issue-1996-02-15•Federal Register final rules — 1996-02-15
Federal Register final rules — 1996-02-15
issue-1996-02-15Federal Register final rules — 1996-02-15Regulation
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. 96-3493 Removal of Class E Airspace; Fort Devens, MA
[Federal Register Volume 61, Number 32 (Thursday, February 15, 1996)]
[Rules and Regulations]
[Pages 5937-5938]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-3493]
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DEPARTMENT OF TRANSPORTATION
14 CFR Part 71
[Airspace Docket No. 96-ANE-01]
Removal of Class E Airspace; Fort Devens, MA
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Final rule; request for comments.
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SUMMARY: This amendment removes the Class E airspace at Moore Army Air
Field, Fort Devens, MA. With the closing of Fort Devens, the U.S. Army
decommissioned the airport traffic control tower at Moore Army Air
Field, and cancelled all the Standard Instrument Approach Procedures
(SIAP's) to that airport. This action is necessary to remove the Class
E airspace area at Fort Devens, which is no longer required.
DATES: Effective Date: 0901 UTC, April 25, 1996.
Comments must be received on or before March 18, 1996.
ADDRESSES: Send comments on the proposal in triplicate to: Manager,
System Management Branch, ANE-530, Federal Aviation Administration,
Docket No. 95-ANE-60, 12 New England Executive Park, Burlington, MA
01803-5299; telephone (617) 238-7530; fax (617) 238-7596.
The official docket file may be examined in the Office of the
Assistant Chief Counsel, New England Region, ANE-7, Room 401, 12 New
England Executive Park, Burlington, MA 01803-5299; telephone (617) 238-
7040; fax (617) 238-7055.
An informal docket may also be examined during normal business
hours in the Air Traffic Division, Room 408, by contacting the Manager,
System Management Branch at the first address listed above.
FOR FURTHER INFORMATION CONTACT:
Raymond Duda, System Management Branch, ANE-533, 12 New England
Executive Park, Burlington, MA 01803-5299; telephone (617) 238-7533;
fax (617) 238-7596.
SUPPLEMENTARY INFORMATION:
Request for Comments on the Rule
Although this action is a final rule, which involves removing the
Class E airspace area at Fort Devens, MA, and was not preceded by
notice and an opportunity for public comment, comments are invited on
the rule. This rule will become effective on the date specified in the
DATES section. However, after the review of any comments and, if the
FAA finds that further changes are appropriate, it may initiate
rulemaking proceedings to extend the effective date or to amend the
regulation.
Comments that provide the factual basis supporting the views and
suggestions presented are particularly helpful in evaluating the
effects of the rule, and in determining whether additional rulemaking
is required. Comments are specifically invited on the overall
regulatory, economic, environmental, and energy-related aspects of the
rule, which might suggest the need to modify the rule.
The Rule
This amendment to part 71 of the Federal Aviation Regulations (14
CFR part 71) removes the Class E airspace area at Moore Army Air Field,
Fort Devens, MA. Since the closure of Fort Devens in 1993, the U.S.
Army has decommissioned the airport traffic control over (ATCT) at
Moore Army Air Field and cancelled all the Standard Instrument Approach
Procedures (SIAP's) to that airport. Controlled airspace in the
vicinity of Moore Army Air Field is, therefore, no longer required.
This action removes the Class E airspace area at Fort Devens, MA. Class
E airspace designations for airspace areas extending from 700 or more
feet above the surface of the earth are published in paragraph 6005 of
FAA Order 7400.9C, dated August 17, 1995, and effective September 16,
1995, which is incorporated by reference in 14 CFR 71.1. The removal of
the Class E airspace designation listed in this document will be
published subsequently in this Order.
Under the circumstances presented, the FAA concludes that notice
and an opportunity for prior public comment under 5 U.S.C. 553(b) is
unnecessary and contrary to the public interest. In addition, the FAA
has determined that this regulation only involves an established body
of technical regulations for which frequent and routine amendments are
necessary to keep them operationally current. Therefore this
regulation--(1) is not a ``significant regulatory action'' under
Executive Order 12866; (2) is not a ``significant rule'' under DOT
Regulatory Policies and Procedures (44 FR 11034; February 26, 1979);
and (3) does not warrant preparation of a Regulatory Evaluation as the
anticipated
[[Page 5938]]
impact will be so minimal. Since this is a routine matter that will
only affect air traffic procedures and air navigation, it is certified
that this rule will not have significant economic impact on a
substantial number of small entities under the criteria of the
Regulatory Flexibility Act.
List of Subjects in 14 CFR Part 71
Airspace, Incorporation by reference, Navigation (air).
Adoption of the Amendment
In consideration of the foregoing, the Federal Aviation
Administration amends 14 CFR part 71 as follows:
PART 71--[AMENDED]
1. The authority citation for part 71 continues to read as follows:
Authority: 49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854.
Sec. 71.1 [Amended]
2. The incorporation by reference in 14 CFR 71.1 of Federal
Aviation Administration Order 7400.9C, Airspace Designations and
Reporting Points, dated August 17, 1995, and effective September 16,
1995, is amended as follows:
Subpart E--Class E Airspace
* * * * *
Paragraph 6005 Class E surface areas extending from 700 or more
feet above the surface of the earth.
* * * * *
ANE MA E5 Fort Devens, MA [Removed]
* * * * *
Issued in Burlington, MA, on February 8, 1996.
David J. Hurley,
Manager, Air Traffic Division, New England Region.
[FR Doc. 96-3493 Filed 2-14-96; 8:45 am]
BILLING CODE 4910-13-M
Complete official Federal Register PDF
FR Doc. 96-3492 Amendment to Class D and Class E Airspace; New England Region
[Federal Register Volume 61, Number 32 (Thursday, February 15, 1996)]
[Rules and Regulations]
[Pages 5935-5937]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-3492]
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DEPARTMENT OF TRANSPORTATION
14 CFR Part 71
[Airspace Docket No. 95-ANE-60]
Amendment to Class D and Class E Airspace; New England Region
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Final rule.
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SUMMARY: This amendment modifies the Class D airspace areas at Beverly,
MA (BVY); Bedford, MA (BED); Danbury, CT (DXR); Norwood, MA (OWD);
Lebanon, NH (LEB); and Nashua, NH (ASH); and the associated Class E
airspace areas at Beverly (BVY), Lebanon (LEB), and Nashua (ASH). The
FAA has determined after a review of the elevation of the surrounding
terrain in the vicinity of these airports that the lateral limits of
the Class D areas at these airports may be reduced and the appropriate
changes made to the Class E airspace areas.
EFFECTIVE DATE: 0901 UTC, April 25, 1996.
FOR FURTHER INFORMATION CONTACT: Raymond Duda, System Management
Branch, ANE-533, 12 New England Executive Park, Burlington, MA 01803-
5299; telephone (617) 238-7533; fax (617) 238-7596.
SUPPLEMENTARY INFORMATION:
History
On December 18, 1995, the FAA proposed to amend part 71 of the
Federal Aviation Regulations (14 CFR part 71) by reducing the lateral
limits of the Class D airspace areas at Beverly, MA (BVY); Bedford, MA
(BED); Danbury, CT (DXR); Norwood, MA (OWD); Lebanon, NH (LEB); and
Nashua, NH (ASH); and, as a consequence to those changes, by making the
necessary changes to the associated Class E airspace areas at Beverly
(BVY), Lebanon (LEB), and Nashua (ASH) (60 FR 65041). The proposed
action was the result of an extensive review of the elevation of the
surrounding terrain at airports in the New England region with Class D
airspace areas. That review came in response to concerns expressed by
operators and other interested parties over recent changes to the
lateral limits of Class D airspace areas in the New
[[Page 5936]]
England region. By using more detailed topographical charts and more
precise calculations, the FAA determined that reductions in the lateral
limits of the Class D airspace areas at BVY, BED, DXR, OWD, LEB, and
ASH were appropriate and would not affect aviation safety. As a result
of the reductions to the Class D airspace areas at BVY, LEB, and ASH,
the FAA determined that minor adjustments to the associated Class E
areas at those airports were necessary.
Interested parties were invited to participate in this rulemaking
by submitting written comments on the proposal to the FAA. One comment
was received from the National Oceanic and Atmospheric Administration's
Charting Division which noted some needed typographical corrections.
The FAA has incorporated those corrections into this final rule. In
addition, since the issuance of the Notice of Proposed Rulemaking, the
FAA has determined that the proposed northerly extension to the LEB
Class D airspace areas running to 6 miles north of the extended
centerline of Runway 36 at LEB may be eliminated because that airspace
is encompassed by the proposed Class E extensions to the LEB Class D
airspace. Class D airspace designations, and Class E airspace
designations for airspace areas extending upward from the surface of
the earth defined as extensions to Class D airspace areas, are
published in paragraphs 5000 and 6004, respectively, of FAA Order
7400.9C, dated August 17, 1995, and effective September 16, 1995, which
is incorporated by reference in 14 CFR 71.1. The Class D and Class E
airspace designations listed in this document would be published
subsequently in this Order.
The Rule
The amendment to part 71 of the Federal Aviation Regulations (14
CFR part 71) amends the Class D airspace areas at BVY, BED, DXR, OWD,
LEB, and ASH, by reducing the lateral limits of those airspace areas,
and by making the necessary changes to the associated Class E airspace
areas at BVY, LEB, and ASH. The FAA has determined that these
amendments only involve an established body of technical regulations
for which frequent and routine amendments are necessary to keep them
operationally current. Therefore, these regulations--(1) are not
``significant regulatory actions'' under Executive Order 12866; (2) are
not ``significant rules'' under DOT Regulatory Policies and Procedures
(44 FR 11034; February 26, 1979); and (3) do not warrant preparation of
a Regulatory Evaluation as the anticipated impact will be so minimal.
Since this is a routine matter that will only affect air traffic
procedures and air navigation, it is certified that these rules will
not have significant economic impact on a substantial number of small
entities under the criteria of the Regulatory Flexibility Act.
List of Subjects in 14 CFR Part 71
Airspace, Incorporation by reference, Navigation (air).
Adoption of the Amendment
In consideration of the foregoing, the Federal Aviation
Administration amends part 71 of the Federal Aviation Regulations (14
CFR part 71) as follows:
PART 71--[AMENDED]
1. The authority citation for part 71 continues to read as follows:
Authority: 49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854.
Sec. 71.1 [Amended]
2. The incorporation by reference in 14 CFR 71.1 of Federal
Aviation Administration Order 7400.9C, Airspace Designations and
Reporting Points, dated August 17, 1995, and effective September 16,
1995, is amended as follows:
Paragraph 5000--Class D Airspace
* * * * *
ANE MA D Beverly, MA [Revised]
Beverly Municipal Airport, MA
(Lat. 42 deg.35'03'' N, long. 70 deg.54'59'' W)
That airspace extending upward from the surface to and including
2,600 feet MSL within a 4.1-mile radius of Beverly Municipal
Airport, excluding that airspace within the Boston, MA, Class B
airspace area. This Class D airspace area is effective during the
specific dates and times established in advance by a Notice to
Airmen. The effective dates and times will thereafter be
continuously published in the Airport/Facility Directory.
* * * * *
ANE MA D Bedford, MA [Revised]
Bedford, Lawrence G. Hanscom Field, MA
(Lat. 42 deg.28'12'' N, long. 71 deg.17'20'' W)
That airspace extending upward from the surface to and including
2,600 feet MSL within a 4.7-mile radius of Lawrence G. Hanscom
Field, excluding that airspace within the Boston, MA, Class B
airspace area. This Class D airspace area is effective during the
specific dates and times established in advance by a Notice to
Airmen. The effective dates and times will thereafter be
continuously published in the Airport/Facility Directory.
* * * * *
ANE CT D Danbury, CT [Revised]
Danbury Municipal Airport, CT
(Lat. 41 deg.22'17'' N, long. 73 deg.28'56'' W)
Carmel VORTAC
(Lat. 41 deg.16'48'' N, long. 73 deg.34'53'' W)
That airspace extending upward from the surface to and including
3,000 feet MSL within a 6-mile radius of Danbury Municipal Airport,
and within 1.2 miles on each side of the Carmel VORTAC 039 deg.
radial, extending from the 6-mile radius to the Carmel VORTAC. This
Class D airspace area is effective during the specific dates and
times established in advance by a Notice to Airmen. The effective
dates and times will thereafter be continuously published in the
Airport/Facility Directory.
* * * * *
ANE MA D Norwood, MA [Revised]
Norwood Memorial Airport, MA
(Lat. 42 deg.11'27'' N, long. 71 deg.10'23'' W)
That airspace extending upward from the surface to and including
2,600 MSL within a 4.5-mile radius of the Norwood Memorial Airport,
excluding that airspace within the Boston, MA, Class B airspace
area. This Class D airspace area is effective during the specific
dates and times established in advance by a Notice to Airmen. The
effective dates and times will thereafter be continuously published
in the Airport/Facility Directory.
* * * * *
ANE NH D Lebanon, NH [Revised]
Lebanon Municipal Airport, NH
(Lat. 43 deg.37'35'' N, long. 72 deg.18'15'' W)
That airspace extending upward from the surface to and including
3,100 feet MSL within a 4.8-mile radius of Lebanon Municipal
Airport. This Class D airspace area is effective during the specific
dates and times established in advance by a Notice to Airmen. The
effective dates and times will thereafter be continuously published
in the Airport/Facility Directory.
* * * * *
ANE NH D Nashua, NH [Revised]
Nashua Boire Field, NH
(Lat. 42 deg.46'54'' N, long. 71 deg.30'53'' W)
Sports Center Airport, Pepperell
(Lat. 42 deg.41'46'' N, long. 71 deg.33'00'' W)
That airspace extending upward from the surface to and including
2,700 feet MSL within a 5-mile radius of Boire Field; excluding that
airspace within a 2-mile radius of Sports Center Airport, Pepperell,
and that airspace within the Manchester Airport, NH, Class C
airspace areas. This Class D airspace area is effective during the
specific dates and times established in advance by a Notice to
Airmen. The effective dates and times will thereafter be
continuously published in the Airport/Facility Directory.
* * * * *
Subpart E--Class E Airspace
* * * * *
[[Page 5937]]
Paragraph 6004--Class E airspace areas extending from the surface
of the earth defined as extensions to Class D airspace areas.
* * * * *
ANE MA E4 Beverly, MA [Revised]
Beverly Municipal Airport, MA
(Lat. 42 deg.35'03'' N, long. 70 deg.54'59'' W)
That airspace extending upward from the surface within 3.2 miles
on each side of the Topsfield NDB 317 deg. bearing extending from a
4.1-mile radius of Beverly Municipal Airport to 7 miles northwest of
the Topsfield NDB. This Class E airspace area is effective during
the specific dates and times established in advance by a Notice to
Airmen. The effective dates and times will thereafter be
continuously published in the Airport/Facility Directory.
* * * * *
ANE NH E4 Lebanon, NH [Revised]
Lebanon Municipal Airport, NH
(Lat. 43 deg.37'35'' N, long. 72 deg.18'15'' W)
BURGR OM
(Lat. 43 deg.43'57'' N, long. 72 deg.20'00'' W)
Hanover NDB
(Lat. 43 deg.42'08'' N, long. 72 deg.10'39'' W)
That airspace extending upward from the surface within 3.3 miles
each side of the BURGR OM 352 deg. bearing from a 4.8-mile radius of
Lebanon Municipal Airport to 8 miles north of the BURGR OM, and
within 2.4 miles each side of the Hanover NDB 051 deg. bearing
extending from the 4.8-mile radius to 7 miles northeast of the
Hanover NDB. This Class E airspace area is effective during specific
dates and times established in advance by a Notice to Airmen. The
effective dates and times will thereafter be continuously published
in the Airport/Facility Directory.
* * * * *
ANE NH E4 Nashua, NH [Revised]
Nashua, Boire Field, NH
(Lat. 42 deg.46'54'' N, long. 71 deg.30'53'' W)
CHERN NDB
(Lat. 42 deg.49'24'' N, long. 71 deg.36'08'' W)
Manchester VORTAC
(Lat. 42 deg.52'06'' N, long. 71 deg.22'10'' W)
That airspace extending upward from the surface within 2.6 miles
on each side of the CHERN NDB 303 deg. bearing extending from a 5-
mile radius of Boire Field to 7 miles northwest of the CHERN NDB,
and that airspace extending upward from the surface within 1.1 miles
on each side of the Manchester VORTAC 231 deg. radial extending from
the 5-mile radius to 8.4 miles northeast of Boire Field. This Class
E airspace area is effective during specific dates and times
established in advance by a Notice to Airmen. The effective dates
and times will thereafter be continuously published in the Airport/
Facility Directory.
* * * * *
Issued in Burlington, MA, on February 8, 1996.
David J. Hurley,
Manager, Air Traffic Division, New England Region.
[FR Doc. 96-3492 Filed 2-14-96; 8:45 am]
BILLING CODE 4910-13-M
Complete official Federal Register PDF
FR Doc. 96-3491 Revision to the Miami Class B Airspace Area; Florida
[Federal Register Volume 61, Number 32 (Thursday, February 15, 1996)]
[Rules and Regulations]
[Pages 5934-5935]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-3491]
=======================================================================
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DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 71
[Airspace Docket No. 96-AWA-1]
Revision to the Miami Class B Airspace Area; Florida
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Final rule; technical amendment.
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SUMMARY: This action corrects the legal description of the Miami, FL,
Class B airspace area. This action is necessary due to the
decommissioning of two principal navigational aids (NAVAIDS), Biscayne
Bay, FL, Very High Frequency Omnidirectional Range (VOR) and Miami, FL,
VOR, used to describe the lateral limits of the present Miami, FL,
Class B airspace area. This action does not alter the vertical or
lateral limits of the existing Miami, FL, Class B airspace area.
EFFECTIVE DATE: February 15, 1996.
FOR FURTHER INFORMATION CONTACT: Patricia P. Crawford, Airspace and
Obstruction Evaluation Branch (ATP-240), Airspace-Rules and
Aeronautical Information Division, Air Traffic Rules and Procedures
Service, Federal Aviation Administration, 800 Independence Avenue SW.,
Washington, DC 20591; telephone: (202) 267-3075.
SUPPLEMENTARY INFORMATION: This action is the last in a series of
regulatory and nonregulatory actions that began in 1992 with Hurricane
Andrew. In the summer of 1992, the Biscayne Bay (BSY) VOR was rendered
inoperative by Hurricane Andrew and was replaced by the Andrew (AEW)
Nondirectional Radio Beacon (NDB). The AEW NDB provided navigational
guidance for air traffic operations in south Florida until March 30,
1995. At that time, the Virginia Keys (VKZ) Very High Frequency
Omnidirectional Range/Distance Measuring Equipment (VOR/DME) was
commissioned to replace the AEW NDB.
In anticipation of changes to the airspace in South America and the
Caribbean, the FAA initiated action to decommission and relocate
another primary NAVAID, the Miami VOR, to support users of the airspace
and the air traffic system. A new NAVAID, replacing the Miami VOR, was
commissioned as the Dolphin (DHP) VOR on November 9, 1995.
The commissioning or decommissioning of these NAVAIDS prompted
rulemaking action to realign Federal airways, jet routes, and revisions
to standard instrument departure and arrival routes. Associated
publications were updated subsequently to the rulemaking actions.
However, the Miami, FL, visual flight rules Terminal Area Chart was not
updated and as a result of this oversight, the published chart
contained obsolete data.
This action will update the description of the Miami, FL, Class B
airspace area and associated navigational charts by removing all
notations relating to BSY and MIA VOR's. Since this action involves the
removal of obsolete terms from the airspace designation and does not
alter the vertical or lateral boundaries or operating requirements of
the Miami Class B airspace area, the FAA finds that notice and public
procedure under 5 U.S.C. 553(b), are not practicable. Also, because
there is an immediate need to remove any reference to obsolete NAVAIDS
from the airspace designation to avoid pilot confusion, the FAA finds
that, good cause, pursuant to 5 U.S.C.(d), exists for making this
amendment effective in less than 30 days.
Further, the FAA has determined that this regulation only involves
an established body of technical regulations for which frequent and
routine amendments are necessary to keep them operationally current.
It,
[[Page 5935]]
therefore--(1) is not a ``significant regulatory action'' under
Executive Order 12866; (2) is not a ``significant rule'' under DOT
Regulatory Policies and Procedures (44 FR 11034; February 26, 1979);
and (3) does not warrant preparation of a regulatory evaluation as the
anticipated impact is so minimal. Since this is a routine matter that
will only affect air traffic aeronautical charts, it is certified that
this rule will not have a significant economic impact on a substantial
number of small entities under the criteria of the Regulatory
Flexibility Act.
The Amendment
This amendment to part 71 of the Federal Aviation Regulations (14
CFR part 71) redefines the current Miami, FL, Class B airspace
designation due to the decommissioning of the Biscayne Bay, FL, and the
Miami, FL, VOR's.
List of Subjects in 14 CFR Part 71
Airspace, Incorporation by reference, Navigation (air).
Adoption of the Amendment
In consideration of the foregoing, the Federal Aviation
Administration amends 14 CFR part 71, as follows:
PART 71--[AMENDED]
1. The authority citation for part 71 continues to read as follows:
Authority: 49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24
FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
Sec. 71.1 [Amended]
2. The incorporation by reference in 14 CFR 71.1 of the Federal
Aviation Administration Order 7400.9C, Airspace Designations and
Reporting Points, dated August 17, 1995, and effective September 16,
1995, is amended as follows:
Paragraph 3000--Subpart B-Class B Airspace
* * * * *
ASO FL B Miami, FL [Revised]
Miami International Airport (Primary Airport)
(lat. 25 deg.47'35'' N., long. 80 deg.17'25'' W.)
Miami, Kendall-Tamiami Executive Airport, FL
(lat. 25 deg.38'52'' N., long. 80 deg.25'58'' W.)
Dolphin VORTAC
(lat. 25 deg.48'00'' N., long. 80 deg.20'57'' W.)
Boundaries
Area A. That airspace extending upward from the surface to and
including 7,000 feet MSL within a 6-mile radius of Miami
International Airport, excluding that airspace north of lat.
25 deg.52'03'' N., (N.W. 103rd Street/49th Street in the City of
Hialeah), and within and underlying Area F described hereinafter.
Area B. That airspace extending upward from 1,500 feet MSL to
and including 7,000 feet MSL within a 10-mile radius of Miami
International Airport, excluding that airspace north of lat.
25 deg.52'03'' N., that airspace south of lat. 25 deg.40'19'' N.,
Area A previously described, and within Areas C and F described
hereinafter.
Area C. That airspace extending upward from 2,000 feet MSL to
and including 7,000 feet MSL within an area bounded on the northeast
by a 4.3-mile radius arc of Kendall-Tamiami Executive Airport, on
the south by the lat. 25 deg.40'19'' N., and on the southwest by a
10-mile radius arc of Miami International Airport.
Area D. That airspace extending upward from 3,000 feet MSL to
and including 7,000 feet MSL beginning northwest of Miami
International Airport at the intersection of a 20-mile radius arc of
Miami International Airport and lat. 25 deg.57'48'' N., thence east
along lat. 25 deg.57'48'' N., to the intersection of a 15-mile
radius arc of Miami International Airport, thence clockwise along
the 15-mile radius arc to lat. 25 deg.57'48'' N., thence east along
lat. 25 deg.57'48'' N., to the intersection of a 20-mile radius arc
of Miami International Airport, thence clockwise along the 20-mile
radius arc to the Dolphin VORTAC 151 deg. radial, thence northwest
along the Dolphin VORTAC 151 deg. radial to the intersection of a
15-mile radius arc of Miami Internaitonal Airport, thence clockwise
along the 15-mile radius arc to lat. 25 deg.40'19'' N., thence west
along lat. 25 deg.40'19'' N., to the intersection of a 20-mile
radius arc of Miami International Airport, thence clockwise along
the 20-mile radius arc to the point of beginning, excluding the
airspace within Areas A, B, and C previously described, and within
Areas F and G described hereinafter.
Area E. That airspace extending upward from 4,000 feet MSL to
and including 7,000 feet MSL bounded on the south by lat.
25 deg.57'48'' N., on the northwest by a 20-mile radius arc of Miami
International Airport, on the northeast by a line from lat.
26 deg.05'56'' N., long. 80 deg.26'23'' W., to lat. 26 deg.01'32''
N., long. 80 deg.23'40'' W., and on the southeast by a 15-mile
radius arc of Miami International Airport.
Area F. That airspace extending upward from but not including
1,000 feet MSL to and including 7,000 feet MSL bounded on the east
by a 6-mile radius arc of Miami International Airport, and on the
west by the west shoreline of Biscayne Bay.
Area G. That airspace extending upward from 5,000 feet MSL to
and including 7,000 feet MSL bounded on the north by lat.
25 deg.40'19'' N., on the southwest by a 15-mile radius arc of Miami
International Airport, and on the east by U.S. Route 1.
Area H. That airspace extending upward from 2,000 feet MSL to
and including 7,000 feet MSL bounded on the northeast by U.S. Route
27, on the south by lat. 25 deg.52'03'' N., and on the northwest by
a 10-mile radius arc of Miami International Airport.
* * * * *
Issued in Washington, DC, on February 8, 1996.
Harold W. Becker,
Manager, Airspace-Rules and Aeronautical Information Division.
[FR Doc. 96-3491 Filed 2-14-96; 8:45 am]
BILLING CODE 4910-13-P
Complete official Federal Register PDF
FR Doc. 96-3490 Improved Flammability Standards for Materials Used in the Interiors of Airplane Cabins
[Federal Register Volume 61, Number 32 (Thursday, February 15, 1996)]
[Rules and Regulations]
[Pages 5938-5939]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-3490]
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DEPARTMENT OF TRANSPORTATION
14 CFR Part 135
[Docket No. 26192; Amdt. No. 135-56]
RIN 2120-AD28
Improved Flammability Standards for Materials Used in the
Interiors of Airplane Cabins
AGENCY: Federal Aviation Administration, DOT.
ACTION: Notice of disposition of comments on final rule.
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SUMMARY: On March 6, 1995, the Federal Aviation Administration (FAA)
issued Amendment 135-56 which removed an unintended requirement in the
previously issued Amendment 135-55 of part 135 of the Federal Aviation
Regulations (FAR) (60 FR 13010). Amendment 135-56 was effective on
March 6, 1995, however, the FAA invited public comments on the subject
until April 10, 1995. Although the FAA has determined that there is no
need for any further amendment to part 135, this document responds to
the comments submitted by the public.
ADDRESSES: The complete docket for the final rule on Improved
Flammability Standards for Materials Used in the Interiors of Airplane
Cabins may be examined at the Federal Aviation Administration, Office
of the Chief Counsel (AGC-10), Rules Docket, Room 915G, 800
Independence Avenue SW., Washington, DC 20591, weekdays, except Federal
holidays between 8:30 a.m. and 5:00 p.m. In addition, the FAA is
maintaining an information docket of comments in the Transport Airplane
Directorate (ANM-100), FAA, 1601 Lind Avenue SW., Renton, Washington
98055-4056. Comments in the information docket may be inspected
weekdays, except Federal holidays, between 7:30 a.m., and 4:00 p.m.
FOR FURTHER INFORMATION CONTACT:
Gary L. Killion, Regulations Branch, ANM-114, Transport Airplane
Directorate, Aircraft Certification Service, FAA 1601 Lind Avenue SW.,
Renton, WA 98055-4956; telephone (206) 227-2194.
SUPPLEMENTARY INFORMATION:
Background
On March 6, 1995, the FAA issued Amendment 135-56 (60 FR 13010,
March 9, 1995), which removed an unintended requirement in the
previously-issued Amendment 135-55 (60 FR 6616, February 2, 1995) to
part 135 of the FAR. This action ensued that commuter category
airplanes operated under part 135 would not be grounded for failing to
comply with the unintended requirement which became effective on March
6, 1995.
Specifically, Sec. 135.170(b), as revised by Amendment 135-55,
stated that no person may operate a ``large'' airplane unless it meets
the flammability requirements contained in Secs. 135.170(b) (1) and
(2). Section 135.170(b)(2) states, in turn, that seat cushions, except
for flight crewmember seat cushions, must comply with the fire blocking
standards of Sec. 25.853(c) that became effective on November 26, 1984.
(Although these standards are commonly referred to as ``fire
blocking,'' Sec. 25.853(c) actually provides the option of using a
covering material, i.e., a ``fire-blocking'' layer, that isolates the
cushion from a fire or using a seat cushion that can be shown by itself
to provide the necessary fire resistance). Large airplanes are
identified in part 1 of the FAR as those with ``more than 12,500 pounds
maximum certificated takeoff weight.'' Commuter category airplanes
type-certificated under part 23 of the FAR may have a maximum
certificated takeoff weight as great as 19,000 pounds, and each of the
commuter category airplanes currently in service does in fact have a
maximum certificated takeoff weight greater than 12,500 pounds. They
are, therefore, ``large'' airplanes as defined in part 1. Taking
literally the wording of Sec. 135.170(b), as revised by Amendment 135-
55, operators of these airplanes would have had to comply with the seat
cushion fire-blocking standards in addition to the applicable
flammability standards of part 23.
Although including commuter category airplanes in the requirements
of Sec. 135.170(b) pertaining to seat cushion fire blocking standards
was due to an editing error, the FAA has adopted separate rulemaking
(Amendment 121-23, 60 FR 65832, December 20, 1995) which requires the
seat cushions of those airplanes to comply with the seat cushion fire
blocking standards by December 20, 2010. In the meantime, the operators
of those airplanes must continue to have seat cushions that meet the
applicable flammability standards of part 23.
Discussion of Comments
Two commenters responded to the request for comments on Amendment
135-56. One commenter, a pilots association, agrees the final rule
(Amendment 135-55) was in error. However, the commenter feels that this
is a safety issue for all aircraft passengers, regardless of the
aircraft size. The FAA responded to the commenter noting that the
comment more accurately applied to proposals contained in Notice 95-5,
Docket No. 28154. The commenter was advised that his comments would be
placed in Docket 28154 and considered along with any other comments
received in response to Notice 95-5. The second commenter, a
manufacturer, wrote only to indicate that the FAA's timely action in
correcting this error was appreciated.
Conclusion
After carefully considering the comments submitted in response to
Amendment 135-56, the FAA has determined that no further rulemaking
action is necessary at this time. Accordingly, Amendment No. 135-56
remains in effect as prescribed by the
[[Page 5939]]
March 6, 1995, final rule. As noted above, the seat cushions in
commuter category airplanes may, however, be required to meet the fire
blocking standards at some future date as a result of separate
rulemaking action.
Issued in Washington, DC, on February 8, 1996.
Thomas E. McSweeny,
Director, Aircraft Certification Service.
[FR Doc. 96-3490 Filed 2-14-96; 8:45 am]
BILLING CODE 4910-13-M
Complete official Federal Register PDF
FR Doc. 96-3441 Suspension of Community Eligibility
[Federal Register Volume 61, Number 32 (Thursday, February 15, 1996)]
[Rules and Regulations]
[Pages 5947-5949]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-3441]
=======================================================================
-----------------------------------------------------------------------
FEDERAL EMERGENCY MANAGEMENT AGENCY
44 CFR Part 64
[Docket No. FEMA-7634]
Suspension of Community Eligibility
AGENCY: Federal Emergency Management Agency, FEMA.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This rule identifies communities, where the sale of flood
insurance has been authorized under the National Flood Insurance
Program (NFIP), that are suspended on the effective dates listed within
this rule because of noncompliance with the floodplain management
requirements of the program. If the Federal Emergency Management Agency
(FEMA) receives documentation that the community has adopted the
required floodplain management measures prior to the effective
suspension date given in this rule, the suspension will be withdrawn by
publication in the Federal Register.
EFFECTIVE DATES: The effective date of each community's suspension is
the third date (``Susp.'') listed in the third column of the following
tables.
ADDRESSES: If you wish to determine whether a particular community was
suspended on the suspension date, contact the appropriate FEMA Regional
Office or the NFIP servicing contractor.
FOR FURTHER INFORMATION CONTACT: Robert F. Shea Jr., Division Director,
Program Implementation Division, Mitigation Directorate, 500 C Street,
SW., Room 417, Washington, DC 20472, (202) 646-3619.
SUPPLEMENTARY INFORMATION: The NFIP enables property owners to purchase
flood insurance which is generally not otherwise available. In return,
communities agree to adopt and administer local floodplain management
aimed at protecting lives and new construction from future flooding.
Section 1315 of the National Flood Insurance Act of 1968, as amended,
42 U.S.C. 4022, prohibits flood insurance coverage as authorized under
the National Flood Insurance Program, 42 U.S.C. 4001 et seq., unless an
appropriate public body adopts adequate floodplain management measures
with effective enforcement measures. The communities listed in this
document no longer meet that statutory requirement for compliance with
program regulations, 44 CFR part 59 et seq. Accordingly, the
communities will be suspended on the effective date in the third
column. As of that date, flood insurance will no longer be available in
the community. However, some of these communities may adopt and submit
the required documentation of legally enforceable floodplain management
measures after this rule is published but prior to the actual
suspension date. These communities will not be suspended and will
continue their eligibility for the sale of insurance. A notice
withdrawing the suspension of the communities will be published in the
Federal Register.
In addition, the Federal Emergency Management Agency has identified
the special flood hazard areas in these communities by publishing a
Flood Insurance Rate Map (FIRM). The date of the FIRM if one has been
published, is indicated in the fourth column of the table. No direct
Federal financial assistance (except assistance pursuant to the Robert
T. Stafford Disaster Relief and Emergency Assistance Act not in
connection with a flood) may legally be provided for construction or
acquisition of buildings in the identified special flood hazard area of
communities not participating in the NFIP and identified
[[Page 5948]]
for more than a year, on the Federal Emergency Management Agency's
initial flood insurance map of the community as having flood-prone
areas (section 202(a) of the Flood Disaster Protection Act of 1973, 42
U.S.C. 4106(a), as amended). This prohibition against certain types of
Federal assistance becomes effective for the communities listed on the
date shown in the last column. The Acting Associate Director finds that
notice and public comment under 5 U.S.C. 553(b) are impracticable and
unnecessary because communities listed in this final rule have been
adequately notified.
Each community receives a 6-month, 90-day, and 30-day notification
addressed to the Chief Executive Officer that the community will be
suspended unless the required floodplain management measures are met
prior to the effective suspension date. Since these notifications have
been made, this final rule may take effect within less than 30 days.
National Environmental Policy Act
This rule is categorically excluded from the requirements of 44 CFR
Part 10, Environmental Considerations. No environmental impact
assessment has been prepared.
Regulatory Flexibility Act
The Acting Associate Director has determined that this rule is
exempt from the requirements of the Regulatory Flexibility Act because
the National Flood Insurance Act of 1968, as amended, 42 U.S.C. 4022,
prohibits flood insurance coverage unless an appropriate public body
adopts adequate floodplain management measures with effective
enforcement measures. The communities listed no longer comply with the
statutory requirements, and after the effective date, flood insurance
will no longer be available in the communities unless they take
remedial action.
Regulatory Classification
This final rule is not a significant regulatory action under the
criteria of section 3(f) of Executive Order 12866 of September 30,
1993, Regulatory Planning and Review, 58 FR 51735.
Paperwork Reduction Act
This rule does not involve any collection of information for
purposes of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.
Executive Order 12612, Federalism
This rule involves no policies that have federalism implications
under Executive Order 12612, Federalism, October 26, 1987, 3 CFR, 1987
Comp., p. 252.
Executive Order 12778, Civil Justice Reform
This rule meets the applicable standards of section 2(b)(2) of
Executive Order 12778, October 25, 1991, 56 FR 55195, 3 CFR, 1991
Comp., p. 309.
List of Subjects in 44 CFR Part 64
Flood insurance, Floodplains.
Accordingly, 44 CFR part 64 is amended as follows:
PART 64--[AMENDED]
1. The authority citation for Part 64 continues to read as follows:
Authority: 42 U.S.C. 4001 et seq.; Reorganization Plan No. 3 of
1978, 3 CFR, 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, 3 CFR,
1979 Comp., p. 376.
Sec. 64.6 [Amended]
2. The tables published under the authority of Sec. 64.6 are
amended as follows:
----------------------------------------------------------------------------------------------------------------
Date certain Federal
Community Effective date of Current assistance no longer
State/location No. eligibility effective available in special
map date flood hazard areas
----------------------------------------------------------------------------------------------------------------
Region II
New Jersey:
North Wildwood, city of, Cape 345308 July 24, 1970, Emerg; 2-16-96 Feb. 16, 1996.
May County. March 5, 1971, Reg; Feb.
16, 1996, Susp.
Wildwood, city of, Cape May 345329 June 5, 1970, Emerg; Dec. 2-16-96 Do.
County. 31, 1970, Reg; Feb. 16,
1996, Susp.
Wildwood Crest, borough of, 345330 July 31, 1970, Emerg; 2-16-96 Do.
Cape May County. Feb. 26, 1971, Reg; Feb.
16, 1996, Susp.
Region VI
Wisconsin:
Verona, city of, Dane County.. 550092 June 24, 1975, Emerg; 2-16-96 Do.
Aug. 1, 1980, Reg; Feb.
16, 1996, Susp.
Watertown, city of, Dodge and 550107 May 23, 1975, Emerg; 2-16-96 Do.
Jefferson Counties. April 1, 1981, Reg; Feb.
16, 1996, Susp.
Region VI
Texas:
Balcones Heights, city of, 481094 Oct. 9, 1975, Emerg; 2-16-96 Do.
Bexar County. April 15, 1980, Reg;
Feb. 16, 1996, Susp.
Bexar County, unincorporated 480035 April 7, 1972, Emerg; 2-16-96 Do.
areas. Oct. 16, 1984, Reg; Feb.
16, 1996, Susp.
Castle Hills, city of, Bexar 480037 Oct. 31, 1973, Emerg; 2-16-96 Do.
County. Sept. 30, 1980, Reg;
Feb. 16, 1996, Susp.
China Grove, city of, Bexar 481141 Jan. 26, 1978, Emerg; 2-16-96 Do.
County. June 15, 1984, Reg; Feb.
16, 1996, Susp.
Converse, city of, Bexar 480038 March 26, 1974, Emerg; 2-16-96 Do.
County. June 15, 1981, Reg; Feb.
16, 1996, Susp.
Fair Oaks Ranch, city of, 481644 Dec. 20, 1993, Reg; Feb. 2-16-96 Do.
Bexar County. 16, 1996, Susp.
Hollywood Park, town of, Bexar 480040 Oct. 3, 1974, Emerg; Nov. 2-16-96 Do.
County. 19, 1980, Reg; Feb. 16,
1996, Susp.
[[Page 5949]]
Kirby, city of, Bexar County.. 480041 Nov. 6, 1974, Emerg; Aug. 2-16-96 Do.
15, 1980, Reg; Feb. 16,
1996, Susp.
Leon Valley, city of, Bexar 480042 June 25, 1973, Emerg; 2-16-96 Do.
County. June 1, 1977, Reg; Feb.
16, 1996, Susp.
Live Oak, city of, Bexar 480043 Nov. 3, 1972, Emerg; May 2-16-96 Do.
County. 16, 1977, Reg; Feb. 16,
1996, Susp.
Shavano Park, city of, Bexar 480047 Dec. 26, 1973, Emerg; 2-16-96 Do.
County. Sept. 3, 1980, Reg; Feb.
16, 1996, Susp.
Somerset, city of, Bexar 481264 June 14, 1994, Emerg; 2-16-96 Do.
County. Feb. 16, 1996, Reg; Feb.
16, 1996, Susp.
Universal City, city of, Bexar 480049 Feb. 14, 1974, Emerg; May 2-16-96 Do.
County. 16, 1977, Reg; Feb. 16,
1996, Susp.
Windcrest, city of, Bexar 480689 Jan. 21, 1974, Emerg; 2-16-96 Do.
County. Aug. 15, 1977, Reg; Feb.
16, 1996, Susp.
----------------------------------------------------------------------------------------------------------------
Code for reading third column: Emerg.--Emergency; Reg.--Regular; Rein.--Reinstatement; Susp.--Suspension.
(Catalog of Federal Domestic Assistance No. 83.100, ``Flood
Insurance.'')
Issued: February 12, 1996.
Richard W. Krimm,
Acting Associate Director, Mitigation Directorate.
[FR Doc. 96-3441 Filed 2-14-96; 8:45 am]
BILLING CODE 6718-05-P
Complete official Federal Register PDF
FR Doc. 96-3428 Valuation of Plan Benefits in Single-Employer Plans; Valuation of Plan Benefits and Plan Assets Following Mass Withdrawal; Amendments Adopting Additional PBGC Rates
[Federal Register Volume 61, Number 32 (Thursday, February 15, 1996)]
[Rules and Regulations]
[Pages 5945-5947]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-3428]
=======================================================================
-----------------------------------------------------------------------
PENSION BENEFIT GUARANTY CORPORATION
29 CFR Parts 2619 and 2676
Valuation of Plan Benefits in Single-Employer Plans; Valuation of
Plan Benefits and Plan Assets Following Mass Withdrawal; Amendments
Adopting Additional PBGC Rates
AGENCY: Pension Benefit Guaranty Corporation.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This final rule amends the Pension Benefit Guaranty
Corporation's regulations on Valuation of Plan Benefits in Single-
Employer Plans and Valuation of Plan Benefits and Plan Assets Following
Mass Withdrawal. The former regulation contains the interest
assumptions that the PBGC uses to value benefits under terminating
single-employer plans. The latter regulation contains the interest
assumptions for valuations of multiemployer plans that have undergone
mass withdrawal. The amendments set out in this final rule adopt the
interest assumptions applicable to single-employer plans with
termination dates in March 1996, and to multiemployer plans with
valuation dates in March 1996. The effect of these amendments is to
advise the public of the adoption of these assumptions.
EFFECTIVE DATE: March 1, 1996.
FOR FURTHER INFORMATION CONTACT: Harold J. Ashner, Assistant General
Counsel, Office of the General Counsel, Pension Benefit Guaranty
Corporation, 1200 K Street, NW., Washington, DC 20005, 202-326-4024
(202-326-4179 for TTY and TDD).
SUPPLEMENTARY INFORMATION: This rule adopts the March 1996 interest
assumptions to be used under the Pension Benefit Guaranty Corporation's
regulations on Valuation of Plan Benefits in Single-Employer Plans (29
CFR part 2619, the ``single-employer regulation'') and Valuation of
Plan Benefits and Plan Assets Following Mass Withdrawal (29 CFR part
2676, the ``multiemployer regulation'').
Part 2619 sets forth the methods for valuing plan benefits of
terminating single-employer plans covered under title IV of the
Employee Retirement Income Security Act of 1974, as amended. Under
ERISA section 4041(c), all single-employer plans wishing to terminate
in a distress termination must value guaranteed benefits and ``benefit
liabilities,'' i.e., all benefits provided under the plan as of the
plan termination date, using the formulas set forth in part 2619,
subpart C. (Plans terminating in a standard termination may, for
purposes of the Standard Termination Notice filed with PBGC, use these
formulas to value benefit liabilities, although this is not required.)
In addition, when the PBGC terminates an underfunded plan involuntarily
pursuant to ERISA section 4042(a), it uses the subpart C formulas to
determine the amount of the plan's underfunding. Part 2676 prescribes
rules for valuing benefits and certain assets of multiemployer plans
under sections 4219(c)(1)(D) and 4281(b) of ERISA.
Appendix B to part 2619 sets forth the interest rates and factors
under the single-employer regulation. Appendix B to part 2676 sets
forth the interest rates and factors under the multiemployer
regulation. Because these rates and factors are intended to reflect
current conditions in the financial and annuity markets, it is
necessary to update the rates and factors periodically.
The PBGC issues two sets of interest rates and factors, one set to
be used for the valuation of benefits to be paid as annuities and one
set for the valuation of benefits to be paid as lump sums. The same
assumptions apply to terminating single-employer plans and to
multiemployer plans that have undergone a mass withdrawal. This
amendment adds to appendix B to parts 2619 and 2676 sets of interest
rates and factors for valuing benefits in single-employer plans that
have termination dates during March 1996 and multiemployer plans that
have undergone mass withdrawal and have valuation dates during March
1996.
For annuity benefits, the interest rates will be 5.50% for the
first 20 years following the valuation date and 4.75% thereafter. For
benefits to be paid as lump sums, the interest assumptions to be used
by the PBGC will be 4.25% for the period during which benefits are in
pay status, and 4.0% during all years preceding the benefit's placement
in pay status. The above annuity interest assumptions represent an
increase (from those in effect for February 1996) of .10 percent for
the first 20 years following the valuation date and are otherwise
unchanged. The lump sum interest assumptions are unchanged from those
in effect for February 1996.
Generally, the interest rates and factors under these regulations
are in effect for at least one month. However, the PBGC publishes its
interest assumptions each month regardless of whether they represent a
change from the previous month's assumptions. The assumptions normally
will be published in the Federal Register by the 15th of the preceding
month or as close to that date as circumstances permit.
The PBGC has determined that notice and public comment on these
amendments are impracticable and contrary to the public interest. This
finding is based on the need to determine and issue new interest rates
and factors promptly so that the rates and factors can reflect, as
accurately as possible, current market conditions.
Because of the need to provide immediate guidance for the valuation
of benefits in single-employer plans whose termination dates fall
during March 1996, and in multiemployer plans that have undergone mass
withdrawal and have valuation dates during March 1996, the PBGC finds
that good cause exists for making the rates and factors set forth in
this amendment effective less than 30 days after publication.
The PBGC has determined that this action is not a ``significant
regulatory action'' under the criteria set forth in Executive Order
12866.
Because no general notice of proposed rulemaking is required for
this amendment, the Regulatory Flexibility Act of 1980 does not apply.
See 5 U.S.C. 601(2).
List of Subjects
29 CFR Part 2619
Employee benefit plans, Pension insurance, and Pensions.
29 CFR Part 2676
Employee benefit plans and Pensions.
In consideration of the foregoing, parts 2619 and 2676 of chapter
XXVI, title 29, Code of Federal Regulations, are hereby amended as
follows:
[[Page 5946]]
PART 2619--[AMENDED]
1. The authority citation for part 2619 continues to read as
follows:
Authority: 29 U.S.C. 1301(a), 1302(b)(3), 1341, 1344, 1362.
2. In appendix B to part 2619, Rate Set 29 is added to Table I, and
a new entry is added to Table II, as set forth below. The introductory
text of both tables is republished for the convenience of the reader
and remains unchanged.
Appendix B to Part 2619--Interest Rates Used To Value Lump Sums and
Annuities
Lump Sum Valuations
In determining the value of interest factors of the form v0
: n (as defined in Sec. 2619.49(b)(1)) for purposes of applying the
formulas set forth in Sec. 2619.49(b) through (i) and in determining
the value of any interest factor used in valuing benefits under this
subpart to be paid as lump sums (including the return of accumulated
employee contributions upon death), the PBGC shall employ the values
of it set out in Table I hereof as follows:
(1) For benefits for which the participant or beneficiary is
entitled to be in pay status on the valuation date, the immediate
annuity rate shall apply.
(2) For benefits for which the deferral period is y years (y is
an integer and 0 < y n1), interest rate i1
shall apply from the valuation date for a period of y years;
thereafter the immediate annuity rate shall apply.
(3) For benefits for which the deferral period is y years (y is
an integer and n1 < y n1 + n2), interest
rate i2 shall apply from the valuation date for a period of y -
n1 years, interest rate i1 shall apply for the following
n1 years; thereafter the immediate annuity rate shall apply.
(4) For benefits for which the deferral period is y years (y is
an integer and y > n1 + n2), interest rate i3 shall
apply from the valuation date for a period of y - n1 - n2
years, interest rate i2 shall apply for the following n2
years, interest rate i1 shall apply for the following n1
years, interest rate i1 shall apply for the following n1
years; thereafter the immediate annuity rate shall apply.
Table I
[Lump Sum Valuations]
--------------------------------------------------------------------------------------------------------------------------------------------------------
For plans with a Immediate Deferred annuities (percent)
valuation date annuity ------------------------------------------------------
Rate set -------------------------- rate
On or after Before (percent) i1 i2 i3 n1 n2
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
29.......................................................... 03-1-96 04-1-96 4.25 4.00 4.00 4.00 7 8
--------------------------------------------------------------------------------------------------------------------------------------------------------
Annuity Valuations
In determining the value of interest factors of the form v0
: n (as defined in Sec. 2619.49(b)(1)) for purposes of applying the
formulas set forth in Sec. 2619.49 (b) through (i) and in
determining the value of any interest factor used in valuing annuity
benefits under this subpart, the plan administrator shall use the
values of it prescribed in Table II hereof.
The following table tabulates, for each calendar month of
valuation ending after the effective date of this part, the interest
rates (denoted by i1, i2, * * *, and referred to generally
as it) assumed to be in effect between specified anniversaries
of a valuation date that occurs within that calendar month; those
anniversaries are specified in the columns adjacent to the rates.
The last listed rate is assumed to be in effect after the last
listed anniversary date.
Table II
[Annuity Valuations]
----------------------------------------------------------------------------------------------------------------
The values of it are:
For valuation dates occurring in the month-- -----------------------------------------------------------------
it for t = it for t = it for t =
----------------------------------------------------------------------------------------------------------------
* * * * * *
*
March 1996.................................... .0550 1-20 .0475 >20 N/A N/A
----------------------------------------------------------------------------------------------------------------
PART 2676--[AMENDED]
3. The authority citation for part 2676 continues to read as
follows:
Authority: 29 U.S.C. 1302(b)(3), 1399(c)(1)(D), 1441(b)(1).
4. In appendix B to part 2676, Rate Set 29 is added to Table I, and
a new entry is added to Table II, as set forth below. The introductory
text of both tables is republished for the convenience of the reader
and remains unchanged.
Appendix B to Part 2676--Interest Rates Used To Value Lump Sums and
Annuities
Lump Sum Valuations
In determining the value of interest factors of the form v0
: n (as defined in Sec. 2676.13(b)(1)) for purposes of applying the
formulas set forth in Sec. 2676.13(b) through (i) and in determining
the value of any interest factor used in valuing benefits under this
subpart to be paid as lump sums, the PBGC shall use the values of
it prescribed in Table I hereof. The interest rates set forth
in Table I shall be used by the PBGC to calculate benefits payable
as lump sum benefits as follows:
(1) For benefits for which the participant or beneficiary is
entitled to be in pay status on the valuation date, the immediate
annuity rate shall apply.
(2) For benefits for which the deferral period is y years (y is
an integer and 0 < y n1), interest rate i1
shall apply from the valuation date for a period of y years;
thereafter the immediate annuity rate shall apply.
(3) For benefits for which the deferral period is y years (y is
an integer and n1 < y n1 + n2), interest
rate i2 shall apply from the valuation date for a period of y -
n1 years, interest rate i1 shall apply for the following
n1 years; thereafter the immediate annuity rate shall apply.
(4) For benefits for which the deferral period is y years (y is
an integer and y > n1 + n2), interest rate i3 shall
apply from the valuation date for a period of y - n1 - n2
years, interest rate i2 shall apply for the
[[Page 5947]]
following n2 years, interest rate i1 shall apply for the
following n1 years; thereafter the immediate annuity rate shall
apply.
Table I
[Lump Sum Valuations]
--------------------------------------------------------------------------------------------------------------------------------------------------------
For plans with a Immediate Deferred annuities (percent)
valuation date annuity ------------------------------------------------------
Rate set -------------------------- rate
On or after Before (percent) i1 i2 i3 n1 n2
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
29.......................................................... 03-1-96 04-1-96 4.25 4.00 4.00 4.00 7 8
--------------------------------------------------------------------------------------------------------------------------------------------------------
Annuity Valuations
In determining the value of interest factors of the form v0
: n (as defined in Sec. 2676.13(b)(1)) for purposes of applying the
formulas set forth in Sec. 2676.13(b) through (i) and in determining
the value of any interest factor used in valuing annuity benefits
under this subpart, the plan administrator shall use the values
it prescribed in the table below.
The following table tabulates, for each calendar month of
valuation ending after the effective date of this part, the interest
rates (denoted by i1, i2, * * *, and referred to generally
as it) assumed to be in effect between specified anniversaries
of a valuation date that occurs within that calendar month; those
anniversaries are specified in the columns adjacent to the rates.
The last listed rate is assumed to be in effect after the last
listed anniversary date.
Table II
[Annuity Valuations]
----------------------------------------------------------------------------------------------------------------
The values of it are:
For valuation dates occurring in the month-- -----------------------------------------------------------------
it for t = it for t = it for t =
----------------------------------------------------------------------------------------------------------------
* * * * * *
*
March 1996.................................... .0550 1-20 .0475 >20 N/A N/A
----------------------------------------------------------------------------------------------------------------
Issued in Washington, DC, on this 9th day of February 1996.
Martin Slate,
Executive Director, Pension Benefit Guaranty Corporation.
[FR Doc. 96-3428 Filed 2-14-96; 8:45 am]
BILLING CODE 7708-01-M
Complete official Federal Register PDF
FR Doc. 96-3406 Supplemental Security Income for the Aged, Blind, and Disabled; Extension of Time Period for Not Counting as Resources, Funds Received for Repair or Replacement of Damaged or Destroyed Excluded Resources in the Supplemental Security Income Program
[Federal Register Volume 61, Number 32 (Thursday, February 15, 1996)]
[Rules and Regulations]
[Pages 5943-5945]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-3406]
-----------------------------------------------------------------------
SOCIAL SECURITY ADMINISTRATION
20 CFR Part 416
[Regulations No. 16]
RIN 0960-AD87
Supplemental Security Income for the Aged, Blind, and Disabled;
Extension of Time Period for Not Counting as Resources, Funds Received
for Repair or Replacement of Damaged or Destroyed Excluded Resources in
the Supplemental Security Income Program
AGENCY: Social Security Administration.
ACTION: Final rules.
-----------------------------------------------------------------------
SUMMARY: In the past several years, portions of the United States have
experienced natural disasters that have had unprecedented effects on
supplemental security income (SSI) recipients. To provide us with the
flexibility to deal with these and future occurrences, we are modifying
our current regulations regarding the period of time that cash and in-
kind items received for the repair or replacement of certain destroyed
or damaged excluded resources would not count toward the resource
limit.
EFFECTIVE DATE: These rules are effective February 15, 1996.
FOR FURTHER INFORMATION CONTACT: Regarding this Federal Register
document--Henry D. Lerner, Legal Assistant, Division of Regulations and
Rulings, Social Security Administration, 6401 Security Boulevard,
Baltimore, MD 21235, (410) 965-1762; regarding eligibility or filing
for benefits--our national toll-free number, 1-800-772-1213.
SUPPLEMENTARY INFORMATION: The regulations at Sec. 416.1205(c) provide
that SSI recipients can have no more than $2,000 in countable resources
and SSI couples can have no more than $3,000. The regulations at
Sec. 416.1237 provide that assistance received under the Disaster
Relief and Emergency Assistance Act or other assistance provided under
a Federal statute because of a catastrophe which is declared to be a
major disaster by the President of the United States or comparable
assistance received from a State or local government, or from a
disaster assistance organization, is excluded permanently under the SSI
program in determining countable resources.
The regulations at Sec. 416.1232 complement the disaster assistance
exclusion by providing that cash or in-kind items for the repair or
replacement of lost, stolen, or damaged excluded resources are not
treated as resources for 9 months.
The regulations also provide for one extension for a reasonable
period up to an additional 9 months for good cause if circumstances do
not permit repair or replacement within the initial 9-month period and
the individual intends to use the funds for repair or replacement.
Excluded resources generally include the individual's home,
household goods and personal effects, and the automobile, as are
described in Secs. 416.1212, 416.1216 and 416.1218 respectively.
Private insurance payments do not qualify as disaster assistance
and, therefore, cannot be permanently excluded from resources. For some
SSI recipients affected by natural disasters, the maximum period of 18
months during which monies received to repair or replace excluded
resources are not treated as resources will not be sufficient and some
of these individuals will consequently lose SSI and Medicaid
eligibility.
In the past several years, portions of the United States have
experienced natural disasters that have had unprecedented effects on
SSI recipients. In August 1992, Hurricane Andrew devastated south
Florida causing damage estimated in excess of $18 billion. Because of
the extent of the devastation, SSI recipients in the area were unable
to use insurance payments to repair or replace their damaged property
within the maximum 18-month period provided by regulations during which
those payments would not be treated as resources. With the expiration
of this period, the payments would have counted as resources for SSI
purposes. On March 17, 1994 (59 FR 12544), we published interim final
regulations with a request for comments which provided victims of
Hurricane Andrew with an additional 12-month time period in which to
repair or replace their property.
History has shown that current regulations generally provide a
sufficient time period for individuals to repair or replace their
excluded resources destroyed or damaged by natural disasters. However,
in the event disasters of the magnitude of Hurricane Andrew occur, we
wish to have the flexibility in regulations to extend the period that
payments or in-kind assistance for the repair or replacement of
affected excluded resources will not count as resources.
We are revising our regulations to provide us with the flexibility
to provide individuals with additional time to repair or replace
destroyed or damaged excluded resources when such disasters occur and
certain other criteria are met. These regulations will extend the
maximum 18-month period during which cash or in-kind replacement
received from any source for purposes of repairing or replacing an
excluded resource is not counted as a resource for up to an additional
12 months. This additional time period only applies in the case of
Presidentially declared major disasters as long as the individual
intends to repair or replace the property and good cause still exists.
These regulations were published in the Federal Register (60 FR
26387) as a notice of proposed rulemaking (NPRM) on May 17, 1995.
Interested parties were given 60 days to submit comments. Public
comments were received from two legal services organizations who were
concerned about how the regulations would affect individuals who
suffered losses in recent disasters. These comments raised an issue
regarding how we will apply the additional 12-month extension. We
address this issue by clarifying the scope of the regulation in the
response below. With this clarification, we are adopting the
regulations as proposed.
Comment: The additional 12-month extension for not counting certain
funds as a resource under these regulations should apply to individuals
for whom the original 18-month noncounting period (9 months and 9-month
good
[[Page 5944]]
cause extension) has expired prior to the effective date of these
regulations.
Response: Prior to the promulgation of these rules, our regulations
provided that cash or in-kind replacement received for purposes of
repairing or replacing an excluded resource would not be counted as a
resource for a maximum period of 18 continuous months, commencing with
the month following the month of receipt. These rules provide, under
certain circumstances, for an additional 12-month extension to the
former maximum noncounting period, thereby establishing a new 30-month
maximum period during which such cash or in-kind replacement will not
be considered resources. The total noncounting period may not exceed 30
months from the month of receipt because it is reasonable to expect
individuals to begin rebuilding or repairing within that timeframe. We
chose not to provide a full 12-month extension to individuals whose
prior 18-month noncounting period had expired because to do so would
provide a noncounting period in excess of the 30-month maximum
established by this regulation.
Therefore, if the original 18-month noncounting period (9 months
plus 9-month good cause extension under Sec. 416.1232(b)) has expired
prior to the effective date of these regulations, we will extend the
period for not counting the funds as a resource if the requirements in
Sec. 416.1232(c) are met, but only within the limits of the new 30-
month maximum (9-months plus 9-month good cause extension plus 12-month
good cause extension provided under Sec. 416.1232(c)). The extension
would be applicable with the first day of the month which immediately
follows the month these regulations become effective, and will remain
applicable for a period not to exceed the number of months remaining in
the 30-month period that commences with the month following the month
of receipt of the funds.
For example, if the individual's 18-month noncounting period
expired 6 months prior to the effective date of these regulations, we
would extend the period for not counting the funds as resources
prospectively for up to an additional 6 months. There will be no
retroactive effect. The last month of the noncounting period cannot
exceed the 30th (thirtieth) month following the month of receipt of any
payment.
Regulatory Procedures
Executive Order 12866
We have consulted with the Office of Management and Budget (OMB)
and determined that these rules do not meet the criteria for a
significant regulatory action under Executive Order 12866. Thus, they
are not subject to OMB review.
Paperwork Reduction Act of 1980
These regulations impose no new reporting or recordkeeping
requirements requiring OMB clearance.
Regulatory Flexibility Act
We certify that these regulations will not have a significant
economic impact on a substantial number of small entities because they
affect eligibility for SSI payments of individuals. Therefore, a
regulatory flexibility analysis as provided in Public Law 96-354, the
Regulatory Flexibility Act, is not required.
Waiver of 30-Day Delay in Effective Date
These new SSI resource regulations are effective on publication,
rather than 30 days after publication. Section 702(a)(5) of the Social
Security Act makes the regulations we prescribe subject to the
rulemaking procedures established under section 553 of the
Administrative Procedure Act (APA), 5 U.S.C. 553. Section 553(d) of the
APA requires that the effective date of a substantive rule be no less
than 30 days after its publication, except in cases of: Rules which
grant or recognize an exemption or relieve a restriction;
interpretative rules and statements of policy; or as otherwise provided
by the Agency for good cause found and published with the rule.
In accordance with 5 U.S.C. 553(d)(1), these rules grant or
recognize an exemption or relieve a restriction because under certain
circumstances, they remove from consideration as resources for a
period, cash or in-kind replacement received for the repair or
replacement of certain lost or damaged property. Furthermore, we have
determined that under 5 U.S.C. 553(d)(3), good cause exists for
dispensing with the minimum 30-day period between the publication date
and the effective date. A delay in the application of these rules may
result in the loss of SSI benefits for certain individuals who have
been unable to repair or replace certain property lost or damaged as a
result of a presidentially-declared disaster. We believe that making
available to these individuals the relief provided by these rules as
quickly as possible is good cause sufficient to dispense with the
minimum 30-day period prescribed by 5 U.S.C. 553(d). Accordingly, these
rules are effective on publication.
(Catalog of Federal Domestic Assistance Program No. 96.006,
Supplemental Security Income)
List of Subjects in 20 CFR Part 416
Administrative practice and procedure, Aged, Blind, Disability
benefits, Public assistance programs, Reporting and recordkeeping
requirements, Supplemental Security Income.
Dated: February 2, 1996.
Shirley S. Chater,
Commissioner of Social Security.
Part 416 of chapter III of title 20 of the Code of Federal
Regulations is amended as follows:
PART 416--[AMENDED]
Subpart L--[Amended]
1. The authority citation for subpart L of part 416 is revised to
read as follows:
Authority: Secs. 702(a)(5), 1602, 1611, 1612, 1613, 1614(f),
1621, and 1631 of the Social Security Act (42 U.S.C. 902(a)(5),
1381a, 1382, 1382a, 1382b, 1382c(f), 1382j, and 1383); sec. 211,
Pub. L. 93-66, 87 Stat. 154 (42 U.S.C. 1382 note).
2. Section 416.1232 is amended by revising paragraph (b), by
redesignating paragraph (c) as paragraph (d) and by adding a new
paragraph (c), to read as follows:
Sec. 416.1232 Replacement of lost, damaged, or stolen excluded
resources.
* * * * *
(b) The initial 9-month time period will be extended for a
reasonable period up to an additional 9 months where we find the
individual had good cause for not replacing or repairing the resource.
An individual will be found to have good cause when circumstances
beyond his or her control prevented the repair or replacement or the
contracting for the repair or replacement of the resource. The 9-month
extension can only be granted if the individual intends to use the cash
or in-kind replacement items to repair or replace the lost, stolen, or
damaged excluded resource in addition to having good cause for not
having done so. If good cause is found for an individual, any unused
cash (and interest) is counted as a resource beginning with the month
after the good cause extension period expires. Exception: For victims
of Hurricane Andrew only, the extension period for good cause may be
extended for up to an additional 12 months beyond the 9-month extension
when we find that the individual had good cause for not replacing or
repairing an excluded resource within the 9-month extension.
[[Page 5945]]
(c) The time period described in paragraph (b) of this section
(except the time period for individuals granted an additional extension
under the Hurricane Andrew provision) may be extended for a reasonable
period up to an additional 12 months in the case of a catastrophe which
is declared to be a major disaster by the President of the United
States if the excluded resource is geographically located within the
disaster area as defined by the Presidential order; the individual
intends to repair or replace the excluded resource; and, the individual
demonstrates good cause why he or she has not been able to repair or
replace the excluded resource within the 18-month period.
* * * * *
[FR Doc. 96-3406 Filed 2-14-96; 8:45 am]
BILLING CODE 4190-29-P
Complete official Federal Register PDF
FR Doc. 96-3405 Revision of Authority Citations
[Federal Register Volume 61, Number 32 (Thursday, February 15, 1996)]
[Rules and Regulations]
[Pages 5939-5943]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-3405]
=======================================================================
-----------------------------------------------------------------------
SOCIAL SECURITY ADMINISTRATION
20 CFR Parts 401, 404, 416, 422, and 423
[Regulation Nos. 1, 4, 16, 22, and 23]
RIN 0960-AE32
Revision of Authority Citations
AGENCY: Social Security Administration.
ACTION: Final rule with request for comments.
-----------------------------------------------------------------------
SUMMARY: The authority citations for the Social Security Administration
(SSA) regulations are being revised. As of March 31, 1995, new
regulatory authority was given to the Commissioner of Social Security
by the Social Security Independence and Program Improvements Act of
1994 (the Independence Act). The authority citations are being revised
where appropriate to reflect this change in authority and other changes
in the law to provide updated citations for the public.
DATES: This rule is effective February 15, 1996. We will consider any
comments received no later than April 15, 1996.
ADDRESSES: Comments should be submitted in writing to the Commissioner
of Social Security, P.O. Box 1585, Baltimore, MD 21235, sent by telefax
to (410) 966-2830, sent by E-mail to ``[email protected]'', or
delivered to the Division of Regulations and Rulings, Social Security
Administration, 3-B-1 Operations Building, 6401 Security Boulevard,
Baltimore, MD 21235, between 8:00 a.m. and 4:30 p.m. on regular
business days. Comments may be inspected during these same hours by
making arrangements with the contact person shown below.
FOR FURTHER INFORMATION CONTACT: Daniel T. Bridgewater, Legal
Assistant, Division of Regulations and Rulings, Social Security
Administration, 6401 Security Boulevard, Baltimore, MD 21235, (410)
965-3298 for information about this rule. For information on
eligibility or claiming benefits, call our national toll-free number,
1-800-772-1213.
[[Page 5940]]
SUPPLEMENTARY INFORMATION: SSA is revising the statutory authority
citations for the following parts under 20 CFR chapter III:
1. Part 401--Disclosure of Official Records and Information;
2. Part 404--Federal Old-Age, Survivors and Disability Insurance
(1950- );
3. Part 416--Supplemental Security Income for the Aged, Blind, and
Disabled;
4. Part 422--Organization and Procedures; and
5. Part 423--Service of Process.
Prior to March 31, 1995, the general regulatory authority for SSA
programs and administration was vested in the Secretary of Health and
Human Services (the Secretary) and was based on section 1102 of the
Social Security Act (the Act)(42 U.S.C. 1302). However, the
Independence Act, Public Law 103-296, established the Social Security
Administration as an independent agency in the Executive Branch of the
Federal government and provided general regulatory authority effective
March 31, 1995, in the Commissioner of Social Security (the
Commissioner) in section 702(a)(5) of the Act (42 U.S.C. 902(a)(5)).
Where current authority citations in parts 401, 404, 416, 422, and
423 refer to the Secretary's authority, SSA is revising them to refer
solely to the Commissioner's authority. SSA is also updating the
citations to remove obsolete references and reflect changes in the law
since the citations were last revised.
Electronic Version
The electronic file of this document is available on the Federal
Bulletin Board (FBB) at 9:00 A.M. on the date of publication in the
Federal Register. To download the file, modem dial (202) 512-1387. The
FBB instructions will explain how to download the file and the fee.
This file is in WordPerfect and will remain on the FBB during the
comment period.
Regulatory Procedures
Pursuant to section 702(a)(5) of the Act (42 U.S.C. 902(a)(5)), SSA
follows the Administrative Procedure Act (APA) rulemaking procedures
specified in 5 U.S.C. 553 in the development of its regulations. The
APA provides exceptions to its prior notice and public comment
procedures when an agency finds there is good cause for dispensing with
such procedures on the basis that they are impracticable, unnecessary,
or contrary to the public interest.
We have determined that, under 5 U.S.C. 553(b)(B), good cause
exists for dispensing with the notice and public comment procedures in
this case. Good cause exists because these are minor technical changes
which make no substantive change in the regulations and have no effect
on the public. Therefore, opportunity for prior comment is unnecessary,
and we are issuing these changes to our regulations as a final rule.
SSA is publishing these regulations as a final rule with a 60-day
comment period. SSA will consider any timely comments and will revise
and republish this rule if the public comments warrant.
In addition, SSA is not providing a 30-day delay in the effective
date of this final rule under 5 U.S.C. 553(d). This is not a
substantive rule, and there is no change in policy. Accordingly, the
requirements of 5 U.S.C. 553(d) are inapplicable.
Executive Order 12866
SSA has consulted with the Office of Management and Budget (OMB)
and determined that this final rule does not meet the criteria for a
significant regulatory action under Executive Order 12866. Thus, it was
not subject to OMB review.
Regulatory Flexibility Act
SSA certifies that this final rule will not have a significant
economic impact on a substantial number of small entities since it
makes no changes in policy. Therefore, a regulatory flexibility
analysis as provided in Public Law 96-354, the Regulatory Flexibility
Act, is not required.
Paperwork Reduction Act
This final rule imposes no additional reporting or recordkeeping
requirements subject to OMB clearance.
(Catalog of Federal Domestic Assistance Program Nos. 96.001 Social
Security-Disability Insurance; 96.002 Social Security--Retirement
Insurance; 96.003 Social Security--Special Benefits for Persons Aged
72 and Over; 96.004 Social Security--Survivors Insurance; 96.005
Special Benefits for Disabled Coal Miners; 96.006 Supplemental
Security Income; 96.007 Social Security--Research and Demonstration)
List of Subjects
20 CFR Part 401
Administrative practice and procedure, Disclosure, Privacy, Social
security, Supplemental Security Income (SSI).
20 CFR Part 404
Administrative practice and procedure, Blind, Old-Age, Survivors
and Disability benefits, Old-Age, Survivors and Disability Insurance,
Reporting and recordkeeping requirements, Social security.
20 CFR Part 416
Administrative practice and procedure, Aged, Blind, Disability
benefits, Public assistance programs, Supplemental Security Income
(SSI), Reporting and recordkeeping requirements.
20 CFR Part 422
Administrative practice and procedure, Freedom of information,
Organization and functions (Government agencies), Social security.
20 CFR Part 423
Courts.
Dated: February 1, 1996.
Shirley S. Chater,
Commissioner of Social Security.
For the reasons set out in the preamble, 20 CFR chapter III is
amended as follows:
PART 401--DISCLOSURE OF OFFICIAL RECORDS AND INFORMATION
1. An authority citation is added after the table of contents for
part 401 and before the regulatory text for part 401 to read as
follows:
Authority: Secs. 205, 702(a)(5), 1106, and 1141 of the Social
Security Act (42 U.S.C. 405, 902(a)(5), 1306, and 1320b-11); 5
U.S.C. 552 and 552a; 8 U.S.C. 1360; 26 U.S.C. 6103; 30 U.S.C. 923.
2. The authority citation for each subpart in part 401 is removed.
PART 404--FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE
(1950- )
Subpart A--[Amended]
1. The authority citation for subpart A of part 404 is revised to
read as follows:
Authority: Secs. 203, 205(a), 216(j), and 702(a)(5) of the
Social Security Act (42 U.S.C. 403, 405(a), 416(j), and 902(a)(5)).
Subpart B--[Amended]
2. The authority citation for subpart B of part 404 is revised to
read as follows:
Authority: Secs. 205(a), 212, 213, 214, 216, 217, 223, and
702(a)(5) of the Social Security Act (42 U.S.C. 405(a), 412, 413,
414, 416, 417, 423, and 902(a)(5)).
Subpart C--[Amended]
3. The authority citation for subpart C of part 404 is revised to
read as follows:
Authority: Secs. 202(a), 205(a), 215, and 702(a)(5) of the
Social Security Act (42 U.S.C. 402(a), 405(a), 415, and 902(a)(5)).
[[Page 5941]]
Subpart D--[Amended]
4. The authority citation for subpart D of part 404 is revised to
read as follows:
Authority: Secs. 202, 203 (a) and (b), 205(a), 216, 223, 225,
228(a)-(e), and 702(a)(5) of the Social Security Act (42 U.S.C. 402,
403 (a) and (b), 405(a), 416, 423, 425, 428(a)-(e), and 902(a)(5)).
Subpart E--[Amended]
5. The authority citation for subpart E of part 404 is revised to
read as follows:
Authority: Secs. 202, 203, 204 (a) and (e), 205 (a) and (c),
222(b), 223(e), 224, 225, and 702(a)(5) of the Social Security Act
(42 U.S.C. 402, 403, 404 (a) and (e), 405 (a) and (c), 422(b),
423(e), 424a, 425, and 902(a)(5)).
Subpart F--[Amended]
6. The authority citation for subpart F of part 404 is revised to
read as follows:
Authority: Secs. 204(a)-(d), 205(a), and 702(a)(5) of the Social
Security Act (42 U.S.C. 404(a)-(d), 405(a), and 902(a)(5)); 31
U.S.C. 3720A.
Subpart G--[Amended]
7. The authority citation for subpart G of part 404 is revised to
read as follows:
Authority: Secs. 202 (i), (j), (o), (p), and (r), 205(a),
216(i)(2), 223(b), 228(a), and 702(a)(5) of the Social Security Act
(42 U.S.C. 402 (i), (j), (o), (p), and (r), 405(a), 416(i)(2),
423(b), 428(a), and 902(a)(5)).
Subpart H--[Amended]
8. The authority citation for subpart H of part 404 is revised to
read as follows:
Authority: Secs. 205(a) and 702(a)(5) of the Social Security Act
(42 U.S.C. 405(a) and 902(a)(5)).
Subpart I--[Amended]
9. The authority citation for subpart I of part 404 is revised to
read as follows:
Authority: Secs. 205(a), (c)(1), (c)(2)(A), (c)(4), (c)(5),
(c)(6), and (p), 702(a)(5), and 1143 of the Social Security Act (42
U.S.C. 405(a), (c)(1), (c)(2)(A), (c)(4), (c)(5), (c)(6), and (p),
902(a)(5), and 1320b-13).
Subpart J--[Amended]
10. The authority citation for subpart J of part 404 is revised to
read as follows:
Authority: Secs. 201(j), 205(a), (b), (d)-(h), and (j), 221,
225, and 702(a)(5) of the Social Security Act (42 U.S.C. 401(j),
405(a), (b), (d)-(h), and (j), 421, 425, and 902(a)(5)); 31 U.S.C.
3720A; sec. 5, Pub. L. 97-455, 96 Stat. 2500 (42 U.S.C. 405 note);
secs. 5, 6(c)-(e), and 15, Pub. L. 98-460, 98 Stat. 1802 (42 U.S.C.
421 note).
Subpart K--[Amended]
11. The authority citation for subpart K of part 404 is revised to
read as follows:
Authority: Secs. 202(v), 205(a), 209, 210, 211, 229(a), 230,
231, and 702(a)(5) of the Social Security Act (42 U.S.C. 402(v),
405(a), 409, 410, 411, 429(a), 430, 431, and 902(a)(5)).
Subpart M--[Amended]
12. The authority citation for subpart M of part 404 is revised to
read as follows:
Authority: Secs. 205, 210, 218, and 702(a)(5) of the Social
Security Act (42 U.S.C. 405, 410, 418, and 902(a)(5)); sec. 12110,
Pub. L. 99-272, 100 Stat. 287 (42 U.S.C. 418 note); sec. 9002, Pub.
L. 99-509, 100 Stat. 1970.
Subpart N--[Amended]
13. The authority citation for subpart N of part 404 is revised to
read as follows:
Authority: Secs. 205(a) and (p), 210(l) and (m), 215(h), 217,
229, and 702(a)(5) of the Social Security Act (42 U.S.C. 405(a) and
(p), 410(l) and (m), 415(h), 417, 429, and 902(a)(5)).
Subpart O--[Amended]
14. The authority citation for subpart O of part 404 is revised to
read as follows:
Authority: Secs. 202(l), 205(a), (c)(5)(D), (i), and (o),
210(a)(9) and (l)(4), 211(c)(3), and 702(a)(5) of the Social
Security Act (42 U.S.C. 402(l), 405(a), (c)(5)(D), (i), and (o),
410(a)(9) and (l)(4), 411(c)(3), and 902(a)(5)).
Subpart P--[Amended]
15. The authority citation for subpart P of part 404 is revised to
read as follows:
Authority: Secs. 202, 205(a), (b), and (d)-(h), 216(i), 221(a)
and (i), 222(c), 223, 225, and 702(a)(5) of the Social Security Act
(42 U.S.C. 402, 405(a), (b), and (d)-(h), 416(i), 421(a) and (i),
422(c), 423, 425, and 902(a)(5)).
Subpart Q--[Amended]
16. The authority citation for subpart Q of part 404 is revised to
read as follows:
Authority: Secs. 205(a), 221, and 702(a)(5) of the Social
Security Act (42 U.S.C. 405(a), 421, and 902(a)(5)).
Subpart R--[Amended]
17. The authority citation for subpart R of part 404 is revised to
read as follows:
Authority: Secs. 205(a), 206, and 702(a)(5) of the Social
Security Act (42 U.S.C. 405(a), 406, and 902(a)(5)).
Subpart S--[Amended]
18. The authority citation for subpart S of part 404 is revised to
read as follows:
Authority: Secs. 205(a) and (n), 207, and 702(a)(5) of the
Social Security Act (42 U.S.C. 405(a) and (n), 407, and 902(a)(5)).
Subpart T--[Amended]
19. The authority citation for subpart T of part 404 is revised to
read as follows:
Authority: Secs. 205(a), 233, and 702(a)(5) of the Social
Security Act (42 U.S.C. 405(a), 433, and 902(a)(5)).
Subpart U--[Amended]
20. The authority citation for subpart U of part 404 is revised to
read as follows:
Authority: Secs. 205 (a), (j), and (k), and 702(a)(5) of the
Social Security Act (42 U.S.C. 405 (a), (j), and (k), and
902(a)(5)).
Subpart V--[Amended]
21. The authority citation for subpart V of part 404 is revised to
read as follows:
Authority: Secs. 205(a), 222, and 702(a)(5) of the Social
Security Act (42 U.S.C. 405(a), 422, and 902(a)(5)).
PART 416--SUPPLEMENTAL SECURITY INCOME FOR THE AGED, BLIND, AND
DISABLED
Subpart A--[Amended]
1. The authority citation for subpart A of part 416 is revised to
read as follows:
Authority: Secs. 702(a)(5) and 1601-1635 of the Social Security
Act (42 U.S.C. 902(a)(5) and 1381-1383d); sec. 212, Pub. L. 93-66,
87 Stat. 155 (42 U.S.C. 1382 note); sec. 502(a), Pub. L. 94-241, 90
Stat. 268 (48 U.S.C. 1681 note).
Subpart B--[Amended]
2. The authority citation for subpart B of part 416 is revised to
read as follows:
Authority: Secs. 702(a)(5), 1110(b), 1602, 1611, 1614, 1615(c),
1619(a), 1631, and 1634 of the Social Security Act (42 U.S.C.
902(a)(5), 1310(b), 1381a, 1382, 1382c, 1382d(c), 1382h(a), 1383,
and 1383c); secs. 211 and 212, Pub. L. 93-66, 87 Stat. 154 and 155
(42 U.S.C. 1382 note); sec. 502(a), Pub. L. 94-241, 90 Stat. 268 (48
U.S.C. 1681 note); sec. 2, Pub. L. 99-643, 100 Stat. 3574 (42 U.S.C.
1382h note).
Subpart C--[Amended]
3. The authority citation for subpart C of part 416 is revised to
read as follows:
Authority: Secs. 702(a)(5), 1611, and 1631 (a), (d), and (e) of
the Social Security Act (42 U.S.C. 902(a)(5), 1382, and 1383 (a),
(d), and (e)).
[[Page 5942]]
Subpart D--[Amended]
4. The authority citation for subpart D of part 416 is revised to
read as follows:
Authority: Secs. 702(a)(5), 1611 (a), (b), (c), and (e), 1612,
1617, and 1631 of the Social Security Act (42 U.S.C. 902(a)(5), 1382
(a), (b), (c), and (e), 1382a, 1382f, and 1383).
Subpart E--[Amended]
5. The authority citation for subpart E of part 416 is revised to
read as follows:
Authority: Secs. 702(a)(5), 1601, 1602, 1611 (c) and (e), and
1631 (a)-(d) and (g) of the Social Security Act (42 U.S.C.
902(a)(5), 1381, 1381a, 1382 (c) and (e), and 1383 (a)-(d) and (g)).
Subpart F--[Amended]
6. The authority citation for subpart F of part 416 is revised to
read as follows:
Authority: Secs. 702(a)(5), 1631 (a)(2) and (d)(1) of the Social
Security Act (42 U.S.C. 902(a)(5) and 1383 (a)(2) and (d)(1)).
Subpart G--[Amended]
7. The authority citation for subpart G of part 416 is revised to
read as follows:
Authority: Secs. 702(a)(5), 1611, 1612, 1613, 1614, and 1631 of
the Social Security Act (42 U.S.C. 902(a)(5), 1382, 1382a, 1382b,
1382c, and 1383); sec. 211, Pub. L. 93-66, 87 Stat. 154 (42 U.S.C.
1382 note).
Subpart H--[Amended]
8. The authority citation for subpart H of part 416 is revised to
read as follows:
Authority: Secs. 702(a)(5), 1601, 1614(a)(1) and 1631 of the
Social Security Act (42 U.S.C. 902(a)(5), 1381, 1382c(a)(1), and
1383).
Subpart I--[Amended]
9. The authority citation for subpart I of part 416 is revised to
read as follows:
Authority: Secs. 702(a)(5), 1611, 1614, 1619, 1631(a), (c), and
(d)(1), and 1633 of the Social Security Act (42 U.S.C. 902(a)(5),
1382, 1382c, 1382h, 1383(a), (c), and (d)(1), and 1383b); secs. 4(c)
and 5, 6(c)-(e), 14(a) and 15, Pub. L. 98-460, 98 Stat. 1794, 1801,
1802, and 1808 (42 U.S.C. 421 note, 423 note, 1382h note).
Subpart J--[Amended]
10. The authority citation for subpart J of part 416 is revised to
read as follows:
Authority: Secs. 702(a)(5), 1614, 1631, and 1633 of the Social
Security Act (42 U.S.C. 902(a)(5), 1382c, 1383, and 1383b).
Subpart K--[Amended]
11. The authority citation for subpart K of part 416 is revised to
read as follows:
Authority: Secs. 702(a)(5), 1602, 1611, 1612, 1613, 1614(f),
1621, and 1631 of the Social Security Act (42 U.S.C. 902(a)(5),
1381a, 1382, 1382a, 1382b, 1382c(f), 1382j, and 1383); sec. 211,
Pub. L. 93-66, 87 Stat. 154 (42 U.S.C. 1382 note).
Subpart L--[Amended]
12. The authority citation for subpart L of part 416 is revised to
read as follows:
Authority: Secs. 702(a)(5), 1602, 1611, 1612, 1613, 1614(f),
1621, and 1631 of the Social Security Act (42 U.S.C. 902(a)(5),
1381a, 1382, 1382a, 1382b, 1382c(f), 1382j, and 1383); sec. 211,
Pub. L. 93-66, 87 Stat. 154 (42 U.S.C. 1382 note).
Subpart M--[Amended]
13. The authority citation for subpart M of part 416 is revised to
read as follows:
Authority: Secs. 702(a)(5), 1611-1615, 1619, and 1631 of the
Social Security Act (42 U.S.C. 902(a)(5), 1382-1382d, 1382h, and
1383).
Subpart O--[Amended]
14. The authority citation for subpart O of part 416 is revised to
read as follows:
Authority: Secs. 702(a)(5) and 1631(d) of the Social Security
Act (42 U.S.C. 902(a)(5) and 1383(d)).
Subpart P--[Amended]
15. The authority citation for subpart P of part 416 is revised to
read as follows:
Authority: Secs. 702(a)(5), 1614(a)(1)(B) and (e), and 1631 of
the Social Security Act (42 U.S.C. 902(a)(5), 1382c(a)(1)(B) and
(e), and 1383); 8 U.S.C. 1254a; sec. 502, Pub. L. 94-241, 90 Stat.
268 (48 U.S.C. 1681 note).
Subpart Q--[Amended]
16. The authority citation for subpart Q of part 416 is revised to
read as follows:
Authority: Secs. 702(a)(5), 1611(e)(3), 1615, and 1631 of the
Social Security Act (42 U.S.C. 902(a)(5), 1382(e)(3), 1382d, and
1383).
Subpart R--[Amended]
17. The authority citation for subpart R of part 416 is revised to
read as follows:
Authority: Secs. 702(a)(5), 1614(b), (c), and (d), and
1631(d)(1) and (e) of the Social Security Act (42 U.S.C. 902(a)(5),
1382c (b), (c), and (d), and 1383 (d)(1) and (e)).
Subpart S--[Amended]
18. The authority citation for subpart S of part 416 is revised to
read as follows:
Authority: Secs. 702(a)(5) and 1631 of the Social Security Act
(42 U.S.C. 902(a)(5) and 1383).
Subpart T--[Amended]
19. The authority citation for subpart T of part 416 is revised to
read as follows:
Authority: Secs. 702(a)(5), 1616, 1618, and 1631 of the Social
Security Act (42 U.S.C. 902(a)(5), 1382e, 1382g, and 1383); sec.
212, Pub. L. 93-66, 87 Stat. 155 (42 U.S.C. 1382 note); sec. 8(a),
(b)(1)-(b)(3), Pub. L. 93-233, 87 Stat. 956 (7 U.S.C. 612c note,
1431 note and 42 U.S.C. 1382e note); secs. 1(a)-(c) and 2(a),
2(b)(1), 2(b)(2), Pub. L. 93-335, 88 Stat. 291 (42 U.S.C. 1382 note,
1382e note).
Subpart U--[Amended]
20. The authority citation for subpart U of part 416 is revised to
read as follows:
Authority: Secs. 702(a)(5), 1106, 1631(d)(1), and 1634 of the
Social Security Act (42 U.S.C. 902(a)(5), 1306, 1383(d)(1), and
1383c).
Subpart V--[Amended]
21. The authority citation for subpart V of part 416 is revised to
read as follows:
Authority: Secs. 702(a)(5), 1615, and 1631(d)(1) and (e) of the
Social Security Act (42 U.S.C. 902(a)(5), 1382d, and 1383(d)(1) and
(e)); sec. 2344, Pub. L. 97-35, 95 Stat. 867 (42 U.S.C. 1382d note).
PART 422--ORGANIZATION AND PROCEDURES
1. The authority citation at the end of the table of contents is
removed.
Subpart A--[Amended]
2. The authority citation for subpart A of part 422 is added after
the heading and before the regulatory text for this subpart to read as
follows:
Authority: Secs. 205, 218, 221, and 701-704 of the Social
Security Act (42 U.S.C. 405, 418, 421, and 901-904).
Subpart B--[Amended]
3. The authority citation for subpart B of part 422 is revised to
read as follows:
Authority: Secs. 205, 232, 702(a)(5), 1131, and 1143 of the
Social Security Act (42 U.S.C. 405, 432, 902(a)(5), 1320b-1, and
1320b-13).
Subpart C--[Amended]
4. The authority citation for subpart C of part 422 is revised to
read as follows:
Authority: Secs. 205, 221, and 702(a)(5) of the Social Security
Act (42 U.S.C. 405, 421, and 902(a)(5)); 30 U.S.C. 923(b).
[[Page 5943]]
Subpart E--[Amended]
5. The authority citation for subpart E of part 422 is revised to
read as follows:
Authority: Secs. 205(a), 702(a)(5), and 1106 of the Social
Security Act (42 U.S.C. 405(a), 902(a)(5), and 1306); 5 U.S.C. 552
and 552a; 8 U.S.C. 1360; 26 U.S.C. 6103; 30 U.S.C. 923(b).
Subpart F--[Amended]
6. The authority citation for subpart F of part 422 is revised to
read as follows:
Authority: Secs. 205 and 702(a)(5) of the Social Security Act
(42 U.S.C. 405 and 902(a)(5)). Section 422.512 is also issued under
30 U.S.C. 901 et seq.
Subpart G--[Amended]
7. The authority citation for subpart G of part 422 is revised to
read as follows:
Authority: 26 U.S.C. 9701-9708.
PART 423--SERVICE OF PROCESS
1. The authority citation for part 423 is revised to read as
follows:
Authority: Sec. 701 and 702(a)(5) of the Social Security Act (42
U.S.C. 901 and 902(a)(5)).
[FR Doc. 96-3405 Filed 2-14-96; 8:45 am]
BILLING CODE 4190-29-P
Complete official Federal Register PDF
FR Doc. 96-3389 Extensions of Credit by Federal Reserve Banks; Change in Discount Rate
[Federal Register Volume 61, Number 32 (Thursday, February 15, 1996)]
[Rules and Regulations]
[Page 5926]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-3389]
=======================================================================
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FEDERAL RESERVE SYSTEM
12 CFR Part 201
[Regulation A]
Extensions of Credit by Federal Reserve Banks; Change in Discount
Rate
AGENCY: Board of Governors of the Federal Reserve System.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Board of Governors has amended its Regulation A on
Extensions of Credit by Federal Reserve Banks to reflect its approval
of a decrease in the basic discount rate at each Federal Reserve Bank.
The Board acted on requests submitted by the Boards of Directors of the
twelve Federal Reserve Banks.
EFFECTIVE DATE: The amendments to part 201 (Regulation A) were
effective February 5, 1996. The rate changes for adjustment credit were
effective on the dates specified in 12 CFR 201.51.
FOR FURTHER INFORMATION CONTACT: William W. Wiles, Secretary of the
Board (202/452-3257); for users of Telecommunications Device for the
Deaf (TDD), please contact Dorothea Thompson, (202/452-3544), Board of
Governors of the Federal Reserve System, 20th and C Streets NW.,
Washington, DC 20551.
SUPPLEMENTARY INFORMATION: Pursuant to the authority of sections 10(b),
13, 14, 19, et.al., of the Federal Reserve Act, the Board has amended
its Regulation A (12 CFR part 201) to incorporate changes in discount
rates on Federal Reserve Bank extensions of credit. The discount rates
are the interest rates charged to depository institutions when they
borrow from their district Reserve Banks.
The ``basic discount rate'' is a fixed rate charged by Reserve
Banks for adjustment credit and, at the Reserve Banks' discretion, for
extended credit. In decreasing the basic discount rate, the Board acted
on requests submitted by the Boards of Directors of the twelve Federal
Reserve Banks. The new rates were effective on the dates specified
below. Moderating economic expansion in recent months has reduced
potential inflationary pressures going forward. In this environment,
the decrease in rates is consistent with continued inflation and
sustainable growth.
Regulatory Flexibility Act Certification
Pursuant to section 605(b) of the Regulatory Flexibility Act (5
U.S.C. 605(b)), the Board certifies that the change in the basic
discount rate will not have a significant adverse economic impact on a
substantial number of small entities. The rule does not impose any
additional requirements on entities affected by the regulation.
Paperwork Reduction Act
In accordance with section 3506 of the Paperwork Reduction Act of
1995 (44 U.S.C. Ch. 35; 5 CFR 1320 Appendix A.1), the Board reviewed
the rule under the authority delegated to the Board by the Office of
Management and Budget. No collections of information pursuant to the
Paperwork Reduction Act are contained in the rule.
Administrative Procedure Act
The provisions of 5 U.S.C. 553(b) relating to notice and public
participation were not followed in connection with the adoption of the
amendment because the Board for ``good cause'' finds that delaying the
change in the basic discount rate in order to allow notice and public
comment on the change is impracticable, unnecessary, and contrary to
the public interest in fostering sustainable economic growth.
The provisions of 5 U.S.C. 553(d) that prescribe 30 days prior
notice of the effective date of a rule have not been followed because
section 553(d) provides that such prior notice is not necessary
whenever there is good cause for finding that such notice is contrary
to the public interest. As previously stated, the Board determined that
delaying the changes in the basic discount rate is contrary to the
public interest.
List of Subjects in 12 CFR Part 201
Banks, banking, Credit, Federal Reserve System.
For the reasons set out in the preamble, 12 CFR Part 201 is amended
as set forth below:
PART 201--EXTENSIONS OF CREDIT BY FEDERAL RESERVE BANKS (REGULATION
A)
1. The authority citation for 12 CFR part 201 continues to read as
follows:
Authority: 12 U.S.C. 343 et. seq., 347a, 347b, 347c, 347d, 348
et. seq., 357, 374, 374a and 461.
2. Section 201.51 is revised to read as follows:
Sec. 201.51 Adjustment credit for depository institutions.
The rates for adjustment credit provided to depository institutions
under Sec. 201.3(a) are:
------------------------------------------------------------------------
Federal Reserve Bank Rate Effective
------------------------------------------------------------------------
Boston.......................... 5.00 February 1, 1996.
New York........................ 5.00 January 31, 1996.
Philadelphia.................... 5.00 January 31, 1996.
Cleveland....................... 5.00 January 31, 1996.
Richmond........................ 5.00 February 1, 1996.
Atlanta......................... 5.00 January 31, 1996.
Chicago......................... 5.00 February 1, 1996.
St. Louis....................... 5.00 February 5, 1996.
Minneapolis..................... 5.00 January 31, 1996.
Kansas City..................... 5.00 February 1, 1996.
Dallas.......................... 5.00 January 31, 1996.
San Francisco................... 5.00 January 31, 1996.
------------------------------------------------------------------------
By order of the Board of Governors of the Federal Reserve
System, February 9, 1996.
William W. Wiles,
Secretary of the Board.
[FR Doc. 96-3389 Filed 2-14-96; 8:45 a.m.]
BILLING CODE 6210-01-P
Complete official Federal Register PDF
FR Doc. 96-3382 Federal Motor Vehicle Safety Standards; Stability and Control of Medium and Heavy Vehicles During Braking
[Federal Register Volume 61, Number 32 (Thursday, February 15, 1996)]
[Rules and Regulations]
[Pages 5949-5955]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-3382]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
49 CFR Part 571
[Docket No. 92-29; Notice 10]
RIN 2127-AF96
Federal Motor Vehicle Safety Standards; Stability and Control of
Medium and Heavy Vehicles During Braking
AGENCY: National Highway Traffic Safety Administration (NHTSA), DOT.
ACTION: Final rule, petitions for reconsideration.
-----------------------------------------------------------------------
SUMMARY: This document responds to petitions for reconsideration of
final rules that amended FMVSS No. 105, Hydraulic Brake Systems, and
FMVSS No. 121, Air Brake Systems, to require medium and heavy vehicles
to be equipped with an antilock brake system (ABS). In response to the
petitions, this document requires continuous power for trailer ABS
systems, in place of the dedicated power and separate ground previously
required, and delays the implementation date for the in-cab trailer
malfunction indicator by four years. It also extends by three years the
period in which exterior ABS failure indicators are required on
trailers.
DATES: Effective Dates: The amendments to 49 CFR 571.121 are effective
March 1, 1997.
Compliance Dates: Compliance with the amendments to paragraphs
S5.1.6.2(b) and S5.2.3.2 of 49 CFR 571.121 will be required on and
after March 1, 2001. Compliance with the amendments to paragraph
S5.1.6.3 for truck tractors will be required on and after March 1, 1997
and for single unit vehicles will be required on and after March 1,
1998. Compliance with the amendments to paragraph S5.2.3.2 will be
required on and after March 1, 2001. Compliance with the amendments to
S5.2.3.3 will be required on and after March 1, 1998.
Petitions for Reconsideration: Any petitions for reconsideration of
this rule must be received by NHTSA no later than April 1, 1996.
ADDRESSES: Petitions for reconsideration of this rule should refer to
the above referenced docket numbers and should be submitted to:
Administrator, National Highway Traffic Safety Administration, 400
Seventh Street, SW., Washington, DC 20590.
FOR FURTHER INFORMATION CONTACT:
For non-legal issues: Mr. Robert M. Clarke, Office of Crash
Avoidance, National Highway Traffic Safety Administration, 400 Seventh
Street, SW., Washington, DC 20590 (202) 366-5278.
For legal issues: Mr. Marvin L. Shaw, NCC-20, Rulemaking Division,
Office of Chief Counsel, National Highway Traffic Safety
Administration, 400 Seventh Street, SW., Washington, DC 20590 (202)
366-2992.
SUPPLEMENTARY INFORMATION:
I. Background.
II. Petitions for Reconsideration.
III. NHTSA's Decision and Analysis of Issues.
A. Agency's Decision.
B. Trailer Powering.
1. Background and Previous NHTSA Rulings.
2. Petitions for Reconsideration of December 1995 Final Rule
3. Agency's Decision
C. In-Cab Trailer Malfunction Indicators
D. External Trailer Malfunction Indicators
I. Background
Section 4012 of the Motor Carrier Act of 1991, a part of the
Intermodal Surface Transportation Efficiency Act (ISTEA) of 1991, P.L.
102-240, directed the Secretary of Transportation to initiate
rulemaking concerning methods for improving braking performance of new
commercial motor vehicles, including truck tractors, trailers, and
their dollies. Congress specifically directed that such a rulemaking
examine antilock systems, means of improving brake compatibility, and
methods of ensuring effectiveness of brake timing. The Act required
that the rulemaking be consistent with the Motor Carrier Safety Act of
1984 (49 U.S.C. Sec. 31136) and be carried out pursuant to, and in
accordance with, the National Traffic and Motor Vehicle Safety Act of
1966 (now recodified as 49 U.S.C. Sec. 30101 et seq. (Safety Act)).
On March 10, 1995 (60 FR 13216, 60 FR 13297), NHTSA issued final
rules that required medium and heavy vehicles 1 to be equipped
with an antilock brake system (ABS) to improve their directional
stability and control during braking. The March 1995 final rules also
reinstated stopping distance requirements for air-braked heavy vehicles
and established stopping distance requirements for hydraulic-braked
heavy vehicles.
\1\ Hereinafter referred to as ``heavy vehicles''
---------------------------------------------------------------------------
In addition to the ABS requirement, the ABS final rule required
truck
[[Page 5950]]
tractors and other towing vehicles to supply dedicated, full time
electrical power to a trailer ABS and required truck tractors and other
towing vehicles to be equipped with two separate in-cab lamps: one
indicating malfunctions in the towing vehicle ABS and the other
indicating malfunctions in the ABS on one or more towed trailers and/or
dollies. The rule also required all trailers, including dollies,
produced during an eight-year transition period, to be equipped with an
external malfunction indicator. In response to petitions for
reconsideration of these requirements, NHTSA published a final rule on
December 13, 1995 (60 FR 63965) affirming its decision to require these
features.
II. Petitions for Reconsideration of December 1995 Final Rule
NHTSA received petitions for reconsideration of the December 1995
amendments to the final rule from the American Trucking Associations
(ATA) which represents trucking fleets, the National Private Truck
Council (NPTC) which represents private trucking fleets, the Truck
Manufacturers Association (TMA) 2, the Truck Trailer Manufacturers
Association (TTMA) which represents trailer manufacturers, the Heavy
Duty Brake Manufacturers Council (HDBMC) 3 which represents heavy
duty brake component manufacturers, Midland-Grau, Kelsey-Hayes,
Rockwell WABCO, Vehicle Enhancement Systems (VES), AlliedSignal,
General Motors, Ford, and the Recreational Vehicle Industry Association
(RVIA).4
\2\ TMA member companies include Ford, Freightliner, General
Motors, Mack Trucks, Navistar International, PACCAR, and Volvo GM
Heavy Truck.
\3\ HDBMC member companies include Abex, AlliedSignal, Eaton,
Midland-Grau, Ferodo America, Haldex, Lucas, MGM Brakes, Motion
Control/Carlisle, Rockwell, Rockwell WABCO, and Spicer/Dana.
\4\ General Motors, Ford, Kelsey-Hayes, and the RVIA all address
amendments to FMVSS No. 105. In this notice, the agency is
responding to the issues relating to FMVSS No. 121. The agency will
address the petitions raising FMVSS No. 105 issues in a future
notice.
---------------------------------------------------------------------------
As did the petitioners for reconsideration of the March 1995 final
rule, all petitioners for reconsideration of the December 1995 final
rule agreed with and supported NHTSA's decision and schedule requiring
all heavy vehicles to be equipped with ABS. ATA, TMA, and TTMA
reference what they refer to as the ATA/TMA/TTMA Industry Consensus
Position ABS Reconsideration petition,5 with which they have
stated their concurrence. The Industry Consensus Position states that
the agency should retain the current overall requirements and timing.
Similarly, TMA stated that its companies ``continue to support the
production, sale, and service of ABS within the specified time
frames.'' Nevertheless, the Industry Consensus Position and each of the
petitioners requested that the agency modify the requirements that
address trailer ABS power and the in-cab trailer malfunction indicator.
Specifically, the Industry Consensus Position is that the agency should
(1) delete the requirement for continuous, dedicated power 6 to
the trailer ABS and replace it with a requirement for continuous power
but no dedicated circuit (with backup power on the stoplamp circuit)
and delete the separate ABS ground requirement, and (2) delay the
effective date for an in-cab trailer warning light, but specify another
date that will accelerate the development of the specific means for
achieving the goal of having that warning light. The petitioners
supporting the Industry Consensus Position explained that the heavy
vehicle manufacturers and users are working together and are committed
to developing and deploying a satisfactory in-cab trailer warning light
within the extended time period requested.
\5\ Hereinafter referred to as ``Industry Consensus Position.''
\6\ The terms continuous power, dedicated power, and connector
are discussed in the next section.
---------------------------------------------------------------------------
III. NHTSA's Decision and Analysis of Issues
As explained below, NHTSA has decided to amend FMVSS No. 121
consistent with the Industry Consensus Position and to replace the
requirement for dedicated power to trailer ABS with a requirement for
continuous power. Stoplamp power will continue to be required to
provide back-up power for the ABS. In addition, the agency has decided
to delete the requirement for a separate ABS ground and to allow a
common ground for ABS trailer powering. The agency has also decided to
delay the implemenation date for the in-cab trailer malfunction
indicator until March 1, 2001.
A. Trailer Powering
1. Background and Previous NHTSA Rulings
A trailer's antilock brake system may receive its electrical power
in one of the following ways: (1) intermittent power through the
stoplamp circuit, (2) continuous power through a circuit that is shared
and provides power to more than one electrical component or which is
used to transmit one or more signals, or (3) continuous, dedicated
power through a circuit whose sole function is to provide power to the
trailer ABS. With stoplamp powering, electrical power to the ABS is
only supplied when the brake pedal is applied and the stop lamp switch
is activated. As a result, the trailer ABS must share power with
stoplamp bulbs, which decreases the voltage available for powering the
trailer ABS. With continuous powering, electrical power to the trailer
ABS is present at all times, but other devices could be powered off the
same circuit and multiplexed 7 communication signals could be
carried on the circuit. With dedicated powering, electrical power to
the trailer ABS is present at all times, but no other device can be
powered off this circuit and communications signals cannot be carried
on the circuit.
\7\ Multiplexing is defined by the Society of Automotive
Engineers's (SAE's) Multiplex Subcommittee as ``The process of
combining several messages for transmission over the same signal
path.''
---------------------------------------------------------------------------
Trailers do not typically have their own electrical power source.
Thus, an electrical connector is needed to provide electrical current
between a tractor and a trailer. At present, the most common electrical
connector used for this purpose in the United States is the SAE J560
plug/receptacle, which was developed in the 1950s and has been in
widespread use ever since. This connector has seven pins, providing
seven electrical paths: Pin one is used as a common ground for the
other six positive power pins; pin two is used to power clearance and
side marker lamps; pin three is used to power the left hand turn
signal; pin four is used to power the stoplamp; pin five is used to
power the right hand turn signal and hazard signal; pin six is used to
power the taillamp, marker lamps, and license plate lamps; and pin
seven is an auxiliary circuit that is not currently used in most
vehicle combinations. In the past, it has been common practice to power
trailer ABSs exclusively from pin 4, the stoplamp circuit. This
involves sharing power with the stoplamp bulbs which are only activated
when the brakes are applied.
In a fleet study 8 that NHTSA conducted to support the current
ABS rulemaking, the agency evaluated other ABS powering approaches,
including a single 13-pin connector, a separate six-pin connector, and
another separate connector known as the International
[[Page 5951]]
Standards Organization (``ISO'') connector. These other powering
approaches used dedicated electrical circuits, including separate,
fully dedicated positive and ground wires, to power the trailer ABS.
8 ``An In-Service Evaluation of the Performance,
Reliability, Maintainability, and Durability of Antilock Braking
Systems for Semitrailers,'' U.S. Department of Transportation/ NHTSA
Report No. DOT HS 808 059, October 1993
---------------------------------------------------------------------------
In the March 1995 final rule, NHTSA decided to require dedicated
powering for trailer ABSs and to require that towing vehicles have a
corresponding separate circuit. (60 FR 13248-13250) The agency
explained that this requirement provides the most dependable source of
electrical power from the tractor to ensure the functioning of the
trailer's ABS.
In petitions for reconsideration of the March 1995 final rule,
American Automobile Manufacturers Association (AAMA), Midland-Grau, and
TTMA requested that NHTSA interpret the requirement for dedicated power
so that the ABS powering circuit need not be exclusively used for ABS.
AAMA and Midland-Grau requested the agency to allow other uses for this
circuit, such as powering interior van trailer lights and multiplex
signaling. ATA reasserted its concern that the requirement for a
separate circuit would be costly and would create operational problems,
because it would result in the use of a second tractor/trailer
electrical connector, which would be used only infrequently, until the
number of tractors and trailers with ABS increased, to the point where
a high percentage of vehicles in combination would be ABS equipped. ATA
stated a strong preference for a requirement that would allow the
continued use of the SAE J560 connector. In a September 6, 1995 letter,
ATA requested that the agency interpret the requirement for a separate
electrical circuit in such a way as to allow the continued use of the
SAE J560 connector.
In the December 1995 final rule responding to petitions for
reconsideration, NHTSA denied the petitioners' request to permit other
uses for the separate ABS circuit. Based on information available at
that time, NHTSA concluded that it was necessary for the ABS on towed
vehicles to receive full-time power through a dedicated circuit to
reduce the possibility of the ABS being inoperative due to lack of
power. The agency found no basis in the publicly available data on
which to alter its view that the dedicated circuit was necessary.
2. Petitions for Reconsideration of December 1995 Final Rule
In response to the December 1995 final rule, each petitioner
supported the Industry Consensus Position to permit continuous powering
to the trailer ABS. TMA stated that new information and industry
commitments support a decision to delete the dedicated powering
requirement and replace it with a continuous powering requirement. TMA,
Midland-Grau, ATA, AlliedSignal, HDBMC, and VES supplied data which
indicated that adequate levels of electrical power could be supplied to
trailer ABSs on non-dedicated circuits. Midland-Grau strongly supported
the continuous powering requirement with the stoplamp circuit as a back
up, provided that the ABS circuit could be used to power warning and
other monitoring systems. ATA supported the Industry Consensus
Position. That organization continues to believe that intermittent
powering through the stoplamp circuit provides adequate electrical
energy to power the trailer ABS, citing its analysis of additional data
and industry commitments to upgrade tractor electrical systems.
Nevertheless, ATA agreed to a requirement for continuous power instead
of stoplamp power, if the trailer ABS power supply circuit could be
used for other purposes.
All petitioners opposed the requirement for dedicated powering with
a separate ground. TMA, ATA, Midland-Grau, AlliedSignal, and HDBMC
stated that the separate ground requirement, which is an integral part
of dedicated powering, requires the use of diodes in the trailer ABS's
electrical control unit (ECU) which reduce the voltage available for
trailer ABS. They further stated that requiring two grounds could
create ``ground loop circuits,'' which may create unexpected voltage
differences between various electrical systems on vehicles. This may
result in electrical shorting and the possibility of electrical fires.
In support of their petitions, the petitioners provided new
information relating to the voltage requirements of the new generation
of ECUs, the amperage requirements of new modulators, and the voltage
losses associated with dedicated power circuits. The petitions also
stated that the petitioners are committed to meeting new voluntary
powering standards and to completing the development of a new
generation of electronic communications systems.
3. Agency's Decision
The agency's decisions are based on the new information provided in
the public record by the petitioners, as described above and discussed
more fully below. Based on this information, as well as recent studies
9 by the agency, NHTSA has decided to amend FMVSS No. 121
consistent with the Industry Consensus Position and to replace the
requirement for dedicated power to the trailer ABS with a requirement
for continuous power. Stoplamp power will continue to be required to
provide back-up power for the trailer ABS. In addition, the agency has
decided to delete the requirement for a separate ABS ground and to
allow a common ground for ABS trailer powering. The agency emphasizes
that continuous power rather than intermittent power through the
stoplamp circuit is needed as a primary powering source to ensure the
safe operation and reliability of trailer ABS and to provide the
capability to signal a continuous warning of a trailer ABS malfunction
to the cabs of towing units.
\9\ Winkler, C.B., Bogard, S.E., Bowen, M.A., Ganduri, S.M., and
Lindquist, D.J. ``An Operational Field Test of Long Combination
Vehicles Using ABS and C-Dollies'', University of Michigan
Transportation Research Institute Report No. 95-45-2, under USDOT/
NHTSA Contract No. DTNH22-92-D-07003, November 1995
Flick, M. A., ``NHTSA's Heavy Duty Vehicles Brake Research
Program Report Number 10--Evaluation of Trailer Antilock Braking
Systems Electrical Powering'', USDOT Report No. HS 808 249, March
1995.
---------------------------------------------------------------------------
With respect to the safe operation of trailer ABS, an agency report
10 indicated that a problem can occur if power is interrupted to a
trailer ABS while it is cycling. Specifically, under lightly loaded or
empty trailer operating conditions on low coefficient of friction
surfaces, if a brake application that activates the ABS is fully
released and then fully applied again, the resulting interruption of
electrical current through the stoplamp circuit can cause the
reactivated ABS ECU to misinterpret the wheel speed signals it is
receiving. The ECU could interpret the signals as meaning that the
vehicle is stopped and thereupon allow the brakes to be fully applied.
This would result in locked trailer wheels. Notwithstanding the fact
that this type of brake application might occur infrequently in real-
world operating conditions, this possibility underlines the importance
of continuous powering as the primary method of powering trailer ABS,
and indicates that the stoplamp circuit should not be relied on as more
than a back-up to primary continuous powering. Data submitted by
Midland-Grau support the agency's position.
\10\ USDOT Report No. HS 808 249, March 1995.
---------------------------------------------------------------------------
With respect to the reliability of trailer ABS, NHTSA's decisions
in earlier rulemakings focused on ensuring that the trailer ABS
received adequate voltage. In the March 1995 final rule,
[[Page 5952]]
the agency specified a requirement for a dedicated trailer ABS power
circuit as the best means to ensure adequate voltage levels (i.e., 9-10
volts) for trailer ABSs. The agency believed that a separate ground
wire was also needed to ensure sufficient capacity to provide a return
path for electrical current that would not be subject to excessive
voltage drops because the ground wire carried too much current. This
belief rested on data from the agency's fleet studies.
On the basis of this new information in the petitions for
reconsideration, NHTSA has determined that a continuous, but non-
dedicated, source of power and a shared ground will provide sufficient
power to the trailer ABS. The HDBMC petition stated that all current
versions of trailer ABSs function at levels as low as 8.5 volts, and
that ABS modulators have now been designed to draw a maximum of 3 amps.
The agency agrees with the HDBMC petition that the information
previously available indicating that trailer ABSs require 9-10 volts to
remain functional, and that ABS modulators draw 2-6 amps of current,
has been superceded. This information about the lower power needs of
new ABS systems indicates that a dedicated power source and a separate
ground wire are not necessary for ABS power.
The agency agrees with petitioners that the addition of a separate
ground wire would necessitate adding diodes to the trailer ECU powering
circuitry to prevent inadvertent ground loops that may result in
electrical short circuits or electrical fires. These added diodes would
result in a 0.7 volt decrease to the trailer ECU, an outcome
inconsistent with ensuring adequate power levels.
Based on the above considerations, NHTSA has decided to modify
sections 5.1.6.3 and 5.5.2 to require continuous power to trailer ABSs,
to permit the circuit to be shared with other devices and to allow
trailer ABS powering circuits to share a common ground with other
electrical powering circuits.
Powering electrical devices other than the trailer ABS from the ABS
power circuit has the potential to compromise the circuit's ability to
power the trailer ABS. A recently completed study on long combination-
unit vehicles (LCVs) 11 highlights the need to design all the
elements of tractor/trailer electrical system to ensure adequate
electrical power levels. Among other things, that study considered
whether sufficient voltage could be supplied to the rear trailers and
dollies of multiple trailer combinations (especially triple trailer
combinations) on the same circuit. The study found that even with
special wiring and well maintained connectors, it was necessary for the
electrical systems of tractors to supply 13.3 volts and for the ABS on
dollies and trailers to operate on no more than 9.0 volts in order to
ensure that sufficient electrical power could be supplied. Some of the
tractors in the test program were not able to consistently provide the
13.3 volts of electrical power through the stoplamp circuit, and some
of the ABSs needed more than 9.0 volts. In some cases, trailing unit
ABSs ceased functioning. Accordingly, a manufacturer can ensure
adequate powering for trailer ABSs by providing adequately sized
electrical wiring in both towing and towed units, by providing towing
units with heavy duty electrical charging systems, and by employing low
voltage demand lighting systems.
\11\ University of Michigan Transportation Research Institute
Report No. 95-45-2, under USDOT/NHTSA Contract No. DTNH22-92-D-
07003, November 1995
---------------------------------------------------------------------------
The agency agrees with Midland-Grau's position that the only other
devices which should share this circuit are warning, monitoring, or
other signaling/communications devices. Additional uses that would not
likely pose problems are low power demand components or devices which
are powered when the vehicle is stopped or in reverse, conditions in
which the ABS would not be in use. However, the agency has decided not
to specify the devices that may share the use of the trailer ABS power
circuit. The agency is confident heavy vehicle manufacturers and users
recognize the need for appropriate restrictions and notes that industry
is working, through various SAE and other technical committees, to
establish performance standards for electrical systems that power
tractor and trailer ABS systems. These anticipated industry standards
are expected to include objective performance test procedures,
measurement criteria, and, in some cases, target performance levels.
Several of the petitioners specifically referenced SAE J2272, Truck
Tractor Power Output for Trailer ABS, and its TMC equivalent, RP137,
Antilock Electrical Supply for Tractors Through the SAE J560 Connector,
and indicated that they were committed to designing and using products
that meet these specifications. TTMA stated that it was developing a
comparable companion standard for trailer electrical systems.
NHTSA will monitor these efforts to develop consensus industry
standards and the commitment made by heavy vehicle manufacturers and
users to meet these voluntary standards. Efforts to develop consensus
on this topic have been under way since 1988, when WABCO submitted a
petition on trailer ABS powering schemes (53 FR 39751, October 12,
1988). The agency anticipates that this powering issue can be resolved
without further delays in the implementation schedule for the trailer
powering and in-cab indicator requirements.
After evaluating these voluntary standards, NHTSA may consider
further rulemaking to amend FMVSS No. 121 to require minimum voltage
levels at the tractor or to limit the use of the ABS power circuit if
such requirements appear necessary to ensure the adequacy of power to
the trailer ABS. Such a rulemaking action would be consistent with the
President's Regulatory Reinvention Initiative which encourages
regulatory agencies, when appropriate, to adopt voluntary standards
established and followed by the private sector.
B. Trailer Malfunction Indicators
FMVSS No. 101, Controls and Displays, sets forth requirements for
the location, identification, and illumination of motor vehicle
controls and displays. Table 2(a) of the standard lists various
telltales that are required in a motor vehicle to advise the driver of
the status of a variety of vehicle systems. For air brake equipped
trucks, these include telltales for brake system air pressure and for
ABS malfunction in the truck.
In the March 1995 final rule, NHTSA required lamps in the cab of
truck tractors to indicate any malfunction with the ABS of any towed
vehicles. (60 FR 13244, 13245) The agency also required trailers to
supply trailer ABS malfunction signals to the tractor. The agency
explained that it is essential that a driver be notified about an ABS
malfunction in the trailer, so that the problem can be corrected. The
agency cited results from the ABS fleet study which indicated that
drivers are more likely to observe a tractor in-cab indication of a
trailer ABS malfunction than they are a trailer-mounted lamp. The study
also noted that some trailer ABS malfunctions were present for a long
time, and not reported, because the drivers did not notice that the
trailer-mounted malfunction lamps were activated. Based on these
findings, the agency decided that it was necessary to require an in-cab
trailer ABS malfunction warning light to adequately ensure that such
malfunctions would be detected and corrected.
In response to the March 1995 final rule, ATA petitioned the agency
to delete the requirement for in-cab indication of trailer ABS
malfunctions.
[[Page 5953]]
It argued that such a requirement was unnecessary and would needlessly
complicate the electrical system of the tractor and the electrical
connector arrangement between tractors and trailers.
In the December 1995 final rule, NHTSA denied ATA's request to
delete the in-cab malfunction lamp for the trailer ABS. In explaining
that the in-cab trailer malfunction lamp is necessary, the agency
referenced a study that showed that an in-cab malfunction lamp is a
more effective means of making the driver aware of an ABS malfunction,
compared with an external malfunction lamp on the trailer.12 NHTSA
also disagreed with ATA's statement that the requirement for two
malfunction indicators unreasonably complicates the electrical systems
in combination vehicles, based on comments by brake and vehicle
manufacturers stating that it was appropriate to have an indicator in
the towing unit cab.
\12\ ``An In-Service Evaluation of the Performance, Reliability,
Maintainability, and Durability of Antilock Braking Systems for
Semitrailers,'' U.S. Department of Transportation/NHTSA Report No.
DOT HS 808 059, October 1993.
---------------------------------------------------------------------------
In response to the December 1995 final rule, the Industry Consensus
Position stated that ultimately it is essential to provide drivers an
in-cab indication of a trailer(s) ABS malfunction, but that requiring
the in-cab indicator by 1997 would likely impede the implementation of
a new high speed data transmission protocol SAE J1939 that is now being
developed by the SAE. This new protocol is expected to become the
recognized method for providing signaling capability between tractors
and trailers for a wide variety and number of devices and systems,
including trailer ABS malfunction indications. The Industry Consensus
Position is that delaying the implementation date of the in-cab
malfunction warning requirement for trailer ABS malfunctions to March
1, 2001, would provide sufficient time to fully develop the SAE J1939
protocol and would thus preclude the need for a two-step implementation
process.
Based on information provided in the petitions, NHTSA has decided
to grant the requested delay for the trailer in-cab malfunction
indicator. By delaying the requirement, the agency will enable the
manufacturers to move directly and promptly to in-cab failure
indicators that will use the new SAE protocol, thereby saving the cost
of installing indicators based on current technology. The delay will
also avoid the compatibility problems between new and old tractors and
trailers in the field and the associated costs and potential
maintenance problems associated with such a transition. The petitions
indicate a strong commitment to develop an SAE J1939-based final
solution. The agency anticipates that heavy vehicle manufacturers and
users will be able to develop and implement SAE J1939 and that further
delays in the implementation of this requirement will neither be
requested nor necessary.
NHTSA further notes that the external trailer indicator will still
advise a driver about a trailer ABS malfunction during this interim
period, when an in-cab indicator is not required. Notwithstanding the
need to rely on the external trailer indicator during this interim
period, NHTSA continues to view the in-cab trailer ABS malfunction
indicator as the best method for informing a driver of a trailer ABS
malfunction, based on the data and other information referenced in the
final rule.
C. External Trailer Malfunction Indicator
In previous notices, NHTSA emphasized the interrelationship between
the in-cab trailer malfunction indicator and the external trailer
malfunction indicator. In the September 28, 1993, notice of proposed
rulemaking (60 FR 13221, September 28, 1993) which led to the March
1995 final rule, the agency stated that the eight-year period for the
interim external trailer requirement was intended to represent the
average lifespan of a truck tractor and that
The external lamp would not be necessary on new trailers
manufactured after the end of that period because by that time, a
significant majority of tractors in the heavy vehicle fleet, which
would be responsible for the vast majority of miles driven by
tractors, would be manufactured in compliance with the requirement
for an in-cab lamp capable of receiving a malfunction signal from a
trailer.
In the final rule, the agency reiterated this view, although it
talked in terms of ``ABS and non-ABS equipped tractors'' as a shorthand
for tractors equipped with ABS malfunction indicators.
NHTSA's decision to delay the in-cab malfunction indicator for
trailer ABS from March 1, 1997 until March 1, 2001, will delay the
entry of tractors equipped with such indicators into the fleet. To
provide drivers of tractors without in-cab indicators with a warning of
trailer ABS failure, the agency has decided to extend the transition
period during which a trailer must be equipped with an external
malfunction indicator. The external indicators will be required from
March 1, 1998 until March 1, 2009, three years later than the date
established in the December 1995 final rule. Accordingly, a trailer
must still be equipped with an external ABS indicator during the time
period in which there is no in-cab trailer ABS malfunction indicator
requirement in effect as well as for an additional eight years after
the in-cab trailer malfunction indicator requirement takes effect. As
explained in previous notices, the additional eight-year transition
period represents the typical life cycle of tractors. Based on these
considerations, NHTSA has decided to amend S5.2.3.3 to require each
trailer (including a trailer converter dolly) manufactured on or after
March 1, 1998 and before March 1, 2009 to be equipped with an external
ABS malfunction indicator lamp.
IV. Rulemaking Analyses and Notices
A. Executive Order 12866 and DOT Regulatory Policies and Procedures
This notice has not been reviewed under Executive Order 12866.
NHTSA has considered the impacts of this rulemaking action and
determined that it is not ``significant'' within the meaning of the
Department of Transportation's regulatory policies and procedures. In
connection with the March 1995 final rules, the agency prepared a Final
Economic Assessment (FEA) describing the economic and other effects of
this rulemaking action. Summary discussions of those effects were
provided in the ABS final rule. For persons wishing to examine the full
analysis, a copy is in the docket.
The amendments in this final rule do not make those effects any
more stringent, and in some respects make it easier for a manufacturer
to comply with them. Specifically, by eliminating the requirement for
the dedicated ABS circuit and delaying the trailer in-cab malfunction
indicator by four years, tractor and trailer manufacturers will be able
to develop new methods of communicating trailer ABS information to the
tractor. Thus, for these four years, tractor manufacturers will not
have to provide a trailer in-cab malfunction indicator. After this four
year period, truck and trailer manufacturers will incur some additional
cost associated with ABS communications. This cost will depend on the
communication technique employed, i.e., multiplexing, Radio Frequency
(RF) signaling, or a separate circuit.
B. Regulatory Flexibility Act
NHTSA has also considered the effects of both this final rule or
the original final rule under the Regulatory Flexibility Act. I hereby
certify that it will not have a significant economic impact on a
substantial number of small
[[Page 5954]]
entities. Accordingly, the agency has not prepared a final regulatory
flexibility analysis.
NHTSA concluded that the March 1995 final rule had no significant
impact on a substantial number of small entities. Thus, the revised
final rule, which temporarily reduces costs associated with the March
1995 final rule, will not have a significant economic impact on a
substantial number of small entities.
C. National Environmental Policy Act
NHTSA has analyzed this rulemaking action for the purposes of the
National Environmental Policy Act. The agency has determined that
implementation of this action will not have any significant impact on
the quality of the human environment.
D. Executive Order 12612 (Federalism)
NHTSA has analyzed this action under the principles and criteria in
Executive Order 12612. The agency has determined that this notice does
not have sufficient Federalism implications to warrant the preparation
of a Federalism Assessment. No State laws will be affected.
E. Civil Justice Reform
This final rule does not have any retroactive effect. Under 49
U.S.C. 30103, whenever a Federal motor vehicle safety standard is in
effect, a State may not adopt or maintain a safety standard applicable
to the same aspect of performance which is not identical to the Federal
standard, except to the extent that the State requirement imposes a
higher level of performance and applies only to vehicles procured for
the State's use. 49 U.S.C. 30161 sets forth a procedure for judicial
review of final rules establishing, amending or revoking Federal motor
vehicle safety standards. That section does not require submission of a
petition for reconsideration or other administrative proceedings before
parties may file suit in court.
List of Subjects in 49 CFR Part 571
Imports, Motor vehicle safety, Motor vehicles, Rubber and rubber
products, Tires.
In consideration of the foregoing, the agency is amending Standard
No. 121, Air Brake Systems, in title 49 of the Code of Federal
Regulations at part 571 as follows:
PART 571--[AMENDED]
1. The authority citation for part 571 continues to read as
follows:
Authority: 49 U.S.C. 322, 30111, 30115, 30117, and 30166,
delegation of authority at 49 CFR 1.50.
2. Section 571.121 is amended by revising S5.1.6.2(b), S5.1.6.3,
S5.2.3.2, S5.2.3.3 and S5.5.2 to read as follows:
Sec. 571.121 Standard No. 121; Air brake systems.
* * * * *
S5.1.6.2 Antilock malfunction signal.
* * *
(b) Each truck tractor manufactured on or after March 1, 2001, and
each single unit vehicle manufactured on or after March 1, 2001, that
is equipped to tow another air-braked vehicle, shall be equipped with
an electrical circuit that is capable of transmitting a malfunction
signal from the antilock brake system(s) on one or more towed
vehicle(s) (e.g., trailer(s) and dolly(ies)) to the trailer ABS
malfunction lamp in the cab of the towing vehicle, and shall have the
means for connection of this electrical circuit to the towed vehicle.
Each such truck tractor and single unit vehicle shall also be equipped
with an indicator lamp, separate from the lamp required in S5.1.6.2(a),
mounted in front of and in clear view of the driver, which is activated
whenever the malfunction signal circuit described above receives a
signal indicating an ABS malfunction on one or more towed vehicle(s).
The indicator lamp shall remain activated as long as an ABS malfunction
signal from one or more towed vehicle(s) is present, whenever the
ignition (start) switch is in the ``on'' (run) position, whether or not
the engine is running. The indicator lamp shall also be activated as a
check of lamp function whenever the ignition is turned to the ``on'' or
``run'' position. The indicator lamp shall be deactivated at the end of
the check of lamp function unless a trailer ABS malfunction signal is
present.
* * * * *
S5.1.6.3 Antilock power circuit for towed vehicles. Each truck
tractor manufactured on or after March 1, 1997, and each single unit
vehicle manufactured on or after March 1, 1998, that is equipped to tow
another air-braked vehicle shall be equipped with one or more
electrical circuits that provide continuous power to the antilock
system on the towed vehicle or vehicles whenever the ignition (start)
switch is in the ``on'' (run) position. Such a circuit shall be
adequate to enable the antilock system on each towed vehicle to be
fully operable.
* * * * *
S5.2.3.2 Antilock malfunction signal. Each trailer (including a
trailer converter dolly) manufactured on or after March 1, 2001, that
is equipped with an antilock brake system shall be equipped with an
electrical circuit that is capable of signaling a malfunction in the
trailer's antilock brake system, and shall have the means for
connection of this antilock brake system malfunction signal circuit to
the towing vehicle. The electrical circuit need not be separate or
dedicated exclusively to this malfunction signaling function. The
signal shall be present whenever there is a malfunction that affects
the generation or transmission of response or control signals in the
trailer's antilock brake system. The signal shall remain present as
long as the malfunction exists, whenever power is supplied to the
antilock brake system. Each message about the existence of such a
malfunction shall be stored in the antilock brake system whenever power
is no longer supplied to the system, and the malfunction signal shall
be automatically reactivated whenever power is again supplied to the
trailer's antilock brake system. In addition, each trailer manufactured
on or after March 1, 2001, that is designed to tow another air-brake
equipped trailer shall be capable of transmitting a malfunction signal
from the antilock brake system(s) of additional trailers it tows to the
vehicle towing it.
* * * * *
S5.2.3.3 Antilock malfunction indicator. In addition to the
requirements of S5.2.3.2, each trailer (including a trailer converter
dolly) manufactured on or after March 1, 1998, and before March 1,
2009, shall be equipped with an external indicator lamp that is
activated whenever there is a malfunction that affects the generation
or transmission of response or control signals in the trailer's
antilock brake system. The indicator lamp shall remain activated as
long as such a malfunction exists, whenever power is supplied to the
antilock brake system. Each message about the existence of such a
malfunction shall be stored in the antilock brake system whenever power
is no longer supplied to the system, and the malfunction signal shall
be automatically reactivated when power is again supplied to the
trailer's antilock brake system. The indicator lamp shall also be
activated as a check of lamp function whenever power is supplied to the
antilock brake system and the vehicle is stationary. The indicator lamp
shall be deactivated at the end of the check of lamp function unless
there is a malfunction or a message about a malfunction that existed
when power
[[Page 5955]]
was last supplied to the antilock brake system.
* * * * *
S5.5.2 Antilock system power--trailers. On a trailer (including a
trailer converter dolly) manufactured on or after March 1, 1998 that is
equipped with an antilock system that requires electrical power for
operation, the power shall be obtained from the towing vehicle through
one or more electrical circuits which provide continuous power whenever
the powered vehicle's ignition (start) switch is in the ``on'' (run)
position. The antilock system shall automatically receive power from
the stoplamp circuit, if the primary circuit or circuits are not
functioning. Each trailer (including a trailer converter dolly)
manufactured on or after March 1, 1998 that is equipped to tow another
air-braked vehicle shall be equipped with one or more circuits which
provide continuous power to the antilock system on the vehicle(s) it
tows. Such circuits shall be adequate to enable the antilock system on
each towed vehicle to be fully operable.
* * * * *
Issued on: February 12, 1996.
Ricardo Martinez,
Administrator.
[FR Doc. 96-3382 Filed 2-13-96; 8:45 am]
BILLING CODE 4910-59-P
Complete official Federal Register PDF
FR Doc. 96-3381 Sharwil Avocados From Hawaii
[Federal Register Volume 61, Number 32 (Thursday, February 15, 1996)]
[Rules and Regulations]
[Pages 5922-5924]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-3381]
=======================================================================
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[[Page 5923]]
DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection Service
7 CFR Parts 300 and 318
[Docket No. 95-028-2]
Sharwil Avocados From Hawaii
AGENCY: Animal and Plant Health Inspection Service, USDA.
ACTION: Final rule.
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SUMMARY: We are amending the regulations to allow Sharwil avocados to
be moved interstate from Hawaii after undergoing cold treatment for
fruit flies under the supervision of an inspector of the Animal and
Plant Health Inspection Service. This action will facilitate the
interstate movement of Sharwil avocados from Hawaii while continuing to
provide protection against the spread of injurious plant pests from
Hawaii to other parts of the United States.
EFFECTIVE DATE: March 18, 1996.
FOR FURTHER INFORMATION CONTACT: Mr. Peter M. Grosser, Senior Staff
Officer, Port Operations, PPQ, APHIS, 4700 River Road Unit 139,
Riverdale, MD 20737-1236, (301) 734-8295.
SUPPLEMENTARY INFORMATION:
Background
The Hawaiian Fruits and Vegetables regulations, contained in 7 CFR
318.13 through 318.13-17 (referred to below as the regulations),
govern, among other things, the interstate movement from Hawaii of
avocados in a raw or unprocessed state. Regulation is necessary to
prevent the spread of the Mediterranean fruit fly (Ceratitis capitata),
the melon fly (Dacus cucurbitae), and the Oriental fruit fly
(Bactrocera dorsalis). These types of fruit flies are collectively
referred to as Trifly.
On October 2, 1995, we published in the Federal Register (60 FR
51373-51375, Docket No. 95-028-1) a proposal to amend the regulations
to allow Sharwil avocados to be moved interstate from Hawaii after
undergoing cold treatment for Trifly. In that document, we also
proposed two nonsubstantive editorial changes to simplify the
regulations.
We solicited comments concerning our proposal for 30 days ending
November 1, 1995. We received two comments by that date. They were from
a State agricultural agency and a representative of an avocado industry
group. Both commenters requested additional information to substantiate
the provisions of the proposed rule. The comments are discussed below.
Comment: The United States Department of Agriculture (USDA) must
address the effect of a preconditioning heat treatment, prior to cold
treatment, on Trifly eggs and larvae.
Response: The preconditioning heat treatment, which induces a
tolerance to subsequent cold treatment in the Sharwil avocado variety,
is recommended specifically for the purpose of maintaining fruit
quality and not as a part of the quarantine treatment. However,
research conducted by the Agricultural Research Service (ARS), USDA,
indicates that the heat treatment does contribute to Trifly mortality.
Additional information about this research may be obtained by writing
to the individual listed under FOR FURTHER INFORMATION CONTACT.
Comment: The USDA must address the efficacy of cold treatment on
eggs and larvae of the melon fly and the Oriental fruit fly, in
addition to the Mediterranean fruit fly (Medfly). In addition, USDA
must address the possible resistance of Medfly to cold treatment.
Response: Recent research conducted by ARS tested cold treatment
against all three species of Trifly (see Armstrong, Silva, and
Shishido, ``Quarantine cold treatment for Hawaiian carambola fruit
infested with Mediterranean fruit fly, Melon fly, or Oriental fruit fly
(Deptera:Tephritidae) eggs and larvae.'' Journal of Economic Entomology
88(3):683-687 (1995)). In this study, cold treatment disinfested
carambola of Trifly eggs and larvae, including eggs and larvae of
Medfly, the most cold-tolerant of the Trifly species, providing a
Probit 9 level of quarantine security (99.8 percent mortality).
Therefore, we have determined that cold treatment is effective against
the eggs and larvae of all three Trifly species.
Therefore, based on the rationale set forth in the proposed rule
and in this document, we are adopting the provisions of the proposal as
a final rule without change.
Executive Order 12866 and Regulatory Flexibility Act
This rule has been reviewed under Executive Order 12866. For this
action, the Office of Management and Budget has waived its review
process required by Executive Order 12866.
Hawaii produced approximately 500,000 pounds of avocados during
1993, down approximately 29 percent from the 1992 level due, in part,
to the interruption of avocado shipments to the U.S. mainland because
of Oriental fruit fly infestation in 1992. Sharwil variety accounted
for 75 percent of this total, or 375,000 pounds. Shipments of Sharwil
avocados from Hawaii to the U.S. mainland and to Canada before the 1992
suspension peaked at 100,000 pounds.
Total production of avocados in the United States, excluding
Hawaii, was approximately 302.8 million pounds in 1993. Of this total,
California accounted for approximately 97 percent of the production.
California continues to supply the major share of the U.S. avocado
market. Total Hawaiian avocado production in 1993 accounted for less
than two-tenths of a percent of the total U.S. production.
The total value of Hawaiian avocado production ($220,000 in 1993)
is less than three-tenths of a percent of the total U.S. production,
and all of the Hawaiian entities involved are considered small. This
rule could reverse the downward trend in Hawaiian avocado production by
providing a commercially feasible method of treating Sharwil avocados
to be moved interstate. This would have a positive economic effect on
Hawaiian avocado producers. Although a major share of the U.S. market
is supplied by California producers, the addition of a Hawaiian supply
is unlikely to have a significant negative impact upon California
producers, as the two dominant avocado varieties, Sharwil (Hawaii) and
Hass (California) have different peak seasons of production. The peak
season for the Sharwil variety is between November and May; the peak
season for the Hass variety is April through October. As a result, this
rule is expected to have a complementary rather than competitive
effect. The change is not expected to have any significant impact upon
supply and price. Nevertheless, it is expected to have a positive
impact upon consumers by providing for a more continuous and varied
avocado supply.
Under these circumstances, the Administrator of the Animal and
Plant Health Inspection Service has determined that this action will
not have a significant economic impact on a substantial number of small
entities.
Executive Order 12372
This program/activity is listed in the Catalog of Federal Domestic
Assistance under No. 10.025 and is subject to Executive Order 12372,
which requires intergovernmental consultation with State and local
officials. (See 7 CFR part 3015, subpart V.)
Executive Order 12778
This rule has been reviewed under Executive Order 12778, Civil
Justice Reform. This rule: (1) Preempts all State and local laws and
regulations that are
[[Page 5924]]
inconsistent with this rule; (2) has no retroactive effect; and (3)
does not require administrative proceedings before parties may file
suit in court challenging this rule.
Paperwork Reduction Act
This rule contains no information collection or recordkeeping
requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
et seq.).
List of Subjects
7 CFR Part 300
Incorporation by reference, Plant diseases and pests, Quarantine.
7 CFR Part 318
Cotton, Cottonseeds, Fruits, Guam, Hawaii, Plant diseases and
pests, Puerto Rico, Quarantine, Transportation, Vegetables, Virgin
Islands.
Accordingly, 7 CFR parts 300 and 318 are amended as follows:
PART 300--INCORPORATION BY REFERENCE
1. The authority citation for part 300 continues to read as
follows:
Authority: 7 U.S.C. 150ee, 154, 161, 162, and 167; 7 CFR 2.22,
2.80, and 371.2(c).
2. In Sec. 300.1, paragraph (a), introductory text, is revised to
read as follows:
Sec. 300.1 Materials incorporated by reference; availability.
(a) Plant Protection and Quarantine Treatment Manual. The Plant
Protection and Quarantine Treatment Manual, which was reprinted on
November 30, 1992, and includes all revisions through November 1995,
has been approved for incorporation by reference in 7 CFR chapter III
by the Director of the Office of the Federal Register in accordance
with 5 U.S.C. 552(a) and 1 CFR part 51.
* * * * *
PART 318--HAWAIIAN AND TERRITORIAL QUARANTINE NOTICES
3. The authority citation for part 318 continues to read as
follows:
Authority: 7 U.S.C. 150bb, 150dd, 150ee, 150ff, 161, 162, 164a,
and 167; 7 CFR 2.22, 2.80, and 371.2(c).
4. Section 318.13-1 is amended by revising the definition for
Inspector to read as follows:
Sec. 318.13-1 Definitions.
* * * * *
Inspector. An inspector of Plant Protection and Quarantine, Animal
and Plant Health Inspection Service, United States Department of
Agriculture.
* * * * *
5. Section 318.13-4d is revised to read as follows:
Sec. 318.13-4d Administrative instructions concerning the interstate
movement of avocados from Hawaii.
(a) Subject to the requirements of Secs. 318.13-3 and 318.13-4 and
all other applicable provisions of this subpart, avocados may be moved
interstate from Hawaii only if they are treated under the supervision
of an inspector with a treatment authorized by the Administrator for
the following pests: the Mediterranean fruit fly (Ceratitis capitata),
the melon fly (Dacus cucurbitae), and the Oriental fruit fly
(Bactrocera dorsalis).
(b) Treatments authorized by the Administrator are listed in the
Plant Protection and Quarantine Treatment Manual, which is incorporated
by reference at Sec. 300.1 of this chapter.
Sec. 318.13-4e [Removed and Reserved]
6. Section 318.13-4e is removed and reserved.
Done in Washington, DC, this 2nd day of February 1996.
Terry L. Medley,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 96-3381 Filed 2-14-96; 8:45 am]
BILLING CODE 3410-34-P
Complete official Federal Register PDF
FR Doc. 96-3365 Prevailing Rate Systems; Abolishment of Merced, CA, Nonappropriated Fund Wage Area
[Federal Register Volume 61, Number 32 (Thursday, February 15, 1996)]
[Rules and Regulations]
[Page 5921]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-3365]
========================================================================
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. 32 / Thursday, February 15, 1996 /
Rules and Regulations
[[Page 5921]]
OFFICE OF PERSONNEL MANAGEMENT
5 CFR Part 532
RIN 3206-AH30
Prevailing Rate Systems; Abolishment of Merced, CA,
Nonappropriated Fund Wage Area
AGENCY: Office of Personnel Management.
ACTION: Interim rule with request for comments.
-----------------------------------------------------------------------
SUMMARY: The Office of Personnel Management is issuing an interim rule
to abolish the Merced, CA, nonappropriated fund (NAF) Federal Wage
system (FWS) wage area and redefine the country having continuing FWS
employment (Fresno County) as an area of application to the Kern, CA,
NAF wage area for pay-setting purposes. The remaining Merced wage area
county (Merced County) has no FWS employees and is being deleted.
DATES: This interim rule becomes effective on February 15, 1996.
Comments must be received by March 18, 1996. Employees currently paid
rates from the Merced, CA, NAF wage schedule will continue to be paid
from that schedule until conversion to the Kern, CA, NAF wage schedule
on April 4, 1996, 1 day before the effective date of the next Kern, CA,
wage schedule.
ADDRESSES: Send or deliver comments to Donald J. Winstead, Assistant
Director for Compensation Policy, Human Resources Systems Service,
Office of Personnel Management, Room 6H31, 1900 E Street NW.,
Washington, DC 20415, or FAX: (202) 606-0824.
FOR FURTHER INFORMATION CONTACT:
Paul Shields, (202) 606-2848.
SUPPLEMENTARY INFORMATION: The Department of Defense recommended to the
Office of Personnel Management that the Merced, CA, FWS NAF wage area
be abolished and that the county having continuing FWS employment
(Fresno County) be added as an area of application to the Kern, CA, NAF
wage area. The remaining Merced wage area county (Merced County) is
being deleted because it has no FWS employment. This change is
necessary because the closing of the wage area host activity, Castle
Air Force Base, leaves the Merced wage area without an activity having
the capability to conduct a wage survey.
As required in regulation, 5 CFR 532.219, the following criteria
were considered in redefining these wage areas:
(1) Proximity of largest activity in each county;
(2) Transportation facilities and commuting patterns; and
(3) Similarities of the counties in:
(i) Overall population;
(ii) Private employment in major industry categories; and
(iii) Kinds and sizes of private industrial establishments.
Proximity favors redefining Fresno County to the San Joaquin wage
area. However, because of declining employment in the wage area and a
limited capability for conducting a wage survey, the possible
abolishment of the San Joaquin wage area is currently under study. The
second and third criteria favor redefinition to the Kern wage area. An
additional consideration favoring redefinition of Fresno County to the
Kern wage area is the fact that Fresno County is contiguous to Kings
County, an area of application to the Kern wage area. On balance, the
recommended redefinition of Fresno County to the Kern wage area is
supported.
The Federal Prevailing Rate Advisory Committee reviewed this
recommendation and by consensus recommended approval.
Pursuant to 5 U.S.C. 553(b)(3)(B), I find that good cause exists
for waiving the general notice of proposed rulemaking. Also, pursuant
to section 553(d)(3) of title 5, United States Code, I find that good
cause exists for making this rule effective in less than 30 days. The
notice is being waived and the regulation is being made effective in
less than 30 days because preparations for the 1996 Merced, CA, NAF
wage area survey must otherwise being immediately.
Regulatory Flexibility Act
I certify that these regulations will not have a significant
economic impact on a substantial number of small entities because they
affect only Federal agencies and employees.
List of Subjects in 5 CFR Part 532
Administrative practice and procedure, Freedom of information,
Government employees, Reporting and recordkeeping requirements, Wages.
Office of Personnel Management.
Lorraine A. Green,
Deputy Director.
Accordingly, OPM is amending 5 CFR part 532 as follows:
PART 532--PREVAILING RATE SYSTEMS
1. The authority citation for part 532 continues to read as
follows:
Authority: 5 U.S.C. 5343, 5346; Sec. 532.707 also issued under 5
U.S.C. 552.
Appendix B to Subpart B of Part 532 [Amended]
2. In appendix B to subpart B, the listing for the State of
California is amended by removing the entry for Merced.
3. Appendix D to subpart B is amended by removing the wage area
listing for Merced, California, and by revising the listing for Kern,
California, to read as follows:
Appendix D to Subpart B of Part 532--Nonappropriated Fund Wage and
Survey Areas
* * * * *
California
* * * * *
Kern
Survey Area
California: Kern
Area of Application. Survey Area Plus
California
Fresno (Effective date April 4, 1996)
Kings
* * * * *
[FR Doc. 96-3365 Filed 2-14-96; 8:45 am]
BILLING CODE 6325-01-M
Complete official Federal Register PDF
FR Doc. 96-3364 Prevailing Rate Systems; Abolishment of Ocean, NJ, Nonappropriated Fund Wage Area
[Federal Register Volume 61, Number 32 (Thursday, February 15, 1996)]
[Rules and Regulations]
[Pages 5921-5922]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-3364]
=======================================================================
-----------------------------------------------------------------------
[[Page 5922]]
OFFICE OF PERSONNEL MANAGEMENT
5 CFR Part 532
RIN 3206-AH20
Prevailing Rate Systems; Abolishment of Ocean, NJ,
Nonappropriated Fund Wage Area
AGENCY: Office of Personnel Management.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Office of Personnel Management is issuing a final rule to
abolish the Ocean, NJ, nonappropriated fund (NAF) Federal Wage System
wage area and redefine Ocean County as an area of application to the
Burlington, NJ, NAF wage area for pay-setting purposes. No employee's
wage rate will be reduced as a result of this change.
EFFECTIVE DATE: March 18, 1996.
FOR FURTHER INFORMATION CONTACT: Paul Shields, (202) 606-2848.
SUPPLEMENTARY INFORMATION: On November 1, 1995, OPM published an
interim rule to abolish the Ocean, NJ, nonappropriated fund (NAF)
Federal Wage System wage area and redefine Ocean County as an area of
application to the Burlington, NJ, NAF wage area for paysetting
purposes. On November 29, 1995, OPM published a correction of a
typographical error in the interim rule. There are now two Burlington,
NJ, wage area application area counties listed (Atlantic and Ocean)--
not one ``Atlantic Ocean'' county as printed in the original interim
rule. The interim rule provided 30-day period for public comment. OPM
received no comments during the comment period. Therefore, the interim
rule is being adopted as a final rule.
Regulatory Flexibility Act
I certify that these regulations will not have a significant
economic impact on a substantial number of small entities because they
will affect only Federal agencies and employees.
List of Subjects in 5 CFR Part 532
Administrative practice and procedure, Freedom of information,
Government employees, Reporting and recordkeeping requirements, Wages.
Accordingly, under the authority of 5 U.S.C. 5343, the interim rule
amending 5 CFR part 532 published on November 1, 1995 (60 FR 55423),
and corrected on November 29, 1995 (60 FR 61290), is adopted as final
without any changes.
Office of Personnel Management.
Lorraine A. Green,
Deputy Director.
[FR Doc. 96-3364 Filed 2-14-96; 8:45am]
BILLING CODE 6325-01-M
Complete official Federal Register PDF
FR Doc. 96-3363 Prevailing Rate Systems; Abolishment of Marin-Sonoma, CA, Nonappropriated Fund Wage Area
[Federal Register Volume 61, Number 32 (Thursday, February 15, 1996)]
[Rules and Regulations]
[Page 5922]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-3363]
=======================================================================
-----------------------------------------------------------------------
OFFICE OF PERSONNEL MANAGEMENT
5 CFR Part 532
RIN 3206-AH16
Prevailing Rate Systems; Abolishment of Marin-Sonoma, CA,
Nonappropriated Fund Wage Area
AGENCY: Office of Personnel Management.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Office of Personnel Management is issuing a final rule to
abolish the Marin-Sonoma, CA, nonappropriated fund (NAF) Federal Wage
System (FWS) wage area and redefine the two counties having continuing
FWS employment (Marin and Sonoma Counties) as areas of application to
the Solano, CA, NAF wage area for pay-setting purposes. No employee's
wage rate will be reduced as a result of this change.
EFFECTIVE DATE: March 18, 1996.
FOR FURTHER INFORMATION CONTACT: Paul Shields, (202) 606-2848.
SUPPLEMENTARY INFORMATION: On October 30, 1995, OPM published an
interim rule to abolish the Marin-Sonoma, CA, nonappropriated fund
(NAF) Federal Wage System wage area and redefine the two counties
having continuing FWS employment (Marin and Sonoma Counties) as areas
of application to the Solano, CA, NAF wage area for pay-setting
purposes. The interim rule provided a 30-day period for public comment.
OPM received no comments during the comment period. Therefore, the
interim rule is being adopted as a final rule.
Regulatory Flexibility Act
I certify that these regulations will not have a significant
economic impact on a substantial number of small entities because they
will affect only Federal agencies and employees.
List of Subjects in 5 CFR Part 532
Administrative practice and procedure, Freedom of information,
Government employees, Reporting and recordkeeping requirements, Wages.
Accordingly, under the authority of 5 U.S.C. 5343, the interim rule
amending 5 CFR part 532 published on October 30, 1995 (60 FR 55174), is
adopted as final without any changes.
Office of Personnel Management.
Lorraine A. Green,
Deputy Director.
[FR Doc. 96-3363 Filed 2-14-96; 8:45 am]
BILLING CODE 6325-01-M
Complete official Federal Register PDF
FR Doc. 96-3362 Prevailing Rate Systems; Redefinition of Guaynabo-San Juan, PR, Nonappropriated Fund Wage Area
[Federal Register Volume 61, Number 32 (Thursday, February 15, 1996)]
[Rules and Regulations]
[Page 5922]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-3362]
-----------------------------------------------------------------------
OFFICE OF PERSONNEL MANAGEMENT
5 CFR Part 532
RIN 3206-AG93
Prevailing Rate Systems; Redefinition of Guaynabo-San Juan, PR,
Nonappropriated Fund Wage Area
AGENCY: Office of Personnel Management.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Office of Personnel Management is issuing a final rule to
redefine the Guaynabo-San Juan, Puerto Rico, nonappropriated fund
Federal Wage System Wage area by adding Salinas Municipality as an area
of application for pay-setting purspoes. No employee's wage rate will
be reduced as a result of this change.
EFFECTIVE DATE: March 18, 1996.
FOR FURTHER INFORMATION CONTACT:
Paul Shields, (202) 606-2848.
SUPPLEMENTARY INFORMATION: On October 4, 1995, OPM published an interim
rule to redefine the Guaynabo-San Juan, Puerto Rico, nonappropriated
fund Federal Wage System wage area by adding Salinas Municipality as an
area of applcation for pay-setting purposes. The interim rule provided
a 30-day period for public comment. OPM received no comments during the
comment period. Therefore, the interim rule is being adopted as a final
rule.
Regulatory Flexibility Act
I certify that these regulations will not have a significant
economic impact on a substantial number of small entities because they
will affect only Federal agencies and employees.
List of Subjects in 5 CFR Part 532
Administrative practice and procedure, Freedom of information,
Government employees, Reporting and recordkeeping requirements, Wages.
Accordingly, under the authority of 5 U.S.C. 5343, the interim rule
amending 5 CFR part 532 published on October 4, 1995 (60 FR 51881), is
adopted as final without any changes.
Office of Personnel Management.
Lorraine A. Green,
Deputy Director.
[FR Doc. 96-3362 Filed 2-14-96; 8:45 am]
BILLING CODE 6325-01-M
Complete official Federal Register PDF
FR Doc. 96-3359 Delegation of Authority to the Secretary of the Commission
[Federal Register Volume 61, Number 32 (Thursday, February 15, 1996)]
[Rules and Regulations]
[Page 5939]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-3359]
=======================================================================
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SECURITIES AND EXCHANGE COMMISSION
17 CFR Part 200
[Release No. 34-36824]
Delegation of Authority to the Secretary of the Commission
AGENCY: Securities and Exchange Commission.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Commission is amending its rules to delegate authority to
the Secretary of the Commission to publish notice of proposed plans for
distribution of funds ordered to be disgorged pursuant to an Order of
the Commission. The delegation also provides authority to waive any of
the requirements for a plan contained in Rule 611 of the Commission's
Rules of Practice, and to issue an order approving the plan, if no
negative comments or objections are submitted during the notice period.
This delegation of authority will conserve the resources of the
Commission as well as expedite the distribution of moneys paid in
satisfaction of judgements.
EFFECTIVE DATE: February 15, 1996.
FOR FURTHER INFORMATION CONTACT: Jonathan G. Katz, Secretary, Office of
the Secretary, Securities and Exchange Commission, 450 Fifth Street
NW., Washington, D.C. 20549, telephone (202) 942-7070.
SUPPLEMENTARY INFORMATION: The Securities and Exchange Commission
(``Commission'') today announced amendments to its rules governing
delegation of authority to the Office of the Secretary.
On June 9, 1995, the Commission adopted comprehensive revisions to
its Rules of Practice for administrative proceedings. These rules,
published in the Federal Register on June 23, 1995 (60 FR 32738),
established procedures for the payment and distribution of penalties
and disgorgements ordered in a Commission administrative proceeding.
The Commission is delegating to its Secretary the authority to
publish the notice of proposed plans of disgorgement pursuant to Rule
612 of the Rules of Practice, and, if no comments opposing the proposed
plan are received, to issue an order approving the proposed plan of
distribution pursuant to Rule 613. The delegation also authorizes the
Secretary to permit the staff to omit from the proposed plan of
disgorgement any of the plan elements required by Rule 611, upon motion
by the staff for good cause.
The Commission finds, in accordance with Section 553(b)(A) of the
Administrative Procedure Act, 5 U.S.C. 553(b)(A), that this amendment
relates solely to agency organization, procedure, or practice.
Accordingly, notice and opportunity for public comment, as well as
publication 30 days before its effective date, are unnecessary.
List of Subjects in 17 CFR Part 200
Administrative practice and procedure, Authority delegations
(Government agencies).
Text of Amendment
For the reasons set out in the preamble, Title 17, Chapter II of
the Code of Federal Regulations is amended as follows:
PART 200--ORGANIZATION; CONDUCT AND ETHICS; AND INFORMATION AND
REQUESTS
1. The authority citation for Part 200, Subpart A, continues to
read in part as follows:
Authority: 15 U.S.C. 77s, 78d-1, 78d-2, 78w, 78ll(d), 79t,
77sss, 80a-7, 80b-11, unless otherwise noted.
* * * * *
2. Section 200.30-7 is amended by removing the period at the end of
paragraphs (a)(9) and (a)(10) and adding a semicolon in its place and
by adding paragraph (a)(11) to read as follows:
Sec. 200.30-7 Delegation of authority to Secretary of the Commission.
* * * * *
(a) * * *
(11) To publish pursuant to Rule 612 of the Commission's Rules of
Practice, Sec. 201.612 of this chapter, notices of plans of
disgorgement and, if no negative comments are received, to issue orders
approving proposed plans of disgorgement pursuant to Rule 613 of the
Commission's Rules of Practice, Sec. 201.613 of this chapter. Upon the
motion of the staff for good cause shown, to approve the publication of
proposed plans of disgorgement that omit plan elements required by Rule
611 of the Commission's Rules of Practice, Sec. 201.611 of this
chapter.
* * * * *
By the Commission.
Dated: February 9, 1996.
Jonathan G. Katz,
Secretary.
[FR Doc. 96-3359 Filed 2-14-96; 8:45 am]
BILLING CODE 8010-01-P
Complete official Federal Register PDF
FR Doc. 96-3349 Tomatoes Grown in Florida; Exemption of Specialty Packed Red Ripe Tomatoes From Container Requirements
[Federal Register Volume 61, Number 32 (Thursday, February 15, 1996)]
[Rules and Regulations]
[Pages 5924-5926]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-3349]
-----------------------------------------------------------------------
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 966
[Docket No. FV95-966-2FIR]
Tomatoes Grown in Florida; Exemption of Specialty Packed Red Ripe
Tomatoes From Container Requirements
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Department of Agriculture (Department) is adopting as a
final rule, without change, the provisions of an interim final rule
which exempted shipments of specialty packed red ripe tomatoes from the
container net weight requirements in the Florida tomato handling
regulation. This exemption was unanimously recommended by the Florida
Tomato Committee (committee) which locally administers the marketing
order. This rule continues that exemption and allows handlers to ship
specialty packed red ripe tomatoes in containers with different net
weights than those currently authorized under the order. This rule will
continue to facilitate the movement of such tomatoes, further the
development of this relatively new market, and is expected to improve
returns to producers of Florida tomatoes.
EFFECTIVE DATE: March 18, 1996.
FOR FURTHER INFORMATION CONTACT: Aleck Jonas, Southeast Marketing Field
Office, Fruit and Vegetable Division, AMS, USDA, P.O. Box 2276, Winter
Haven, Florida 33883-2276; telephone: 941-299-4770, or FAX: 941-299-
5169; or Mark Kreaggor, Marketing Specialist, Marketing Order
Administration Branch, F&V, AMS, USDA, room 2523-S, P.O. Box 96456,
Washington, DC 20090-6456; telephone: (202) 720-2431, or FAX: 202-720-
5698.
SUPPLEMENTARY INFORMATION: This rule is issued under Marketing
Agreement No. 125 and Order No. 966 (7 CFR Part 966), both as amended,
regulating the handling of tomatoes grown in Florida, hereinafter
referred to as the ``order.'' The order is effective under the
Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-
674), hereinafter referred to as the ``Act.''
The Department is issuing this rule in conformance with Executive
Order 12866.
This rule has been reviewed under Executive Order 12778, Civil
Justice Reform. This rule is not intended to have retroactive effect.
This rule will not preempt any State or local laws, regulations, or
policies, unless they present an irreconcilable conflict with this
rule.
The Act provides that administrative proceedings must be exhausted
before parties may file suit in court. Under section 608c(15)(A) of the
Act, any handler subject to an order may file with the Secretary a
petition stating that the order, any provision of the order, or any
obligation imposed in connection with the order is not in accordance
with law and request a modification of the order or to be exempted
therefrom. A handler is afforded the opportunity for a hearing on the
petition. After the hearing the Secretary would rule on the petition.
The Act provides that the district court of the United States in any
district in which the handler is an inhabitant, or has his or her
principal place of business, has jurisdiction in equity to review the
Secretary's ruling on the petition, provided a bill in equity is filed
not later than 20 days after the date of the entry of the ruling.
Pursuant to requirements set forth in the Regulatory Flexibility
Act (RFA), the Administrator of the Agricultural Marketing Service
(AMS) has
[[Page 5925]]
considered the economic impact of this action on small entities.
The purpose of the RFA is to fit regulatory actions to the scale of
business subject to such actions in order that small businesses will
not be unduly or disproportionately burdened. Marketing orders issued
pursuant to the Act, and rules issued thereunder, are unique in that
they are brought about through group action of essentially small
entities acting on their own behalf. Thus, both statutes have small
entity orientation and compatibility.
There are approximately 75 handlers of tomatoes who are subject to
regulation under the marketing order and approximately 90 producers of
tomatoes in the regulated area. Small agricultural service firms are
defined by the Small Business Administration (13 CFR 121.601) as those
having annual receipts of less than $5,000,000, and small agricultural
producers are defined as those whose annual receipts are less than
$500,000. The majority of handlers and producers of Florida tomatoes
may be classified as small entities.
Under the Florida tomato marketing order, tomatoes produced in the
production area and shipped to fresh market channels outside of the
regulated area are required to meet certain handling requirements
specified in Sec. 966.323. Current requirements include a minimum grade
of U.S. No. 3 and a minimum size of 2\8/32\ inches in diameter. Pack
and container specifications are also in effect. In addition, all lots
are required to be inspected and certified as meeting these grade,
size, pack and container requirements by authorized representatives of
the Federal or Federal-State Inspection Service. The regulated area is
defined as the portion of the State of Florida which is bounded by the
Suwannee River, the Georgia border, the Atlantic Ocean, and the Gulf of
Mexico. Basically, it is the entire State of Florida, except the
panhandle. The production area is part of the regulated area.
Prior to publication of the interim final rule in the Federal
Register on November 24, 1995 (60 FR 57906), handlers were not allowed
to ship specialty packed red ripe tomatoes exempt from container net
weight requirements in Sec. 966.323(a)(3)(i). To provide such an
exemption, the interim final rule amended paragraph (d)(1) of
Sec. 966.323. The exemption is the same as the exemption provided for
yellow meated tomatoes in paragraph (d)(1). This rule finalizes the
interim final rule and continues to allow handlers to ship specialty
packed red ripe tomatoes exempt from the container net weight
requirements in Sec. 966.323(a)(3)(i). The specialty packed red ripe
tomatoes are still subject to all other provisions of the handling
regulation, including established grade, size, container marking,
condition and inspection requirements.
Section 966.52 of the Florida tomato marketing order provides
authority for the modification, suspension, and termination of
regulations. Section 966.323(a)(3)(i) currently requires certain types
of tomatoes packed by registered handlers to be packed in containers of
10, 20, and 25 pounds designated net weights. The net weight of the
contents cannot be less than the designated weight and cannot exceed
the designated weight by more than two pounds. Section 51.1863 of the
U.S. Standards for Grades of Fresh Tomatoes (7 CFR Part 51.1855 through
51.1877, hereafter referred to as the ``standards'') applies.
Specialty packed red ripe tomatoes are a product recently available
from Florida. They are shipped in relatively small volume and marketed
as a specialty item.
The interim final rule added a definition for specialty packed red
ripe tomatoes to paragraph (g) of Sec. 966.323. Specialty packed red
ripe tomatoes are defined as tomatoes which, at the time of inspection,
are light red (#5 color) or red (#6 color) according to color
classification requirements in the standards, have their calyx ends and
stems attached, and are cell packed in a single layer container.
Cell packed tomatoes are placed in containers with fiber board or
plastic compartments for such tomatoes to provide separation and reduce
bruising during transport and handling. This is especially important in
shipping tomatoes at an advanced stage of ripeness when tomatoes have
their calyx ends and stems attached. The separation provided by the
individual compartments permits the tomatoes from moving around inside
the shipping container during transport and handling, thus ensuring
arrival at destination with tomato calyx ends and stems attached and no
tomato stem punctures.
Most tomatoes shipped from Florida are shipped at the mature green
stage without calyx ends and stems, and are packed in volume fill
containers. When volume fill containers are packed, the tomatoes are
placed by hand or machine into the container until the required net
weight is reached. Mature green tomatoes are not as susceptible to
bruising and other damage during transport as red ripe tomatoes. These
specialty tomatoes have to be packaged so that they do not touch each
other. If volume fill containers were used by registered handlers in
Florida to ship specialty tomatoes, serious product bruising and stem
punctures would result, which would detract from the unique appearance
and marketability of these tomatoes.
However, the cell pack method of packaging needed to ensure that
these specialty tomatoes arrive at markets in good condition does not
lend itself well when packing to meet a required net weight. Normally,
such packs are used when the product is packed by count per container.
The tomatoes have to be properly sized to fit snugly in the container.
During the harvesting season, the weight of equal size tomatoes or
the shape of tomatoes of equal weight may vary dramatically. If the red
ripe tomatoes are light in weight, handlers cannot add extra tomatoes
because all cells are full, or if the tomatoes are heavier than normal,
the removal of a tomato by a handler results in an empty cell. Because
the buyer expects a full tray, empty cells are viewed suspiciously and
a marketing problem results.
To overcome this problem and allow this market to be further
developed, the committee unanimously recommended that shipments of
specialty packed red ripe tomatoes, as defined herein, be exempt from
the container net weight requirements of the order. As stated earlier,
all other order requirements will continue to apply to such shipments.
This rule reflects the committee's and the Department's appraisal
of the need to exempt specialty packed red ripe tomatoes from the net
weight requirements for tomatoes grown in Florida. The Department's
view is that continuation of the exemption will have a beneficial
impact on producers and handlers since it will allow tomato handlers to
make additional supplies of tomatoes available to meet consumer needs
consistent with crop and market conditions.
As stated earlier, the interim final rule on this matter was
published in the Federal Register on November 24, 1995 (60 FR 57960).
That rule provided that interested persons could file comments through
December 26, 1995. No comments were received.
Based on these considerations, the Administrator of the AMS has
determined that this action will not have a significant economic impact
on a substantial number of small entities.
After consideration of all relevant material presented, including
the Committee's recommendation, and other available information, it is
found
[[Page 5926]]
that this final rule will tend to effectuate the declared policy of the
Act.
List of Subjects in 7 CFR Part 966
Marketing agreements, Reporting and recordkeeping requirements,
Tomatoes.
For the reasons set forth in the preamble, 7 CFR part 966 is
amended as follows:
PART 966--TOMATOES GROWN IN FLORIDA
Accordingly, the interim final rule amending 7 CFR Part 966 which
was published at 60 FR 57906 on November 24, 1995, is adopted as a
final rule without change.
Dated: February 8, 1996.
Sharon Bomer Lauritsen,
Deputy Director, Fruit and Vegetable Division.
[FR Doc. 96-3349 Filed 2-14-96; 8:45 am]
BILLING CODE 3410-02-P
Complete official Federal Register PDF
FR Doc. 96-3273 Regulation of Golden Parachutes and Other Benefits Which May Be Subject to Misuse
[Federal Register Volume 61, Number 32 (Thursday, February 15, 1996)]
[Rules and Regulations]
[Pages 5926-5934]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-3273]
=======================================================================
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FEDERAL DEPOSIT INSURANCE CORPORATION
12 CFR Parts 303 and 359
RIN 3064-AB11
Regulation of Golden Parachutes and Other Benefits Which May Be
Subject to Misuse
AGENCY: Federal Deposit Insurance Corporation (FDIC or Corporation).
ACTION: Final rule.
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SUMMARY: The FDIC is adopting a rule limiting golden parachute and
indemnification payments to institution-affiliated parties by insured
depository institutions and depository institution holding companies.
The
[[Page 5927]]
purpose of this rule is to prevent the improper disposition of
institution assets and to protect the financial soundness of insured
depository institutions, depository institution holding companies, and
the federal deposit insurance funds.
EFFECTIVE DATE: April 1, 1996.
FOR FURTHER INFORMATION CONTACT: Robert F. Miailovich, Associate
Director, Division of Supervision, (202) 898-6918, 550 17th Street,
N.W., Washington, D.C.; Michael D. Jenkins, Examination Specialist,
Division of Supervision, (202) 898-6896, 1776 F Street, N.W.,
Washington, D.C. 20429; Jeffrey M. Kopchik, Counsel, Legal Division,
(202) 898-3872; Federal Deposit Insurance Corporation, 550 17th Street,
N.W., Washington, D.C. 20429.
SUPPLEMENTARY INFORMATION:
Paperwork Reduction Act
No collection of information pursuant to section 3504(h) of the
Paperwork Reduction Act (44 U.S.C. 3501 et seq.) is contained in this
rule. Consequently, no information was submitted to the Office of
Management and Budget for review.
Regulatory Flexibility Act
Pursuant to section 605(b) of the Regulatory Flexibility Act (Pub.
L. 96-354, 5 U.S.C. 601 et seq.), it is certified that this rule will
not have a significant impact on a substantial number of small
entities.
Background
On March 29, 1995, the FDIC published for public comment a notice
of proposed rulemaking entitled ``Regulation of Golden Parachutes and
Other Benefits Which May Be Subject to Misuse''. 60 FR 16069 (1995).
This proposal (the Second Proposal) followed an earlier notice of
proposed rulemaking concerning the same topic (the First Proposal),
which was published in the Federal Register on October 7, 1991. 56 FR
50529 (1991). Both the First and Second Proposals were efforts to
implement section 18(k) of the Federal Deposit Insurance Act (12 U.S.C.
1828(k)) (FDI Act). Section 18(k) provides that the FDIC may prohibit
or limit, by regulation or order, any golden parachute or
indemnification payment.
The FDIC received 23 comment letters in response to the Second
Proposal. The comment letters were submitted by major financial
institution trade associations, insured depository institutions,
insured depository institution holding companies, a law firm and a
trade association representing life insurance underwriters. Virtually
all of the commenters expressed the view that the Second Proposal
represented a significant improvement over the First Proposal in terms
of the burden that the proposed regulation would place on the industry.
In fact, the majority of commenters expressed support for the Second
Proposal, while submitting well thought-out suggestions. These
suggestions encompassed technical revisions to the regulation as well
as broader proposals aimed at making it easier for insured depository
institutions and holding companies to make golden parachute and
indemnification payments in certain limited circumstances.
Issues Raised by the Commenters--Golden Parachute Payments
The FDIC has carefully reviewed and analyzed the comment letters it
received in response to the Second Proposal. With respect to the golden
parachute portion of the Second Proposal, the most significant issues
raised by the comment letters and the FDIC's responses are discussed
below.
1. Bona Fide Deferred Compensation Plans
The Second Proposal includes a definition of ``bona fide deferred
compensation plan or arrangement'' that was created specifically for
this regulation. This definition, which appears in Sec. 359.1(d) of the
Second Proposal, includes a provision that allows plans to provide for
the crediting of a reasonable investment return on elective deferrals
of compensation, wages or fees. Several commenters suggested that the
definition of ``bona fide deferred compensation plan or arrangement''
should be expanded to further define the term ``reasonable investment
return''. One comment letter included suggested language to be
incorporated into the regulation. The FDIC is of the opinion that
including an additional definition of ``reasonable investment return''
would not provide any advantage to the industry and would only serve to
make the regulation more complicated. This provision is provided in the
definition to permit financial institutions to follow normal business
practices. It is not intended to have the regulators make close
distinctions of what is a reasonable investment return. It is intended
merely to prevent the inclusion of exorbitant returns that would result
in a circumvention of the primary purpose of this regulation. The
suggested definitions provided by the commenters are considered to
clearly fit the requirements of this term; however, the FDIC also
recognizes that there are several other definitions of ``reasonable
investment return'' that also fit these requirements.
Several commenters asked whether a finding by the FDIC that a bona
fide deferred compensation plan provided for an unreasonable investment
return on elective deferrals would invalidate the entire plan. The FDIC
is of the view that such a finding would not invalidate such a plan
which otherwise conforms to Sec. 359.1(d). However, that portion of the
investment return which is found to be unreasonable would be a
prohibited golden parachute payment.
2. Nondiscriminatory Severance Pay Plans
Section 359.1(f)(2) of the Second Proposal contains certain
exceptions to the definition of ``golden parachute payment''. One of
those exceptions is for nondiscriminatory severance pay plans. Second
Proposal Sec. 359.1(f)(2)(v). Several commenters suggested that the
FDIC delete the requirement that the exception apply only in cases of a
reduction in force (RIF). This section of the Second Proposal also
would require 30 days prior written notice to the appropriate federal
banking agency and the FDIC prior to making such a severance payment to
a senior executive officer. Several commenters also urged the deletion
of the prior notice requirement. After careful consideration, the FDIC
agrees with these suggestions. If a nondiscriminatory severance pay
plan conforms to the other requirements set forth in
Sec. 359.1(f)(2)(v), it should not be necessary that an employee's
involuntary termination be part of a RIF in order for that employee to
collect severance pay. This section's other requirements are more than
adequate protection that the exception will not be used to circumvent
the regulation's primary purpose, i.e., the prohibition of golden
parachute payments. Also, the advantages of the prior notice provision
for severance payments to senior executive officers do not outweigh the
burden such a requirement would place on the industry, so this
requirement has been deleted.
3. Definition of Nondiscriminatory
Section 359.1(j) of the Second Proposal contains the definition of
``nondiscriminatory'' as it relates to severance pay plans or
arrangements. These are the only type of severance pay plans or
arrangements that may qualify as an exception to the regulation's
prohibition. In order to be considered nondiscriminatory, a severance
pay plan must apply to all employees of an
[[Page 5928]]
insured depository institution or depository institution holding
company who meet reasonable and customary eligibility requirements
applicable to all employees, such as minimum length of service
requirements. The Second Proposal provides that a nondiscriminatory
severance pay plan may provide different benefits to IAPs based only
upon length of service and/or position. In the event that an employee's
position is used as a basis for providing a different level of
benefits, employees who are not senior executive officers shall be
treated more favorably than senior executive officers.
The reason for this approach was the FDIC's concern that severance
pay plans could be designed in such a way that they would circumvent
the basic purpose of the regulation. In other words, as an example, to
permit severance payments of one year's salary to the top five senior
executive officers of an insured depository institution in contrast to
one week's salary to all tellers on the basis that such payments are
made pursuant to a bona fide severance pay plan, a recognized exception
to the golden parachute prohibition, would undermine the purpose of FDI
Act section 18(k). However, several commenters noted that many existing
severance plans do pay somewhat more generous benefits to higher
ranking IAPs. These commenters suggested that a modest disparity in
severance benefits linked to objective criteria like job title or
length of service should be permitted by the regulation since such
plans are common in the financial services industry and do not violate
the basic premise of FDI Act section 18(k). The FDIC has been persuaded
that this position represents a good compromise between preventing the
payment of prohibited golden parachutes and permitting insured
depository institutions and holding companies to offer severance
benefits that conform to well-established industry norms.
Based upon suggestions made in the comment letters, the definition
of ``nondiscriminatory'' contained in Sec. 359.1(j) of the Second
Proposal has been amended to provide that a nondiscriminatory severance
plan may provide for different levels of benefits based only on
objective criteria such as salary, total compensation, length of
service, job grade or classification. In addition, any group of
employees which is designated for a different level of benefits based
upon such acceptable objective criteria must consist of the lesser of
not less than 33 percent of all employees or 1,000 employees.
Furthermore, the differential in benefits between the groups shall not
be more than plus or minus 10 percent.
4. White Knight Exception
Both the First and Second Proposals contained a provision which
would permit a troubled depository institution or holding company to
hire an individual and agree to pay him/her a golden parachute payment
upon termination of employment, provided that the amount and terms of
the payment receive the prior written consent of the appropriate
federal banking agency and the FDIC. Second Proposal Sec. 359.4(a)(2).
All commenters that discussed the issue were supportive of the FDIC's
``white knight'' exception to the golden parachute prohibition. They
were particularly supportive of the revisions to the exception that
were made in response to comment letters concerning the First Proposal.
However, a number of commenters reiterated the suggestion that the FDIC
broaden the exception to include current officers and employees who are
promoted to executive positions at a time when the institution is
troubled.1 The FDIC has carefully considered this suggestion once
again and remains unconvinced that the regulation should be amended in
this way. White knight severance payments will be approved in limited
circumstances as a way to entice competent management to sever
established ties with their current employer and take a calculated risk
that they can assist in bringing a troubled institution back to
financial health. This rationale does not apply to the case of a
current employee of a troubled institution since he/she does not need
to be enticed to give up an established, stable career with another
employer.
\1\ In the course of this preamble, the term ``troubled'' shall
be used to refer to any of the criteria listed in Sec. 359.1(f)(ii)
of this final regulation.
---------------------------------------------------------------------------
5. Change In Control Exception
Section 359.4(a)(3) of the Second Proposal contains the change in
control exception to the golden parachute prohibition. This exception
permits an insured depository institution or holding company to make a
reasonable severance payment, not to exceed twelve months salary, to an
IAP in the event of a change in control with the prior consent of the
appropriate federal banking agency. Once again, every commenter who
discussed this exception expressed their support. However, a
substantial number of those recommended that the FDIC delete the one
year's salary cap.
This exception was added to the Second Proposal in response to
comment letters received concerning the First Proposal. While the FDIC
considers this to be an important exception, we believe that certain
limits need to be placed on such payments. One year's salary appears to
be a reasonable compromise between a prohibition on any payment and
more generous payments. The FDIC is of the opinion that one year's
salary will provide ample incentive for an IAP (usually a senior
executive officer) to objectively consider a takeover bid which may
result in the loss of that IAP's job. It must be remembered that this
exception is relevant only in the event of the takeover of a troubled
depository institution or holding company.
6. Condition of the Institution at Time of Termination
The FDIC specified in the preamble to the Second Proposal that a
golden parachute payment which is prohibited from being paid at the
time of an IAP's termination due to the troubled condition of the
insured depository institution or holding company cannot be paid to
that IAP at some later point in time once the institution or holding
company is no longer troubled. See Second Proposal
Sec. 359.1(f)(1)(iii). Several commenters requested that the FDIC
reconsider its position on this point.
The FDIC believes the position taken in the Second Proposal is
consistent with the language and spirit of the statute. The language of
section 18(k)(4)(A)(ii) of the FDI Act provides that any payment which
is contingent on the termination of an IAP's employment and is received
on or after an institution or holding company becomes troubled is a
prohibited golden parachute. If this payment is prohibited under the
prescribed circumstances, it is prohibited forever. However, the
regulation contains several exceptions and procedures for affected
individuals to avoid an undeserved prohibition on a potential golden
parachute payment. Thus, the final regulation is consistent with the
Second Proposal in this regard.
Issues Raised by the Commenters-- Indemnification Payments
The vast majority of commenters were very supportive of the changes
which the FDIC made to the indemnification payments portion of the
First Proposal in response to the first set of comment letters. While
most commenters indicated they thought the Second Proposal set forth a
rational and fair scheme for determining indemnification, many
commenters urged the FDIC to further amend the
[[Page 5929]]
regulation to make it somewhat easier for IAPs to be indemnified. The
FDIC has decided to adopt some, but not all, of the suggestions it
received as discussed below.
1. Partial Indemnification
The most prevalent comment with regard to the indemnification
portion of the Second Proposal noted that the proposed regulation would
not permit partial indemnification in instances where it has been
determined that an IAP has not violated certain banking laws or
regulations or has not engaged in certain unsafe or unsound banking
practices or breaches of fiduciary duty for which the individual has
been charged. The FDIC has carefully considered this point and agrees
with the commenters that indemnification should not be an ``all or
nothing'' proposition. Therefore, the final regulation has been revised
to permit partial indemnification for legal or professional expenses
specifically attributable to particular charges for which there has
been a formal and final adjudication or finding in connection with a
settlement that the IAP has not violated certain banking laws or
regulations or engaged in certain unsafe or unsound banking practices
or breaches of fiduciary duty. Thus, in any administrative proceeding
or civil action instituted by any federal banking agency which results
in a final order or settlement pursuant to which the IAP is assessed a
civil money penalty or is subject to a cease and desist order,
indemnification will be permitted only for that portion of the
liability or legal expenses incurred which relate to the particular
charges for which an adjudication or finding in connection with a
settlement in favor of the IAP has been made. Partial indemnification
will not be permitted in cases where an IAP is removed from office and/
or prohibited from participating in the affairs of an institution.
Under no circumstances shall an IAP be indemnified for the amount of a
civil money penalty or judgement assessed against him/her. See Final
Regulation Secs. 359.1(l) and 359.5(a). The FDIC recognizes that in
many cases the appropriate amount of any partial indemnification will
be difficult to ascertain with certainty.
2. Prior Notification of Indemnification Payments
Several commenters suggested that the FDIC delete the
Sec. 359.5(a)(5) requirement that the institution or holding company
give the FDIC and the primary federal regulator prior written
notification of the granting of any indemnification. The commenters
pointed out that, in view of the limitations which the Second Proposal
would place on the granting of indemnification payments and the various
safeguards incorporated into the proposed regulation, prior
notification would be unnecessary and burdensome. The FDIC agrees and
this requirement has been deleted.
3. Prevention of Double Payments
Several commenters pointed out that Sec. 359.5(a)(4) of the Second
Proposal is worded in such a way that it could result in double
payments to the institution in the event that a liability or legal
expense incurred by the institution is reimbursed by insurance or a
fidelity bond. The commenters are correct that the FDIC did not intend
this result and the final regulation has been amended to make it clear
that an IAP will not be obligated to reimburse the depository
institution or holding company for indemnification payments made for
his/her benefit to the extent that the institution or holding company
is reimbursed by an insurance policy or fidelity bond.
4. Definition of Independent Counsel
A few comment letters noted that the Second Proposal does not
contain a definition of the term ``independent legal counsel'',
utilized in Secs. 359.5 (c) and (d). The FDIC considered including such
a definition when the Second Proposal was being written, but decided
against it in an effort to shorten and simplify the regulation. The
Corporation was of the opinion that the term ``independent legal
counsel'' was not overly technical and could be determined on a case-
by-case basis. Also, the preamble to the Second Proposal provided that:
The FDIC would regard legal counsel as being ``independent''
(for purposes of this regulation) if the attorney(s) is not a member
of the depository institution's or holding company's in-house legal
staff, does not have an ongoing relationship with the depository
institution or holding company and no other conflict of interest is
present.
60 FR 16076 (1995). Thus, the FDIC has elected not to define this term
in the final regulation.
5. Standard for Indemnification
In response to comments received with regard to the First Proposal,
the FDIC made significant modifications to the indemnification portion
of the proposed regulation in an effort to make it easier for an
institution's or holding company's board of directors to approve IAPs
to be indemnified for expenses incurred in administrative or civil
actions commenced by a federal banking agency. Those modifications were
discussed in great detail in the preamble to the Second Proposal. See
60 FR 16075-16076 (1995).
While all the commenters who raised the issue were supportive of
these revisions, some commenters urged the FDIC to further revise the
Second Proposal to make it even easier for IAPs to be indemnified.
Several of these commenters referred to the Model Business Corporation
Act (MBCA) and recommended that the FDIC adopt the indemnification
standard set forth in section 8.51 thereof.
The Office of the Comptroller of the Currency (OCC) published a
Notice of Proposed Rulemaking on March 3, 1995 concerning proposed
modifications to 12 CFR part 7. See 60 FR 11924 (1995). This OCC
proposal contained suggested revisions to OCC interpretive rulings
concerning, among other topics, the indemnification of directors,
officers and employees of national banks. Several of those who
commented on the Second Proposal urged the FDIC and the OCC to adopt
consistent regulations. In an effort to achieve inter-agency
conformity, the FDIC and OCC have consulted with each other and have
agreed to adopt consistent regulations.
While the Corporation understands the commenters' desires to make
indemnification as easy as would be reasonable and to utilize the
standard set forth in the MBCA, the FDIC Board has concluded that it is
not required to follow the MBCA and that a slightly more stringent
standard for insured depository institutions and their holding
companies makes sense in view of the fact that this indemnification
prohibition only applies to actions brought by the federal banking
agencies. Such actions are only brought after substantial investigation
and as part of a strict regulatory scheme. Such actions are intended to
protect and maintain the solvency and integrity of the federal deposit
insurance funds. Moreover, the FDIC Board is of the opinion that the
indemnification standard set forth in the Second Proposal, with the
revisions described above, appropriately balances the need to indemnify
IAPs for actions taken in their official capacities with the necessity
of making sure that they are held accountable for substantive
violations of law or regulation. The standard also serves the purpose
of protecting the financial viability of the insured depository
institution or holding company which may make the indemnification
payment. Thus, no further modifications to the standards are considered
warranted.
[[Page 5930]]
6. Commencement of an Administrative Action
Several commenters suggested that the FDIC clarify when an
administrative action is commenced by a federal banking agency. This
time frame is important in view of the FDIC's position that expenses
incurred prior to the commencement of a formal action are not subject
to the regulation. See 60 FR 16077. The FDIC considers a formal
administrative action to be commenced by the issuance of a ``Notice of
Charges''. See e.g., 12 CFR 308.18.
List of Subjects
12 CFR Part 303
Administrative practice and procedure, Authority delegations
(Government agencies), Bank deposit insurance, Banks, banking,
Reporting and recordkeeping requirements, Savings associations.
12 CFR Part 359
Banks, banking, Golden parachute payments, Indemnity payments.
For the reasons set out in the preamble, the FDIC Board of
Directors hereby amends part 303 and adds part 359 of title 12, chapter
III, of the Code of Federal Regulations as follows:
PART 303--APPLICATIONS, REQUESTS, SUBMITTALS, DELEGATIONS OF
AUTHORITY, AND NOTICES REQUIRED TO BE FILED BY STATUTE OR
REGULATION
1. The authority citation for part 303 continues to read as
follows:
Authority: 12 U.S.C. 378, 1813, 1815, 1816, 1817(j), 1818,
1819(``Seventh'' and ``Tenth''), 1828, 1831e, 1831o, 1831p-1; 15
U.S.C. 1607.
2. In Sec. 303.7, a new paragraph (g) is added to read as follows:
Sec. 303.7 Delegation of authority to the Director (DOS) and to the
associate directors, regional directors and deputy regional directors
to act on certain applications, requests, and notices of acquisition of
control.
* * * * *
(g) Requests pursuant to section 18(k) of the Act. Authority is
delegated to the Director, and where confirmed in writing by the
Director, to an associate director, or to the appropriate regional
director or deputy regional director, to approve or deny requests
pursuant to section 18(k) of the Act to make:
(1) Excess nondiscriminatory severance plan payments as provided by
12 CFR 359.1(f)(2)(v); and
(2) Golden parachute payments permitted by 12 CFR 359.4.
3. New part 359 is added to read as follows:
PART 359--GOLDEN PARACHUTE AND INDEMNIFICATION PAYMENTS
Sec.
359.0 Scope.
359.1 Definitions.
359.2 Golden parachute payments prohibited.
359.3 Prohibited indemnification payments.
359.4 Permissible golden parachute payments.
359.5 Permissible indemnification payments.
359.6 Filing instructions.
359.7 Applicability in the event of receivership.
Authority: 12 U.S.C. 1828(k).
Sec. 359.0 Scope.
(a) This part limits and/or prohibits, in certain circumstances,
the ability of insured depository institutions, their subsidiaries and
affiliated depository institution holding companies to enter into
contracts to pay and to make golden parachute and indemnification
payments to institution-affiliated parties (IAPs).
(b) The limitations on golden parachute payments apply to troubled
insured depository institutions which seek to enter into contracts to
pay or to make golden parachute payments to their IAPs. The limitations
also apply to depository institution holding companies which are
troubled and seek to enter into contracts to pay or to make golden
parachute payments to their IAPs as well as healthy holding companies
which seek to enter into contracts to pay or to make golden parachute
payments to IAPs of a troubled insured depository institution
subsidiary. A ``golden parachute payment'' is generally considered to
be any payment to an IAP which is contingent on the termination of that
person's employment and is received when the insured depository
institution making the payment is troubled or, if the payment is being
made by an affiliated holding company, either the holding company
itself or the insured depository institution employing the IAP, is
troubled. The definition of golden parachute payment does not include
payments pursuant to qualified retirement plans, nonqualified bona fide
deferred compensation plans, nondiscriminatory severance pay plans,
other types of common benefit plans, state statutes and death benefits.
Certain limited exceptions to the golden parachute payment prohibition
are provided for in cases involving the hiring of a white knight and
unassisted changes in control. A procedure is also set forth whereby an
institution or IAP can request permission to make what would otherwise
be a prohibited golden parachute payment.
(c) The limitations on indemnification payments apply to all
insured depository institutions, their subsidiaries and affiliated
depository institution holding companies regardless of their financial
health. Generally, this part prohibits insured depository institutions,
their subsidiaries and affiliated holding companies from indemnifying
an IAP for that portion of the costs sustained with regard to an
administrative or civil enforcement action commenced by any federal
banking agency which results in a final order or settlement pursuant to
which the IAP is assessed a civil money penalty, removed from office,
prohibited from participating in the affairs of an insured depository
institution or required to cease and desist from or take an affirmative
action described in section 8(b) (12 U.S.C. 1818(b)) of the Federal
Deposit Insurance Act (FDI Act). However, there are exceptions to this
general prohibition. First, an institution or holding company may
purchase commercial insurance to cover such expenses, except judgments
and penalties. Second, the institution or holding company may advance
legal and other professional expenses to an IAP directly (except for
judgments and penalties) if its board of directors makes certain
specific findings and the IAP agrees in writing to reimburse the
institution if it is ultimately determined that the IAP violated a law,
regulation or other fiduciary duty.
Sec. 359.1 Definitions.
(a) Act means the Federal Deposit Insurance Act, as amended (12
U.S.C. 1811, et seq.).
(b) Appropriate federal banking agency, bank holding company,
depository institution holding company and savings and loan holding
company have the meanings given to such terms in section 3 of the Act.
(c) Benefit plan means any plan, contract, agreement or other
arrangement which is an ``employee welfare benefit plan'' as that term
is defined in section 3(1) of the Employee Retirement Income Security
Act of 1974, as amended (29 U.S.C. 1002(1)), or other usual and
customary plans such as dependent care, tuition reimbursement, group
legal services or cafeteria plans; provided however, that such term
shall not include any plan intended to be subject to paragraphs (f)(2)
(iii) and (v) of this section.
(d) Bona fide deferred compensation plan or arrangement means any
plan, contract, agreement or other arrangement whereby:
[[Page 5931]]
(1) An IAP voluntarily elects to defer all or a portion of the
reasonable compensation, wages or fees paid for services rendered which
otherwise would have been paid to such party at the time the services
were rendered (including a plan that provides for the crediting of a
reasonable investment return on such elective deferrals) and the
insured depository institution or depository institution holding
company either:
(i) Recognizes compensation expense and accrues a liability for the
benefit payments according to generally accepted accounting principles
(GAAP); or
(ii) Segregates or otherwise sets aside assets in a trust which may
only be used to pay plan and other benefits, except that the assets of
such trust may be available to satisfy claims of the institution's or
holding company's creditors in the case of insolvency; or
(2) An insured depository institution or depository institution
holding company establishes a nonqualified deferred compensation or
supplemental retirement plan, other than an elective deferral plan
described in paragraph (e)(1) of this section:
(i) Primarily for the purpose of providing benefits for certain
IAPs in excess of the limitations on contributions and benefits imposed
by sections 415, 401(a)(17), 402(g) or any other applicable provision
of the Internal Revenue Code of 1986 (26 U.S.C. 415, 401(a)(17),
402(g)); or
(ii) Primarily for the purpose of providing supplemental retirement
benefits or other deferred compensation for a select group of
directors, management or highly compensated employees (excluding
severance payments described in paragraph (f)(2)(v) of this section and
permissible golden parachute payments described in Sec. 359.4); and
(3) In the case of any nonqualified deferred compensation or
supplemental retirement plans as described in paragraphs (d) (1) and
(2) of this section, the following requirements shall apply:
(i) The plan was in effect at least one year prior to any of the
events described in paragraph (f)(1)(ii) of this section;
(ii) Any payment made pursuant to such plan is made in accordance
with the terms of the plan as in effect no later than one year prior to
any of the events described in paragraph (f)(1)(ii) of this section and
in accordance with any amendments to such plan during such one year
period that do not increase the benefits payable thereunder;
(iii) The IAP has a vested right, as defined under the applicable
plan document, at the time of termination of employment to payments
under such plan;
(iv) Benefits under such plan are accrued each period only for
current or prior service rendered to the employer (except that an
allowance may be made for service with a predecessor employer);
(v) Any payment made pursuant to such plan is not based on any
discretionary acceleration of vesting or accrual of benefits which
occurs at any time later than one year prior to any of the events
described in paragraph (f)(1)(ii) of this section;
(vi) The insured depository institution or depository institution
holding company has previously recognized compensation expense and
accrued a liability for the benefit payments according to GAAP or
segregated or otherwise set aside assets in a trust which may only be
used to pay plan benefits, except that the assets of such trust may be
available to satisfy claims of the institution's or holding company's
creditors in the case of insolvency; and
(vii) Payments pursuant to such plans shall not be in excess of the
accrued liability computed in accordance with GAAP.
(e) Corporation means the Federal Deposit Insurance Corporation, in
its corporate capacity.
(f) Golden parachute payment. (1) The term golden parachute payment
means any payment (or any agreement to make any payment) in the nature
of compensation by any insured depository institution or an affiliated
depository institution holding company for the benefit of any current
or former IAP pursuant to an obligation of such institution or holding
company that:
(i) Is contingent on, or by its terms is payable on or after, the
termination of such party's primary employment or affiliation with the
institution or holding company; and
(ii) Is received on or after, or is made in contemplation of, any
of the following events:
(A) The insolvency (or similar event) of the insured depository
institution which is making the payment or bankruptcy or insolvency (or
similar event) of the depository institution holding company which is
making the payment; or
(B) The appointment of any conservator or receiver for such insured
depository institution; or
(C) A determination by the insured depository institution's or
depository institution holding company's appropriate federal banking
agency, respectively, that the insured depository institution or
depository institution holding company is in a troubled condition, as
defined in the applicable regulations of the appropriate federal
banking agency (Sec. 303.14(a)(4) of this chapter); or
(D) The insured depository institution is assigned a composite
rating of 4 or 5 by the appropriate federal banking agency or informed
in writing by the Corporation that it is rated a 4 or 5 under the
Uniform Financial Institutions Rating System of the Federal Financial
Institutions Examination Council, or the depository institution holding
company is assigned a composite rating of 4 or 5 or unsatisfactory by
its appropriate federal banking agency; or
(E) The insured depository institution is subject to a proceeding
to terminate or suspend deposit insurance for such institution; and
(iii)(A) Is payable to an IAP whose employment by or affiliation
with an insured depository institution is terminated at a time when the
insured depository institution by which the IAP is employed or with
which the IAP is affiliated satisfies any of the conditions enumerated
in paragraphs (f)(1)(ii) (A) through (E) of this section, or in
contemplation of any of these conditions; or
(B) Is payable to an IAP whose employment by or affiliation with an
insured depository institution holding company is terminated at a time
when the insured depository institution holding company by which the
IAP is employed or with which the IAP is affiliated satisfies any of
the conditions enumerated in paragraphs (f)(1)(ii)(A), (C) or (D) of
this section, or in contemplation of any of these conditions.
(2) Exceptions. The term golden parachute payment shall not
include:
(i) Any payment made pursuant to a pension or retirement plan which
is qualified (or is intended within a reasonable period of time to be
qualified) under section 401 of the Internal Revenue Code of 1986 (26
U.S.C. 401) or pursuant to a pension or other retirement plan which is
governed by the laws of any foreign country; or
(ii) Any payment made pursuant to a benefit plan as that term is
defined in paragraph (c) of this section; or
(iii) Any payment made pursuant to a bona fide deferred
compensation plan or arrangement as defined in paragraph (d) of this
section; or
(iv) Any payment made by reason of death or by reason of
termination caused by the disability of an institution-affiliated
party; or
(v) Any payment made pursuant to a nondiscriminatory severance pay
plan
[[Page 5932]]
or arrangement which provides for payment of severance benefits to all
eligible employees upon involuntary termination other than for cause,
voluntary resignation, or early retirement; provided, however, that no
employee shall receive any such payment which exceeds the base
compensation paid to such employee during the twelve months (or such
longer period or greater benefit as the Corporation shall consent to)
immediately preceding termination of employment, resignation or early
retirement, and such severance pay plan or arrangement shall not have
been adopted or modified to increase the amount or scope of severance
benefits at a time when the insured depository institution or
depository institution holding company was in a condition specified in
paragraph (f)(1)(ii) of this section or in contemplation of such a
condition without the prior written consent of the appropriate federal
banking agency; or
(vi) Any severance or similar payment which is required to be made
pursuant to a state statute or foreign law which is applicable to all
employers within the appropriate jurisdiction (with the exception of
employers that may be exempt due to their small number of employees or
other similar criteria); or
(vii) Any other payment which the Corporation determines to be
permissible in accordance with Sec. 359.4.
(g) Insured depository institution means any bank or savings
association the deposits of which are insured by the Corporation
pursuant to the Act, or any subsidiary thereof.
(h) Institution-affiliated party (IAP) means:
(1) Any director, officer, employee, or controlling stockholder
(other than a depository institution holding company) of, or agent for,
an insured depository institution or depository institution holding
company;
(2) Any other person who has filed or is required to file a change-
in-control notice with the appropriate federal banking agency under
section 7(j) of the Act (12 U.S.C. 1817(j));
(3) Any shareholder (other than a depository institution holding
company), consultant, joint venture partner, and any other person as
determined by the appropriate federal banking agency (by regulation or
case-by-case) who participates in the conduct of the affairs of an
insured depository institution or depository institution holding
company; and
(4) Any independent contractor (including any attorney, appraiser,
or accountant) who knowingly or recklessly participates in: Any
violation of any law or regulation, any breach of fiduciary duty, or
any unsafe or unsound practice, which caused or is likely to cause more
than a minimal financial loss to, or a significant adverse effect on,
the insured depository institution or depository institution holding
company.
(i) Liability or legal expense means:
(1) Any legal or other professional fees and expenses incurred in
connection with any claim, proceeding, or action;
(2) The amount of, and any cost incurred in connection with, any
settlement of any claim, proceeding, or action; and
(3) The amount of, and any cost incurred in connection with, any
judgment or penalty imposed with respect to any claim, proceeding, or
action.
(j) Nondiscriminatory means that the plan, contract or arrangement
in question applies to all employees of an insured depository
institution or depository institution holding company who meet
reasonable and customary eligibility requirements applicable to all
employees, such as minimum length of service requirements. A
nondiscriminatory plan, contract or arrangement may provide different
benefits based only on objective criteria such as salary, total
compensation, length of service, job grade or classification, which are
applied on a proportionate basis (with a variance in severance benefits
relating to any criterion of plus or minus ten percent) to groups of
employees consisting of not less than the lesser of 33 percent of
employees or 1,000 employees.
(k) Payment means:
(1) Any direct or indirect transfer of any funds or any asset;
(2) Any forgiveness of any debt or other obligation;
(3) The conferring of any benefit, including but not limited to
stock options and stock appreciation rights; and
(4) Any segregation of any funds or assets, the establishment or
funding of any trust or the purchase of or arrangement for any letter
of credit or other instrument, for the purpose of making, or pursuant
to any agreement to make, any payment on or after the date on which
such funds or assets are segregated, or at the time of or after such
trust is established or letter of credit or other instrument is made
available, without regard to whether the obligation to make such
payment is contingent on:
(i) The determination, after such date, of the liability for the
payment of such amount; or
(ii) The liquidation, after such date, of the amount of such
payment.
(l) Prohibited indemnification payment. (1) The term prohibited
indemnification payment means any payment (or any agreement or
arrangement to make any payment) by any insured depository institution
or an affiliated depository institution holding company for the benefit
of any person who is or was an IAP of such insured depository
institution or holding company, to pay or reimburse such person for any
civil money penalty or judgment resulting from any administrative or
civil action instituted by any federal banking agency, or any other
liability or legal expense with regard to any administrative proceeding
or civil action instituted by any federal banking agency which results
in a final order or settlement pursuant to which such person:
(i) Is assessed a civil money penalty;
(ii) Is removed from office or prohibited from participating in the
conduct of the affairs of the insured depository institution; or
(iii) Is required to cease and desist from or take any affirmative
action described in section 8(b) of the Act with respect to such
institution.
(2) Exceptions. (i) The term prohibited indemnification payment
shall not include any reasonable payment by an insured depository
institution or depository institution holding company which is used to
purchase any commercial insurance policy or fidelity bond, provided
that such insurance policy or bond shall not be used to pay or
reimburse an IAP for the cost of any judgment or civil money penalty
assessed against such person in an administrative proceeding or civil
action commenced by any federal banking agency, but may pay any legal
or professional expenses incurred in connection with such proceeding or
action or the amount of any restitution to the insured depository
institution, depository institution holding company or receiver.
(ii) The term prohibited indemnification payment shall not include
any reasonable payment by an insured depository institution or
depository institution holding company that represents partial
indemnification for legal or professional expenses specifically
attributable to particular charges for which there has been a formal
and final adjudication or finding in connection with a settlement that
the IAP has not violated certain banking laws or regulations or has not
engaged in certain unsafe or unsound banking practices or breaches of
fiduciary duty, unless the administrative action or civil
[[Page 5933]]
proceeding has resulted in a final prohibition order against the IAP.
Sec. 359.2 Golden parachute payments prohibited.
No insured depository institution or depository institution holding
company shall make or agree to make any golden parachute payment,
except as provided in this part.
Sec. 359.3 Prohibited indemnification payments.
No insured depository institution or depository institution holding
company shall make or agree to make any prohibited indemnification
payment, except as provided in this part.
Sec. 359.4 Permissible golden parachute payments.
(a) An insured depository institution or depository institution
holding company may agree to make or may make a golden parachute
payment if and to the extent that:
(1) The appropriate federal banking agency, with the written
concurrence of the Corporation, determines that such a payment or
agreement is permissible; or
(2) Such an agreement is made in order to hire a person to become
an IAP either at a time when the insured depository institution or
depository institution holding company satisfies or in an effort to
prevent it from imminently satisfying any of the criteria set forth in
Sec. 359.1(f)(1)(ii), and the institution's appropriate federal banking
agency and the Corporation consent in writing to the amount and terms
of the golden parachute payment. Such consent by the FDIC and the
institution's appropriate federal banking agency shall not improve the
IAP's position in the event of the insolvency of the institution since
such consent can neither bind a receiver nor affect the provability of
receivership claims. In the event that the institution is placed into
receivership or conservatorship, the FDIC and/or the institution's
appropriate federal banking agency shall not be obligated to pay the
promised golden parachute and the IAP shall not be accorded
preferential treatment on the basis of such prior approval; or
(3) Such a payment is made pursuant to an agreement which provides
for a reasonable severance payment, not to exceed twelve months salary,
to an IAP in the event of a change in control of the insured depository
institution; provided, however, that an insured depository institution
or depository institution holding company shall obtain the consent of
the appropriate federal banking agency prior to making such a payment
and this paragraph (a)(3) shall not apply to any change in control of
an insured depository institution which results from an assisted
transaction as described in section 13 of the Act (12 U.S.C. 1823) or
the insured depository institution being placed into conservatorship or
receivership; and
(4) An insured depository institution, depository institution
holding company or IAP making a request pursuant to paragraphs (a)(1)
through (3) of this section shall demonstrate that it does not possess
and is not aware of any information, evidence, documents or other
materials which would indicate that there is a reasonable basis to
believe, at the time such payment is proposed to be made, that:
(i) The IAP has committed any fraudulent act or omission, breach of
trust or fiduciary duty, or insider abuse with regard to the depository
institution or depository institution holding company that has had or
is likely to have a material adverse effect on the institution or
holding company;
(ii) The IAP is substantially responsible for the insolvency of,
the appointment of a conservator or receiver for, or the troubled
condition, as defined by applicable regulations of the appropriate
federal banking agency, of the insured depository institution,
depository institution holding company or any insured depository
institution subsidiary of such holding company;
(iii) The IAP has materially violated any applicable federal or
state banking law or regulation that has had or is likely to have a
material effect on the insured depository institution or depository
institution holding company; and
(iv) The IAP has violated or conspired to violate section 215, 656,
657, 1005, 1006, 1007, 1014, 1032, or 1344 of title 18 of the United
States Code, or section 1341 or 1343 of such title affecting a
federally insured financial institution as defined in title 18 of the
United States Code.
(b) In making a determination under paragraphs (a) (1) through (3)
of this section, the appropriate federal banking agency and the
Corporation may consider:
(1) Whether, and to what degree, the IAP was in a position of
managerial or fiduciary responsibility;
(2) The length of time the IAP was affiliated with the insured
depository institution or depository institution holding company, and
the degree to which the proposed payment represents a reasonable
payment for services rendered over the period of employment; and
(3) Any other factors or circumstances which would indicate that
the proposed payment would be contrary to the intent of section 18(k)
of the Act or this part.
Sec. 359.5 Permissible indemnification payments.
(a) An insured depository institution or depository institution
holding company may make or agree to make reasonable indemnification
payments to an IAP with respect to an administrative proceeding or
civil action initiated by any federal banking agency if:
(1) The insured depository institution's or depository institution
holding company's board of directors, in good faith, determines in
writing after due investigation and consideration that the institution-
affiliated party acted in good faith and in a manner he/she believed to
be in the best interests of the institution;
(2) The insured depository institution's or depository institution
holding company's board of directors, respectively, in good faith,
determines in writing after due investigation and consideration that
the payment of such expenses will not materially adversely affect the
institution's or holding company's safety and soundness;
(3) The indemnification payments do not constitute prohibited
indemnification payments as that term is defined in Sec. 359.1(l); and
(4) The IAP agrees in writing to reimburse the insured depository
institution or depository institution holding company, to the extent
not covered by payments from insurance or bonds purchased pursuant to
Sec. 359.1(l)(2), for that portion of the advanced indemnification
payments which subsequently become prohibited indemnification payments,
as defined in Sec. 359.1(l)
(b) An IAP requesting indemnification payments shall not
participate in any way in the board's discussion and approval of such
payments; provided, however, that such IAP may present his/her request
to the board and respond to any inquiries from the board concerning
his/her involvement in the circumstances giving rise to the
administrative proceeding or civil action.
(c) In the event that a majority of the members of the board of
directors are named as respondents in an administrative proceeding or
civil action and request indemnification, the remaining members of the
board may authorize independent legal counsel to review the
indemnification request and provide the remaining members of the board
with a written opinion of counsel as to whether the conditions
delineated in paragraph (a) of this section have been met. If
independent legal counsel
[[Page 5934]]
opines that said conditions have been met, the remaining members of the
board of directors may rely on such opinion in authorizing the
requested indemnification.
(d) In the event that all of the members of the board of directors
are named as respondents in an administrative proceeding or civil
action and request indemnification, the board shall authorize
independent legal counsel to review the indemnification request and
provide the board with a written opinion of counsel as to whether the
conditions delineated in paragraph (a) of this section have been met.
If independent legal counsel opines that said conditions have been met,
the board of directors may rely on such opinion in authorizing the
requested indemnification.
Sec. 359.6 Filing instructions.
Requests to make excess nondiscriminatory severance plan payments
pursuant to Sec. 359.1(f)(2)(v) and golden parachute payments permitted
by Sec. 359.4 shall be submitted in writing to the FDIC regional
director (Supervision) for the region in which the institution is
located. The request shall be in letter form and shall contain all
relevant factual information as well as the reasons why such approval
should be granted. In the event that the consent of the institution's
primary federal regulator is required in addition to that of the FDIC,
the requesting party shall submit a copy of its letter to the FDIC to
the institution's primary federal regulator. In the case of national
banks, such written requests shall be submitted to the OCC. In the case
of state member banks and bank holding companies, such written requests
shall be submitted to the Federal Reserve district bank where the
institution or holding company, respectively, is located. In the case
of savings associations and savings association holding companies, such
written requests shall be submitted to the OTS regional office where
the institution or holding company, respectively, is located. In cases
where the prior consent of only the institution's primary federal
regulator is required and that agency is not the FDIC, a written
request satisfying the requirements of this section shall be submitted
to the primary federal regulator as described in this section.
Sec. 359.7 Applicability in the event of receivership.
The provisions of this part, or any consent or approval granted
under the provisions of this part by the FDIC (in its corporate
capacity), shall not in any way bind any receiver of a failed insured
depository institution. Any consent or approval granted under the
provisions of this part by the FDIC or any other federal banking agency
shall not in any way obligate such agency or receiver to pay any claim
or obligation pursuant to any golden parachute, severance,
indemnification or other agreement. Claims for employee welfare
benefits or other benefits which are contingent, even if otherwise
vested, when the FDIC is appointed as receiver for any depository
institution, including any contingency for termination of employment,
are not provable claims or actual, direct compensatory damage claims
against such receiver. Nothing in this part may be construed to permit
the payment of salary or any liability or legal expense of any IAP
contrary to 12 U.S.C. 1828(k)(3).
By order of the Board of Directors, dated at Washington, DC,
this 6th day of February, 1996.
Federal Deposit Insurance Corporation.
Jerry L. Langley,
Executive Secretary.
[FR Doc. 96-3273 Filed 2-14-96; 8:45 am]
BILLING CODE 6714-01-P
Complete official Federal Register PDF
FR Doc. 96-2502 Grants and Agreements With Institutions of Higher Education, Hospitals, and Other Non-Profit Organizations
[Federal Register Volume 61, Number 32 (Thursday, February 15, 1996)]
[Rules and Regulations]
[Pages 6066-6083]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-2502]
[[Page 6065]]
_______________________________________________________________________
Part II
Environmental Protection Agency
_______________________________________________________________________
40 CFR Parts 30 and 33
Grants and Agreements With Institutions of Higher Education, Hospitals,
and Other Non-Profit Organizations; Interim Final Rule
Federal Register / Vol. 61, No. 32 / Thursday, February 15, 1996 /
Rules and Regulations
=======================================================================
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[[Page 6066]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 30 and 33
[FRL-5409-7]
RIN 2030-AA32
Grants and Agreements With Institutions of Higher Education,
Hospitals, and Other Non-Profit Organizations
AGENCY: Environmental Protection Agency.
ACTION: Interim final rule; Request for comments.
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SUMMARY: This interim final rule revises 40 CFR Part 30 and deletes
Part 33 to incorporate the changes established by revised Office of
Management and Budget (OMB) Circular A-110, ``Uniform Administrative
Requirements for Grants and Agreements with Institutions of Higher
Education, Hospitals and Other Non-Profit Institutions,'' published by
OMB on November 29, 1993 (58 FR 62992).
DATES: This interim final rule is effective March 18, 1996. Written
comments must be submitted on or before April 15, 1996.
ADDRESSES: Written comments should be sent to: Maureen M. Ross, Grants
Policy and Procedures Branch (3903F) United States, Environmental
Protection Agency, 401 M Street SW, Washington, D.C. 20460 (202) 260-
9297. Inquiries may also be submitted via electronic mail (e-mail) to:
[email protected].
Electronic inquiries must be submitted as an ASCII file avoiding
the use of special characters and any form of encryption. Inquiries
will also be accepted on discs in WordPerfect in 5.1 file format or
ASCII file format. No Confidential Business Information should be
submitted through e-mail.
FOR FURTHER INFORMATION CONTACT: Maureen M. Ross, Grants Policy and
Procedures Branch (3903F), United States Environmental Protection
Agency, 401 M Street SW, Washington, D.C. 20460, (202) 260-9297.
SUPPLEMENTARY INFORMATION: On November 29, 1993, OMB issued a revised
Circular A-110, entitled ``Uniform Administrative Requirements for
Grants and Agreements With Institutions of Higher Education, Hospitals
and Other Non-Profit Organizations.'' The Circular provides standards
for obtaining consistency and uniformity among Federal agencies in the
administration of grants and agreements with institutions of higher
education, hospitals, and other non-profit organizations.
OMB initially issued Circular A-110 in 1976 and, except for a minor
revision in February 1987, the Circular contained its original
provisions until the revised Circular was published in 1993. To update
the Circular, OMB established an interagency review task force. The
task force solicited suggestions for changes to the Circular from
university groups, non-profit organizations and other interested
parties and compared, for consistency, the provisions of similar
provisions applied to State and local governments. The revised Circular
reflects the results of these efforts.
In addition, OMB published a notice in the Federal Register (57 FR
39018) on August 27, 1992, requesting comments on proposed revisions to
Circular A-110. Interested parties were invited to submit comments. OMB
received over 200 comments from Federal agencies, non-profit
organizations, professional organizations and others. All comments were
considered in developing the final revision.
OMB directed Federal agencies responsible for awarding and
administering grants and other agreements with institutions of higher
learning, hospitals, and other non-profit organizations to adopt the
language as it appears in the Circular unless different provisions are
required by Federal statute or are approved by OMB.
This rule does not apply to grants, contracts, or other agreements
between the Federal Government and units of State or local governments
covered by OMB Circular A-102, ``Grants and Cooperative Agreements with
State and Local Governments,'' and EPA's regulation at 40 CFR Part 31.
In addition, subawards and contracts to State or local governments are
not covered by this rule. However, the rule applies to subawards made
by State and local governments to organizations covered by this rule.
The provisions of the rule may be applied to commercial organizations,
foreign governments, organizations under the jurisdiction of foreign
governments, and international organizations.
The Circular inadvertently misstates the applicability of the
statute commonly known as the Byrd Anti-Lobbying Amendment, 31 U.S.C.
1352. The disclosure requirements apply to organizations which apply or
bid for an award exceeding $100,000, not $100,000 or more. We have made
this correction in Appendix A.
The provisions related to lobbying activities in the former
regulation at 40 CFR 30.601 are not being carried forward in this
revision of Part 30. However, the restrictions in Office of Management
and Budget Circulars A-21 and A-122 on the use of grant funds for
lobbying remain in effect. The general restriction in EPA's
Appropriation Acts prohibiting Federal funding of non-federal parties
to intervene in regulatory or adjudicatory proceedings may also remain
in effect.
Two other changes have been made to Appendix A because of recent
changes brought about by the Federal Acquisition Streamlining Act of
1994. The threshold for the requirement to include a provision for
compliance with the Copeland ``Anti-Kickback Act'' (18 U.S.C. 874) was
raised from $2,000 to $100,000.
The threshold for the requirement to include the provision for
compliance with sections 102 and 107 of the Contract Work Hours and
Safety Standards Act (40 U.S.C. 327-333) was raised to $100,000.
The Environmental Protection Agency (EPA) is promulgating the
Circular (with the changes discussed below) as an EPA regulation at 40
CFR Part 30. This regulation will supersede the existing regulations at
both 40 CFR Part 30 and 40 CFR Part 33.
This rule adopts all of the OMB Circular provisions except for the
following EPA-specific changes to the text:
1. 30.18 Hotel and motel fire safety. The Hotel and Motel Fire
Safety Act of 1990 (P. L. 101-391) requires the General Services
Administration (GSA) to limit its lodging directories and lodging
expense per diem surveys to hotels and motels that meet the law's fire
protection and control guidelines. The Act establishes a number of fire
safety standards which must be met for hotels and motels to be so
listed by GSA. Further, beginning October 1, 1994, Federal funds may
not be used to sponsor a conference, meeting, or training seminar held
in a hotel or motel which does not meet these standards. If necessary,
the head of the Federal agency may waive this prohibition in the public
interest.
2. 30.54 Quality assurance. A new section on quality assurance will
be added to ensure that environmentally related measurements or data
generation by recipients are performed in a manner designed to meet
EPA's standards. This section will require recipients to develop
procedures and standards to produce information of high quality and to
minimize the potential for loss of data.
3. Except in the definitions, certain generic terms in the Circular
are being changed, if appropriate, to reflect EPA's terminology and
usage, e.g., the term
[[Page 6067]]
``Federal awarding agency'' and ``Federal Government'' and similar
terms will be changed to ``EPA.'' In appropriate cases the term
``Federal awarding agency'' has been changed to ``EPA award official.''
Other minor editing has been done as well. None of the editing of this
type alters the provisions of the Circular.
4. In certain cases the Circular includes indefinite language such
as ``The Federal government may require.'' EPA is changing such wording
to ``shall or will'' to reflect EPA's policies or procedures, where
appropriate.
5. At Sec. 30.23 EPA is adding language stipulating that EPA will
not require cost sharing or matching unless required by statute,
regulation, Executive Order, or official Agency policy.
6. At Sec. 30.25(c) the wording is being changed to specify the
office/official (i.e., the responsible technical program office or the
award official) from whom written approvals are to be obtained.
7. At Sec. 30.25(f)(1)(ii) EPA is changing the language to provide
that recipients may incur pre-award costs 90 days before award and more
than 90 days before award with approval of the award official.
8. At Sec. 30.27(b) EPA is adding language limiting the salary rate
of consultants to the maximum daily rate for level 4 of the Executive
Schedule. This is a requirement of EPA's Appropriations Act.
9. 30.44 Procurement procedures. EPA is adding language to ensure
that if the prime contractor awards sub- contracts, the recipient must
ensure that the prime contractor takes the same five steps as the
recipient is required to take to utilize small businesses, minority-
owned firms and women's business enterprises, whenever possible. This
additional language is needed to meet the requirements of EPA's 1993
Appropriations Act, P.L. 102-389 (42 U.S.C. 4370d). That statute
requires EPA for that fiscal year and for each one thereafter, to the
fullest extent possible, to ensure at least eight percent of Federal
funding for prime and subcontracts awarded in support of authorized
programs be made available to business concerns owned or controlled by
socially and economically disadvantaged individuals within the meaning
of sections 8(a)(5) and (6) of the Small Business Act (15 U.S.C.
Secs. 637 (a)(5) and (6)), and includes women and historically black
colleges and universities.
Public Participation
The policy of the Agency is, whenever practicable, to afford the
public an opportunity to participate in the rulemaking process.
Accordingly, interested persons may submit written comments,
suggestions, or objections regarding the interim final rule to the
location identified in this preamble.
Regulatory Impact Analysis
EPA did not develop a Regulatory Flexibility Analysis for this
interim final rule. This is because the rule is exempt from notice and
comment rulemaking under section 553(a)(2) of the Administrative
Procedure Act, 5 U.S.C. 553(a)(2), and therefore not subject to the
analytical requirements of sections 603 and 604 of the Regulatory
Flexibility Act, 5 U.S.C. 603 and 604.
EPA considers this rulemaking to be a significant action under
section 3(f)(2) of Executive Order 12866. Therefore the text was
submitted to and reviewed by the Office of Management and Budget prior
to promulgation.
Paperwork Reduction Act
In keeping with the requirements of the Paperwork Reduction Act
(PRA), as amended, 44 U.S.C. 3501 et seq, the information collection
requirements contained in this rule have been approved by OMB as
Standard Forms. This rule does not contain a collection of information
beyond the already approved Standard Forms subject to the PRA.
Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (the UMRA),
P.L. 104-4, establishes requirements for federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for rules with ``Federal mandates'' that may result in
expenditures by State, local, and tribal governments in the aggregate,
or to the private sector, of $100 million in any one year. Before
promulgating an EPA rule for which a written statement is needed,
section 205 of the UMRA generally requires EPA to identify and consider
a reasonable number of alternatives, and adopt the least costly, most
cost-effective or least burdensome alternative that achieves the
objectives of the rule. The provisions of section 205 do not apply when
they are inconsistent with applicable law. Moreover, section 205 allows
EPA to adopt an alternative other than the least costly, most cost-
effective or least burdensome alternative if the Administrator
publishes with the final rule an explanation why that alternative was
not adopted. Before EPA establishes regulatory requirements that may
significantly or uniquely affect small governments, including tribal
governments, it must develop under section 203 of the UMRA a small
government agency plan. The plan must provide for notifying potentially
affected small governments, giving them meaningful and timely input in
the development of EPA regulatory proposals with significant Federal
intergovernmental mandates, and informing, educating, and advising them
on compliance with the regulatory requirements.
Today's interim final rule contains no Federal mandates (within the
meaning of the UMRA) for State, local, or tribal governments or the
private sector. The UMRA excludes from the definitions of ``Federal
intergovernmental mandate'' and ``Federal private sector mandate''
duties that arise from conditions of Federal assistance. This interim
final rule prescribes as conditions of Federal assistance
administrative requirements governing EPA grants to institutions of
higher education, hospitals, and other non-profit organizations. Thus,
it is not subject to the requirements of sections 202 and 205 of the
UMRA. In addition, EPA has determined that this interim final rule
contains no regulatory requirements that might significantly or
uniquely affect small governments. Accordingly, it is not subject to
the requirements of section 203 of the UMRA.
List of Subjects in 40 CFR Parts 30 and 33
Environmental protection, Accounting, Administrative practice and
procedures, grant programs, Grants programs-environmental protection,
Reporting and recordkeeping requirements.
Dated: January 11, 1996.
Carol Browner,
Administrator.
For the reasons set forth in the preamble, under the authority of
42 U.S.C. 7 U.S.C. 135 et seq.; 15 U.S.C. 2601 et seq.; 33 U.S.C. 1251
et seq.; 42 U.S.C. 241, 242b, 243, 246, 300j-1, 300j-2, 300j-3, 1857 et
seq., 6091 et seq.; and 42 U.S.C. 9601 et seq. 40 CFR part 33 is
removed and part 30 is revised as set forth below:
PART 30--GRANTS AND AGREEMENTS WITH INSTITUTIONS OF HIGHER
EDUCATION, HOSPITALS, AND OTHER NON-PRPFIT ORGANIZATIONS
Subpart A--General
Sec.
30.1 Purpose.
30.2 Definitions.
[[Page 6068]]
30.3 Effect on other issuances.
30.4 Deviations.
30.5 Subawards.
30.6 Availability of OMB circulars
Subpart B--Pre-Award Requirements
30.10 Purpose.
30.11 Pre-award policies.
30.12 Forms for applying for Federal assistance.
30.13 Debarment and suspension.
30.14 Special award conditions.
30.15 Metric system of measurement.
30.16 Resource Conservation and Recovery Act (RCRA).
30.17 Certifications and representations.
30.18 Hotel and motel fire safety.
Subpart C--Post-Award Requirements
Financial and Program Management
30.20 Purpose of financial and program management.
30.21 Standards for financial management systems.
30.22 Payment.
30.23 Cost sharing or matching.
30.24 Program income.
30.25 Revision of budget and program plans.
30.26 Non-Federal audits.
30.27 Allowable costs.
30.28 Period of availability of funds.
Property Standards
30.30 Purpose of property standards.
30.31 Insurance coverage.
30.32 Real property.
30.33 Federally-owned and exempt property.
30.34 Equipment.
30.35 Supplies and other expendable property.
30.36 Intangible property.
30.37 Property trust relationship.
Procurement Standards
30.40 Purpose of procurement standards.
30.41 Recipient responsibilities.
30.42 Codes of conduct.
30.43 Competition.
30.44 Procurement procedures.
30.45 Cost and price analysis.
30.46 Procurement records.
30.47 Contract administration.
30.48 Contract provisions.
Reports and Records
30.50 Purpose of reports and records.
30.51 Monitoring and reporting program performance.
30.52 Financial reporting.
30.53 Retention and access requirements for records.
30.54 Quality assurance
Termination and Enforcement
30.60 Purpose of termination and enforcement.
30.61 Termination.
30.62 Enforcement.
30.63 Disputes.
Subpart D--After-the-Award Requirements
30.70 Purpose.
30.71 Closeout procedures.
30.72 Subsequent adjustments and continuing responsibilities.
30.73 Collection of amounts due.
Appendix to part 30--Contract Provisions
Authority: 7 U.S.C. 135 et seq.; 15 U.S.C. 2601 et seq.; 33
U.S.C. 1251 et seq.; 42 U.S.C. 241, 242b, 243, 246, 300f, 300j-1,
300j-2, 300j-3; 42 U.S.C. 1857 et seq.; 42 U.S.C. 7401 et seq.; 42
U.S.C. 6901 et seq.; 42 U.S.C. 9601 et seq.
Subpart A--General
Sec. 30.1 Purpose.
This subpart establishes uniform administrative requirements for
Federal grants and agreements awarded to institutions of higher
education, hospitals, and other non-profit organizations. The
Environmental Protection Agency (EPA) may not impose additional or
inconsistent requirements, except as provided in Secs. 30.4, and 30.14
or unless specifically required by Federal statute or Executive Order.
Non-profit organizations that implement Federal programs for the States
are also subject to State requirements.
Sec. 30.2 Definitions.
(a) Accrued expenditures means the charges incurred by the
recipient during a given period requiring the provision of funds for:
(1) Goods and other tangible property received;
(2) Services performed by employees, contractors, subrecipients,
and other payees; and
(3) Other amounts becoming owed under programs for which no current
services or performance is required.
(b) Accrued income means the sum of:
(1) Earnings during a given period from;
(i) Services performed by the recipient; and
(ii) Goods and other tangible property delivered to purchasers; and
(2) Amounts becoming owed to the recipient for which no current
services or performance is required by the recipient.
(c) Acquisition cost of equipment means the net invoice price of
the equipment, including the cost of modifications, attachments,
accessories, or auxiliary apparatus necessary to make the property
usable for the purpose for which it was acquired. Other charges, such
as the cost of installation, transportation, taxes, duty or protective
in-transit insurance, shall be included or excluded from the unit
acquisition cost in accordance with the recipient's regular accounting
practices.
(d) Advance means a payment made by Treasury check or other
appropriate payment mechanism to a recipient upon its request either
before outlays are made by the recipient or through the use of
predetermined payment schedules.
(e) Award means financial assistance that provides support or
stimulation to accomplish a public purpose. Awards include grants and
other agreements in the form of money or property in lieu of money, by
the Federal Government to an eligible recipient. The term does not
include: technical assistance, which provides services instead of
money; other assistance in the form of loans, loan guarantees, interest
subsidies, or insurance; direct payments of any kind to individuals;
and, contracts which are required to be entered into and administered
under procurement laws and regulations.
(f) Cash contributions means the recipient's cash outlay, including
the outlay of money contributed to the recipient by third parties.
(g) Closeout means the process by which a Federal awarding agency
determines that all applicable administrative actions and all required
work of the award have been completed by the recipient and Federal
awarding agency.
(h) Contract means a procurement contract under an award or
subaward, and a procurement subcontract under a recipient's or
subrecipient's contract.
(i) Cost sharing or matching means that portion of project or
program costs not borne by the Federal Government.
(j) Date of completion means the date on which all work under an
award is completed or the date on the award document, or any supplement
or amendment thereto, on which Federal sponsorship ends.
(k) Disallowed costs means those charges to an award that the
Federal awarding agency determines to be unallowable, in accordance
with the applicable Federal cost principles or other terms and
conditions contained in the award.
(l) Equipment means tangible nonexpendable personal property
including exempt property charged directly to the award having a useful
life of more than one year and an acquisition cost of $5000 or more per
unit. However, consistent with recipient policy, lower limits may be
established.
(m) Excess property means property under the control of any Federal
awarding agency that, as determined by the head thereof, is no longer
required for its needs or the discharge of its responsibilities.
(n) Exempt property means tangible personal property acquired in
whole or in part with Federal funds, where the Federal awarding agency
has statutory authority to vest title in the recipient without further
obligation to the Federal
[[Page 6069]]
Government. An example of exempt property authority is contained in the
Federal Grant and Cooperative Agreement Act (31 U.S.C. 6306), for
property acquired under an award to conduct basic or applied research
by a non-profit institution of higher education or non-profit
organization whose principal purpose is conducting scientific research.
(o) Federal awarding agency means the Federal agency that provides
an award to the recipient.
(p) Federal funds authorized means the total amount of Federal
funds obligated by the Federal Government for use by the recipient.
This amount may include any authorized carryover of unobligated funds
from prior funding periods when permitted by agency regulations or
agency implementing instructions.
(q) Federal share of real property, equipment, or supplies means
that percentage of the property's acquisition costs and any improvement
expenditures paid with Federal funds.
(r) Funding period means the period of time when Federal funding is
available for obligation by the recipient.
(s) Intangible property and debt instruments means, but is not
limited to, trademarks, copyrights, patents and patent applications and
such property as loans, notes and other debt instruments, lease
agreements, stock and other instruments of property ownership, whether
considered tangible or intangible.
(t) Obligations means the amounts of orders placed, contracts and
grants awarded, services received and similar transactions during a
given period that require payment by the recipient during the same or a
future period.
(u) Outlays or expenditures means charges made to the project or
program. They may be reported on a cash or accrual basis. For reports
prepared on a cash basis, outlays are the sum of cash disbursements for
direct charges for goods and services, the amount of indirect expense
charged, the value of third party in-kind contributions applied and the
amount of cash advances and payments made to subrecipients. For reports
prepared on an accrual basis, outlays are the sum of cash disbursements
for direct charges for goods and services, the amount of indirect
expense incurred, the value of in-kind contributions applied, and the
net increase (or decrease) in the amounts owed by the recipient for
goods and other property received, for services performed by employees,
contractors, subrecipients and other payees and other amounts becoming
owed under programs for which no current services or performance are
required.
(v) Personal property means property of any kind except real
property. It may be tangible, having physical existence, or intangible,
having no physical existence, such as copyrights, patents, or
securities.
(w) Prior approval means written approval by an authorized official
evidencing prior consent.
(x) Program income means gross income earned by the recipient that
is directly generated by a supported activity or earned as a result of
the award (see exclusions in Sec. 30.24 (e) and (h)). Program income
includes, but is not limited to, income from fees for services
performed, the use or rental of real or personal property acquired
under federally-funded projects, the sale of commodities or items
fabricated under an award, license fees and royalties on patents and
copyrights, and interest on loans made with award funds. Interest
earned on advances of Federal funds is not program income. Except as
otherwise provided in Federal awarding agency regulations or the terms
and conditions of the award, program income does not include the
receipt of principal on loans, rebates, credits, discounts, etc., or
interest earned on any of them.
(y) Project costs means all allowable costs, as set forth in the
applicable Federal cost principles, incurred by a recipient and the
value of the contributions made by third parties in accomplishing the
objectives of the award during the project period.
(z) Project period means the period established in the award
document during which Federal sponsorship begins and ends.
(aa) Property means, unless otherwise stated, real property,
equipment, intangible property and debt instruments.
(bb) Real property means land, including land improvements,
structures and appurtenances thereto, but excludes movable machinery
and equipment.
(cc) Recipient means an organization receiving financial assistance
directly from Federal awarding agencies to carry out a project or
program. The term includes public and private institutions of higher
education, public and private hospitals, and other quasi-public and
private non-profit organizations such as, but not limited to, community
action agencies, research institutes, educational associations, and
health centers. The term may include commercial organizations, foreign
or international organizations (such as agencies of the United Nations)
which are recipients, subrecipients, or contractors or subcontractors
of recipients or subrecipients at the discretion of the Federal
awarding agency. The term does not include government-owned contractor-
operated facilities or research centers providing continued support for
mission-oriented, large-scale programs that are government-owned or
controlled, or are designated as federally-funded research and
development centers.
(dd) Research and development means all research activities, both
basic and applied, and all development activities that are supported at
universities, colleges, and other non-profit institutions. ``Research''
is defined as a systematic study directed toward fuller scientific
knowledge or understanding of the subject studied. ``Development'' is
the systematic use of knowledge and understanding gained from research
directed toward the production of useful materials, devices, systems,
or methods, including design and development of prototypes and
processes. The term research also includes activities involving the
training of individuals in research techniques where such activities
utilize the same facilities as other research and development
activities and where such activities are not included in the
instruction function.
(ee) Small award means a grant or cooperative agreement not
exceeding the small purchase threshold fixed at 41 U.S.C. 403(11)
(currently $100,000).
(ff) Subaward means an award of financial assistance in the form of
money, or property in lieu of money, made under an award by a recipient
to an eligible subrecipient or by a subrecipient to a lower tier
subrecipient. The term includes financial assistance when provided by
any legal agreement, even if the agreement is called a contract, but
does not include procurement of goods and services nor does it include
any form of assistance which is excluded from the definition of
``award'' in paragraph (e) of this section.
(gg) Subrecipient means the legal entity to which a subaward is
made and which is accountable to the recipient for the use of the funds
provided. The term may include foreign or international organizations
(such as agencies of the United Nations) at the discretion of the
Federal awarding agency.
(hh) Supplies means all personal property excluding equipment,
intangible property, and debt instruments as defined in this section,
and inventions of a contractor conceived or first actually reduced to
practice in the performance of work under a funding agreement
(``subject
[[Page 6070]]
inventions''), as defined in 37 CFR part 401, ``Rights to Inventions
Made by Nonprofit Organizations and Small Business Firms Under
Government Grants, Contracts, and Cooperative Agreements.''
(ii) Suspension means an action by a Federal awarding agency that
temporarily withdraws Federal sponsorship under an award, pending
corrective action by the recipient or pending a decision to terminate
the award by the Federal awarding agency. Suspension of an award is a
separate action from suspension under Federal agency regulations
implementing Executive Orders 12549 and 12689, ``Debarment and
Suspension.''
(jj) Termination means the cancellation of Federal sponsorship, in
whole or in part, under an agreement at any time prior to the date of
completion.
(kk) Third party in-kind contributions means the value of non-cash
contributions provided by non-Federal third parties. Third party in-
kind contributions may be in the form of real property, equipment,
supplies and other expendable property, and the value of goods and
services directly benefiting and specifically identifiable to the
project or program.
(ll) Unliquidated obligations, for financial reports prepared on a
cash basis, means the amount of obligations incurred by the recipient
that have not been paid. For reports prepared on an accrued expenditure
basis, they represent the amount of obligations incurred by the
recipient for which an outlay has not been recorded.
(mm) Unobligated balance means the portion of the funds authorized
by the Federal awarding agency that has not been obligated by the
recipient and is determined by deducting the cumulative obligations
from the cumulative funds authorized.
(nn) Unrecovered indirect cost means the difference between the
amount awarded and the amount which could have been awarded under the
recipient's approved negotiated indirect cost rate.
(oo) Working capital advance means a procedure where by funds are
advanced to the recipient to cover its estimated disbursement needs for
a given initial period.
Sec. 30.3 Effect on other issuances.
For awards subject to Circular A-110, all administrative
requirements of codified program regulations, program manuals,
handbooks and other nonregulatory materials which are inconsistent with
the requirements of Circular A-110 shall be superseded, except to the
extent they are required by statute, or authorized in accordance with
the deviations provision in Sec. 30.4.
Sec. 30.4 Deviations.
The Office of Management and Budget (OMB) may grant exceptions for
classes of grants or recipients subject to the requirements of Circular
A-110 when exceptions are not prohibited by statute. However, in the
interest of maximum uniformity, exceptions from the requirements of
Circular A-110 shall be permitted only in unusual circumstances. EPA
may apply more restrictive requirements to a class of recipients when
approved by OMB. EPA may apply less restrictive requirements when
awarding small awards, except for those requirements which are
statutory. Exceptions on a case-by-case basis may also be made by EPA.
Sec. 30.5 Subawards.
Unless sections of Circular A-110 specifically exclude
subrecipients from coverage, the provisions of Circular A-110 shall be
applied to subrecipients performing work under awards if such
subrecipients are institutions of higher education, hospitals or other
non-profit organizations. State and local government subrecipients are
subject to the provisions of regulations in 40 CFR part 31 implementing
the grants management common rule, ``Uniform Administrative
Requirements for Grants and Cooperative Agreements to State and Local
Governments,''.
Sec. 30.6 Availability of OMB circulars.
OMB circulars cited in this part are available from the Office of
Management and Budget (OMB) by writing to the Executive Office of the
President, Publications Service, 725 17th Street, NW., Suite 200,
Washington, DC 20503.
Subpart B--Pre-Award Requirements
Sec. 30.10 Purpose.
Sections 30.11 through 30.18 prescribe forms and instructions and
other pre-award matters to be used in applying for Federal awards.
Sec. 30.11 Pre-award policies.
(a) Use of Grants and Cooperative Agreements, and Contracts. In
each instance, EPA shall decide on the appropriate award instrument
(i.e., grant, cooperative agreement, or contract). The Federal Grant
and Cooperative Agreement Act (31 U.S.C. 6301-08) governs the use of
grants, cooperative agreements and contracts. A grant or cooperative
agreement shall be used only when the principal purpose of a
transaction is to accomplish a public purpose of support or stimulation
authorized by Federal statute. The statutory criterion for choosing
between grants and cooperative agreements is that for the latter,
``substantial involvement is expected between the executive agency and
the State, local government, or other recipient when carrying out the
activity contemplated in the agreement.'' Contracts shall be used when
the principal purpose is acquisition of property or services for the
direct benefit or use of the Federal Government.
(b) Public notice and priority setting. EPA shall notify the public
of its intended funding priorities for discretionary grant programs,
unless funding priorities are established by Federal statute.
(c) By submitting an application to EPA, the applicant grants EPA
permission to share the application with technical reviewers both
within and outside the Agency.
Sec. 30.12 Forms for applying for Federal assistance.
(a) EPA shall comply with the applicable report clearance
requirements of 5 CFR part 1320, ``Controlling Paperwork Burdens on the
Public,'' with regard to all forms used by EPA in place of or as a
supplement to the Standard Form 424 (SF-424) series.
(b) Applicants shall use the SF-424 series or those forms and
instructions prescribed by EPA.
(c) For Federal programs covered by Executive Order 12372,
``Intergovernmental Review of Federal Programs,'' the applicant shall
complete the appropriate sections of the SF-424 (Application for
Federal Assistance) indicating whether the application was subject to
review by the State Single Point of Contact (SPOC). The name and
address of the SPOC for a particular State can be obtained from EPA or
the Catalog of Federal Domestic Assistance. The SPOC shall advise the
applicant whether the program for which application is made has been
selected by that State for review.
(d) If the SF-424 form is not used EPA should indicate whether the
application is subject to review by the State under Executive Order
12372.
Sec. 30.13 Debarment and suspension.
EPA and recipients shall comply with the nonprocurement debarment
and suspension regulations in 40 CFR part 32 implementing Executive
Orders 12549 and 12689, ``Debarment and Suspension.'' 40 CFR part 32
restricts subawards and contracts with certain parties that are
debarred, suspended or otherwise excluded from or ineligible for
participation in Federal assistance programs or activities.
[[Page 6071]]
Sec. 30.14 Special award conditions.
If an applicant or recipient: has a history of poor performance, is
not financially stable; has a management system that does not meet the
standards prescribed in Circular A-110; has not conformed to the terms
and conditions of a previous award; or is not otherwise responsible,
EPA may impose additional requirements as needed, provided that such
applicant or recipient is notified in writing as to: the nature of the
additional requirements, the reason why the additional requirements are
being imposed, the nature of the corrective action needed, the time
allowed for completing the corrective actions, and the method for
requesting reconsideration of the additional requirements imposed. Any
special conditions shall be promptly removed once the conditions that
prompted them have been corrected.
Sec. 30.15 Metric system of measurement.
The Metric Conversion Act, as amended by the Omnibus Trade and
Competitiveness Act (15 U.S.C. 205), declares that the metric system is
the preferred measurement system for U.S. trade and commerce. The Act
requires each Federal agency to establish a date or dates in
consultation with the Secretary of Commerce, when the metric system of
measurement will be used in the agency's procurements, grants, and
other business-related activities. Metric implementation may take
longer where the use of the system is initially impractical or likely
to cause significant inefficiencies in the accomplishment of federally-
funded activities. EPA shall follow the provisions of Executive Order
12770, ``Metric Usage in Federal Government Programs.''
Sec. 30.16 Resource Conservation and Recovery Act (RCRA).
Resource Conservation and Recovery Act (RCRA) (Public Law 94-580
codified at 42 U.S.C. 6962). Under the Act, any State agency or agency
of a political subdivision of a State which is using appropriated
Federal funds must comply with Section 6002. Section 6002 requires that
preference be given in procurement programs to the purchase of specific
products containing recycled materials identified in guidelines
developed by EPA (40 CFR parts 247 through 254). Accordingly, State and
local institutions of higher education, hospitals, and non-profit
organizations that receive direct Federal awards or other Federal funds
shall give preference in their procurement programs funded with Federal
funds to the purchase of recycled products pursuant to EPA's
guidelines. Further, pursuant to Executive Order 12873 (dated October
20, 1993) recipients are to print documents/reports prepared under an
EPA award of assistance double sided on recycled paper. This
requirement does not apply to Standard Forms. These forms are printed
on recycled paper as available through the General Services
Administration.
Sec. 30.17 Certifications and representations.
Unless prohibited by statute or codified regulation, EPA will allow
recipients to submit certifications and representations required by
statute, Executive Order, or regulation on an annual basis, if the
recipients have ongoing and continuing relationships with the agency.
Annual certifications and representations shall be signed by
responsible officials with the authority to ensure recipients'
compliance with the pertinent requirements.
Sec. 30.18 Hotel and motel fire safety.
The Hotel and Motel Fire Safety Act of 1990 (Public Law 101-391)
establishes a number of fire safety standards which must be met for
hotels and motels. The law provides further that Federal funds may not
be used to sponsor a conference, meeting, or training seminar held in a
hotel or motel which does not meet the law's fire protection and
control guidelines. If necessary, the head of the Federal agency may
waive this prohibition in the public interest.
Subpart C--Post-Award Requirements
Financial and Program Management
Sec. 30.20 Purpose of financial and program management.
Sections 30.21 through 30.28 prescribe standards for financial
management systems, methods for making payments and rules for:
satisfying cost sharing and matching requirements, accounting for
program income, budget revision approvals, making audits, determining
allowability of cost, and establishing fund availability.
Sec. 30.21 Standards for financial management systems.
(a) EPA shall require recipients to relate financial data to
performance data and develop unit cost information whenever practical.
(b) Recipients' financial management systems shall provide for the
following.
(1) Accurate, current and complete disclosure of the financial
results of each federally-sponsored project or program in accordance
with the reporting requirements set forth in Sec. 30.52. If EPA
requires reporting on an accrual basis from a recipient that maintains
its records on other than an accrual basis, the recipient shall not be
required to establish an accrual accounting system. These recipients
may develop such accrual data for its reports on the basis of an
analysis of the documentation on hand.
(2) Records that identify adequately the source and application of
funds for federally-sponsored activities. These records shall contain
information pertaining to Federal awards, authorizations, obligations,
unobligated balances, assets, outlays, income and interest.
(3) Effective control over and accountability for all funds,
property and other assets. Recipients shall adequately safeguard all
such assets and assure they are used solely for authorized purposes.
(4) Comparison of outlays with budget amounts for each award.
Whenever appropriate, financial information should be related to
performance and unit cost data.
(5) Written procedures to minimize the time elapsing between the
transfer of funds to the recipient from the U.S. Treasury and the
issuance or redemption of checks, warrants or payments by other means
for program purposes by the recipient. To the extent that the
provisions of the Cash Management Improvement Act (CMIA) (Pub. L. 101-
453) govern, payment methods of State agencies, instrumentalities, and
fiscal agents shall be consistent with CMIA Treasury-State Agreements
or the CMIA default procedures codified at 31 CFR part 205,
``Withdrawal of Cash from the Treasury for Advances under Federal Grant
and Other Programs.''
(6) Written procedures for determining the reasonableness,
allocability and allowability of costs in accordance with the
provisions of the applicable Federal cost principles and the terms and
conditions of the award.
(7) Accounting records including cost accounting records that are
supported by source documentation.
(c) Where the EPA guarantees or insures the repayment of money
borrowed by the recipient, the recipient shall provide adequate bonding
and insurance if the bonding and insurance requirements of the
recipient are not deemed adequate to protect the interest of the
Federal Government.
(d) Recipients shall obtain adequate fidelity bond coverage where
coverage to protect the Federal Government's interest is insufficient.
(e) Where bonds are required in the situations described above, the
bonds shall be obtained from companies
[[Page 6072]]
holding certificates of authority as acceptable sureties, as prescribed
in 31 CFR part 223, ``Surety Companies Doing Business with the United
States.''
Sec. 30.22 Payment.
(a) Payment methods shall minimize the time elapsing between the
transfer of funds from the United States Treasury and the issuance or
redemption of checks, warrants, or payment by other means by the
recipients. Payment methods of State agencies or instrumentalities
shall be consistent with Treasury-State CMIA agreements or default
procedures codified at 31 CFR part 205.
(b) Recipients are to be paid in advance, provided they maintain or
demonstrate the willingness to maintain: written procedures that
minimize the time elapsing between the transfer of funds and
disbursement by the recipient; and financial management systems that
meet the standards for fund control and accountability as established
in Sec. 30.21. Cash advances to a recipient organization shall be
limited to the minimum amounts needed and be timed to be in accordance
with the actual, immediate cash requirements of the recipient
organization in carrying out the purpose of the approved program or
project. The timing and amount of cash advances shall be as close as is
administratively feasible to the actual disbursements by the recipient
organization for direct program or project costs and the proportionate
share of any allowable indirect costs.
(c) Whenever possible, advances shall be consolidated to cover
anticipated cash needs for all awards made by the EPA to the recipient.
(1) Advance payment mechanisms include, but are not limited to,
Treasury check and electronic funds transfer.
(2) Advance payment mechanisms are subject to 31 CFR part 205.
(3) Recipients shall be authorized to submit requests for advances
and reimbursements at least monthly when electronic fund transfers are
not used.
(d) Requests for Treasury check advance payment shall be submitted
on SF-270, ``Request for Advance or Reimbursement,'' or other forms as
may be authorized by OMB. This form is not to be used when Treasury
check advance payments are made to the recipient automatically through
the use of a predetermined payment schedule or if precluded by special
instructions for electronic funds transfer.
(e) Reimbursement is the preferred method when the requirements in
paragraph (b) of this section cannot be met. EPA may also use this
method on any construction agreement, or if the major portion of the
construction project is accomplished through private market financing
or Federal loans, and the Federal assistance constitutes a minor
portion of the project.
(1) When the reimbursement method is used, EPA shall make payment
within 30 days after receipt of the billing, unless the billing is
improper.
(2) Recipients shall be authorized to submit request for
reimbursement at least monthly when electronic funds transfers are not
used.
(f) If a recipient cannot meet the criteria for advance payments
and EPA has determined that reimbursement is not feasible because the
recipient lacks sufficient working capital, EPA may provide cash on a
working capital advance basis. Under this procedure, EPA shall advance
cash to the recipient to cover its estimated disbursement needs for an
initial period generally geared to the awardee's disbursing cycle.
Thereafter, EPA shall reimburse the recipient for its actual cash
disbursements. The working capital advance method of payment shall not
be used for recipients unwilling or unable to provide timely advances
to their subrecipient to meet the subrecipient's actual cash
disbursements.
(g) To the extent available, recipients shall disburse funds
available from repayments to and interest earned on a revolving fund,
program income, rebates, refunds, contract settlements, audit
recoveries and interest earned on such funds before requesting
additional cash payments.
(h) Unless otherwise required by statute, EPA shall not withhold
payments for proper charges made by recipients at any time during the
project period unless paragraph (h)(1) or (2) of this section applies.
(1) A recipient has failed to comply with the project objectives,
the terms and conditions of the award, or Federal reporting
requirements.
(2) The recipient or subrecipient is delinquent in a debt to the
United States as defined in OMB Circular A-129, ``Managing Federal
Credit Programs.'' Under such conditions, EPA may, upon reasonable
notice, inform the recipient that payments shall not be made for
obligations incurred after a specified date until the conditions are
corrected or the indebtedness to the Federal Government is liquidated.
(i) Standards governing the use of banks and other institutions as
depositories of funds advanced under awards are as follows.
(1) Except for situations described in paragraph (i)(2) of this
section, EPA shall not require separate depository accounts for funds
provided to a recipient or establish any eligibility requirements for
depositories for funds provided to a recipient. However, recipients
must be able to account for the receipt, obligation and expenditure of
funds.
(2) Advances of Federal funds shall be deposited and maintained in
insured accounts whenever possible.
(j) Consistent with the national goal of expanding the
opportunities for women-owned and minority-owned business enterprises,
recipients shall be encouraged to use women-owned and minority-owned
banks (a bank which is owned at least 50 percent by women or minority
group members).
(k) Recipients shall maintain advances of Federal funds in interest
bearing accounts, unless paragraph (k) (1), (2) or (3) of this section
applies.
(1) The recipient receives less than $120,000 in Federal awards per
year.
(2) The best reasonably available interest bearing account would
not be expected to earn interest in excess of $250 per year on Federal
cash balances.
(3) The depository would require an average or minimum balance so
high that it would not be feasible within the expected Federal and non-
Federal cash resources.
(l) For those entities where CMIA and its implementing regulations
do not apply, interest earned on Federal advances deposited in interest
bearing accounts shall be remitted annually to Department of Health and
Human Services, Payment Management System, P.O. Box 6021, Rockville, MD
20852. Interest amounts up to $250 per year may be retained by the
recipient for administrative expense. State universities and hospitals
shall comply with CMIA, as it pertains to interest. If an entity
subject to CMIA uses its own funds to pay pre-award costs for
discretionary awards without prior written approval from EPA, it waives
its right to recover the interest under CMIA. In keeping with
Electronic Funds Transfer rules, (31 CFR Part 206), interest should be
remitted to the HHS Payment Management System through an electronic
medium such as the FEDWIRE Deposit system. Recipients which do not have
this capability should use a check.
(m) Except as noted elsewhere in Circular A-110, only the following
forms shall be authorized for the recipients in requesting advances and
reimbursements. EPA shall not require more than an original and two
copies of these forms.
(1) SF-270, Request for Advance or Reimbursement. EPA shall adopt
the SF-270 as a standard form for all
[[Page 6073]]
nonconstruction programs when electronic funds transfer or
predetermined advance methods are not used. However, EPA has the option
of using this form for construction programs in lieu of the SF-271,
``Outlay Report and Request for Reimbursement for Construction
Programs.''
(2) SF-271, Outlay Report and Request for Reimbursement for
Construction Programs. EPA shall adopt the SF-271 as the standard form
to be used for requesting reimbursement for construction programs.
However, the SF-270 may be substituted when EPA determines that it
provides adequate information to meet its needs.
Sec. 30.23 Cost sharing or matching.
EPA shall not require cost sharing or matching unless required by
statute, regulation, Executive Order, or official Agency policy.
(a) All contributions, including cash and third party in-kind,
shall be accepted as part of the recipient's cost sharing or matching
when such contributions meet all of the following criteria.
(1) Are verifiable from the recipient's records.
(2) Are not included as contributions for any other federally-
assisted project or program.
(3) Are necessary and reasonable for proper and efficient
accomplishment of project or program objectives.
(4) Are allowable under the applicable cost principles.
(5) Are not paid by the Federal Government under another award,
except where authorized by Federal statute to be used for cost sharing
or matching.
(6) Are identified in the approved budget.
(7) Conform to other provisions of Circular A-110, as applicable.
(b) Unrecovered indirect costs may be included as part of cost
sharing or matching only with the prior approval of the EPA Award
Official.
(c) Values for recipient contributions of services and property
shall be established in accordance with the applicable cost principles.
If, after consultation with Agency property management personnel, the
EPA Award Official authorizes recipients to donate buildings or land
for construction or facilities acquisition projects or long-term use,
the value of the donated property for cost sharing or matching shall be
the lesser of paragraph (c) (1) or (2) of this section.
(1) The certified value of the remaining life of the property
recorded in the recipient's accounting records at the time of donation.
(2) The current fair market value. However, when there is
sufficient justification, the EPA Award Official may approve the use of
the current fair market value of the donated property, even if it
exceeds the certified value at the time of donation to the project.
(d) Volunteer services furnished by professional and technical
personnel, consultants, and other skilled and unskilled labor may be
counted as cost sharing or matching if the service is an integral and
necessary part of an approved project or program. Rates for volunteer
services shall be consistent with those paid for similar work in the
recipient's organization. In those instances in which the required
skills are not found in the recipient organization, rates shall be
consistent with those paid for similar work in the labor market in
which the recipient competes for the kind of services involved. In
either case, paid fringe benefits that are reasonable, allowable, and
allocable may be included in the valuation.
(e) When an employer other than the recipient furnishes the
services of an employee, these services shall be valued at the
employee's regular rate of pay (plus an amount of fringe benefits that
are reasonable, allowable, and allocable, but exclusive of overhead
costs), provided these services are in the same skill for which the
employee is normally paid.
(f) Donated supplies may include such items as expendable
equipment, office supplies, laboratory supplies or workshop and
classroom supplies. Value assessed to donated supplies included in the
cost sharing or matching share shall be reasonable and shall not exceed
the fair market value of the property at the time of the donation.
(g) The method used for determining cost sharing or matching for
donated equipment, buildings and land for which title passes to the
recipient may differ according to the purpose of the award, if
paragraph (g) (1) or (2) of this section applies.
(1) If the purpose of the award is to assist the recipient in the
acquisition of equipment, buildings or land, the total value of the
donated property may be claimed as cost sharing or matching.
(2) If the purpose of the award is to support activities that
require the use of equipment, buildings or land, normally only
depreciation or use charges for equipment and buildings may be made.
However, the full value of equipment or other capital assets and fair
rental charges for land may be allowed, provided that the EPA technical
program office, after consultation with EPA property management
personnel, has approved the charges.
(h) The value of donated property shall be determined in accordance
with the usual accounting policies of the recipient, with the following
qualifications.
(1) The value of donated land and buildings shall not exceed its
fair market value at the time of donation to the recipient as
established by an independent appraiser (e.g., certified real property
appraiser or General Services Administration representative) and
certified by a responsible official of the recipient.
(2) The value of donated equipment shall not exceed the fair market
value of equipment of the same age and condition at the time of
donation.
(3) The value of donated space shall not exceed the fair rental
value of comparable space as established by an independent appraisal of
comparable space and facilities in a privately-owned building in the
same locality.
(4) The value of loaned equipment shall not exceed its fair rental
value.
(5) The following requirements pertain to the recipient's
supporting records for in-kind contributions from third parties.
(i) Volunteer services shall be documented and, to the extent
feasible, supported by the same methods used by the recipient for its
own employees.
(ii) The basis for determining the valuation for personal service,
material, equipment, buildings and land shall be documented.
Sec. 30.24 Program income.
(a) EPA shall apply the standards set forth in this section in
requiring recipient organizations to account for program income related
to projects financed in whole or in part with Federal funds.
(b) Except as provided in paragraph (h) of this section, program
income earned during the project period shall be retained by the
recipient and, in accordance with EPA regulations or the terms and
conditions of the award, shall be used in one or more of the ways
listed in the following.
(1) Added to funds committed to the project by EPA and recipient
and used to further eligible project or program objectives.
(2) Used to finance the non-Federal share of the project or
program.
(3) Deducted from the total project or program allowable cost in
determining the net allowable costs on which the Federal share of costs
is based.
(c) When EPA authorizes the disposition of program income as
described in paragraphs (b)(1) or (2) of
[[Page 6074]]
this section, program income in excess of any limits stipulated shall
be used in accordance with paragraph (b)(3) of this section.
(d) In the event that the EPA does not specify in its regulations
or the terms and conditions of the award how program income is to be
used, paragraph (b)(3) of this section shall apply automatically to all
projects or programs except research. For awards that support research,
paragraph (b)(1) of this section shall apply automatically unless EPA
indicates in the terms and conditions another alternative on the award
or the recipient is subject to special award conditions, as indicated
in Sec. 30.14.
(e) Unless EPA regulations or the terms and conditions of the award
provide otherwise, recipients shall have no obligation to the Federal
Government regarding program income earned after the end of the project
period.
(f) If authorized by EPA regulations or the terms and conditions of
the award, costs incident to the generation of program income may be
deducted from gross income to determine program income, provided these
costs have not been charged to the award.
(g) Proceeds from the sale of property shall be handled in
accordance with the requirements of the Property Standards (See
Secs. 30.30 through 30.37).
(h) Unless EPA regulations or the terms and condition of the award
provide otherwise, recipients shall have no obligation to the Federal
Government with respect to program income earned from license fees and
royalties for copyrighted material, patents, patent applications,
trademarks, and inventions produced under an award. However, Patent and
Trademark Amendments (35 U.S.C. 18) apply to inventions made under an
experimental, developmental, or research award.
Sec. 30.25 Revision of budget and program plans.
(a) The budget plan is the financial expression of the project or
program as approved during the award process. The budget shall include
both the Federal and non-Federal share. It shall be related to
performance for program evaluation purposes whenever appropriate.
(b) Recipients are required to report deviations from budget and
program plans, and request prior approvals for budget and program plan
revisions, in accordance with this section.
(c) For nonconstruction awards, unless EPA regulations provide
otherwise, recipients shall request prior written approvals from:
(1) The EPA Award Official for the following:
(i) Change in the scope or the objective of the project or program
(even if there is no associated budget revision requiring prior written
approval).
(ii) The need for additional Federal funding.
(iii) The inclusion of costs that require prior approval in
accordance with OMB Circular A-21, ``Cost Principles for Institutions
of Higher Education,'' OMB Circular A-122, ``Cost Principles for Non-
Profit Organizations,'' or 45 CFR part 74 Appendix E, ``Principles for
Determining Costs Applicable to Research and Development under Grants
and Contracts with Hospitals,'' or 48 CFR part 31, ``Contract Cost
Principles and Procedures,'' as applicable.
(2) The technical program office for the following:
(i) Change in a key person specified in the application or award
document.
(ii) The absence for more than three months, or a 25 percent
reduction in time devoted to the project, by the approved project
director or principal investigator.
(iii) The transfer of amounts budgeted for indirect costs to absorb
increases in direct costs, or vice versa.
(iv) The transfer of funds allotted for training allowances (direct
payment to trainees) to other categories of expense.
(v) Unless described in the application and funded in the approved
award, the subaward, transfer or contracting out of any work under an
award. This provision does not apply to the purchase of supplies,
material, equipment or general support services.
(d) No other prior approval requirements for specific items may be
imposed unless a deviation has been approved by OMB.
(e) Except for requirements listed in paragraphs (c)(1)(i) and (ii)
of this section, the EPA Award Official may waive cost-related and
administrative prior written approvals required by this part and OMB
cost principles. For awards that support research, these prior approval
requirements are automatically waived unless:
(1) EPA provides otherwise in the award or agency regulation or
(2) One of the conditions in paragraph (f)(2)(i) of this section
applies.
(f) Recipients are authorized without prior approval or a waiver
to:
(1) Incur pre-award costs 90 calendar days prior to award.
(i) Pre-award costs incurred more than 90 calendar days prior to
award require the prior approval of the EPA Award Official.
(ii) The applicant must include all pre-award costs in its
application.
(iii) The applicant incurs such costs at its own risk (i.e., EPA is
under no obligation to reimburse such costs if for any reason the
recipient does not receive an award or if the award is less than
anticipated and inadequate to cover such costs).
(iv) EPA will only allow pre-award costs without approval if there
are sufficient programmatic reasons for incurring the expenditures
prior to the award (e.g., time constraints, weather factors, etc.),
they are in conformance with the appropriate cost principles, and any
procurement complies with the requirements of this rule.
(2) Extend the expiration date of the award one time for up to 12
months.
(i) A one-time extension may not be initiated if:
(A) The terms and conditions of the award prohibit the extension;
(B) The extension requires additional Federal funds; or
(C) The extension involves any change in the approved objectives or
scope of the project.
(ii) For one-time extensions, the recipient must notify the EPA
Award Official in writing with the supporting reasons and revised
expiration date at least 10 days before the expiration date specified
in the award.
(iii) This one-time extension may not be exercised merely for the
purpose of using unobligated balances.
(3) Carry forward unobligated balances to subsequent funding
periods providing the recipient notifies the EPA Award Official by
means of the Financial Status Report.
(g) The EPA technical program office may, at its option, restrict
the transfer of funds among direct cost categories or programs,
functions and activities for awards in which the Federal share of the
project exceeds $100,000 and the cumulative amount of such transfers
exceeds or is expected to exceed 10 percent of the total budget as last
approved by EPA. Except as provided for at paragraph (c) of this
section, for awards in which the Federal share is less than $100,000
there are no restrictions on transfers of funds among direct cost
categories. EPA shall not permit a transfer that would cause any
Federal appropriation or part thereof to be used for purposes other
than those consistent with the original intent of the appropriation.
(h) All other changes to nonconstruction budgets, except for the
changes described in paragraph (j) of this section, do not require
prior approval.
(i) For construction awards, recipients shall request prior written
approval promptly from EPA for budget revisions whenever paragraph
(h)(1), (2) or (3) of this section applies.
[[Page 6075]]
(1) The revision results from changes in the scope or the objective
of the project or program.
(2) The need arises for additional Federal funds to complete the
project.
(3) A revision is desired which involves specific costs for which
prior written approval requirements may be imposed consistent with
applicable OMB cost principles listed in Sec. 30.27.
(j) No other prior approval requirements for specific items may be
imposed unless a deviation has been approved by OMB.
(k) When EPA makes an award that provides support for both
construction and nonconstruction work, EPA may require the recipient to
request prior approval before making any fund or budget transfers
between the two types of work supported.
(l) For both construction and nonconstruction awards, EPA shall
require recipients to notify the agency in writing promptly whenever
the amount of Federal authorized funds is expected to exceed the needs
of the recipient for the project period by more than $5000 or five
percent of the Federal award, whichever is greater. This notification
shall not be required if an application for additional funding is
submitted for a continuation award.
(m) When requesting approval for budget revisions, recipients shall
use the budget forms that were used in the application unless the EPA
indicates that a letter clearly describing the details of the request
will suffice.
(n) Within 30 calendar days from the date of receipt of the request
for budget revisions, EPA shall review the request and notify the
recipient whether the budget revisions have been approved. If the
revision is still under consideration at the end of 30 calendar days,
EPA shall inform the recipient in writing of the date when the
recipient may expect the decision.
Sec. 30.26 Non-Federal audits.
(a) Recipients and subrecipients that are institutions of higher
education or other non-profit organizations shall be subject to the
audit requirements contained in OMB Circular A-133, ``Audits of
Institutions of Higher Education and Other Non-Profit Institutions.''
(b) State and local governments shall be subject to the audit
requirements contained in the Single Audit Act (31 U.S.C. 7501-7) and
40 CFR part 31 implementing OMB Circular A-128, ``Audits of State and
Local Governments.''
(c) Hospitals not covered by the audit provisions of OMB Circular
A-133 shall be subject to the audit requirements of EPA.
(d) Commercial organizations shall be subject to the audit
requirements of EPA or the prime recipient as incorporated into the
award document.
Sec. 30.27 Allowable costs.
(a) For each kind of recipient, there is a set of Federal
principles for determining allowable costs. Allowability of costs shall
be determined in accordance with the cost principles applicable to the
entity incurring the costs. Thus, allowability of costs incurred by
State, local or federally-recognized Indian tribal governments is
determined in accordance with the provisions of OMB Circular A-87,
``Cost Principles for State and Local Governments.'' The allowability
of costs incurred by non-profit organizations is determined in
accordance with the provisions of OMB Circular A-122, ``Cost Principles
for Non-Profit Organizations.'' The allowability of costs incurred by
institutions of higher education is determined in accordance with the
provisions of OMB Circular A-21, ``Cost Principles for Educational
Institutions.'' The allowability of costs incurred by hospitals is
determined in accordance with the provisions of Appendix E of 45 CFR
part 74, ``Principles for Determining Costs Applicable to Research and
Development Under Grants and Contracts with Hospitals.'' The
allowability of costs incurred by commercial organizations and those
non-profit organizations listed in Attachment C to Circular A-122 is
determined in accordance with the provisions of the Federal Acquisition
Regulation (FAR) at 48 CFR part 31. In addition, EPA's annual
Appropriations Acts may contain restrictions on the use of assistance
funds. For example, the Acts may prohibit the use of funds to support
intervention in Federal regulatory or adjudicatory proceedings.
(b) EPA will limit its participation in the salary rate (excluding
overhead) paid to individual consultants retained by recipients or by a
recipient's contractors or subcontractors to the maximum daily rate for
level 4 of the Executive Schedule unless a greater amount is authorized
by law. (Recipient's may, however, pay consultants more than this
amount.) This limitation applies to consultation services of designated
individuals with specialized skills who are paid at a daily or hourly
rate. This rate does not include transportation and subsistence costs
for travel performed; recipients will pay these in accordance with
their normal travel reimbursement practices. Contracts with firms for
services which are awarded using the procurement requirements in this
part are not affected by this limitation.
Sec. 30.28 Period of availability of funds.
Where a funding period is specified, a recipient may charge to the
grant only allowable costs resulting from obligations incurred during
the funding period and any pre-award costs authorized by EPA.
Property Standards
Sec. 30.30 Purpose of property standards.
Sections 30.31 through 30.37 set forth uniform standards governing
management and disposition of property furnished by the Federal
Government whose cost was charged to a project supported by a Federal
award. EPA shall require recipients to observe these standards under
awards and shall not impose additional requirements, unless
specifically required by Federal statute. The recipient may use its own
property management standards and procedures provided it observes the
provisions of Secs. 30.31 through 30.37.
Sec. 30.31 Insurance coverage.
Recipients shall, at a minimum, provide the equivalent insurance
coverage for real property and equipment acquired with Federal funds as
provided to property owned by the recipient. Federally-owned property
need not be insured unless required by the terms and conditions of the
award.
Sec. 30.32 Real property.
EPA shall prescribe requirements for recipients concerning the use
and disposition of real property acquired in whole or in part under
awards. Unless otherwise provided by statute, such requirements, at a
minimum, shall contain the following.
(a) Title to real property shall vest in the recipient subject to
the condition that the recipient shall use the real property for the
authorized purpose of the project as long as it is needed and shall not
encumber the property without approval of EPA.
(b) The recipient shall obtain written approval by EPA for the use
of real property in other federally-sponsored projects when the
recipient determines that the property is no longer needed for the
purpose of the original project. Use in other projects shall be limited
to those under federally-sponsored projects (i.e., awards) or programs
that have purposes consistent with those authorized for support by EPA.
(c) When the real property is no longer needed as provided in
paragraphs (a) and (b) of this section,
[[Page 6076]]
the recipient shall request disposition instructions from EPA or its
successor Federal awarding agency. EPA shall observe one or more of the
following disposition instructions.
(1) The recipient may be permitted to retain title without further
obligation to the Federal Government after it compensates the Federal
Government for that percentage of the current fair market value of the
property attributable to the Federal participation in the project.
(2) The recipient may be directed to sell the property under
guidelines provided by EPA and pay the Federal Government for that
percentage of the current fair market value of the property
attributable to the Federal participation in the project (after
deducting actual and reasonable selling and fix-up expenses, if any,
from the sales proceeds). When the recipient is authorized or required
to sell the property, proper sales procedures shall be established that
provide for competition to the extent practicable and result in the
highest possible return.
(3) The recipient may be directed to transfer title to the property
to the Federal Government or to an eligible third party provided that,
in such cases, the recipient shall be entitled to compensation for its
attributable percentage of the current fair market value of the
property.
Sec. 30.33 Federally-owned and exempt property.
(a) Federally-owned property. (1) Title to federally-owned property
remains vested in the Federal Government. Recipients shall submit
annually an inventory listing of federally-owned property in their
custody to EPA's property management staff. Upon completion of the
award or when the property is no longer needed, the recipient s
FR Doc. 96-2502 Grants and Agreements With Institutions of Higher Education, Hospitals, and Other Non-Profit Organizations
hall
report the property to EPA's property management staff for further
utilization.
(2) If EPA has no further need for the property, it shall be
declared excess and reported to the General Services Administration,
unless EPA has statutory authority to dispose of the property by
alternative methods (e.g., the authority provided by the Federal
Technology Transfer Act (15 U.S.C. 3710 (I)) to donate research
equipment to educational and non-profit organizations in accordance
with Executive Order 12821, ``Improving Mathematics and Science
Education in Support of the National Education Goals.'') Appropriate
instructions shall be issued to the recipient by EPA's property
management staff.
(b) Exempt property. When statutory authority exists, EPA has the
option to vest title to property acquired with Federal funds in the
recipient without further obligation to the Federal Government and
under conditions EPA considers appropriate. Such property is ``exempt
property.'' Should EPA not establish conditions, title to exempt
property upon acquisition shall vest in the recipient without further
obligation to the Federal Government.
Sec. 30.34 Equipment.
(a) Title to equipment acquired by a recipient with Federal funds
shall vest in the recipient, subject to conditions of this section.
(b) The recipient shall not use equipment acquired with Federal
funds to provide services to non-Federal outside organizations for a
fee that is less than private companies charge for equivalent services,
unless specifically authorized by Federal statute, for as long as the
Federal Government retains an interest in the equipment.
(c) The recipient shall use the equipment in the project or program
for which it was acquired as long as needed, whether or not the project
or program continues to be supported by Federal funds and shall not
encumber the property without approval of EPA. When no longer needed
for the original project or program, the recipient shall use the
equipment in connection with its other federally-sponsored activities,
in the following order of priority: Activities sponsored by EPA, then
activities sponsored by other Federal awarding agencies.
(d) During the time that equipment is used on the project or
program for which it was acquired, the recipient shall make it
available for use on other projects or programs if such other use will
not interfere with the work on the project or program for which the
equipment was originally acquired. First preference for such other use
shall be given to other projects or programs sponsored by EPA; second
preference shall be given to projects or programs sponsored by other
Federal awarding agencies. If the equipment is owned by the Federal
Government, use on other activities not sponsored by the Federal
Government shall be permissible if authorized by EPA. User charges
shall be treated as program income.
(e) When acquiring replacement equipment, the recipient may use the
equipment to be replaced as trade-in or sell the equipment and use the
proceeds to offset the costs of the replacement equipment subject to
the approval of EPA.
(f) The recipient's property management standards for equipment
acquired with Federal funds and federally-owned equipment shall include
all of the following.
(1) Equipment records shall be maintained accurately and shall
include the following information.
(i) A description of the equipment.
(ii) Manufacturer's serial number, model number, Federal stock
number, national stock number, or other identification number.
(iii) Source of the equipment, including the award number.
(iv) Whether title vests in the recipient or the Federal
Government.
(v) Acquisition date (or date received, if the equipment was
furnished by the Federal Government) and cost.
(vi) Information from which one can calculate the percentage of
Federal participation in the cost of the equipment (not applicable to
equipment furnished by the Federal Government).
(vii) Location and condition of the equipment and the date the
information was reported.
(viii) Unit acquisition cost.
(ix) Ultimate disposition data, including date of disposal and
sales price or the method used to determine current fair market value
where a recipient compensates EPA for its share.
(2) Equipment owned by the Federal Government shall be identified
to indicate Federal ownership.
(3) A physical inventory of equipment shall be taken and the
results reconciled with the equipment records at least once every two
years. Any differences between quantities determined by the physical
inspection and those shown in the accounting records shall be
investigated to determine the causes of the difference. The recipient
shall, in connection with the inventory, verify the existence, current
utilization, and continued need for the equipment.
(4) A control system shall be in effect to insure adequate
safeguards to prevent loss, damage, or theft of the equipment. Any
loss, damage, or theft of equipment shall be investigated and fully
documented; if the equipment was owned by the Federal Government, the
recipient shall promptly notify EPA.
(5) Adequate maintenance procedures shall be implemented to keep
the equipment in good condition.
(6) Where the recipient is authorized or required to sell the
equipment, proper sales procedures shall be established which provide
for competition to the extent practicable and result in the highest
possible return.
(g) When the recipient no longer needs the equipment, the equipment
may be used for other activities in
[[Page 6077]]
accordance with the following standards. For equipment with a current
per unit fair market value of $5000 or more, the recipient may retain
the equipment for other uses provided that compensation is made to the
original Federal awarding agency or its successor. The amount of
compensation shall be computed by applying the percentage of Federal
participation in the cost of the original project or program to the
current fair market value of the equipment. If the recipient has no
need for the equipment, the recipient shall request disposition
instructions from EPA. EPA shall determine whether the equipment can be
used to meet the agency's requirements. If no requirement exists within
that agency, the availability of the equipment shall be reported to the
General Services Administration by EPA to determine whether a
requirement for the equipment exists in other Federal agencies. EPA
shall issue instructions to the recipient no later than 120 calendar
days after the recipient's request and the following procedures shall
govern.
(1) If so instructed or if disposition instructions are not issued
within 120 calendar days after the recipient's request, the recipient
shall sell the equipment and reimburse EPA an amount computed by
applying to the sales proceeds the percentage of Federal participation
in the cost of the original project or program. However, the recipient
shall be permitted to deduct and retain from the Federal share $500 or
ten percent of the proceeds, whichever is less, for the recipient's
selling and handling expenses.
(2) If the recipient is instructed to ship the equipment elsewhere,
the recipient shall be reimbursed by the Federal Government by an
amount which is computed by applying the percentage of the recipient's
participation in the cost of the original project or program to the
current fair market value of the equipment, plus any reasonable
shipping or interim storage costs incurred.
(3) If the recipient is instructed to otherwise dispose of the
equipment, the recipient shall be reimbursed by EPA for such costs
incurred in its disposition.
(4) EPA may reserve the right to transfer the title to the Federal
Government or to a third party named by the Federal Government when
such third party is otherwise eligible under existing statutes. Such
transfer shall be subject to the following standards.
(i) The equipment shall be appropriately identified in the award or
otherwise made known to the recipient in writing.
(ii) EPA shall issue disposition instructions within 120 calendar
days after receipt of a final inventory. The final inventory shall list
all equipment acquired with grant funds and federally-owned equipment.
If EPA fails to issue disposition instructions within the 120 calendar
day period, the recipient shall apply the standards of this section, as
appropriate.
(iii) When EPA exercises its right to take title, the equipment
shall be subject to the provisions for federally-owned equipment.
Sec. 30.35 Supplies and other expendable property.
(a) Title to supplies and other expendable property shall vest in
the recipient upon acquisition. If there is a residual inventory of
unused supplies exceeding $5000 in total aggregate value upon
termination or completion of the project or program and the supplies
are not needed for any other federally-sponsored project or program,
the recipient shall retain the supplies for use on non-Federal
sponsored activities or sell them, but shall, in either case,
compensate the Federal Government for its share. The amount of
compensation shall be computed in the same manner as for equipment.
(b) The recipient shall not use supplies acquired with Federal
funds to provide services to non-Federal outside organizations for a
fee that is less than private companies charge for equivalent services,
unless specifically authorized by Federal statute as long as the
Federal Government retains an interest in the supplies.
Sec. 30.36 Intangible property.
(a) The recipient may copyright any work that is subject to
copyright and was developed, or for which ownership was purchased,
under an award. EPA reserves a royalty-free, nonexclusive and
irrevocable right to reproduce, publish, or otherwise use the work for
Federal purposes, and to authorize others to do so.
(b) Recipients are subject to applicable regulations governing
patents and inventions, including government-wide regulations issued by
the Department of Commerce at 37 CFR part 401, ``Rights to Inventions
Made by Nonprofit Organizations and Small Business Firms Under
Government Grants, Contracts and Cooperative Agreements.''
(c) Unless waived by EPA, the Federal Government has the right to
paragraphs (c) (1) and (2) of this section.
(1) Obtain, reproduce, publish or otherwise use the data first
produced under an award.
(2) Authorize others to receive, reproduce, publish, or otherwise
use such data for Federal purposes.
(d) Title to intangible property and debt instruments acquired
under an award or subaward vests upon acquisition in the recipient. The
recipient shall use that property for the originally-authorized
purpose, and the recipient shall not encumber the property without
approval of EPA. When no longer needed for the originally authorized
purpose, disposition of the intangible property shall occur in
accordance with the provisions of Sec. 30.34(g).
Sec. 30.37 Property trust relationship.
Real property, equipment, intangible property and debt instruments
that are acquired or improved with Federal funds shall be held in trust
by the recipient as trustee for the beneficiaries of the project or
program under which the property was acquired or improved. Agencies may
require recipients to record liens or other appropriate notices of
record to indicate that personal or real property has been acquired or
improved with Federal funds and that use and disposition conditions
apply to the property.
Procurement Standards
Sec. 30.40 Purpose of procurement standards.
Sections 30.41 through 30.48 set forth standards for use by
recipients in establishing procedures for the procurement of supplies
and other expendable property, equipment, real property and other
services with Federal funds. These standards are furnished to ensure
that such materials and services are obtained in an effective manner
and in compliance with the provisions of applicable Federal statutes
and Executive Orders. No additional procurement standards or
requirements shall be imposed by EPA upon recipients, unless
specifically required by Federal statute or Executive Order or approved
by OMB.
Sec. 30.41 Recipient responsibilities.
The standards contained in this part do not relieve the recipient
of the contractual responsibilities arising under its contract(s). The
recipient is the responsible authority, without recourse to EPA,
regarding the settlement and satisfaction of all contractual and
administrative issues arising out of procurements entered into in
support of an award or other agreement. This includes disputes, claims,
protests of award, source evaluation or other matters of a contractual
nature. Matters concerning
[[Page 6078]]
violation of statute are to be referred to such Federal, State or local
authority as may have proper jurisdiction.
Sec. 30.42 Codes of conduct.
The recipient shall maintain written standards of conduct governing
the performance of its employees engaged in the award and
administration of contracts. No employee, officer, or agent shall
participate in the selection, award, or administration of a contract
supported by Federal funds if a real or apparent conflict of interest
would be involved. Such a conflict would arise when the employee,
officer, or agent, any member of his or her immediate family, his or
her partner, or an organization which employs or is about to employ any
of the parties indicated herein, has a financial or other interest in
the firm selected for an award. The officers, employees, and agents of
the recipient shall neither solicit nor accept gratuities, favors, or
anything of monetary value from contractors, or parties to
subagreements. However, recipients may set standards for situations in
which the financial interest is not substantial or the gift is an
unsolicited item of nominal value. The standards of conduct shall
provide for disciplinary actions to be applied for violations of such
standards by officers, employees, or agents of the recipient.
Sec. 30.43 Competition.
All procurement transactions shall be conducted in a manner to
provide, to the maximum extent practical, open and free competition.
The recipient shall be alert to organizational conflicts of interest as
well as noncompetitive practices among contractors that may restrict or
eliminate competition or otherwise restrain trade. In order to ensure
objective contractor performance and eliminate unfair competitive
advantage, contractors that develop or draft specifications,
requirements, statements of work, invitations for bids and/or requests
for proposals shall be excluded from competing for such procurements.
Awards shall be made to the bidder or offeror whose bid or offer is
responsive to the solicitation and is most advantageous to the
recipient, price, quality and other factors considered. Solicitations
shall clearly set forth all requirements that the bidder or offeror
shall fulfill in order for the bid or offer to be evaluated by the
recipient. Any and all bids or offers may be rejected when it is in the
recipient's interest to do so.
Sec. 30.44 Procurement procedures.
(a) All recipients shall establish written procurement procedures.
These procedures shall provide for, at a minimum, that paragraphs (a)
(1), (2) and (3) of this section apply.
(1) Recipients avoid purchasing unnecessary items.
(2) Where appropriate, an analysis is made of lease and purchase
alternatives to determine which would be the most economical and
practical procurement for the Federal Government.
(3) Solicitations for goods and services provide for all of the
following.
(i) A clear and accurate description of the technical requirements
for the material, product or service to be procured. In competitive
procurements, such a description shall not contain features which
unduly restrict competition.
(ii) Requirements which the bidder/offeror must fulfill and all
other factors to be used in evaluating bids or proposals.
(iii) A description, whenever practicable, of technical
requirements in terms of functions to be performed or performance
required, including the range of acceptable characteristics or minimum
acceptable standards.
(iv) The specific features of ``brand name or equal'' descriptions
that bidders are required to meet when such items are included in the
solicitation.
(v) The acceptance, to the extent practicable and economically
feasible, of products and services dimensioned in the metric system of
measurement.
(vi) Preference, to the extent practicable and economically
feasible, for products and services that conserve natural resources and
protect the environment and are energy efficient.
(b) Positive efforts shall be made by recipients to utilize small
businesses, minority-owned firms, and women's business enterprises,
whenever possible. Recipients of Federal awards shall take all of the
following steps to further this goal.
(1) Ensure that small businesses, minority-owned firms, and women's
business enterprises are used to the fullest extent practicable.
(2) Make information on forthcoming opportunities available and
arrange time frames for purchases and contracts to encourage and
facilitate participation by small businesses, minority-owned firms, and
women's business enterprises.
(3) Consider in the contract process whether firms competing for
larger contracts intend to subcontract with small businesses, minority-
owned firms, and women's business enterprises.
(4) Encourage contracting with consortiums of small businesses,
minority-owned firms and women's business enterprises when a contract
is too large for one of these firms to handle individually.
(5) Use the services and assistance, as appropriate, of such
organizations as the Small Business Administration and the Department
of Commerce's Minority Business Development Agency in the solicitation
and utilization of small businesses, minority-owned firms and women's
business enterprises.
(6) If the prime contractor awards subcontracts, requiring the
contractor to take steps in paragraphs (b)(1) through (5) of this
section.
(c) The type of procuring instruments used (e.g., fixed price
contracts, cost reimbursable contracts, purchase orders, and incentive
contracts) shall be determined by the recipient but shall be
appropriate for the particular procurement and for promoting the best
interest of the program or project involved. The ``cost-plus-a-
percentage-of-cost'' or ``percentage of construction cost'' methods of
contracting shall not be used.
(d) Contracts shall be made only with responsible contractors who
possess the potential ability to perform successfully under the terms
and conditions of the proposed procurement. Consideration shall be
given to such matters as contractor integrity, record of past
performance, financial and technical resources or accessibility to
other necessary resources. In certain circumstances, contracts with
certain parties are restricted by agencies' implementation of Executive
Orders 12549 and 12689, ``Debarment and Suspension.''
(e) Recipients shall, on request, make available for EPA, pre-award
review and procurement documents, such as request for proposals or
invitations for bids, independent cost estimates, etc., when any of the
following conditions apply.
(1) A recipient's procurement procedures or operation fails to
comply with the procurement standards in EPA's implementation of
Circular A-110.
(2) The procurement is expected to exceed the small purchase
threshold fixed at 41 U.S.C. 403 (11) (currently $100,000) and is to be
awarded without competition or only one bid or offer is received in
response to a solicitation.
(3) The procurement, which is expected to exceed the small purchase
threshold, specifies a ``brand name'' product.
(4) The proposed award over the small purchase threshold is to be
awarded to other than the apparent low bidder under a sealed bid
procurement.
(5) A proposed contract modification changes the scope of a
contract or
[[Page 6079]]
increases the contract amount by more than the amount of the small
purchase threshold.
Sec. 30.45 Cost and price analysis.
Some form of cost or price analysis shall be made and documented in
the procurement files in connection with every procurement action.
Price analysis may be accomplished in various ways, including the
comparison of price quotations submitted, market prices and similar
indicia, together with discounts. Cost analysis is the review and
evaluation of each element of cost to determine reasonableness,
allocability and allowability.
Sec. 30.46 Procurement records.
Procurement records and files for purchases in excess of the small
purchase threshold shall include the following at a minimum: Basis for
contractor selection; justification for lack of competition when
competitive bids or offers are not obtained; and basis for award cost
or price.
Sec. 30.47 Contract administration.
A system for contract administration shall be maintained to ensure
contractor conformance with the terms, conditions and specifications of
the contract and to ensure adequate and timely follow up of all
purchases. Recipients shall evaluate contractor performance and
document, as appropriate, whether contractors have met the terms,
conditions and specifications of the contract.
Sec. 30.48 Contract provisions.
The recipient shall include, in addition to provisions to define a
sound and complete agreement, the following provisions in all
contracts. The following provisions shall also be applied to
subcontracts.
(a) Contracts in excess of the small purchase threshold shall
contain contractual provisions or conditions that allow for
administrative, contractual, or legal remedies in instances in which a
contractor violates or breaches the contract terms, and provide for
such remedial actions as may be appropriate.
(b) All contracts in excess of the small purchase threshold shall
contain suitable provisions for termination by the recipient, including
the manner by which termination shall be effected and the basis for
settlement. In addition, such contracts shall describe conditions under
which the contract may be terminated for default as well as conditions
where the contract may be terminated because of circumstances beyond
the control of the contractor.
(c) Except as otherwise required by statute, an award that requires
the contracting (or subcontracting) for construction or facility
improvements shall provide for the recipient to follow its own
requirements relating to bid guarantees, performance bonds, and payment
bonds unless the construction contract or subcontract exceeds $100,000.
For those contracts or subcontracts exceeding $100,000, EPA may accept
the bonding policy and requirements of the recipient, provided EPA has
made a determination that the Federal Government's interest is
adequately protected. If such a determination has not been made, the
minimum requirements shall be as follows.
(1) A bid guarantee from each bidder equivalent to five percent of
the bid price. The ``bid guarantee'' shall consist of a firm commitment
such as a bid bond, certified check, or other negotiable instrument
accompanying a bid as assurance that the bidder shall, upon acceptance
of his bid, execute such contractual documents as may be required
within the time specified.
(2) A performance bond on the part of the contractor for 100
percent of the contract price. A ``performance bond'' is one executed
in connection with a contract to secure fulfillment of all the
contractor's obligations under such contract.
(3) A payment bond on the part of the contractor for 100 percent of
the contract price. A ``payment bond'' is one executed in connection
with a contract to assure payment as required by statute of all persons
supplying labor and material in the execution of the work provided for
in the contract.
(4) Where bonds are required in the situations described herein,
the bonds shall be obtained from companies holding certificates of
authority as acceptable sureties pursuant to 31 CFR part 223, ``Surety
Companies Doing Business with the United States.''
(d) All negotiated contracts (except those for less than the small
purchase threshold) awarded by recipients shall include a provision to
the effect that the recipient, EPA, the Comptroller General of the
United States, or any of their duly authorized representatives, shall
have access to any books, documents, papers and records of the
contractor which are directly pertinent to a specific program for the
purpose of making audits, examinations, excerpts and transcriptions.
(e) All contracts, including small purchases, awarded by recipients
and their contractors shall contain the procurement provisions of the
Appendix to Circular A-110, as applicable. Reports and Records.
Sec. 30.50 Purpose of reports and records.
Sections 30.51 through 30.53 set forth the procedures for
monitoring and reporting on the recipient's financial and program
performance and the necessary standard reporting forms. They also set
forth record retention requirements.
Sec. 30.51 Monitoring and reporting program performance.
(a) Recipients are responsible for managing and monitoring each
project, program, subaward, function or activity supported by the
award. Recipients shall monitor subawards to ensure subrecipients have
met the audit requirements as delineated in Sec. 30.26.
(b) EPA shall prescribe the frequency with which the performance
reports shall be submitted. Except as provided in paragraph (f) of this
section, performance reports shall not be required more frequently than
quarterly or, less frequently than annually. Annual reports shall be
due 90 calendar days after the grant year; quarterly or semi-annual
reports shall be due 30 days after the reporting period. EPA may
require annual reports before the anniversary dates of multiple year
awards in lieu of these requirements. The final performance reports are
due 90 calendar days after the expiration or termination of the award.
(c) If inappropriate, a final technical or performance report shall
not be required after completion of the project.
(d) When required, performance reports shall generally contain, for
each award, brief information on each of the following.
(1) A comparison of actual accomplishments with the goals and
objectives established for the period, the findings of the
investigator, or both. Whenever appropriate and the output of programs
or projects can be readily quantified, such quantitative data should be
related to cost data for computation of unit costs.
(2) Reasons why established goals were not met, if appropriate.
(3) Other pertinent information including, when appropriate,
analysis and explanation of cost overruns or high unit costs.
(e) Recipients shall not be required to submit more than the
original and two copies of performance reports.
(f) Recipients shall immediately notify EPA of developments that
have a significant impact on the award-supported activities. Also,
notification shall be given in the case of problems, delays, or adverse
conditions which materially impair the ability to meet the objectives
of the award. This notification shall include a statement of
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the action taken or contemplated, and any assistance needed to resolve
the situation.
(g) EPA may make site visits, as needed.
(h) EPA shall comply with clearance requirements of 5 CFR part 1320
when requesting performance data from recipients.
Sec. 30.52 Financial reporting.
(a) The following forms or such other forms as may be approved by
OMB are authorized for obtaining financial information from recipients.
(1) SF-269 or SF-269A, Financial Status Report. (i) EPA shall
require recipients to use the SF-269 or SF-269A to report the status of
funds for all nonconstruction projects or programs. However, EPA has
the option of not requiring the SF-269 or SF-269A when the SF-270,
Request for Advance or Reimbursement, or SF-272, Report of Federal Cash
Transactions, is determined to provide adequate information to meet its
needs, except that a final SF-269 or SF-269A shall be required at the
completion of the project when the SF-270 is used only for advances.
(ii) EPA shall prescribe whether the report shall be on a cash or
accrual basis. If EPA requires accrual information and the recipient's
accounting records are not normally kept on the accrual basis, the
recipient shall not be required to convert its accounting system, but
shall develop such accrual information through best estimates based on
an analysis of the documentation on hand.
(iii) EPA shall determine the frequency of the Financial Status
Report for each project or program, considering the size and complexity
of the particular project or program. However, the report shall not be
required more frequently than quarterly or less frequently than
annually. A final report shall be required at the completion of the
agreement.
(iv) EPA shall require recipients to submit the SF-269 or SF-269A
(an original and no more than two copies) no later than 30 days after
the end of each specified reporting period for quarterly and semi-
annual reports, and 90 calendar days for annual and final reports.
Extensions of reporting due dates may be approved by EPA upon request
of the recipient.
(2) SF-272, Report of Federal Cash Transactions. (i) When funds are
advanced to recipients EPA shall require each recipient to submit the
SF-272 and, when necessary, its continuation sheet, SF-272A. EPA shall
use this report to monitor cash advanced to recipients and to obtain
disbursement information for each agreement with the recipients.
(ii) EPA may require forecasts of Federal cash requirements in the
``Remarks'' section of the report.
(iii) When practical and deemed necessary, EPA may require
recipients to report in the ``Remarks'' section the amount of cash
advances received in excess of three days. Recipients shall provide
short narrative explanations of actions taken to reduce the excess
balances.
(iv) Recipients shall be required to submit not more than the
original and two copies of the SF-272 15 calendar days following the
end of each quarter. EPA may require a monthly report from those
recipients receiving advances totaling $1 million or more per year.
(v) EPA may waive the requirement for submission of the SF-272 for
any one of the following reasons:
(A) When monthly advances do not exceed $25,000 per recipient,
provided that such advances are monitored through other forms contained
in this section;
(B) If, in EPA's opinion, the recipient's accounting controls are
adequate to minimize excessive Federal advances; or
(C) When the electronic payment mechanisms provide adequate data.
(b) When EPA needs additional information or more frequent reports,
the following shall be observed.
(1) When additional information is needed to comply with
legislative requirements, EPA shall issue instructions to require
recipients to submit such information under the ``Remarks'' section of
the reports.
(2) When EPA determines that a recipient's accounting system does
not meet the standards in Sec. 30.21, additional pertinent information
to further monitor awards may be obtained upon written notice to the
recipient until such time as the system is brought up to standard. EPA,
in obtaining this information, shall comply with report clearance
requirements of 5 CFR part 1320.
(3) EPA may shade out any line item on any report if not necessary.
(4) EPA may accept the identical information from the recipients in
machine readable format or computer printouts or electronic outputs in
lieu of prescribed formats.
(5) EPA may provide computer or electronic outputs to recipients
when such expedites or contributes to the accuracy of reporting.
Sec. 30.53 Retention and access requirements for records.
(a) This section sets forth requirements for record retention and
access to records for awards to recipients. EPA shall not impose any
other record retention or access requirements upon recipients.
(b) Financial records, supporting documents, statistical records,
and all other records pertinent to an award shall be retained for a
period of three years from the date of submission of the final
expenditure report or, for awards that are renewed quarterly or
annually, from the date of the submission of the quarterly or annual
financial report, as authorized by EPA. The only exceptions are the
following.
(1) If any litigation, claim, or audit is started before the
expiration of the 3-year period, the records shall be retained until
all litigation, claims or audit findings involving the records have
been resolved and final action taken.
(2) Records for real property and equipment acquired with Federal
funds shall be retained for 3 years after final disposition.
(3) When records are transferred to or maintained by EPA, the 3-
year retention requirement is not applicable to the recipient.
(4) Indirect cost rate proposals, cost allocations plans, etc. as
specified in paragraph (g) of this section.
(c) Copies of original records may be substituted for the original
records if authorized by EPA.
(d) EPA shall request transfer of certain records to its custody
from recipients when it determines that the records possess long term
retention value. However, in order to avoid duplicate recordkeeping,
EPA may make arrangements for recipients to retain any records that are
continuously needed for joint use.
(e) EPA, the Inspector General, Comptroller General of the United
States, or any of their duly authorized representatives, have the right
of timely and unrestricted access to any books, documents, papers, or
other records of recipients that are pertinent to the awards, in order
to make audits, examinations, excerpts, transcripts and copies of such
documents. This right also includes timely and reasonable access to a
recipient's personnel for the purpose of interview and discussion
related to such documents. The rights of access in this paragraph are
not limited to the required retention period, but shall last as long as
records are retained.
(f) Unless required by statute, EPA shall not place restrictions on
recipients that limit public access to the records of recipients that
are pertinent to an award, except when it can be demonstrated that such
records shall be kept confidential and would have been
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exempted from disclosure pursuant to the Freedom of Information Act (5
U.S.C. 552) if the records had belonged to EPA.
(g) Indirect cost rate proposals, cost allocations plans, etc.
Paragraphs (g)(1) and (g)(2) of this section apply to the following
types of documents, and their supporting records: indirect cost rate
computations or proposals, cost allocation plans, and any similar
accounting computations of the rate at which a particular group of
costs is chargeable (such as computer usage chargeback rates or
composite fringe benefit rates).
(1) If submitted for negotiation. If the recipient submits to EPA
or the subrecipient submits to the recipient the proposal, plan, or
other computation to form the basis for negotiation of the rate, then
the 3-year retention period for its supporting records starts on the
date of such submission.
(2) If not submitted for negotiation. If the recipient is not
required to submit to EPA or the subrecipient is not required to submit
to the recipient the proposal, plan, or other computation for
negotiation purposes, then the 3-year retention period for the
proposal, plan, or other computation and its supporting records starts
at the end of the fiscal year (or other accounting period) covered by
the proposal, plan, or other computation.
Sec. 30.54 Quality assurance.
If the project officer determines that the grantee's project
involves environmentally related measurements or data generation, the
grantee shall develop and implement quality assurance practices
consisting of policies, procedures, specifications, standards, and
documentation sufficient to produce data of quality adequate to meet
project objectives and to minimize loss of data due to out-of-control
conditions or malfunctions. The quality system must comply with the
requirements of ANSI/ASQC E4, ``Specifications and Guidelines for
Quality Systems for Environmental Data Collection and Environmental
Technology Programs'', which may be obtained from the National
Technical Information Service (NTIS), 5885 Port Royal Road,
Springfield, VA 22161.
Termination and Enforcement
Sec. 30.60 Purpose of termination and enforcement.
Sections 30.61 and 30.62 set forth uniform suspension, termination
and enforcement procedures.
Sec. 30.61 Termination.
(a) Awards may be terminated in whole or in part only if paragraph
(a)(1), (2) or (3) of this section applies.
(1) By EPA, if a recipient materially fails to comply with the
terms and conditions of an award.
(2) By EPA with the consent of the recipient, in which case the two
parties shall agree upon the termination conditions, including the
effective date and, in the case of partial termination, the portion to
be terminated.
(3) By the recipient upon sending to EPA written notification
setting forth the reasons for such termination, the effective date,
and, in the case of partial termination, the portion to be terminated.
However, if EPA determines in the case of partial termination that the
reduced or modified portion of the grant will not accomplish the
purposes for which the grant was made, it may terminate the grant in
its entirety under either paragraph (a)(1) or (2) of this secion.
(b) If costs are allowed under an award, the responsibilities of
the recipient referred to in Sec. 30.71(a), including those for
property management as applicable, shall be considered in the
termination of the award, and provision shall be made for continuing
responsibilities of the recipient after termination, as appropriate.
Sec. 30.62 Enforcement.
(a) Remedies for noncompliance. If a recipient materially fails to
comply with the terms and conditions of an award, whether stated in a
Federal statute, regulation, assurance, application, or notice of
award, EPA may, in addition to imposing any of the special conditions
outlined in Sec. 30.14, take one or more of the following actions, as
appropriate in the circumstances.
(1) Temporarily withhold cash payments pending correction of the
deficiency by the recipient or more severe enforcement action by EPA.
(2) Disallow (that is, deny both use of funds and any applicable
matching credit for) all or part of the cost of the activity or action
not in compliance.
(3) Wholly or partly suspend or terminate the current award.
(4) Withhold further awards for the project or program.
(5) Take other remedies that may be legally available.
(b) Hearings and appeals. In taking an enforcement action, EPA
shall provide the recipient an opportunity for hearing, appeal, or
other administrative proceeding to which the recipient is entitled
under any statute or regulation applicable to the action involved.
EPA's Dispute Provisions found at 40 CFR part 31, subpart F, Disputes,
are applicable to assistance awarded under the provisions of this Part.
(c) Effects of suspension and termination. Costs of a recipient
resulting from obligations incurred by the recipient during a
suspension or after termination of an award are not allowable unless
EPA expressly authorizes them in the notice of suspension or
termination or subsequently. Other recipient costs during suspension or
after termination which are necessary and not reasonably avoidable are
allowable if paragraphs (c)(1) and (2) of this section apply.
(1) The costs result from obligations which were properly incurred
by the recipient before the effective date of suspension or
termination, are not in anticipation of it, and in the case of a
termination, are noncancellable.
(2) The costs would be allowable if the award were not suspended or
expired normally at the end of the funding period in which the
termination takes effect.
(d) Relationship to debarment and suspension. The enforcement
remedies identified in this section, including suspension and
termination, do not preclude a recipient from being subject to
debarment and suspension under Executive Orders 12549 and 12689 and
EPA's implementing regulations (see Sec. 30.13).
Sec. 30.63 Disputes.
(a) Disagreements should be resolved at the lowest possible level.
(b) If an agreement cannot be reached, the EPA disputes decision
official will provide a written final decision. The EPA disputes
decision official is the individual designated by the award official to
resolve disputes concerning assistance agreements. If the dispute
cannot be resolved the procedures outlined at 40 CFR part 31, subpart
F, should be followed.
Subpart D--After-the-Award Requirements
Sec. 30.70 Purpose.
Sections 30.71 through 30.73 contain closeout procedures and other
procedures for subsequent disallowances and adjustments.
Sec. 30.71 Closeout procedures.
(a) Recipients shall submit, within 90 calendar days after the date
of completion of the award, all financial, performance, and other
reports as required by the terms and conditions of the award. EPA may
approve extensions when requested by the recipient.
[[Page 6082]]
(b) Unless EPA authorizes an extension, a recipient shall liquidate
all obligations incurred under the award not later than 90 calendar
days after the funding period or the date of completion as specified in
the terms and conditions of the award or in agency implementing
instructions.
(c) EPA shall make prompt payments to a recipient for allowable
reimbursable costs under the award being closed out.
(d) The recipient shall promptly refund any balances of unobligated
cash that EPA has advanced or paid and that is not authorized to be
retained by the recipient for use in other projects. OMB Circular A-129
governs unreturned amounts that become delinquent debts.
(e) When authorized by the terms and conditions of the award, EPA
shall make a settlement for any upward or downward adjustments to the
Federal share of costs after closeout reports are received.
(f) The recipient shall account for any real and personal property
acquired with Federal funds or received from the Federal Government in
accordance with Secs. 30.31 through 30.37.
(g) In the event a final audit has not been performed prior to the
closeout of an award, EPA shall retain the right to recover an
appropriate amount after fully considering the recommendations on
disallowed costs resulting from the final audit.
Sec. 30.72 Subsequent adjustments and continuing responsibilities.
(a) The closeout of an award does not affect any of the following.
(1) The right of EPA to disallow costs and recover funds on the
basis of a later audit or other review.
(2) The obligation of the recipient to return any funds due as a
result of later refunds, corrections, or other transactions.
(3) Audit requirements in Sec. 30.26.
(4) Property management requirements in Secs. 30.31 through 30.37.
(5) Records retention as required in Sec. 30.53.
(b) After closeout of an award, a relationship created under an
award may be modified or ended in whole or in part with the consent of
EPA and the recipient, provided the responsibilities of the recipient
referred to in Sec. 30.73(a), including those for property management
as applicable, are considered and provisions made for continuing
responsibilities of the recipient, as appropriate.
Sec. 30.73 Collection of amounts due.
(a) Any funds paid to a recipient in excess of the amount to which
the recipient is finally determined to be entitled under the terms and
conditions of the award constitute a debt to the Federal Government. If
not paid within a reasonable period after the demand for payment, EPA
may reduce the debt by paragraph (a) (1), (2) or (3) of this section.
(1) Making an administrative offset against other requests for
reimbursements.
(2) Withholding advance payments otherwise due to the recipient.
(3) Taking other action permitted by statute.
(b) Except as otherwise provided by law, EPA shall charge interest
on an overdue debt in accordance with 4 CFR Chapter II, ``Federal
Claims Collection Standards.''
Appendix to Part 30--Contract Provisions
All contracts awarded by a recipient, including small purchases,
shall contain the following provisions as applicable:
1. Equal Employment Opportunity--All contracts shall contain a
provision requiring compliance with Executive Order 11246, ``Equal
Employment Opportunity,'' as amended by Executive Order 11375,
``Amending Executive Order 11246 Relating to Equal Employment
Opportunity,'' and as supplemented by regulations at 41 CFR part 60,
``Office of Federal Contract Compliance Programs, Equal Employment
Opportunity, Department of Labor.''
2. Copeland ``Anti-Kickback'' Act (18 U.S.C. 874 and 40 U.S.C.
276c)--All contracts and subgrants in excess of $100,000 for
construction or repair awarded by recipients and subrecipients shall
include a provision for compliance with the Copeland ``Anti-
Kickback'' Act (18 U.S.C. 874), as supplemented by Department of
Labor regulations (29 CFR part 3, ``Contractors and Subcontractors
on Public Building or Public Work Financed in Whole or in Part by
Loans or Grants from the United States''). The Act provides that
each contractor or subrecipient shall be prohibited from inducing,
by any means, any person employed in the construction, completion,
or repair of public work, to give up any part of the compensation to
which he is otherwise entitled. The recipient shall report all
suspected or reported violations to EPA.
3. Davis-Bacon Act, as amended (40 U.S.C. 276a to a-7)--When
required by Federal program legislation, all construction contracts
awarded by the recipients and subrecipients of more than $2000 shall
include a provision for compliance with the Davis-Bacon Act (40
U.S.C. 276a to a-7) and as supplemented by Department of Labor
regulations (29 CFR part 5, ``Labor Standards Provisions Applicable
to Contracts Governing Federally Financed and Assisted
Construction''). Under this Act, contractors shall be required to
pay wages to laborers and mechanics at a rate not less than the
minimum wages specified in a wage determination made by the
Secretary of Labor. In addition, contractors shall be required to
pay wages not less than once a week. The recipient shall place a
copy of the current prevailing wage determination issued by the
Department of Labor in each solicitation and the award of a contract
shall be conditioned upon the acceptance of the wage determination.
The recipient shall report all suspected or reported violations to
EPA.
4. Contract Work Hours and Safety Standards Act (40 U.S.C. 327-
333)--Where applicable, all contracts awarded by recipients in
excess of $100,000 for construction contracts and in excess of $2500
for other contracts that involve the employment of mechanics or
laborers shall include a provision for compliance with sections 102
and 107 of the Contract Work Hours and Safety Standards Act (40
U.S.C. 327-333), as supplemented by Department of Labor regulations
(29 CFR part 5). Under section 102 of the Act, each contractor shall
be required to compute the wages of every mechanic and laborer on
the basis of a standard work week of 40 hours. Work in excess of the
standard work week is permissible provided that the worker is
compensated at a rate of not less than 1/2 times the basic rate of
pay for all hours worked in excess of 40 hours in the work week.
Section 107 of the Act is applicable to construction work and
provides that no laborer or mechanic shall be required to work in
surroundings or under working conditions which are unsanitary,
hazardous or dangerous. These requirements do not apply to the
purchases of supplies or materials or articles ordinarily available
on the open market, or contracts for transportation or transmission
of intelligence.
5. Rights to Inventions Made Under a Contract or Agreement--
Contracts or agreements for the performance of experimental,
developmental, or research work shall provide for the rights of the
Federal Government and the recipient in any resulting invention in
accordance with 37 CFR part 401, ``Rights to Inventions Made by
Nonprofit Organizations and Small Business Firms Under Government
Grants, Contracts and Cooperative Agreements,'' and any implementing
regulations issued by EPA.
6. Clean Air Act (42 U.S.C. 7401 et seq.) and the Federal Water
Pollution Control Act (33 U.S.C. 1251 et seq.), as amended--
Contracts and subgrants of amounts in excess of $100,000 shall
contain a provision that requires the recipient to agree to comply
with all applicable standards, orders or regulations issued pursuant
to the Clean Air Act (42 U.S.C. 7401 et seq.) and the Federal Water
Pollution Control Act as amended (33 U.S.C. 1251 et seq.).
Violations shall be reported to the Regional Office of the
Environmental Protection Agency (EPA).
7. Byrd Anti-Lobbying Amendment (31 U.S.C. 1352)--Contractors
who apply or bid for an award of more than $100,000 shall file the
required certification. Each tier certifies to the tier above that
it will not and has not used Federal appropriated funds to pay any
person or organization for influencing or attempting to influence an
officer or employee of any agency, a member of Congress, officer or
employee of Congress, or an employee of a member of Congress in
connection with obtaining any Federal
[[Page 6083]]
contract, grant or any other award covered by 31 U.S.C. 1352. Each tier
shall also disclose any lobbying with non-Federal funds that takes
place in connection with obtaining any Federal award. Such
disclosures are forwarded from tier to tier up to the recipient.
8. Debarment and Suspension (Executive Orders 12549 and 12689)--
No contract shall be made to parties listed on the General Services
Administration's List of Parties Excluded from Federal Procurement
or Nonprocurement Programs in accordance with Executive Orders 12549
and 12689, ``Debarment and Suspension.'' This list contains the
names of parties debarred, suspended, or otherwise excluded by
agencies, and contractors declared ineligible under statutory or
regulatory authority other than Executive Order 12549. Contractors
with awards that exceed the small purchase threshold shall provide
the required certification regarding its exclusion status and that
of its principal employees.
[FR Doc. 96-2502 Filed 2-14-96; 8:45 am]
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