in Sec. 207.7, the document need not be accompanied by a certificate of
service, but the document shall be served on all appropriate parties
within two (2) days of the issuance of the service list or the
administrative protective order list and a certificate of service shall
then be filed. Notwithstanding Sec. 201.16 of this chapter, petitions,
briefs, and testimony filed by parties pursuant to Secs. 207.10,
207.15, 207.23, 207.24, and 207.25 shall be served by hand or, if
served by mail, by overnight mail or its equivalent. Failure to comply
with the requirements of this rule may result in removal from status as
a party to the investigation. The Commission shall make available to
all parties to the investigation a copy of each document, except
transcripts of conferences and hearings, business proprietary
information, privileged information, and information required to be
served under this section, placed in the record of the investigation by
the Commission.
(c) Filing. Documents to be filed with the Commission must comply
with applicable rules, including Sec. 201.8 of this chapter. If the
Commission establishes a deadline for the filing of a document, and the
submitter includes business proprietary information in the document,
the submitter is to file and, if the submitter is a party, serve the
business proprietary version of the document on the deadline and may
file and serve the nonbusiness proprietary version of the document no
later than one business day after the deadline for filing the document.
The business proprietary version shall enclose all business proprietary
information in brackets and have the following warning marked on every
page: ``Bracketing of BPI not final for one business day after date of
filing.'' The bracketing becomes final one business day after the date
of filing of the document, i.e., at the same time as the nonbusiness
proprietary version of the document is due to be filed. Until the
bracketing becomes final, recipients of the document may not divulge
any part of the contents of the document to anyone not subject to the
administrative protective order issued in the investigation. If the
submitter discovers it has failed to bracket correctly, the submitter
may file a corrected version or portion of the business proprietary
document at the same time as the nonbusiness proprietary version is
filed. No changes, including typographical changes, to the document
other than bracketing and deletion of business proprietary information
are permitted after the deadline unless an extension of time is granted
to file an amended document pursuant to Sec. 201.14(b)(2) of this
chapter. Failure to comply with this paragraph may result in the
striking from the record of all or a portion of a submitter's document.
9. Paragraph (a) of Sec. 207.4 is revised to read as follows:
Sec. 207.4 The record.
(a) Maintenance of the record. The Secretary shall maintain the
record of each investigation conducted by the Commission pursuant to
title VII of the Act. The record shall be maintained contemporaneously
with each actual filing in the record. It shall be divided into public
and nonpublic sections. The Secretary shall also maintain a
contemporaneous index of all materials filed in the record. All
material properly filed with the Secretary shall be placed in the
record. The Commission need not consider in its determinations or
include in the record any material that is not filed with the
Secretary. All material which is placed in the record shall be
maintained in the public record, with the exception of material which
is privileged, or which is business proprietary information submitted
in accordance with Sec. 201.6 of this chapter. Privileged and business
proprietary material shall be maintained in the nonpublic record.
* * * * *
10. Paragraphs (a), (f)(2), (f)(3), and (g) of Sec. 207.7 are
revised to read as follows:
Sec. 207.7 Limited disclosure of certain business proprietary
information under administrative protective order.
(a)(1) Disclosure. Upon receipt of a timely application filed by an
authorized applicant, as defined in paragraph (a)(3) of this section,
which describes in general terms the information requested, and sets
forth the reasons for the request (e.g., all business
[[Page 37830]]
proprietary information properly disclosed pursuant to this section for
the purpose of representing an interested party in investigations
pending before the Commission), the Secretary shall make available all
business proprietary information contained in Commission memoranda and
reports and in written submissions filed with the Commission at any
time during the investigation (except nondisclosable confidential
business information) to the authorized applicant under an
administrative protective order described in paragraph (b) of this
section. The term ``business proprietary information'' has the same
meaning as the term ``confidential business information'' as defined in
Sec. 201.6 of this chapter.
(2) Application. An application under paragraph (a)(1) of this
section must be made by an authorized applicant on a form adopted by
the Secretary or a photocopy thereof. An application on behalf of a
petitioner, a respondent, or another party must be made no later than
the time that entries of appearance are due pursuant to Sec. 201.11 of
this chapter. In the event that two or more authorized applicants
represent one interested party who is a party to the investigation, the
authorized applicants must select one of their number to be lead
authorized applicant. The lead authorized applicant's application must
be filed no later than the time that entries of appearance are due.
Provided that the application is accepted, the lead authorized
applicant shall be served with business proprietary information
pursuant to paragraph (f) of this section. The other authorized
applicants representing the same party may file their applications
after the deadline for entries of appearance but at least five (5) days
before the deadline for filing posthearing briefs in the investigation,
or the deadline for filing briefs in the preliminary phase of an
investigation, and shall not be served with business proprietary
information.
(3) Authorized applicant. (i) Only an authorized applicant may file
an application under this subsection. An authorized applicant is:
(A) An attorney for an interested party which is a party to the
investigation;
(B) A consultant or expert under the direction and control of a
person under paragraph (a)(3)(i)(A) of this section;
(C) A consultant or expert who appears regularly before the
Commission and who represents an interested party which is a party to
the investigation; or
(D) A representative of an interested party which is a party to the
investigation, if such interested party is not represented by counsel.
(ii) In addition, an authorized applicant must not be involved in
competitive decisionmaking for an interested party which is a party to
the investigation. Involvement in ``competitive decisionmaking''
includes past, present, or likely future activities, associations, and
relationships with an interested party which is a party to the
investigation that involve the prospective authorized applicant's
advice or participation in any of such party's decisions made in light
of similar or corresponding information about a competitor (pricing,
product design, etc.).
(4) Forms and determinations. (i) The Secretary may adopt, from
time to time, forms for submitting requests for disclosure pursuant to
an administrative protective order incorporating the terms of this
rule. The Secretary shall determine whether the requirements for
release of information under this rule have been satisfied. This
determination shall be made concerning specific business proprietary
information as expeditiously as possible but in no event later than
fourteen (14) days from the filing of the information, or seven (7)
days in the preliminary phase of an investigation, except if the
submitter of the information objects to its release or the information
is unusually voluminous or complex, in which case the determination
shall be made within thirty (30) days from the filing of the
information, or ten (10) days in the preliminary phase of an
investigation. The Secretary shall establish a list of parties whose
applications have been granted. The Secretary's determination shall be
final for purposes of review by the U.S. Court of International Trade
under section 777(c)(2) of the Act.
(ii) Should the Secretary determine pursuant to this section that
materials sought to be protected from public disclosure by a person do
not constitute business proprietary information or were not required to
be served under paragraph (f) of this section, then the Secretary
shall, upon request, issue an order on behalf of the Commission
requiring the return of all copies of such materials served in
accordance with paragraph (f) of this section.
(iii) The Secretary shall release business proprietary information
only to an authorized applicant whose application has been accepted and
who presents the application along with adequate personal
identification; or a person described in paragraph (b)(1)(iv) of this
section who presents a copy of the statement referred to in that
paragraph along with adequate personal identification.
(iv) An authorized applicant granted access to business proprietary
information in the preliminary phase of an investigation may, subject
to paragraph (c) of this section, retain such business proprietary
information during any final phase of that investigation, provided that
the authorized applicant has not lost his authorized applicant status
(e.g., by terminating his representation of an interested party who is
a party). When retaining business proprietary information pursuant to
this paragraph, the authorized applicant need not file a new
application in the final phase of the investigation.
* * * * *
(f) Service. * * *
(2) If a party's request under paragraph (g) of this section is
granted, the Secretary shall accept the nondisclosable confidential
business information into the record. The party shall serve the
submission containing such information in accordance with the
requirements of Sec. 207.3(b) and paragraph (f)(1) of this section,
with the information redacted from the copies served.
(3) The Secretary shall not accept for filing into the record of an
investigation submissions filed without a proper certificate of
service. Failure to comply with paragraph (f) of this section may
result in denial of party status and such sanctions as the Commission
deems appropriate. Business proprietary information in submissions must
be dealt with as required by Sec. 207.3(c).
(g) Exemption from disclosure.--(1) In general. Any person may
request exemption from the disclosure of business proprietary
information under administrative protective order, whether the person
desires to include such information in a petition filed under
Sec. 207.10, or any other submission to the Commission during the
course of an investigation. Such a request shall only be granted if the
Secretary finds that such information is nondisclosable confidential
business information as defined in Sec. 201.6(a)(2) of this chapter.
The request will be granted or denied not later than thirty (30) days
(ten (10) days in a preliminary phase investigation) after the date on
which the request is filed.
(2) Request for exemption. A request for exemption from disclosure
must be filed with the Secretary in writing with the reasons therefor.
At the same time as the request is filed, one copy of the business
proprietary information in question must be lodged with the
[[Page 37831]]
Secretary solely for the purpose of obtaining a determination as to the
request. The business proprietary information for which exemption from
disclosure is sought shall remain the property of the requester, and
shall not become or be incorporated into any agency record until such
time as the request is granted. A request should, when possible, be
filed two business days prior to the deadline, if any, for filing the
document in which the information for which exemption from disclosure
is sought is proposed to be included. If the request is denied, the
copy of the information lodged with the Secretary shall promptly be
returned to the requester. Such a request shall only be granted if the
Secretary finds that such information is privileged information,
classified information, or specific information of a type for which
there is a clear and compelling need to withhold from disclosure. The
Secretary shall promptly notify the requester as to whether the request
has been approved or denied.
(3) Procedure if request is approved. If the request is approved,
the person shall file three versions of the submission containing the
nondisclosable confidential business information in question. One
version shall contain all business proprietary information, bracketed
in accordance with Sec. 201.6 of this chapter and Sec. 207.3. The other
two versions shall conform to and be filed in accordance with the
requirements of Sec. 201.6 of this chapter and Sec. 207.3, except that
the specific information as to which exemption from disclosure was
granted shall be redacted from the submission.
(4) Procedure if request is denied. If the request is denied, the
copy of the information lodged with the Secretary shall promptly be
returned to the requester. The requester may file the submission in
question without that information, in accordance with the requirements
of Sec. 207.3.
11. Section 207.8 is revised to read as follows:
Sec. 207.8 Questionnaires to have the force of subpoenas; subpoena
enforcement.
Any questionnaire issued by the Commission in connection with any
investigation under title VII of the Act may be issued as a subpoena
and subscribed by a Commissioner, after which it shall have the force
and effect of a subpoena authorized by the Commission. Whenever any
party or any other person fails to respond adequately to such a
subpoena or whenever a party or any other person refuses or is unable
to produce information requested in a timely manner and in the form
required, or otherwise significantly impedes an investigation, the
Commission may:
(a) Use the facts otherwise available in making its determination;
(b) Seek judicial enforcement of the subpoena pursuant to 19 U.S.C.
1333;
(c) Make inferences adverse to such person's position, if such
person is an interested party that has failed to cooperate by not
acting to the best of its ability to comply with a request for
information; and
(d) Take such other actions as necessary to obtain needed
information.
12. Section 207.10 is revised to read as follows:
Sec. 207.10 Filing of petition with the Commission.
(a) Filing of the petition. Any interested party who files a
petition with the administering authority pursuant to section 702(b) or
section 732(b) of the Act in a case in which a Commission determination
under title VII of the Act is required, shall file copies of the
petition, including all exhibits, appendices, and attachments thereto,
pursuant to Sec. 201.8 of this chapter, with the Secretary on the same
day the petition is filed with the administering authority. If the
petition complies with the provisions of Sec. 207.11, it shall be
deemed to be properly filed on the date on which the requisite number
of copies of the petition is received by the Secretary. The Secretary
shall notify the administering authority of that date. Notwithstanding
Sec. 201.11 of this chapter, a petitioner need not file an entry of
appearance in the investigation instituted upon the filing of its
petition, which shall be deemed an entry of appearance.
(b) Service of the petition. (1)(i) The Secretary shall promptly
notify a petitioner when, before the establishment of a service list
under Sec. 207.7(a)(4), he or she approves an application under
Sec. 207.7(a). When practicable, this notification shall be made by
facsimile transmission. A copy of the petition including all business
proprietary information shall then be served by petitioner on those
approved applicants in accord with Sec. 207.3(b) within two (2)
calendar days of the time notification is made by the Secretary.
(ii) The petitioner shall serve persons enumerated on the list
established by the Secretary pursuant to Sec. 207.7(a)(4) that have not
been served pursuant to paragraph (b)(1)(i) of this section within two
(2) calendar days of the establishment of the Secretary's list.
(2) A copy of the petition omitting business proprietary
information shall be served by petitioner on those persons enumerated
on the list established by the Secretary pursuant to Sec. 201.11(d) of
this chapter within two (2) calendar days of the establishment of the
Secretary's list.
(3) Service of the petition shall be attested by filing a
certificate of service with the Commission.
(c) Amendments and withdrawals; critical circumstances. (1) Any
amendment or withdrawal of a petition shall be filed on the same day
with both the Secretary and the administering authority, without regard
to whether the requester seeks action only by one agency.
(2) When not made in the petition, any allegations of critical
circumstances under section 703 or section 733 of the Act shall be made
in an amendment to the petition and shall be filed as early as
possible. Critical circumstances allegations, whether made in the
petition or in an amendment thereto, shall contain information
reasonably available to petitioner concerning the factors enumerated in
sections 705(b)(4)(A) and 735(b)(4)(A) of the Act.
13. Section 207.11 is revised to read as follows:
Sec. 207.11 Contents of petition.
(a) The petition shall be signed by the petitioner or its duly
authorized officer, attorney, or agent, and shall set forth the name,
address, and telephone number of the petitioner and any such officer,
attorney, or agent, and the names of all representatives of petitioner
who will appear in the investigation.
(b)(1) The petition shall allege the elements necessary for the
imposition of a duty under section 701(a) or section 731(a) of the Act
and contain information reasonably available to the petitioner
supporting the allegations.
(2) The petition shall also include the following specific
information, to the extent reasonably available to the petitioner:
(i) Identification of the domestic like product(s) proposed by
petitioner;
(ii) A listing of all U.S. producers of the proposed domestic like
product(s), including a street address, phone number, and contact
person(s) for each producer;
(iii) A listing of all U.S. importers of the subject merchandise,
including street addresses and phone numbers for each importer;
(iv) Identification of each product on which the petitioner
requests the Commission to seek pricing information in its
questionnaires; and
(v) A listing of all sales or revenues lost by each petitioning
firm by reason of the subject merchandise during the
[[Page 37832]]
three years preceding filing of the petition.
(3) The petition shall contain a certification that each item of
information specified in paragraph (b)(2) of this section that the
petition does not include was not reasonably available to the
petitioner.
(4) Petitioners are also advised to refer to the administering
authority's regulations concerning the contents of petitions.
14. Section 207.12 is revised to read as follows:
Sec. 207.12 Notice of preliminary phase of investigation.
Upon receipt by the Commission of a petition under Sec. 207.10 or
receipt of notice that the administering authority has commenced an
investigation under section 702(a) or section 732(a) of the Act, the
Director shall, as soon as practicable after consultation with the
administering authority, institute an investigation and commence the
preliminary phase of the investigation under section 703(a) or section
733(a) of the Act and shall publish a notice to that effect in the
Federal Register.
15. Section 207.13 is revised to read as follows:
Sec. 207.13 Cooperation with administering authority; preliminary
phase of investigation.
Subsequent to institution of an investigation pursuant to section
207.12, the Director shall conduct such investigation as the Director
deems appropriate. Information adduced in the investigation shall be
placed on the record. The Director shall cooperate with the
administering authority in its determination of the sufficiency of a
petition and in its decision whether to permit any proposed amendment
to a petition. Notwithstanding Secs. 201.11(c) and 201.14(b) of this
chapter, late filings in the preliminary phase of an investigation
shall be referred to the Director, who shall determine whether to
accept such filing for good cause shown by the person making the
filing.
16. Section 207.14 is revised to read as follows:
Sec. 207.14 Negative petition determination.
Upon receipt by the Commission of notice from the administering
authority under section 702(d) or section 732(d) of the Act that the
administering authority has made a negative petition determination
under section 702(c)(3) or section 732(c)(3) of the Act, the
investigation begun pursuant to Sec. 207.12 shall terminate. All
persons who have received requests for information from the Director
shall be notified of the termination.
17. Section 207.18 is revised to read as follows:
Sec. 207.18 Notice of preliminary determination.
Whenever the Commission makes a preliminary determination, the
Secretary shall serve copies of the determination and a public version
of the staff report on the petitioner, other parties to the
investigation, and the administering authority. The Secretary shall
publish a notice of such determination in the Federal Register. If the
Commission's determination is negative, or that imports are negligible,
the investigation shall be terminated. If the Commission's
determination is affirmative, the notice shall announce commencement of
the final phase of the investigation.
Secs. 207.20 through 207.29 [Redesignated as Secs. 207.21 through
207.30]
18. Sections 207.20 through 207.29 are redesignated as follows:
------------------------------------------------------------------------
New
Old section section
------------------------------------------------------------------------
207.20........................................................ 207.21
207.21........................................................ 207.22
207.22........................................................ 207.23
207.23........................................................ 207.24
207.24........................................................ 207.25
207.25........................................................ 207.26
207.26........................................................ 207.27
207.27........................................................ 207.28
207.28........................................................ 207.29
207.29........................................................ 207.30
------------------------------------------------------------------------
19. A new Sec. 207.20 is added to read as follows:
Sec. 207.20 Investigative activity following preliminary
determination.
(a) If the Commission's preliminary determination is affirmative,
the Director shall continue investigative activities pending notice by
the administering authority of its preliminary determination under
section 703(b) or section 733(b) of the Act.
(b) The Director shall circulate draft questionnaires for the final
phase of an investigation to parties to the investigation for comment.
Any party desiring to comment on draft questionnaires shall submit such
comments in writing to the Commission within a time specified by the
Director.
20. Redesignated Sec. 207.21 is revised to read as follows:
Sec. 207.21 Final phase notice of scheduling.
(a) Notice from the administering authority of an affirmative
preliminary determination under section 703(b) or section 733(b) of the
Act and notice from the administering authority of an affirmative final
determination under section 705(a) or section 735(a) of the Act shall
be deemed to occur on the date on which the transmittal letter of such
determination is received by the Secretary from the administering
authority or the date on which notice of such determination is
published in the Federal Register, whichever shall first occur.
(b) Upon receipt of notice from the administering authority of an
affirmative preliminary determination under section 703(b) or section
733(b) of the Act or, if the administering authority's preliminary
determination is negative, notice of an affirmative final determination
under section 705(a) or section 735(a) of the Act, the Commission shall
publish in the Federal Register a Final Phase Notice of Scheduling.
(c) If the administering authority's preliminary determination is
negative, the Director shall continue such investigative activities as
the Director deems appropriate pending a final determination by the
administering authority under section 705(a) or section 735(a) of the
Act.
(d) Upon receipt by the Commission of notice from the administering
authority of its final negative determination under section 705(a) or
section 735(a) of the Act, the corresponding Commission investigation
shall be terminated.
21. Redesignated Sec. 207.23 is revised to read as follows:
Sec. 207.23 Prehearing brief.
Each party who is an interested party shall submit to the
Commission, no later than four (4) business days prior to the date of
the hearing specified in the notice of scheduling, a prehearing brief.
Prehearing briefs shall be signed and shall include a table of
contents. The prehearing brief should present a party's case concisely
and shall, to the extent possible, refer to the record and include
information and arguments which the party believes relevant to the
subject matter of the Commission's determination under section 705(b)
or section 735(b) of the Act. Any person not an interested party may
submit a brief written statement of information pertinent to the
investigation within the time specified for filing of prehearing
briefs.
22. Redesignated Sec. 207.24 is revised to read as follows:
Sec. 207.24 Hearing.
(a) In general. The Commission shall hold a hearing concerning an
investigation before making a final
[[Page 37833]]
determination under section 705(b) or section 735(b) of the Act.
(b) Procedures. Any hearing shall be conducted after notice
published in the Federal Register. The hearing shall not be subject to
the provisions of 5 U.S.C. subchapter II, chapter 5, or to 5 U.S.C.
702. Each party shall limit its presentation at the hearing to a
summary of the information and arguments contained in its prehearing
brief, an analysis of the information and arguments contained in the
prehearing briefs described in Sec. 207.23, and information not
available at the time its prehearing brief was filed. Unless a portion
of the hearing is closed, presentations at the hearing shall not
include business proprietary information. Notwithstanding
Sec. 201.13(f) of this chapter, in connection with its presentation a
party may file witness testimony with the Secretary no later than three
(3) business days before the hearing. In the case of testimony to be
presented at a closed session held in response to a request under
Sec. 207.24(d), confidential and non-confidential versions shall be
filed in accordance with Sec. 207.3. Any person not a party may make a
brief oral statement of information pertinent to the investigation.
(c) Hearing Transcripts--(1) In general. A verbatim transcript
shall be made of all hearings or conferences held in connection with
Commission investigations conducted under this part.
(2) Revision of transcripts. Within ten (10) days of the completion
of a hearing, but in any event at least one (1) day prior to the date
for disclosure of information set pursuant to Sec. 207.30(a), any
person who testified at the hearing may submit proposed revisions to
the transcript of his or her testimony to the Secretary. No substantive
revisions shall be permitted. If in the judgment of the Secretary a
proposed revision does not alter the substance of the testimony in
question, the Secretary shall incorporate the revision into a revised
transcript.
(d) Closed sessions. Upon a request filed by a party to the
investigation no later than seven (7) days prior to the date of the
hearing that identifies the subjects to be discussed, specifies the
amount of time requested, and justifies the need for a closed session
with respect to each subject to be discussed, the Commission may close
a portion of a hearing to persons not authorized under Sec. 207.7 to
have access to business proprietary information in order to allow such
party to address business proprietary information during the course of
its presentation. In addition, during each hearing held in an
investigation conducted under section 705(b) or section 735(b) of the
Act, following the public presentation of the petitioner(s) and that of
each panel of respondents, the Commission will, if it deems it
appropriate, close the hearing to persons not authorized under section
207.7 to have access to business proprietary information in order to
allow Commissioners to question parties and/or their representatives
concerning matters involving business proprietary information.
23. Redesignated Sec. 207.25 is revised to read as follows:
Sec. 207.25 Posthearing briefs.
Any party may file a posthearing brief concerning the information
adduced at or after the hearing with the Secretary within a time
specified in the notice of scheduling or by the presiding official at
the hearing. No such posthearing brief shall exceed fifteen (15) pages
of textual material, double spaced and single sided, on stationery
measuring 8\1/2\ x 11 inches. In addition, the presiding official may
permit persons to file answers to questions or requests made by the
Commission at the hearing within a specified time. The Secretary shall
not accept for filing posthearing briefs or answers which do not comply
with this section.
24. Redesignated Sec. 207.29 is revised to read as follows:
Sec. 207.29 Publication of notice of determination.
Whenever the Commission makes a final determination, the Secretary
shall serve copies of the determination and the nonbusiness proprietary
version of the final staff report on the petitioner, other parties to
the investigation, and the administering authority. The Secretary shall
publish notice of such determination in the Federal Register.
25. Redesignated Sec. 207.30 is revised to read as follows:
Sec. 207.30 Comment on information.
(a) In any final phase of an investigation under section 705 or
section 735 of the Act, the Commission shall specify a date on which it
will disclose to all parties to the investigation all information it
has obtained on which the parties have not previously had an
opportunity to comment. Any such information that is business
proprietary information will be released to persons authorized to
obtain such information pursuant to Sec. 207.7. The date on which
disclosure is made will occur after the filing of posthearing briefs
pursuant to Sec. 207.25.
(b) The parties shall have an opportunity to file comments on any
information disclosed to them after they have filed their posthearing
brief pursuant to Sec. 207.25. Comments shall only concern such
information, and shall not exceed 15 pages of textual material, double
spaced and single-sided, on stationery measuring 8\1/2\ x 11 inches.
A comment may address the accuracy, reliability, or probative value of
such information by reference to information elsewhere in the record,
in which case the comment shall identify where in the record such
information is found. Comments containing new factual information shall
be disregarded. The date on which such comments must be filed will be
specified by the Commission when it specifies the time that information
will be disclosed pursuant to paragraph (a) of this section. The record
shall close on the date such comments are due, except with respect to
investigations subject to the provisions of section 771(7)(G)(iii) of
the Act, and with respect to changes in bracketing of business
proprietary information in the comments permitted by Sec. 207.3(c).
26. The interim rule amending Sec. 207.40 published in the Federal
Register issue of January 3, 1995 at 60 FR 18 is adopted as a final
rule without change.
Issued: July 15, 1996.
By order of the Commission.
Donna R. Koehnke,
Secretary.
[FR Doc. 96-18334 Filed 7-19-96; 8:45 am]
BILLING CODE 7020-02-P
Complete official Federal Register PDF
FR Doc. 96-18194 Approval and Promulgation of Implementation Plans and Designation of Areas for Air Quality Planning Purposes; State of Louisiana; Correction of Classification; Approval of the Maintenance Plan; Redesignation of Pointe Coupee Parish to Attainment for Ozone
[Federal Register Volume 61, Number 141 (Monday, July 22, 1996)]
[Rules and Regulations]
[Pages 37833-37840]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18194]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 81
[LA-34-1-7300a, FRL-5531-4]
Approval and Promulgation of Implementation Plans and Designation
of Areas for Air Quality Planning Purposes; State of Louisiana;
Correction of Classification; Approval of the Maintenance Plan;
Redesignation of Pointe Coupee Parish to Attainment for Ozone
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: This document announces the Administrator's decision to remove
Pointe Coupee Parish (Pointe Coupee), Louisiana, from the Baton Rouge
serious ozone nonattainment area, to reclassify Pointe Coupee from
serious to marginal, and to redesignate Pointe Coupee to attainment for
ozone. Pointe Coupee
[[Page 37834]]
was classified as a serious ozone nonattainment area by the EPA on
November 6, 1991 (56 FR 56694). However, the EPA has determined that
the strategy used in including Pointe Coupee as part of the Baton Rouge
serious ozone nonattainment area was incorrect. Pursuant to section
110(k)(6) of the Clean Air Act as amended in 1990 (the Act), which
allows the EPA to correct its actions, the EPA is today granting the
State's request to correct the classification of Pointe Coupee.
In addition to approving this correction of Pointe Coupee's
classification, the EPA is today approving a request from the State of
Louisiana to redesignate Pointe Coupee to attainment for ozone. On
December 20, 1995, the State of Louisiana submitted a maintenance plan
and request to redesignate the Pointe Coupee Parish ozone nonattainment
area to attainment. Under the Act, nonattainment areas may be
redesignated to attainment if sufficient data are available to warrant
the redesignation and the area meets the other redesignation
requirements. In this action, the EPA is approving Louisiana's
redesignation request and maintenance plan because it meets the
maintenance plan and redesignation requirements set forth in the Act,
and the EPA is approving the 1993 base year emissions inventory. The
approved maintenance plan will become a federally enforceable part of
the State Implementation Plan (SIP) for Louisiana.
DATES: This action is effective on September 20, 1996, unless notice is
postmarked by August 21, 1996 that someone wishes to submit adverse or
critical comments. If the effective date is delayed, timely notice will
be published in the Federal Register (FR).
ADDRESSES: Comments should be mailed to Thomas H. Diggs, Chief, Air
Planning Section (6PD-L), EPA Region 6, 1445 Ross Avenue, Dallas, Texas
75202-2733. Copies of the State's petition and other information
relevant to this action are available for inspection during normal
hours at the following locations:
Environmental Protection Agency, Region 6, Air Planning Section (6PD-
L), 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733
Air and Radiation Docket and Information Center, Environmental
Protection Agency, 401 M Street, S.W., Washington, D.C. 20460
Louisiana Department of Environmental Quality, Office of Air Quality,
7290 Bluebonnet Boulevard, Baton Rouge, Louisiana 70810
Anyone wishing to review this petition at the EPA office is asked
to contact the person below to schedule an appointment 24 hours in
advance.
FOR FURTHER INFORMATION CONTACT: Lt. Mick Cote, Air Planning Section
(6PD-L), U.S. Environmental Protection Agency, Region 6, 1445 Ross
Avenue, Dallas, Texas 75202-2733, telephone (214) 665-7219.
SUPPLEMENTARY INFORMATION:
Background
Prior to the 1990 amendments to the Act, the EPA identified and
designated nonattainment areas with respect to the National Ambient Air
Quality Standards (NAAQS). For such areas, States submitted SIPs to
control emissions and achieve attainment of the NAAQS. Pointe Coupee
was originally designated as nonattainment for ozone on March 3, 1978.
The SIP for Pointe Coupee was first adopted in the early 1980's.
Pointe Coupee Parish was a rural ozone nonattainment planning area
prior to 1990. The parish is contiguous to the Baton Rouge Consolidated
Metropolitan Statistical Area (CMSA). The ozone design value for Pointe
Coupee for the years 1988 through 1990 was 0.127 parts per million,
which would have classified the parish as a marginal ozone
nonattainment area under the Act.
Following the 1990 amendments to the Act, the Louisiana Department
of Environmental Quality (LDEQ), in conjunction with other State
planning agencies, developed the boundaries for the Baton Rouge ozone
nonattainment area. Pointe Coupee was contiguous to the Baton Rouge
CMSA, and had two large nitrogen oxides (NOX) sources, Big Cajun I
and II power plants. It was concluded that the presence of these two
large NOX sources would contribute significantly to the ozone
levels in the Baton Rouge CMSA. Pointe Coupee was subsequently
classified as serious by operation of law and included as part of the
Baton Rouge serious ozone nonattainment area pursuant to sections
107(d) and 181(a) of the Act. Further citations will refer to the Act
unless otherwise specified. See 56 FR 56694 (November 6, 1991).
The Clean Air Act, as amended in 1977, required areas that were
designated nonattainment based on a failure to meet the ozone NAAQS to
develop SIPs with sufficient control measures to expeditiously attain
and maintain the standard. Pointe Coupee was designated under section
107 of the 1977 Clean Air Act as nonattainment with respect to the
ozone NAAQS on March 3, 1978 (40 CFR 81.319). The most recent revision
to the ozone SIP occurred on May 5, 1994, when the EPA approved a SIP
revision for the State of Louisiana to correct certain enforceability
deficiencies in its volatile organic compounds (VOC) rules (59 FR
23164). For purposes of redesignations, the State of Louisiana has an
approved ozone SIP for Pointe Coupee.
The LDEQ has collected ambient monitoring data since 1991 that show
no violations of the ozone NAAQS of 0.12 parts per million. The LDEQ
has developed a maintenance plan for Point Coupee, and solicited public
comment. Subsequently, the LDEQ submitted a request, through the
Governor's office, to redesignate this parish to attainment with
respect to the ozone NAAQS. This maintenance plan and redesignation
request for Pointe Coupee was submitted to the EPA on December 20,
1995.
Correction of Error Under Section 110(k)(6)
Section 110(k)(6) provides whenever the Administrator determines
that the Administrator's action approving, disapproving, or
promulgating any plan or plan revision (or part thereof), area
designation, redesignation, classification, or reclassification was in
error, the Administrator may in the same manner as the approval,
disapproval, or promulgation revise such action as appropriate without
requiring any further submission from the State. Such determination and
the basis thereof shall be provided to the State and public. The EPA
interprets this provision to authorize the Agency to make corrections
to a promulgation when it is shown to the EPA's satisfaction that an
error occurred in failing to consider or inappropriately considering
information available to the EPA at the time of the promulgation, or
the information made available at the time of promulgation is
subsequently demonstrated to have been clearly inadequate.
Ground level ozone formation involves a photochemical reaction
between certain precursor chemicals when specific meteorological
conditions are present. Reactions between VOCs, NOX, and to a much
lesser degree, carbon monoxide (CO), form ground level ozone. The EPA's
initial action in classifying Pointe Coupee was based on the belief
that NOX emissions from Pointe Coupee would significantly impact
ozone levels in the Baton Rouge CMSA, and including the parish in the
Baton Rouge nonattainment area would assist in controlling future ozone
levels. That information was subsequently demonstrated to have been
[[Page 37835]]
inappropriately considered. The EPA has since determined, through a
recent Urban Airshed Modeling (UAM) demonstration, that NOX
reductions are not beneficial to attainment in the Baton Rouge CMSA,
and therefore contradicts the LDEQ's and the EPA's original reason for
the inclusion of Pointe Coupee in the Baton Rouge planning area.
In addition, Pointe Coupee's design value in the 1988-1990
timeframe was 0.127 ppm, which would have lead the EPA to classify the
area ``marginal''. Pointe Coupee is not part of the Baton Rouge CMSA,
and it is a rural parish. For these reasons, the EPA has determined
that the basis for including Pointe Coupee as part of the Baton Rouge
serious ozone nonattainment area was incorrect. Therefore, the EPA
believes it is appropriate to correct the EPA's initial decision by
removing Pointe Coupee Parish from the Baton Rouge serious ozone
nonattainment area and subsequently change the classification of Pointe
Coupee Parish from serious to marginal. Please see the technical
support document (TSD) in the official docket for the detailed UAM
analysis.
Redesignation to Attainment
Evaluation Criteria
The 1990 Amendments revised section 107(d)(3)(E) to provide five
specific requirements that an area must meet in order to be
redesignated from nonattainment to attainment: (1) The area must have
attained the applicable NAAQS; (2) the area must meet all applicable
requirements under section 110 and part D; (3) the area must have a
fully approved SIP under section 110(k); (4) the air quality
improvement must be permanent and enforceable; and, (5) the area must
have a fully approved maintenance plan pursuant to section 175A.
Section 107(d)(3)(D) allows a Governor to initiate the redesignation
process for an area to apply for attainment status. Please see the TSD
for a detailed discussion of these requirements.
(1) Attainment of the NAAQS for Ozone
Attainment of the ozone NAAQS is determined based on the expected
number of exceedances in a calendar year. The method for determining
attainment of the ozone NAAQS is contained in 40 CFR 50.9 and appendix
H to that section. The simplest method by which expected exceedances
are calculated is by averaging actual exceedances at each monitoring
site over a consecutive three year period. An area is in attainment of
the standard if this average results in expected exceedances for each
monitoring site of 1.0, or less, per calendar year. When a valid daily
maximum hourly average value is not available for each required
monitoring day during the year, the missing days must be accounted for
when estimating exceedances for the year. Appendix H provides the
formula used to estimate the expected number of exceedances for each
year.
The State of Louisiana's request is based on an analysis of
quality-assured ozone air quality data which is relevant to both the
maintenance plan and to the redesignation request. The data come from
the State and Local Air Monitoring Station network. This request is
based on ambient air ozone monitoring data collected for more than
three consecutive years in the area. The New Roads monitoring site in
Pointe Coupee has collected ozone periodically since 1976, and
continuously since 1988. The data collected since 1991 clearly show an
expected exceedance rate of less than 1. The redesignation request and
maintenance plan are based on ambient air quality data collected
between 1991 and 1995. Please see the TSD for the detailed air quality
monitoring data.
In addition to the demonstration discussed above, the EPA required
completion of air network monitoring requirements set forth in 40 CFR
part 58. This included a quality assurance plan revision and a
monitoring network review to determine the adequacy of the ozone
monitoring network. The LDEQ fulfilled these requirements to complete
documentation for the air quality demonstration. The LDEQ has also
committed to continue monitoring in Pointe Coupee in accordance with 40
CFR part 58.
In summary, the EPA believes that the data submitted by the LDEQ
provides an adequate demonstration that Pointe Coupee attained the
ozone NAAQS. Moreover, the monitoring data continue to show attainment
to date.
(2) Section 110 Requirements and Part D Requirements
For purposes of redesignation, to meet the requirement that the SIP
contain all applicable requirements under the Act, the EPA has reviewed
the SIP to ensure that it contains all measures that were due under the
Act prior to or at the time the State submitted its redesignation
request, as set forth in policy. The EPA interprets section
107(d)(3)(E)(v) to mean that, for a redesignation request to be
approved, the State must have met all requirements that applied to the
subject area prior to or at the same time as the submission of a
complete redesignation request. In this case, the date of submission of
a complete redesignation request is December 20, 1995.
Requirements of the Act that come due subsequently continue to be
applicable to the area at later dates (see section 175A(c)) and, if
redesignation of any of the areas is disapproved, the State remains
obligated to fulfill those requirements. These requirements are
discussed in the following the EPA documents: ``Procedures for
Processing Requests to Redesignate Areas to Attainment,'' John
Calcagni, Director, Air Quality Management Division, September 4, 1992;
``State Implementation Plan (SIP) Actions Submitted in Response to
Clean Air Act (the Act) Deadlines,'' John Calcagni, Director, Air
Quality Management Division, October 28, 1992; and ``State
Implementation Plan (SIP) Requirements for Areas Submitting Requests
for Redesignation to Attainment of the Ozone and Carbon Monoxide (CO)
National Ambient Air Quality Standards (NAAQS) on or after November 15,
1992,'' Michael H. Shapiro, Acting Assistant Administrator, September
17, 1993.
The EPA has analyzed the Louisiana SIP and determined that it is
consistent with the requirements of amended section 110(a)(2). The SIP
contains enforceable emission limitations; requires monitoring,
compiling, and analyzing ambient air quality data; requires
preconstruction review of new major stationary sources and major
modifications to existing ones; provides for adequate funding, staff,
and associated resources necessary to implement its requirements; and
requires stationary source emissions monitoring and reporting. For
purposes of redesignation, the Pointe Coupee SIP was reviewed to ensure
that all requirements of section 110(a)(2), containing general SIP
elements, were satisfied. As noted above, the EPA believes all marginal
ozone nonattainment area requirements have been met for Pointe Coupee.
Part D Requirements. Before Pointe Coupee can be redesignated to
attainment, it must have fulfilled the applicable requirements of part
D. Under part D, an area's classification determines the requirements
to which it is subject. Subpart 1 of part D sets forth the basic
nonattainment requirements applicable to all nonattainment areas.
Subpart 2 of part D establishes additional requirements for
nonattainment areas classified under Table 1 of section 181(a). As
described in the General Preamble for the Implementation of Title 1,
specific requirements of subpart 2 may override subpart 1's general
provisions (57 FR
[[Page 37836]]
13501 (April 16, 1992)). With this action, Pointe Coupee is now subject
to the marginal requirements of section 182(a) rather than section
182(c). Therefore, in order to be redesignated, the State must meet the
applicable requirements of subpart 1 of part D-specifically sections
172(c) and 176, as well as the applicable requirements of subpart 2 of
part D.
Subpart 1 of Part D--Section 172(c) Requirements. Under section
172(b), the Administrator established that States containing
nonattainment areas shall submit a plan or plan revision meeting the
applicable requirements of section 172(c) no later than three years
after an area is designated as nonattainment, unless the EPA
establishes an earlier date.
Section 172(c) sets forth general requirements applicable to all
nonattainment areas. Under section 172(b), the section 172(c)
requirements are applicable as determined by the Administrator, but no
later than three years after an area has been designated as
nonattainment under the Act. Furthermore, as noted above, some of these
section 172(c) requirements are superseded by more specific
requirements in subpart 2 of part D. Those sections which have been
superseded can be found in the subpart 2 discussion. In the case of
Pointe Coupee, the State has satisfied all of the section 172(c)
requirements.
As discussed under the section 110(k)(6) requirements above, Pointe
Coupee has been part of a larger serious ozone nonattainment area.
Serious ozone nonattainment areas have an attainment date of November
15, 1999. However, since this action classifies Pointe Coupee as
marginal, the area now has an attainment date of November 15, 1993.
Based on the monitoring data collected between 1991 and 1995, the EPA
agrees with the State that Pointe Coupee attained the ozone standard by
this earlier date.
The section 172(c)(1) non-Reasonably Available Control Technology
(RACT) control requirements have been met through satisfaction of the
section 182(a)(2)(A) requirements. The EPA has determined that the
section 172(c)(2) reasonable further progress requirement does not
apply for this redesignation request, since air quality data shows that
Pointe Coupee has already attained the ozone standard. The section
172(c)(3) emissions inventory requirements will be satisfied by the
approval of the 1993 attainment year inventory requirements of the
maintenance plan under section 175A. The section 172(c)(4) requirement
to identify and quantify emission increases is intended to be an
alternative to the offsets requirement of section 173(a), and is not a
prerequisite to redesignation. Moreover, once the area is redesignated
to attainment, these provisions will not apply since the Prevention of
Significant Deterioration requirements of part C will become effective.
As for the section 172(c)(5) New Source Review (NSR) requirement,
the EPA has determined that areas being redesignated need not comply
with the NSR requirement prior to redesignation provided that the area
demonstrates maintenance of the standard without part D NSR in effect.
See, memorandum from Mary Nichols, Assistant Administrator for Air and
Radiation, dated October 14, 1994, entitled Part D New Source Review
(part D NSR) Requirements for Areas Requesting Redesignation to
Attainment. The rationale for this view is described fully in that
memorandum, and is based on the EPA's authority to establish de minimis
exceptions to statutory requirements. See, Alabama Power Co. v. Costle,
636 F. 2d 323, 360-61 (D.C. Cir. 1979).
Section 172(c)(6) requires that other control measures be included
as necessary to provide for attainment and maintenance of the ozone
standard. Since attainment has been reached in Pointe Coupee, no
additional measures are needed for attainment. Any additional measures
required to ensure maintenance of the ozone standard are included in
the contingency plan submitted with the redesignation request. Section
172(c)(7) requires that the nonattainment plan meet the applicable
provision of section 110(a)(2). As discussed above under the section
110(a)(2) requirements, the SIP contains such measures and has met the
requirements of section 110(a)(2). Section 172(c)(8) allows the State
to use equivalent techniques for modeling, inventorying, or other
planning activities unless the EPA determines that the techniques are
less effective. This allowance will continue to apply to the
requirements of the maintenance plan. The section 172(c)(9)
requirements for contingency measures are directed at ensuring
reasonable further progress and attainment by the attainment date.
These requirements do not apply to Pointe Coupee, since the area has
attained the ozone standard. Furthermore, section 175A for maintenance
plans provides specific requirements for contingency measures that
effectively supersede the requirements of this section.
Section 176(c) requires States to revise their SIPs to establish
criteria and procedures to ensure that Federal actions, before they are
taken, conform to the air quality planning goals in the applicable
State SIP. The EPA believes it is reasonable to interpret the
conformity requirements as not being applicable requirements for
purposes of evaluating this redesignation request under section 107(d).
The rationale for this is based on a combination of two factors.
First, the requirement to submit SIP revisions to comply with the
conformity provisions of the Act continues to apply to areas after
redesignation to attainment. Second, the EPA's federal conformity rules
require the performance of conformity analyses in the absence of state-
adopted rules. For a complete description of the EPA's national policy
for the applicability of conformity requirements to redesignation
requests, please see the December 7, 1995 Federal Register at 60 FR
62748.
Finally, for purposes of redesignation, the Pointe Coupee SIP was
reviewed to ensure that all requirements of section 110(a)(2),
containing general SIP elements, were satisfied. As noted above, the
EPA believes the SIP satisfies all of those requirements.
Subpart 2 of Part D--Section 182(a) Requirements. The Act was
amended on November 15, 1990, Public Law 101- 549, 104 Stat. 2399,
codified at 42 U.S.C. 7401-7671q. The EPA was required to classify
ozone nonattainment areas according to the severity of their problem.
As discussed previously, Pointe Coupee was designated as a serious
ozone nonattainment. See 40 CFR 81.319. Because of this classification,
Pointe Coupee originally had to meet the more stringent section 182(c)
requirements. The EPA has analyzed the SIP and determined that it is
consistent with the requirements of amended section 182. Below is a
summary of how the area has met the requirements of section 182(a) for
marginal areas.
Emissions Inventory. Section 182(a)(1) required an inventory of
actual emissions from all sources, as described in section 172(c)(3) by
November 15, 1992. On November 16, 1992, the LDEQ submitted an emission
inventory for Pointe Coupee as part of the Baton Rouge 1990 base year
submission. The EPA approved this 1990 base year inventory on March 15,
1995.
Reasonably Available Control Technology. To be redesignated, all
SIP revisions required by section 182(a)(2)(A) concerning RACT
requirements must have been submitted to the EPA and fully approved (59
FR
[[Page 37837]]
23166). Louisiana has met all RACT corrections requirements.
Vehicle Inspection and Maintenance (I/M). Section 182(a)(2)(B)
requires that States correct deficiencies in any existing I/M program.
There is not, however, any requirement under this section to implement
a new I/M program. Pointe Coupee did not have an I/M program in place
prior to 1990, so no outstanding I/M issues exist. It should be noted
that an I/M program has been adopted by the State in this parish, but
the EPA has not taken action to approve it.
Emissions Inventory Update and Statements. Section 182(a)(3)(A)
required a periodic update of the area's emission inventory under
paragraph (1) within three years of its submittal. The State included a
1993 inventory with the December 20, 1995 submittal of its maintenance
plan and redesignation request for Pointe Coupee. Section 182(a)(3)(B)
required a SIP submission by November 15, 1992, to require stationary
sources of NOX and VOCs to provide statements of actual emissions.
Louisiana submitted an annual emissions statement SIP revision on March
3, 1993. This revision was approved in the Federal Register on January
6, 1995 at 60 FR 2014.
General Offset Requirement. Section 182(a)(4) required the State to
develop VOC emission offset requirements in the ratio of 1.1 to 1. As
discussed previously under the section 172(c)(5) NSR requirements, the
EPA has determined that areas being redesignated need not comply with
the NSR requirement prior to redesignation. Section 172(c)(5)(c) of the
NSR requirements specifies the requirements for offsets.
(3) Fully Approved SIP Under Section 110(k)
Based on the approval of provisions under the pre-amended Act and
the EPA's prior approval of SIP revisions under the 1990 Amendments,
the EPA has determined that Pointe Coupee has a fully approved SIP
under section 110(k), which also meets the applicable requirements of
section 110 and part D as discussed above.
(4) Improvement in Air Quality Due to Permanent and Enforceable
Measures
The EPA approved the Louisiana SIP control strategy for Pointe
Coupee, satisfied that the rules and the emission reductions achieved
as a result of those rules were enforceable. The control measures to
which the emission reductions are attributed are VOC RACT regulations,
the Federal Motor Vehicle Control Program (FMVCP), and lower Reid Vapor
Pressure (RVP) for gasoline. The FMVCP and RVP reduced VOC emissions
from motor vehicles by 47 percent from 1990 to 1996. In addition, the
State permits program, the Prevention of Significant Deterioration
permits program, and the Federal Operating Permits program will help
counteract future emissions growth.
In association with its emission inventory discussed below, the
State of Louisiana has demonstrated that actual enforceable emission
reductions are responsible for the air quality improvement and that the
VOC emissions in the base year are not artificially low due to local
economic downturn. The EPA finds that the combination of existing the
EPA-approved state and federal measures contribute to the permanence
and enforceability of reduction in ambient ozone levels that have
allowed the area to attain the NAAQS.
(5) Fully Approved Maintenance Plan Under Section 175A
Section 175A sets forth the elements of a maintenance plan for
areas seeking redesignation from nonattainment to attainment. The plan
must demonstrate continued attainment of the applicable NAAQS for at
least ten years after the Administrator approves a redesignation to
attainment. Eight years after the redesignation, the State must submit
a revised maintenance plan which demonstrates attainment for the ten
years following the initial ten-year period. To provide for the
possibility of future NAAQS violations, the maintenance plan must
contain contingency measures, with a schedule for implementation,
adequate to assure prompt correction of any air quality problems. In
this document, the EPA is approving the State of Louisiana's
maintenance plan for Pointe Coupee because the EPA finds that
Louisiana's submittal meets the requirements of section 175A.
A. Emissions Inventory-Attainment Year Inventory
On December 20, 1995, the State of Louisiana submitted
comprehensive inventories of VOCs, NOX, and CO emissions from
Pointe Coupee. The inventories include area, stationary, and mobile
sources using 1993 as the base year for calculations to demonstrate
maintenance. The 1993 inventory is considered representative of
attainment conditions because the NAAQS was not violated during 1993
and was one of the three years (1991-1993) upon which the attainment
demonstration was based. The EPA is approving the 1993 base year
inventory in this document.
The State submittal contains the detailed inventory data and
summaries by county and source category. The UAM Emission Processing
System 2.0 Utility Program Bureau of Economic Analysis Factors was used
to generate the growth projections for the emissions inventory. These
factors were applied to the 1993 inventory to reflect the expected
emission levels through 2006.
The emission projections show an increase above the base year
levels for NOX. Because of this increase, the LDEQ was required to
provide justification that Pointe Coupee could maintain its air quality
in light of this projected NOX increase. The LDEQ submitted a UAM
demonstration with the redesignation request. The UAM demonstration was
used to demonstrate the impact of NOX emission increases on ozone
formation. The UAM analysis showed that the projected future mix of
emissions will not cause a violation of the NAAQS. The EPA UAM guidance
documents were used in developing model inputs.
The model was run using 1992 and 1993 meteorological conditions and
monitored ozone concentration data. This UAM demonstration illustrates
that the projected NOX levels during the maintenance period (1993-
2006) will not adversely affect ozone levels in Pointe Coupee. Please
see the TSD for details regarding the emission inventory and
projections, as well as a copy of the UAM modeling results.
The following table is a summary of the revised average peak ozone
season weekday VOC and NOX emissions for the major anthropogenic
source categories for the 1993 attainment year inventory.
Summary of VOC Emission Projections for Pointe Coupee Parish in Tons Per
Day
------------------------------------------------------------------------
1993 1999 2006
------------------------------------------------------------------------
Point Source VOC................................ 2.50 2.52 2.50
Area Source VOC................................. 0.94 0.98 0.88
Nonroad Source VOC.............................. 1.55 1.70 1.51
Onroad Source VOC............................... 1.63 1.21 1.18
-----------------------
Total VOC................................... 6.62 6.41 6.07
------------------------------------------------------------------------
Summary of NOX Emission Projections for Pointe Coupee Parish in Tons Per
Day
------------------------------------------------------------------------
1993 1999 2006
------------------------------------------------------------------------
Point Source NOX................................ 60.91 64.76 67.19
Area Source NOX................................. 0.03 0.03 0.03
Nonroad Source NOX.............................. 3.40 4.01 3.33
Onroad Source NOX............................... 2.56 2.19 2.12
-----------------------
[[Page 37838]]
Total NOX................................... 66.40 70.99 72.67
------------------------------------------------------------------------
B. Continued Attainment
Continued attainment of the ozone NAAQS in Pointe Coupee will
depend, in part, on the Federal and State control measures discussed
previously. However, the ambient air monitoring site will remain active
at its present location during the maintenance period. These data will
be quality assured and submitted to the Aerometric Information and
Retrieval System on a monthly basis. A monitored violation of the ozone
NAAQS will provide the basis for triggering measures contained in the
contingency plans. Additionally, as discussed above, during year eight
of the maintenance period, the LDEQ is required to submit a revised
plan to provide for maintenance of the ozone standard in Pointe Coupee
for the next ten years.
C. Contingency Plan
Section 175A requires that a maintenance plan include contingency
provisions, as necessary, to promptly correct any violation of the
NAAQS that occurs after redesignation of the area to attainment. The
contingency plan should clearly identify the measures to be adopted, a
schedule and procedure for adoption and implementation, and a specific
time limit for action by the State. The State should also identify
specific triggers which will be used to determine when the measures
need to be implemented.
The LDEQ has selected new Control Techniques Guidelines or
Alternative Control Technology rule implementation and NOX RACT as
contingency measures in Pointe Coupee. If at any time during the
maintenance period Pointe Coupee records a violation of the ozone
NAAQS, the LDEQ will evaluate the potential source(s) of that violation
and promulgate either VOC or NOX RACT rules as appropriate for the
affected source categories. The LDEQ will adopt rules within 9 months
of the violation, and affected sources must be in compliance with the
these rules within 2 years of the violation. These contingency measures
and schedules for implementation satisfy the requirements of section
175A(d).
D. Subsequent Maintenance Plan Revisions
In accordance with section 175A(b), the State has agreed to submit
a revised maintenance SIP eight years after the area is redesignated to
attainment. Such revised SIP will provide for maintenance for an
additional ten years.
Final Action
In today's action, the EPA is correcting the error made by removing
Pointe Coupee from the Baton Rouge serious ozone nonattainment area,
establishing Pointe Coupee Parish as a separate planning area in
accordance with section 110(k)(6). In addition, the EPA is correcting
the classification of the area from serious to marginal for ozone. In
accordance with sections 107(d)(2)(B), and 110(k)(6), the correction
action portion of this document is a final publication of the
classification of Pointe Coupee Parish to a marginal ozone
nonattainment area, and is not subject to the notice and comment
provisions of sections 553 through 557 of title 5 of the Administrative
Procedures Act.
The EPA has evaluated the State's redesignation request for Pointe
Coupee for consistency with the Act, the EPA regulations, and policy.
The EPA believes that the redesignation request and monitoring data
demonstrate that this area has attained the ozone standard. In
addition, the EPA has determined that the redesignation request meets
the requirements and policy set forth in the General Preamble and
policy memorandum discussed in this document for area redesignations,
and today is approving Louisiana's redesignation request for Pointe
Coupee Parish.
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 September 20, 1996, unless adverse or critical comments
concerning the redesignation portion of this document are postmarked by
August 21, 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 the redesignation portion of this document 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 September 20,
1996.
The EPA has reviewed this redesignation request for conformance
with the provisions of the Act and has determined that this action
conforms to those requirements.
Regulatory Process
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 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 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.
Under section 307(b)(1), petitions for judicial review of this
action must be filed in the United States Court of Appeals for the
appropriate circuit by September 20, 1996. Filing a petition for
reconsideration of this final rule by the 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
[[Page 37839]]
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.
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 section 175A. 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.
SIP Actions Exempt From OMB Review
This action has been classified for signature by the Administrator
under the procedures published in the Federal Register on January 19,
1989 (54 FR 2214-2225), as revised by a July 10, 1995, memorandum from
Mary Nichols, Assistant Administrator for Air and Radiation. The Office
of Management and Budget has exempted this regulatory action from
Executive Order 12866 review.
Submission to Congress and the General Accounting Office
Under section 801(a)(1)(A) of the Administrative Procedure Act
(APA) as amended by the Small Business Regulatory Enforcement Fairness
Act of 1996, EPA submitted a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives and the Comptroller General of the General Accounting
Office prior to publication of the rule in today's Federal Register.
This rule is not a ``major rule'' as defined by section 804(2) of the
APA as amended.
List of Subjects
40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental regulations, Ozone, Reporting and
recordkeeping requirements, Volatile organic compounds.
40 CFR Part 81
Air pollution control, National Parks, Wilderness areas.
Dated: June 27, 1996.
Carol M. Browner,
Administrator.
40 CFR Parts 52 and 81 are 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)(70) to read as
follows:
Sec. 52.970 Identification of plan.
* * * * *
(c) * * *
(70) The Louisiana Department of Environmental Quality submitted a
redesignation request and maintenance plan for Pointe Coupee Parish on
December 20, 1995. The redesignation request and maintenance plan meet
the redesignation requirements in section 107(d)(3)(E) of the Act as
amended in 1990. The redesignation meets the Federal requirements of
section 182(a)(1) of the Clean Air Act as a revision to the Louisiana
ozone State Implementation Plan for Pointe Coupee Parish. The EPA
therefore approved the request for redesignation to attainment with
respect to ozone for Pointe Coupee Parish on September 20, 1996.
(i) Incorporation by reference.
(A) Letter dated August 31, 1995, from Mr. Gustave Von Bodungen,
P.E., Assistant Secretary, Louisiana Department of Environmental
Quality, transmitting a copy of the Pointe Coupee Parish maintenance
plan for the EPA's approval.
(ii) Additional material.
(A) Letter dated August 28, 1995, from Governor Edwin E. Edwards of
Louisiana to Ms. Jane Saginaw, Regional Administrator, requesting the
reclassification and redesignation of Pointe Coupee Parish to
attainment for ozone.
(B) The ten year ozone maintenance plan, including emissions
projections and contingency measures, submitted to the EPA as part of
the Pointe Coupee Parish redesignation request on December 20, 1995.
3. Section 52.975 is amended by adding paragraph (d) to read as
follows:
Sec. 52.975 Redesignations and maintenance plans: Ozone.
* * * * *
(d) Approval. The Louisiana Department of Environmental Quality
submitted a redesignation request and maintenance plan for Pointe
Coupee Parish on December 20, 1995. The redesignation request and
maintenance plan meet the redesignation requirements in section
107(d)(3)(E) of the Act as amended in 1990. The redesignation meets the
Federal requirements of section 182(a)(1) of the Clean Air Act as a
revision to the Louisiana ozone State Implementation Plan for Pointe
Coupee Parish. The EPA therefore approved the request for redesignation
to attainment with respect to ozone for Pointe Coupee Parish on
September 20, 1996.
PART 81--[AMENDED]
1. The authority citation for part 81 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
2. In Sec. 81.319, the ozone table is amended by revising the
entries for the Baton Rouge Area and adding an entry for Pointe Coupee
Area in alphabetical order to read as follows:
Sec. 81.319 Louisiana.
* * * * *
[[Page 37840]]
Louisiana--Ozone
----------------------------------------------------------------------------------------------------------------
Designation Classification
Designated area -------------------------------------------------------------------------------
Date \1\ Type Date Type
----------------------------------------------------------------------------------------------------------------
Baton Rouge Area:
Ascension Parish............ .................. Nonattainment..... .................. Serious.
East Baton Rouge Parish..... .................. Nonattainment..... .................. Serious.
Iberville Parish............ .................. Nonattainment..... .................. Serious.
Livingston Parish........... .................. Nonattainment..... .................. Serious.
West Baton Rouge Parish..... .................. Nonattainment..... .................. Serious.
* * * * * *
*
Pointe Coupee Area:
Pointe Coupee Parish........ September 20, 1996 Attainment........ .................. ..................
----------------------------------------------------------------------------------------------------------------
\1\This date is November 15, 1990, unless otherwise noted.
* * * * *
[FR Doc. 96-18194 Filed 7-19-96; 8:45 am]
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